IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL DHAGAT th ON THE 16 OF FEBRUARY, 2024 MISC. CRIMINAL CASE No. 6602 of 2024 BETWEEN:-

VIVEK SINGH S/O SHRI RABENDRA SINGH, AGED ABOUT 43 YEARS, OCCUPATION: GOVERNMENT SERVANT RESIDENT OF VILLAGE HINOUTA POLICE STATION SEMAIRYA DISTRICT REWA (MADHYA PRADESH)

.....APPLICANT (BY SHRI MANISH DATT, SR. ADVOCATE WITH SHRI ISHAN TIGNATH, ADVOCATE)

AND THE STATE OF MADHYA PRADESH THROUGH POLICE STATION CIVIL LINES DISTRICT REWA (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI )

This application coming on for admission this day, the court passed the following:

ORDER

This is the first bail application filed on behalf of the applicant/accused under Section 438 of the Cr.P.C. for grant of anticipatory bail, as he is under apprehension of his arrest, in connection with Crime No.645/2023, registered at Police Station Civil Lines, District Rewa (M.P.) for the offences punishable under Sections 302, 330, 331 and 34 of IPC.

2. Learned Senior Counsel appearing for the applicant submitted that according to prosecution story applicant who is a Head Constable, to extort Signature Not Verified Signed by: MONSI confession from victim, is said to have tortured her which may or may not ultimately resulted in death of said victim. It is submitted that offence committed by the applicant will specifically be covered under section 330 of IPC and not under section 302 of IPC. It is submitted that offence under section 330 of IPC is punishable with term which may extend upto 7 years and is bailable in nature and triable by J.M.F.C and is non-compoundable in nature.

Applicant does not have any intention to kill the victim. In absence of mens rea for killing the victim offence under section 302 of IPC will not be made out and offence will be under section 330 of IPC. Further reliance has been placed on judgment passed by Apex Court in the case of Sham Kant vs. State of Maharashtra, 1992 Supp (3) SCC 521. In said case third degree treatment was given by police to a person and he ultimately died. In said case Apex Court held that offence will be under section 330 of IPC as same was done to extort confession or for restoration of property. Considering the aforesaid, applicant may be enlarged on anticipatory bail.

3 . Learned Govt. Advocate appearing for the State opposed the application for grant of anticipatory bail and submitted that offence committed by the applicant is to be read alongwith Section 302 of IPC. Offence is heinous in nature and applicant is a Police Head Constable who is duty bound to act in accordance with law. In these circumstances, applicant may not be enlarged on anticipatory bail.

4. Heard the learned counsel for the parties.

5 . According to prosecution story, applicant has given third degree treatment which resulted in death of victim. Offence which is committed by applicant is not only an offence under section 330 of IPC because voluntary hurt caused to extort confession resulted in death. Offence may be graver than Signature Not Verified Signed by: MONSI offence under section 330 of IPC and same will not be bailable in nature. Offence under section 331 of IPC is to cause grievous hurt to extort confession. Present case will fall under section 331 read with Section 302, 302 (Part-II) or 304 of IPC.

6. Considering the aforesaid circumstances, anticipatory bail application filed by the applicant is dismissed.

(VISHAL DHAGAT)

JUDGE mms Signature Not Verified Signed by: MONSI