Mamtabai vs State of M.P.

S.C. Vyas, J.

Mr. Manoj Saxena, Learned Counsel for the applicant.

Mr. Bhagwan Singh, learned panel lawyer for respondent/State.

This first application filed by the applicant u/s 438 of Criminal Procedure Code for grant of anticipatory bail apprehending arrest in connection with Crime No. 212/06 registered by police-Awantipur Brodia, Shajapur under sections 376(2)(g) and 506 read with section 34 of Indian Penal Code against co-accused Girdhari and present applicant, on the allegation that co-accused Girdhari committed rape of prosecutrix, who ultimately become pregnant and present applicant asked the prosecutrix to permit co-accused Girdhar to perform sexual act with her and assured that nothing harm will happen.

Learned Counsel for the applicant submitted that, firstly the prosecutrix was the consenting party, and secondly he submitted that present applicant being a lady she cannot be prosecuted for the offence punishable u/s 376(2)(g) of Indian Penal Code and in view of the latest pronouncement of the Supreme Court in the case of Priya Patel vs. State of M.P. and another, (2006) 3 SCC (Cri)96.

The judgment of the Supreme Court perused. It has been held in the judgment that "the appellant wife cannot be prosecuted for alleged commission of the offence punishable u/s 376(2)(g), because a woman cannot be said to have an intention to commit rape".

Following this pronouncement prima facie the offence punishable u/s 376(2)(g) is not made out against present applicant.

Therefore, her application is allowed, and it is ordered that in the event of arrest applicant be released on bail for the period of one month subject to her furnishing a personal bond in the sum of Rs. 10,000/- with one surety of like amount to the satisfaction of the Arresting Officer, on the conditions enumerated u/s 438(2) of Criminal Procedure Code.

Applicant may apply for regular bail before competent Court during the aforesaid period of one month. C.C.