Ishwar vs State Of M.P

Rohit Arya, J

Heard through video conferencing.

This is the first application under Section 439 of Cr.P.C., for grant of bail filed on behalf of the applicant. The applicant is in custody since 1.8.2020 in connection with Crime Case No.392/2020 registered at Police Station, Narsingarh, District Rajgarh for the offence punishable under Section 379 of IPC and under Section 139 of Electricity Act.

As per the prosecution case, complainant lodged a report that from the private DP installed in his agricultural field unknown persons committed theft of oil. After investigation Police has seized oil from co-accused Ishwar and the present applicant. Accordingly, the case has been registered against the applicant.

Learned counsel for the applicant submits that the applicant is innocent and he has been falsely implicated in the crime. The investigation is complete and challan has been filed. Co-accused Ravi has been implicated on the basis of memo under Section 27 of Evidence Act has been enlarged on bail on 7.10.2020 vide M.Cr.C.No.32121/2020. The applicant is in jail incarceration since 1.8.2020. He is not required for further custodial interrogation. He is the sole bread earner of his family and the family is reeling under financial crisis due to his jail incarceration. Besides, looking to the Covid-19 situation, trial is not likely to conclude early in the near future. Under such circumstances, the applicant deserves to be enlarged on bail on such terms and conditions, Hon'ble Court deems fit and proper.

Per contra, learned Panel Lawyer for the respondent/State supporting the order impugned opposes the bail application inter alia contending that applicant has two cases of the same nature against him. Therefore, the applicant is habitual offender and does not deserve to be released on bail.

In rejoinder Shri Tiwari submits that as a matter of fact the alleged two cases were registered on the same date against the applicant as well as co-accused Ravi. The applicant has been enlarged on bail in those two cases on 11.9.2020 vide M.Cr.C.No.31461/2020 and 31440/2020.

This is the first application under Section 439 of Cr.P.C., for grant of bail filed on behalf of the applicant. The applicant is in custody since 1.8.2020 in connection with Crime Case No.392/2020 registered at Police Station, Narsingarh, District Rajgarh for the offence punishable under Section 379 of IPC and under Section 139 of Electricity Act.

As per the prosecution case, complainant lodged a report that from the private DP installed in his agricultural field some unknown persons committed theft of oil. After investigation Police has seized oil from co-accused Ishwar and the present applicant. Accordingly, the case has been registered against the applicant.

Learned counsel for the applicant submits that the applicant is innocent and he has been falsely implicated in the crime. The investigation is complete and challan has been filed. He has been implicated in the crime on the basis of memo under Section 27 of Evidence Act. The applicant is in jail incarceration since 1.8.2020. He is not required for further custodial interrogation. He is the sole bread earner of his family and the family is reeling under financial crisis due to his jail incarceration. Besides, looking to the Covid-19 situation, trial is not likely to conclude early in the near future. Under such circumstances, the applicant deserves to be enlarged on bail on such terms and conditions, Hon'ble Court deems fit and proper.

Per contra, learned Panel Lawyer for the respondent/State supporting the order impugned opposes the bail application inter alia contending that applicant has also two cases of the same nature against him. Therefore, the applicant is habitual offender and does not deserve to be released on bail.

In rejoinder Shri Tiwari submits that as a matter of fact the alleged two cases were registered on the same date against the applicant as well as co-accused Ravi. The applicant has been enlarged on bail in those two cases vide M.Cr.C.Nos.31461/2020 and 31440/2020 on 11.9.2020.

At this stage, Shri Tiwari, learned counsel for the applicant, on instructions graciously and voluntarily submits that looking to the grave critical social economic condition of poor persons living in old age homes, Vidhwa Ashrams or orphans living in orphanage, the applicant is prepared to deposit a sum of Rs.15,000/- (Rs.Fifteen Thousand only) in the office of Collector, Rajgarh for the purpose of providing basic amenities, clothing, food/food items and other essential amenities required for old age people living in old age homes or orphans living in orphanage in the city of Rajgarh in dire need of such amenities/facilities and such old age homes and also to such persons who have lost their means of livelihood during the pandemic Covid-19. However, the aforesaid deposit of amount may not influence the pending trial but is only, for enlargement of applicant on bail.

