1 2025:CGHC:59330 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MCRCA No. 1831 of 2025 Xyz Nil ... Applicant versus State Of Chhattisgarh Through Police Station Telibandha, District – Raipur (C.G.) ... Non-applicant For Applicant : Mr. Anand Dahariya and Mr. Amit Singh, Advocates. For Non-Applicant/State : Mr. Swajeet Singh Ubeja, Panel Lawyer. For Objector/Complainant : Mr. Palash Agrawal, Advocate. Hon'ble Mr. Ramesh Sinha, Chief Justice Order on Board 05.12.2025 1. This first anticipatory bail application under Section 482 of the Bhartiya Nagarik Suraksha Sanhita, 2023 has been filed by the applicant, who is apprehending his arrest in connection with Crime No. 460/2025 registered at Police Station – Telibandha, District – Raipur (C.G.) for the offences punishable under Sections 64(2)(f) and 65(2) of the BNS and Section 4 of the Prevention of Children from Sexual Offences (POCSO) Act. 2. As per the prosecution story, in short, the complainant lodged a complaint to this effect that, the applicant who is the husband of the complainant has tried to stimulate the private part of his daughter RAJSHEKHAR SONI Digitally signed by RAJSHEKHAR SONI 2 namely 'X' aged about 6.5 years on 23.04.2025. In the complaint, it has been stated that the complainant who is the mother of the victim left her house on 22.04.2025 by leaving her minor daughters with the applicant and returned back on 24.04.2025, at about 8:30 PM on phone call made by friend of applicant namely Yogesh Bansal and his wife Pinky Bansal who informed that daughter namely 'X' has been dropped at their house by the applicant who is suffering from fever. As per story, on receiving call from Yogesh Bansal and Pinky Bansal, the complainant immediately rushed to the house of Yogesh Bansal and Pinky Bansal and saw that the daughter is shivering as she was suffering from fever and repeatedly going washroom due to which the complainant doubted and asked from the daughter who stated that on 23.04.2025 while she was sleeping the accused removed her panty and tried stimulate her private part with his fingers. On the basis of the above allegation, the FIR was lodged against the applicant. Hence, this application. 3. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in this case. He submits that there is a matrimonial dispute between the applicant and the complainant, and their marriage was solemnized in the year 2010 and out of the wedlock 2 female children were born, and as the relationship between both of them became uncordial, the complainant who is the wife of the applicant/accused has separated since 12.02.2021 and divorce petition was also fled by her before the Family Court, and the two minor girl children are living with the complainant. It is submitted that the present incident is said to have taken place on 23.04.2025, wherein the allegation levelled against the applicant that he has sexually assaulted 3 his minor child who was 6 years and 7 months old, for which an FIR was lodged by the complainant on 28.07.2025 at the Police Station Telibandha, District – Raipur, for offence under Sections 64(2)(f) and 65(2) of the BNS and Section 4 of POCSO Act. It is submitted that the MLC of the victim child was performed and MLC report goes to show that the doctor has opined that no definite opinion can be given regarding recent sexual intercourse, furthermore, no such injury of sexual assault was seen in her private parts. It is also submitted that though there is an FSL report which goes to show that the human sperm was found, but as per the allegation made in the FIR, it is a case of stimulating the private part of the victim by fingers only, hence, the FSL report cannot be relied upon. Subsequently, another FIR was also lodged by the complainant on 25.04.2025 against the applicant bearing Crime No. 235/2025 registered at the same Police Station Telibandha, District – Raipur, for an offence under Sections 296, 115(2) and 351(2) of BNS, which has been taken place on 23.04.2025 stating that the complainant was at her home on 24.04.2025 and applicant by consuming liquor entered her house and committed assault with her in obscene language, and copy of the FIR dated 25.04.2025 is filed with the bail application as Annexure-A/5. 4. 4. It is also submitted by learned counsel for the applicant that the an incident which has taken place on 24.04.2025 at midnight, for which the complainant was so prompt to lodge an FIR for the said incident on 25.04.2025, but so far as the present incident is concerned, though the same is said to have taken place on 23.04.2025, the FIR for the same was lodged on 28.07.2025 i.e. after a long delay of 3 months of the 4 incident, for which no such explanation has been given by the complainant. Hence, only because of the matrimonial discord, the complainant had misused her minor daughter(victim) against the applicant to falsely implicate him in the present case. Therefore, he prays for grant of anticipatory bail to the applicant. 5. On the other hand, learned State counsel, opposes the bail application of the present applicant and submits that the applicant is not entitled for grant of anticipatory bail in the present case. 6. Learned counsel for the Objector opposed the for grant of anticipatory bail to the applicant and submits that statement of the minor daughter (victim) of the complainant recorded under Section 183 of BNSS was recorded, and further her evidence has already been recorded by the learned trial Court, wherein she has levelled allegation against the applicant for sexual assault. It is further submitted that the applicant is absconding and the trial Court has proceeded against the applicant under Section 335 of BNSS. Section 335 of BNSS reads as under: “335. Record of evidence in absence of accused.— (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try, or commit for trial, such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. 5 (2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India.” 7. Learned counsel for the applicant opposed the submission of counsel for the Objector and submitted that the trial Court has not framed any charge against the applicant and has proceeded with the provision under Section 335 of BNSS without recording satisfaction with respect to the provision contained under Section 356 of BNSS, which goes to show that the trial Judge has also overstepped his jurisdiction and is proceeding against the applicant in absentia with the trial of the present case. Section 356 of BNSS reads as under: “356. Inquiry, trial or judgment in absentia of proclaimed offender.