Gaurav Batham 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 appeal has been heard and decided through video conferencing to maintain social distancing. The parties are being represented by the respective counsel through video conferencing, following the norms of social distancing/ physical distancing in letter and spirit.

Heard the learned counsel for the parties.

The appellant has filed this appeal under Section 14 A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 2015 being aggrieved by order dated 10/09/2020 passed by the Special Judge, District Morena in Case No.895/2020 whereby, bail application u/S.438 Cr.P.C. of the appellant has been rejected. Appellant apprehends his arrest in connection with Crime No. 612 of 2020 registered at Police Station Joura, District Morena for the offence punishable under Sections 294, 323 of IPC and Section 3(1)(r), 3(1) (s), 3(2) (va) of SC/ST (Amended Act, 2015).

It is argued by the counsel for the appellant that from the perusal of the FIR itself no offence under the SC/ST Act is made out against the present appellant. It is submitted that as per the FIR version the allegation against the present appellant is that owing to some dispute with respect to working in the court premises the incident has taken place and the present accused has used abusive language and has also abused him taking into consideration his caste and has inflicted injuries by hands and legs. It is argued that no such abusive language pointing out towards the caste of the complainant finds place in the FIR even the injuries inflicted are not medically corroborated as the MLC does not show any visible injury. It is submitted that the appellant as well as the complainant both are the employees of the court and owing to a small dispute the altercation has taken place between them but there is nothing on record which could have attracted the provisions of SC/ST Act. It is submitted that although the 438 application is specifically barred but considering the fact that there is no such language used by the complainant or is reflected from the FIR that the SC/ST Act is being attracted in the present facts and circumstances of the case. He has relied upon the judgments passed in the case of Unmed Singh and others vs. State of M.P. and anr. reported in 2013 (3) MPHT 229 as well as in the case of Atendra Singh Rawat vs State of M.P. And anr. reported in 2019 (2) MPLJ 481 and has argued that this Court has repeatedly held that when the FIR does not prima facie show that offence under the SC/ST is made out then 438 application can be entertained. He is ready to abide by all the terms and conditions and has shown his willingness to contribute an amount of Rs.2500/- towards the High Court Bar Association Gwalior.

Per contra, learned Panel Lawyer for the State has opposed the application stating that there is specific bar under Section 18 of the Act for consideration of anticipatory bails. It is contended that there is specific allegation of using abusive language with the complainant who belongs to SC/ST caste and also has inflicted injuries by hands and legs but he fairly submits that in the MLC no visible injuries are seen as reported by the doctor. Even the FIR does not disclose the actual words which are being used by the present appellant against the complainant considering his caste.

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 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."

Heard the learned counsel for the parties.

There is no dispute with respect to the judgments passed by the coordinate bench of this Court in the case of Atendra Singh Rawat and Ummed Singh (supra). The facts of the present case are similar to that of the facts which have been considered in the aforesaid cases by the coordinate bench.

Considering the aforesaid and also the fact that no injury marks are visible in the MLC by the doctor, this Court deems it appropriate to allow this appeal. Accordingly, the appeal is allowed. It is hereby directed that in the event of arrest, the appellant shall be released on bail on his furnishing personal bond of Rs.50,000/- (Rupees Fifty Thousand only) with one solvent surety of the like amount to the satisfaction of Investigation Officer/trial Court, as the case may be with submission of written undertaking 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 (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 appellant :-

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

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

The appellant 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 appellant shall not commit an offence similar to the offence of which he is accused.

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

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

The appellant shall deposit Rs.2500/- in the account of the High Court Bar Association, Gwalior within a period of seven working days from the date of release, for the purpose of assistance and rehabilitation of the members of the Bar, who are facing financial distress due to lock-down and restrictive functioning of the courts owing to ongoing Covid 19 Pandemic. This Court has no manner of doubt that the office bearers and the senior members of the Bar shall ensure that the donation reaches the rightful and deserving claimants.

The appellant 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 Panel Lawyer to send E-copy of this order to SHO of concerned police station as well as Superintendent of Police, District Morena who shall inform the concerned SHO regarding the same.

Appeal stands allowed and disposed of.

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.