Rajesh Tiwari vs State Of Madhya Pradesh

Heard on I.A.No.13047/2020, fourth bail application filed under Section 389 (1) of Cr.P.C. for suspension of sentence and grant of bail to appellant- Vikram Singh.

Appellant has been convicted as under:

Section

Imprisonment

Fine

In Default

354 of IPC

4 years R.I.

Rs.10, 000/-

Six months R.I.

342 of IPC

6 years R.I.

Rs.10,000/-

Six months R.I.

9/10 of  POCSO Act

4 years R.I.

Rs.10,000/-

Six months

It is the submission of learned counsel for the appellant that he is suffering confinement since the date of judgment i.e. 8.4.2019 and prior to it he suffered incarceration for two months and 20 days. Thus, totalling more than 20 months of incarceration. It is further submitted that he has been convicted by the trial Court for four years R.I. for offence under Section 9/10 of Protection of Children from Sexual Offences Act and according to learned counsel, it is not a case where appellant could have convicted for offence under Section 9/10 of POCSO Act. At best it could have been a case of conviction under Section 7/8 of POCSO Act. Therefore, trial Court erred in convicting the appellant and awarding jail sentence to that extent. He has a good case on merit and hearing of appeal will take time. Looking to the period of custody and the challenging time of Covid -19, pendamic his case be considered for suspension of sentence.

Learned counsel for the respondent/State opposed the prayer and submits that looking to the allegations, application for suspension be rejected. Learned counsel for the complainant opposed the prayer on the ground that trial Court erred in awarding four years of jail sentence for offence under Section 9/10 of POCSO Act whereas minimum sentence prescribed in Section 9/10 of POCSO Act is 5 years. Therefore, a Criminal Revision vide No.3343/19 has been preferred by the complainant against lowering down of jail sentence from minimum five years to four years. Said revision is tagged alongwith this appeal and, therefore, it is to be decided first. It is already admitted.

Heard the learned counsel for the parties through Video Conferencing.

In the present case, appeal has been preferred by the accused against the judgment passed by the trial Court and through this application he is seeking suspension of sentence. The instant case is criminal appeal preferred by the appellant challenging the judgment of the trial Court and application for suspension of sentence accompanies it. Appeal is a statutory right of an accused and, therefore, hearing of appeal or for that matter, suspension of sentence is urgent in nature vis-a-vis other jurisdictions like revision.

Considering the submissions of the parties and looking to the period of custody as there is no possibility of early hearing of this criminal appeal before this Court, hence I.A.No.13047/2020, is allowed and it is ordered that on furnishing a personal bond of Rs.50,000/- (Rupees Fifty thousand only) along with a solvent surety of the like amount to the satisfaction of the concerned trial Court, appellant's jail sentence shall remain suspended till disposal of this appeal and he be released on bail. The appellant is further directed to remain present before the Registry of this Court firstly on 20th  January, 2021 and, thereafter, on such subsequent dates as may be fixed by the Registry of this Court till disposal of the appeal. Appellant will have to install Arogya Setu App, if not already installed.

In view of COVID-19 pandemic, the jail authorities are directed that before releasing the appellant, his preliminary Corona Virus test shall be conducted and if he is found negative, then the concerned local administration shall make necessary arrangements for sending the appellant to his house, and if he is found positive then the appellant shall be immediately sent to concerned hospital for his treatment as per medical norms. If the appellant is fit for release and if he is in a position to make his personal arrangements, then he shall be released only after taking due travel permission from local administration. After release, the appellant is further directed to strictly follow all the instructions which may be issued by the Central Govt./State Govt. or Local Administration for combating the COVID-19. If it is found that the appellant has violated any of the instructions (whether general or specific) issued by the Central Govt./State Govt. or Local Administration, then this order shall automatically lose its effect, and the Local Administration/Police Authorities shall immediately take him in custody and would sent him to the same jail from where he was released.

The appellant will inform the SHO 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 for information.

This order will remain operative subject to compliance of the following condition by the appellant :-

The appellant will not seek unnecessary adjournment during the trial and he shall not be a source of embarrassment/harassment to the prosecutrix and her family in any manner;

Since the revision also requires involving question of law, therefore, matter is placed in the week commencing 23rd November, 2020 with the expectations that by that time normal function of the Court shall resume and matter shall be heard and decided finally.

E- copy of this order be sent to the trial Court concerned for compliance, if possible, for the office of this Court.

Certified copy/ e-copy as per rules/directions.