Upon hearing counsel for the parties but without touching merits of the contentions so advanced, regard being had to the fact that the applicant is in jail since 1.8.2020, not required for custodial interrogation and the possibility of delay in conclusion of trial cannot be ruled out, he is held entitled for enlargement on bail.

Consequently, the application of the applicant filed under Section 439 of the Criminal Procedure Code, 1973 is hereby allowed. It is directed that the applicant be released on bail on furnishing personal bond in the sum of Rs.1,50,000/- (Rs.One Lac Fifty thousand Only) with one solvent surety in the like amount to the satisfaction of the learned Trial Court and on the condition that he shall remain present before the Court concerned during trial and also comply with the conditions enumerated under Section 437 (3) of Criminal Procedure Code, 1973 with following further conditions:

(i) the applicant shall prepare a demand draft of any nationalized bank for an amount of Rs.15,000/-(Rs.Fifteen Thousand only) in name of Collector, Rajgarh to be utilized for providing clothing, food and other essential amenities required for the orphans living in orphanage in the District, physically challenged persons and also to such persons who have lost their means of livelihood during the pandemic Covid-19 and the same shall have no bearing on merits of the trial but for enlargement of the applicant on bail and obtain a receipt.

(ii)(a) the applicant shall submit the aforesaid original demand draft alongwith copy of the order passed today through his counsel before the Principal Registrar of this Bench, for keeping the same in his safe custody.

(ii)(b) The Registry is directed to accept the original demand draft without mentioning the account number therein. However, ensure that the same is in relation to the present case.

(ii)(c) as and when directed the Principal Registrar shall seek instructions/directions through PUD from this Court for handing over the demand draft to the concerned authority in that behalf.

(iii) the Collector, Rajgarh is at its discretion to utilize the amount so deposited as and where it is required upon verification through Collector, Rajgarh. The said department is also directed to maintain a separate account (for production of the record as and when directed for).

(iv) the applicant shall submit an attested photocopy of the receipt before the Principal Registrar of this Bench, for placing the same on record of this case. The Principal Registrar shall produce the same as and when required by this Court in the form of PUD.

(v) the applicant shall furnish a written undertaking with his complete residential details that he will abide by the terms and conditions of various circulars and orders issued by the Government of India and the State Government as well as the local administration from time-to-time in the matter of maintaining social distancing, physical distancing, hygiene, etc., to avoid proliferation of Novel Corona virus (COVID-19);

(vi) the applicant shall not tamper with the evidence in any whatsoever manner or induce or threat any person acquainted with the facts of the case;

(vii) the applicant shall co-operate during trial and will not seek unnecessary adjournments during trial;

(viii) the applicant shall not leave the area without previous permission of the trial Court/Investing Officer, as the case may be;

(ix) the concerned jail authorities are directed that before releasing the applicant, the medical examination of the applicant be conducted through the jail doctor and if it is prima facie found that he is having any symptoms of COVID-19, then the consequential follow up action including the isolation/quarantine or any further test required be undertaken immediately. If not, the applicant shall be released on bail in terms of the conditions imposed in this order and shall also be given pass or permit for movement to reach his place of residence;

(x) the applicant shall mark his attendance before the concerned Police Station on 2nd and 4th Saturday of every month between 10.00 am to 12.00 noon.

(xi) violation of conditions, State is free to apply for cancellation of bail.

Learned Panel Lawyer is directed to send an e-copy of this order to all the concerned including the concerned Station House Officer of the Police Station for information and necessary action.

Registry is directed to send an e-copy of this order to the Court concerned for necessary compliance.

It is made clear that this e-copy order be treated as Certified copy in terms of the advisories issued by the High Court from time to time.

Certified copy as per rules.