Dharmendra Alias Chotu vs State Of M.P.

In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by the Government of India, this application has been heard and decided through video conferencing to maintain social distancing. The parties are being represented by the respective counsels through video conferencing, following the norms of social distancing/ physical distancing in letter and spirit.

This is third bail application u/S.439 Cr.P.C filed by the applicant for grant of bail. His first application M.Cr.C.No.4941 of 2020 was dismissed on merits vide order dated 11.2.2020 and second one M.Cr.C.No.42958 of 2019 as withdrawn vide order dated 22.10.2019 with liberty to repeat the same after recording of statement of main witnesses.

Applicant has been arrested on 4.5.2019 by Police Station Physical district Shivpuri in connection with Crime No.95 of 2019 registered in relation to the offence punishable u/S.307, 459 and 380 of IPC, 11,13 of MPDVPK Act and 25/27 of the Arms Act.

It is submitted by counsel for the applicant that earlier bail application of the applicant was dismissed as withdrawn with liberty to repeat after recording of statement of main witnesses. It is argued that co-accused has already been enlarged on vide order dated 27.7.2020 passed in M.Cr.C.No.17789 of 2020 and the case of present applicant is on better footing then that of co-accused as allegation of firing gun shot is against co-accused. He has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Bhausaheb Nagu Dhavare Vs. State of Maharashtra, 2001 (3) Crimes 410 and submitted that looking to the custody period which is about one year and eight months, the bail application of the applicant deserves to be allowed. As far as the criminal antecedents is concerned, it is informed that the State Counsel has pointed out 3 criminal cases against the present applicant, in which, he has already been acquitted. He is ready to abide by all the terms and conditions as may be imposed by this Court. On these grounds, he prays for grant of bail. The applicant has shown his willingness to cooperate in the pandemic situation of COVID-19 and is ready to contribute an amount of Rs.5,000/- towards the PM Cares Fund.

Per contra, counsel for the State has opposed the bail application stating that the applicant has actively participated in the commission of offence. This court has already rejected his bail application on earlier occasion. But the factum of co-accused released on bail has not been disputed by counsel for the applicant and also the directives issued by Hon'ble Apex Court in the case of Bhausaheb Nagu Dhavare (Supra), The Hon'ble Supreme Court in the case of IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS in SUO MOTU W.P. (C) No.1/2020 has issued directions to 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 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 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 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 over all facts and circumstances of the case and the facts that there is no other criminal case pending against the applicant and the law laid down by Apex Court in the case of Bhausaheb Nagu Dhavare as well as looking to this Covid 19 Pandemic Scenario, this application is allowed. The applicant is directed to be released on bail subject to verification of the fact that applicant has been acquitted in three criminal cases  registered against him and on furnishing a surety bond of Rs.50,000/- (Rs. Fifty thousand Only) with one solvent surety in the like amount to the satisfaction of trial Court. The applicant shall deposit Rs.5,000/- in PM CARES Fund having Account Number : 2121PM20202, IFSC Code: SBIN0000691, SWIFT Code : SBININBB104, Name of Bank & Branch : State Bank of India, New Delhi Main Branch within seven working days from the date of release. The applicant shall submit written undertaking that he will abide by all terms and conditions of the different circulars, orders as well as guidelines issued by the Central Government, State Government as well as Local Administration for maintaining social distancing, hygiene etc to avoid Novel Corona Virus (COVID -19) pandemic and he will have to install Arogya Setu App, if not already installed.

This order will remain operative subject to compliance of the following conditions by the applicant :-

The applicant will comply with all the terms and conditions of the bond executed by him;

The applicant will cooperate in the investigation/trial, as the case may be;

The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Police Officer, as the case may be;

The applicant shall not involve any other offence, in case the applicant indulges himself in any other criminal case the benefit of bail as extended by this Court shall automatically cancelled.

The applicant will not seek unnecessary adjournments during the trial; and

The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be.

In case, the applicant is found involved in any other case, this bail shall stand rejected without reference to the court;

The applicant will inform the concerned S.H.O. of concerned Police Station about his residential address in the said area and it would be the duty of the Public Prosecutor to send E-copy of this order to SHO of concerned police station as well as Superintendent of Police concerned who shall inform the concerned SHO regarding the same.

Application stands allowed and stands disposed of.

Applicant 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. Applicant further submit 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 applicant, medical examination of applicant 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 applicant 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 applicant 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.

CC as per rules.