Kitabi 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 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 first bail application u/S.439 Cr.P.C filed by the applicant for grant of bail.

The applicant has been arrested on 27.5.2020 by Police Station Raghunathpur district Sheopur, in connection with Crime No.4 of 2020 registered in relation to the offence punishable u/S.341, 323, 294, 506, 302 and 120B of IPC.

It is submitted by counsel for the applicant that the applicant is a lady and has been falsely implicated in the case with respect to murder of her own husband. It is alleged that the incident is said to have taken place on 5.2.2020. As per prosecution story, some unknown person has inflicted injury on the head of deceased who remained under treatment uptil 29.2.2020 and thereafter discharged from the hospital and was taken to home, where after surviving for couple of days, he expired on 28.4.2020. It is submitted that during aforesaid period, the prosecution has not recorded statement of the deceased which could have been most probable evidence against the applicant. It is argued that the prosecution has subsequently developed a story to the effect that the applicant was having illicit relations with co-accused Ashok and owing to which, conspiracy was hatched by her with him and in continuation of the same, the deceased was murdered. It is submitted that the applicant is in custody since 27.5.2020 and there is no further requirement of custodial interrogation of the applicant. She is ready to abide with all the conditions which may be imposed by this court while considering this bail application. She expressed her willingness to serve the cause by making contribution of Rs.10,000/- to High Court Bar Association, Gwalior, during this Covid 19 Pandemic scenario for welfare of the Advocates who are facing great hardship. On these grounds, the applicant prayed for grant of bail.

Per contra, learned counsel appearing for the State has opposed the application stating that there are specific allegation against the present applicant of hatching conspiracy alongwith co-accused Ashok for committing murder of deceased. It is submitted that in the statement recorded under section 27 of the Evidence Act, there are specific allegation against the present applicant. It is submitted that co-accused Ashok and applicant were having illicit relations and owing to which, they hatched conspiracy for committing murder of deceased i.e. husband of the applicant. But he fairly submits that no statement/dying declaration of deceased was recorded during his treatment. The deceased went to his house after discharge from the hospital on 29.2.2020 and has expired on 28.4.2020. She further admitted the fact that the investigation is complete and the charge sheet has already been filed on 6.8.2020.

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 the prosecution has failed to discharge its duty as they have not recorded dying declaration of deceased which could have been the most probable evidence to connect the applicant with the commission of offence, coupled with the fact that the the charge sheet has already been filed on 6.8.2020 as well as looking to this Covid 19 Pandemic Scenario, but without expressing any opinion on the merits of the case, this application is allowed. The applicant is directed to be released on bail on furnishing 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 submit written undertaking that she 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 she 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 her;

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

The applicant will not indulge herself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade her 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 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;

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

The applicant shall deposit Rs.10,000/- 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 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.

The applicant shall install Arogya Setu App in his mobile immediately and would intimate their place of residence to the SHO of concerned Police Station; where they reside. Applicant shall 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 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.