Kalyan @ Karan vs State Of M.P

Vishal Mishra, J

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 first criminal appeal under Section 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Amendment) Act, 2015 being aggrieved by the order dated 18.09.2020 passed by the Special Judge (Atrocities) Vidisha in Bail application no.428/2020, whereby, learned Special Judge has dismissed the application filed by the appellant under Section 439 of the Cr.P.C.

The appellant is in jail since 19.08.2020 in connection with crime No.366/2020 registered at Police Station-Kurwai, District-Vidisha, for offences punishable under Sections 366, 294, 323, 344, 506, 376(2)(n) of IPC and Sections 3(ii)(v), 3(i) (w-i), 3(i) (w-ii) of the SC/ST Act.

It is submitted that the appellant has been falsely implicated in the case. He has not committed the offence in any manner. It is submitted that the prosecutrix has gone with the brother of the present appellant six months prior to lodging the FIR which is clear from the version of the FIR, statement recorded under Section 161 as well as the statement recorded under Section 164 of Cr.P.C. It is submitted that the brother of the appellant Rajkumar Rajak has given false promise of marriage to the prosecutrix and she has gone with him 8-9 months prior to lodging the FIR and remained at Pratapgarh Colony, P.S. Silvani. Thereafter, she remained at Silvani for about six months. Thereafter, Rajkumar the co-accused took her to Hoshangabad where she remained with Rajkumar and the present appellant. The co-accused Rajkumar has committed rape with her on several times and present appellant used to give threatening not to disclose the incident to any other person and also used to abuse her. It is argued that in the statement recorded under Section 164 she has categorically stated that the present appellant has not committed any offence under Section 376 with her. He is the first offender. It is submitted that he is ready to abide by all the terms and conditions that may be imposed by this Court and looking to the present COVID pandemic the bail application be considered. He has further shown his willingness to contribute an amount of Rs.5000/- towards the High Court Bar Association Gwalior.

Per contra, learned counsel for the State has opposed the application stating that investigation is still pending in the matter but he fairly admits the factum that as per the statement of the prosecutrix no offence under Section 376 has been committed by the present appellant and the appellant being the first offender is not disputed by the counsel for the State and the prosecutrix being major is also not disputed.

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."

Considering the overall facts and circumstances of the case and also the fact that the prosecutrix is major and the there are no allegations of committing offence of rape against the present appellant, this Court deems it appropriate to allow this appeal.

Accordingly, appeal is allowed. It is directed that the appellant be released on bail on furnishing a personal bond in the sum of Rs. 50,000/-(Rs. Fifty Thousand only) with one solvent surety in the like amount to the satisfaction of the concerned trial Court.

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 appellant 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.5000/- 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 Public Prosecutor to send E-copy of this order to SHO of concerned police station as well as concerned who shall inform the concerned SHO regarding the same.

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.