— (1) Notwithstanding anything contained in this Sanhita or in any other law for the time being in force, when a person declared as a proclaimed offender, whether or not charged jointly, has absconded to evade trial and there is no immediate prospect of arresting him, it shall be deemed to operate as a waiver of the right of such person to be present and tried in person, and the Court shall, after recording reasons in writing, in the interest of justice, proceed with the trial in the like manner and with like effect as if he was present, under this Sanhita and pronounce the judgment: Provided that the Court shall not commence the trial unless a period of ninety days has lapsed from the date of framing of the charge. (2) The Court shall ensure that the following procedure has been complied with before proceeding under sub-section (1), namely: — 6 (i) issuance of two consecutive warrants of arrest within the interval of at least thirty days; (ii) publish in a national or local daily newspaper circulating in the place of his last known address of residence, requiring the proclaimed offender to appear before the Court for trial and informing him that in case he fails to appear within thirty days from the date of such publication, the trial shall commence in his absence; (iii) inform his relative or friend, if any, about the commencement of the trial; and (iv) affix information about the commencement of the trial on some conspicuous part of the house or homestead in which such person ordinarily resides and display in the police station of the district of his last known address of residence. (3) Where the proclaimed offender is not represented by any advocate, he shall be provided with an advocate for his defence at the expense of the State. (4) Where the Court, competent to try the case or commit for trial, has examined any witnesses for prosecution and recorded their depositions, such depositions shall be given in evidence against such proclaimed offender on the inquiry into, or in trial for, the offence with which he is charged: Provided that if the proclaimed offender is arrested and produced or appears before the Court during such trial, the Court may, in the interest of justice, allow him to examine any evidence which may have been taken in his absence. (5) Where a trial is related to a person under this section, the deposition and examination of the witness, may, as far as practicable, be recorded by audio-video electronic means preferably mobile phone and such recording shall be kept in such manner as the Court may direct. (6) In prosecution for offences under this Sanhita, voluntary absence of accused after the trial has commenced under sub-section (1) shall not prevent continuing the trial including the pronouncement of the judgment even if he is arrested and produced or appears at the conclusion of such trial. (7) No appeal shall lie against the judgment under this section unless the proclaimed offender presents himself before the Court of appeal: 7 Provided that no appeal against conviction shall lie after the expiry of three years from the date of the judgment. (8) The State may, by notification, extend the provisions of this section to any absconder mentioned in sub-section (1) of section 84.” 8. I have heard learned counsel for the parties and perused the case diary. 9. Considering the facts and circumstances of the case and further the fact that it is matrimonial dispute between the husband and wife who are the accused and the complainant, and because of which the victim who is their minor daughter, aged about 06 years and 06 months, is also appears to have been also misused by the complainant for falsely implicating the applicant in the present case, and furthermore, there appears to be no explanation given by the complainant as to what stopped her for lodging the FIR after 3 months of the incident taken place on 23.04.2025, whereas, on 24.05.2025 in the midnight also an incident took place for which she lodged an FIR on the very next date against the applicant. Moreover, The MLC report of the minor victim does not indicate any definite opinion regarding recent sexual intercourse, nor does it reveal any injury suggestive of sexual assault. Further, although the FSL report mentions the presence of human sperm, but the allegation in the FIR pertains only to stimulating the private part by fingers, which creates an apparent incongruity in the prosecution version, hence, the FSL report cannot be relied upon. Though the learned counsel for the Objector has relied upon the statement of the minor victim recorded under Section 183 of the BNSS and her subsequent evidence before the trial Court, but it has been also pointed out that the trial Court has proceeded under Section 335 8 of the BNSS in applicant’s absence without recording satisfaction with respect to the provision as mandated under Section 356 of the BNSS, which goes to show that the trial Judge has also overstepped his jurisdiction and is proceeding against the applicant in absentia with the trial of the present case. Furthermore, it is admitted to learned counsel for the applicant, that the trial Court has not framed any charge against the applicant. Considering the circumstances including the delay in lodging the FIR of the incident, the medical findings, the pending matrimonial dispute, and the procedural irregularities pointed out, this Court is of the opinion that the applicant is liable to be enlarged on bail in the present case. 10. Accordingly, considering the facts and circumstances of the case, without expressing any opinion on the merits of the case, the instant MCRCA is allowed and it is directed that in the event of arrest of the applicant – Xyz, on executing a personal bond and one surety in the like sum to the satisfaction of the arresting Officer, she shall be released on bail on the following conditions:- (a) he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such fact to the Court. (b) he shall not act in any manner which will be prejudicial to fair and expeditious trial. (c) he shall appear before the trial Court on each and every date given to him by the said Court till disposal of the trial. 9 (d) the applicant and the surety shall submit a copy of his adhaar card along with a coloured postcard full size photo having printed the adhaar number on it, which shall be verified by the trial Court. (e) he shall not involve himself in any offence of similar nature in future. Sd/- (Ramesh Sinha) CHIEF JUSTICE Rajshekhar