Arvind And Others vs State Of M.P

In the wake of unprecedented and uncertain situations due to the outbreak of Novel Corona Virus COVID-19 and considering the advisories issued by

the Government of India, this application is being heard and decided through video conferencing to maintain social distancing. The parties are being

represented through their respective counsels through VC and therefore, norms of social distancing/physical distancing were followed in letter and

spirit.

Appeal appears to be arguable.

Admitted for final hearing.

This criminal appeal under Section 374 of Cr.P.C assails the judgment of the trial Court dated 3.12. 2019 passed by Second ADJ, Shivpuri in ST No.

100 of 2016, whereby appellant has been convicted under Section 376 (2)Â Â Â (i) of the IPC and sentenced to suffer 10 years RI with a fine of Rs.

3000/- and default of payment of fine further imprisonment of one year RI. He has been further convicted under Sec. 342 and 506 of the IPC and

sentenced to suffer one year RI and six months RI respectively.

Heard on I.A. No.2018 of 2020, first application under Section 389 (1) of Cr.P.C for suspension of jail sentence and grant of bail on behalf of

appellant no.1 Arvind.

It is submitted that as per the prosecution story itself the FIR of the incident was registered after 40 days without there being proper explanation of the

same. He has drawn attention to para-26 of the impugned judgment and has pointed out that specimen of vaginal slide was taken after 40 days of the

incident and the report shows presence of sperm on the slide. He has further drawn attention of this court to the statement of the Doctor and argued

that Doctor has clearly opined that presence of specimen can only last for 72 hours from the time of commission of offence. It is inappropriate that

presence of specimen was found on the slide after 40 days of the incident. It is further submitted that allegation of commission of offence under Sec.

376 of the IPC is not upon the present appellant, but the same is on the co-accused Sarpanch. The allegation against the present appellant as per the

prosecution is that present appellant has helped in commission of offence. He had remained in custody for some time during trial and now he is in

custody since the date of judgment. Fine amount has already been deposited. Under these circumstances he prays for grant of suspension of jail

sentence.

Per contra State counsel submits that looking to the custody period and there is conviction of 10 years RI, the appellant should not be enlarged on bail

by suspending his jail sentence. Active participation of the appellant cannot be denied as he has helped the co-accused Sarpanch in commission of

offence.

The Supreme Court by order dated 23-3-2020 passed in the case of IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS in SUO MOTU

W.P. (C) No. 1/202 0 has directed all the States to constitute a High Level Committee to consider the release of prisoners in order to decongest the

prisons. The Supreme Court has observed as under :

The issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID 19). Having regard to

the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled. We

direct Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as, (ii)

Director General of Prison(s), to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. For

instance, the State/Union Territory could consider the release of prisoners who have been convicted or are under trial for offences for which prescribed punishment

is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum. It is made clear that we leave it open

for the High Powered Committee to determine the category of prisoners who should b e released as aforesaid, depending upon the nature of offence, the number of

years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the

Committee may consider appropriate.

After considering the rival submissions as well as considering the fact situation, wherein, we are facing wrath of pandemic COVID-19, and

considering the facts and circumstances of the case and the fact that there is no allegation of commission of rape against the present appellant and

also the fact that FIR was lodged after 40 days of the incident and considering the opinion of the Doctor, and that the appellant is willing to deposit Rs.

10,000/- in PM cares fund, this Court is of the considered opinion that appellant deserves to be released on bail by suspending jail sentence.

Accordingly, application I.A.No.2018 of 2020 for suspension of jail sentence on behalf of appellant No. 1 Arvind is allowed. Jail sentence of the

appellant will remain under suspension, on his furnishing personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand only) to the satisfaction of the

concerned trial Court, for his appearance before Office of this Court on 21.12.2020 and thereafter on all subsequent dates as may be fixed by the

office.

Appellant shall install Arogya Setu App. in his mobile immediately and would intimate his place of residence to the SHO of concerned Police Station;

where he resides. Appellant further submits the undertaking to the effect that he will abide by the terms and conditions of different circulars, orders as

well as guidelines issued by Central Government, State Government as well as Local Administration for maintaining social distancing, hygiene etc to

avoid Novel Corona Virus (COVIC-19) pandemic.

In view of the COVID-19, jail authorities are directed that before releasing the appellant, medical examination of appellant shall be undertaken by the

jail doctor and on prima facie, if it is found that he is having the symptoms of COVID-19, then consequential follow up action including the

isolation/quarantine or any test if required, be ensured, otherwise appellant shall be released immediately on bail and shall be given a pass or permit for

movement to reach his place of residence.

E-copy of this order be provided to the appellant and E-copy of this order be sent to the trial Court concerned for compliance. It is made clear that E-

copy of this order shall be treated as certified copy for practical purposes in respect of this order.