IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL MISHRA ON THE 17^th OF NOVEMBER, 2022 MISC. CRIMINAL CASE No. 38013 of 2022 BETWEEN:-

SANTOSH S/O BHAGIRATH, AGED ABOUT 22 YEARS, OCCUPATION: LABOUR BY CASTE GOND VILLAGE KHUDURPANI TANDOTOLA POLICE STATION SAMANAPUR DISTRICT DINDORI (MADHYA PRADESH)

.....APPLICANT (BY SHRI M.K. SALUNKE - ADVOCATE)

AND

1. THE STATE OF MADHYA PRADESH THROUGH POLICE STATION MAHILA THANA DINDORI DISTRICT DINDORI (MADHYA PRADESH)

2 A ANNEXED D/O NOT MENTION NOT MENTION (MADHYA PRADESH)

.....RESPONDENTS (SHRI AJEET RAWAT - GOVERNMENT ADVOCATE FOR RESPONDENT NO.1)

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

ORDER

This is the second bail application under Section 439 of Cr.P.C filed by the applicant for grant of bail. His first application was dismissed as withdrawn vide order dated 14.01.2022 passed in M.Cr.C.No.64798 of

2021.

Signature Not Verified Signed by: SUSHEEL The applicant has been arrested on 22.10.2021 by Police Station -

Mahila Thana Dindori, District Dindori (M.P.) in connection with Crime No.26 of 2021 for the offence punishable under Sections 376, 376(2) (N), 376 (3) of Indian Penal Code and Sections 4 & 6 of the Protection of Children From Sexual Offence Act, 2012 and Sections 4, 5 & 6 of Prohibition of Child Marriage.

This repeat application has been filed on the ground that statements of material witnesses have been recorded before the trial Court and they have not supported the prosecution case and have declared hostile. It is submitted that this Court vide order dated 05.08.2022 had directed the State to produce the FSL report and the FSL report which has been produced by the police authorities, is found to be negative. The applicant is in custody since 22.10.2021. He is ready to abide by all the terms and conditions that may be imposed by this Court while considering his bail application. In view of the aforesaid, he prays for grant of bail.

Per contra, learned counsel appearing for the State has vehemently opposed the contentions stating therein that there are specific allegations against the applicant; however, he could not dispute the fact that the prosecution witnesses have turned hostile. He has prayed for dismissal of the application.

A specific question was put to the learned counsel appearing for the State that as to what happens to the DNA report, it is his argument that the police authorities have not sent samples for DNA analysis for the reasons that once the FSL report is found to be negative, there is no requirement for sending it for DNA sampling.

Under these circumstances, when the prosecutrix herself has not supported the prosecution case, coupled with the fact that FSL report is found to be negative and no DNA sample was sent by the police authorities, without commenting upon the merits of the case, this Court Signature Not Verified Signed by: SUSHEEL deems it appropriate to allow this application. Accordingly the application is allowed. The applicant is directed to be released on bail and on furnishing surety bond of Rs.50,000/-(Rupees Fifty Thousand Only) with one solvent surety in the like amount to the satisfaction of trial Court. It is also directed that the applicant shall comply with the conditions as enumerated under Section 437(3) Cr.P.C. In view of the outbreak of 'Corona Virus disease (COVID-19)' the concerned jail authorities are directed to follow the directions/guidelines issued by the Government with regard to 'COVID-19' before releasing the applicant. This order shall remain effective till the end of the trial but in case of bail jump and breach of any of the pre-condition of bail, it shall become ineffective and cancelled without reference to this Bench.

The Hon'ble Supreme Court in the case of Sunil Vs. State of Madhya Pradesh reported in (2017) 4 SCC 393 with respect to FSL and DNA examin