Sonu vs State Of Madhya Pradesh

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

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.

Applicant has been arrested on 04.07.2020 by Police Station Porsa, District Morena (M.P.) in connection with Crime No.414/2020 registered in relation to the offence punishable u/Ss. 366, 376 and 506 of IPC.

It is submitted by learned counsel for the applicant that applicant has falsely been implicated in the present case. He has not committed any offence in any manner. It is argued that as per the prosecution story, the offences under Sections 366, 376 and 506 of IPC have been registered against the present applicant on the ground that the applicant has promised the complainant for marriage on the pretext that the applicant has committed rape with her. It is further argued that the complainant is a major as per the date of birth records and no allegations have been levelled by the complainant in her statement recorded under Section 161 of Cr.P.C regarding commission of rape by the present applicant. It is argued that the applicant as well as complainant were known to each other. He has drawn attention of this Court to the statement recorded under Section 164 of Cr.P.C and has argued that subsequently, when the statement was recorded, she has levelled the allegation of commission of rape by the present applicant and has developed the story. Learned counsel for the applicant has relied upon the judgments passed by the Hon'ble Supreme Court in the case of Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and Ors. reported in AIR 2019 SC 327 and and in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra and anr. reported in AIR 2019 SC 4010, wherein, the Hon'ble Supreme Court has held that no offence under Section 376 of IPC is made out, in case sexual intercourse is said to be committed on pretext of marriage. Its amount to a case of a consented case. It is further submitted that there are no external or internal injuries seen from the medical report. It is submitted that investigation is over and charge sheet has been filed in the matter, therefore, no further custodial interrogation may be necessary. The applicant undertakes to abide all the condition, which may be imposed by this Court and there is no possibility of his absconding or tempering with the prosecution case. The applicant has his willingness to contribute an amount of Rs. 10,000/- towards the PM Care Fund and install Arogya Setu App. Accordingly, prayer for bail has been made.

Per contra, counsel for the State has opposed the bail application stating that there are serious allegations of committing rape against the present applicant by the complainant. He has read over the statement under Section 164 of Cr.P.C, wherein there is a specific allegation of commission of rape by the complainant against the present applicant. He fairly submits that there is no allegation of rape in the statement recorded under Section 161 of Cr.P.C. The factum of filing of charge-sheet is not disputed by the State counsel. It is also not disputed that the applicant is a first offender.

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 no allegations of rape were alleged against the present applicant by the complainant in her statement recorded under Section 161 of Cr.P.C and subsequently she has alleged the allegation of rape under Section 164 of Cr.P.C which was recorded belatedly. Coupled with the fact that there is no external or internal injury in the medical report and also the fact that investigation is over in the matter and charge sheet has been filed and the applicant being a first offender, this Court deems it appropriate to allow this application. Accordingly, the application is allowed. The applicant is directed to be released on bail on furnishing a personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand Only) with one solvent surety of like amount to the satisfaction of the Investigation Officer /trial Court, as the case may be with submission of written undertaking and he shall 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 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 applicant :-

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

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

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

Applicant shall deposit Rs.10,000/- in PM CARES Fund having Account Number : 2121PM20202, IFSC Code: SBIN0000691, SWIFT Code : SBININBB104, Name of Bank & Branch : State Bank of India, New Delhi Main Branch within seven days from today.

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.

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 applicants 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.