Bhoora Yadav vs State Of Mp & Anr.

This third application under Section 439 of Cr.P.C. has been filed for grant of bail. First and second applications were dismissed as withdrawn by orders dated 27/05/2020 and 10/07/2020 passed in MCRC Nos. 14276/2020 and 20384/2020.

The applicant has been arrested on 14/04/2020 in connection with Crime No.107/2020 registered at Police Station Physical, District Shivpuri for offence under Section 363, 376D, 323, 506, 34 of IPC and under Section 3/4 of Protection of Children from Sexual Offences Act, 2012 ( in short '' the POCSO Act'').

It is submitted by the counsel for the applicant that the applicant is aged about 18 years and according to the prosecution case, the prosecutrix got a phone call from the co-accused Atar Singh at about 03:00 in the night, as a result of which the prosecutrix came out of her house. The allegations are that the applicant and the co-accused Atar Singh were standing outside the house of the prosecutrix and thereafter, the co-accused Atar Singh took her to nearby a parked truck and committed rape on her, whereas the applicant was standing outside the truck. After hearing shouts of the prosecutrix, her mother and brother came on the spot and rescued the prosecutrix from the clutches of the co-accused Atar Singh and thereafter, the applicant as well as the co-accused Atar Singh ran away. It is submitted that there is nothing on record to indicate that the applicant was having any mens rea. Further, the applicant is a distant relative of the co-accused Atar Singh. There is no allegation that the applicant committed rape or forced the prosecutrix to go inside the truck. The applicant is in jail for the last more than five months and the trial is likely to take sufficiently long time and there is no possibility of his absconding or tampering with the prosecutrix case.

Per contra, the application is vehemently opposed by the counsel for the State.

Considered the submissions made by the Counsel for the parties through video conferencing.

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. 1/2020 has directed all the States to constitute a High Powered 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 that each State/Union Territory shall constitute a High Powered 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 undertrial 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 be 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."

Considering the nature of allegations, coupled with the period of detention as well as the young age of the applicant and without commenting on the merits of the case, the application is allowed. It is directed that the applicant be released on bail, on furnishing the personal bond in the sum of Rs.1,00,000 (Rupees One Lac) to the satisfaction of the Trial Court or C.J.M. or Remand Magistrate (Whosoever   is available). The         applicant          shall     also            furnish an undertaking that he will abide by all the instructions which may be issued by the Central Govt./State Govt. or Local Administration (General or Specific) from time to time for combating Covid19. It is further directed that, the applicant shall also furnish one surety in the like amount to the satisfaction of Trial Court within a period of one month after the lock-down is completely lifted.

The Supreme Court in the case of IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS by order dated 7-4-2020 has directed as under :

In these circumstances, we consider it appropriate to direct that Union of India shall ensure that all the prisoners having been released by the States/Union Territories are not left stranded and they are provided transportation to reach their homes or given the option to stay in temporary shelter homes for the period of lockdown. this purpose, the Union of India may issue appropriate directions under the Disaster Management Act, 2005 or any other law for the time being in force. We further direct that the States/Union Territories shall ensure through Directors General of Police to provide safe transit to the prisoners who have been released so that they may reach their homes. They shall also be given an option for staying in temporary shelter homes during the period of lockdown.

Accordingly, it is directed that before releasing the applicant, the jail authorities shall get the applicant examined by a competent Doctor and if the Doctor is of the opinion that his Corona Virus test is necessary, then the same shall be conducted. If the applicant is not found suspected of Covid19 infection or if his test report is negative, then the concerned local administration shall make necessary arrangements for sending the applicant to his house as per the directions issued by the Supreme Court in the case of IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS (Supra) , and if he is found positive then the applicant shall be immediately sent to concerning hospital for his treatment as per medical norms. The applicant is further directed to strictly follow all the instructions which may be issued by the Central Govt./State Govt. or Local Administration for combating Covid19. If it is found that the applicant has violated any of the instructions (whether general or specific) issued by the Central Govt./State Govt. or Local Administration, then this order shall automatically lose its effect, and the Local Administration/Police Authorities shall immediately take him in custody and would send him to the same jail from where he was released. The applicant is further directed to supply a copy of this bail order to the police station having jurisdiction over his place of residence.

The other conditions of Sections 437, 439 Cr.P.C. shall remain the same.

This order shall remain in force, till the conclusion of Trial. In case of bail jump, or violation of any of the condition(s) mentioned above, this order shall automatically lose its effect.

With aforesaid observations, this application is Allowed.