Surendra Sharma vs State Of Madhya Pradesh And Others

Rohit Arya, J

This is the fifth repeat bail application under Section 439 Cr.P.C. filed on behalf of the applicant. His earlier applications is dismissed as withdrawn vid e orders dated 11.02.2019, 03.06.2019, 09.06.2020 and 07.09.2021 passed in MCRC No.4076/2019, 21342/2019, 12947/2020 and 34228/2021. The applicant is in custody since 21.10.2018 in connection with Crime No.539/2018 registered at P.S., Agar, District Agar Malwa for the offence punishable under Sections 363, 366, 376(2)(N) of IPC and under Section 5(L)/6 of POCSO Act.

As per prosecution story, the applicant is alleged to have manipulated the complainant while she was in the market with the elder brother of her father for purchasing. He assured her to merry her and had taken her near Sawariya temple wherein Dharmshala thereof she was sexually abused by the applicant. Initially an FIR was lodged on 16.10.2018 as she was missing on 15.10.2018 and she was recovered on 21.10.2018. Accordingly, the case has been registered against the applicant.

Learned counsel for the applicant submits that applicant is innocent and has been falsely implicated. Investigation is complete and chargsheet has been filed. He is no more required for custodial investigation. On merits, it is submitted that the complainant is alleged to have been subjected to sexual intercourse by the applicant in her statement recorded under Section 164 Cr.P.C. on 22.10.2018 and also in the Court statement but she had gone with the applicant with her consent as she was around 18 years of age as on the date of occurrence of incident on her own showing in Para 2 of the Court statement. Applicant is in custody since for more than three years. Moreso, looking to the Covid-19 situation, trial is not likely to conclude early in the near future. Hence, the applicant may be enlarged on bail on the ground of long jail incarceration and on such terms and conditions this Court deems fit and proper.

P e r contra, learned Panel Lawyer opposes the bail application supporting the order impugned with submission that the prosecutrix has been consistent in her statement recorded under Section 164 Cr.P.C. as well as Court statement. Hence, no exception can be taken in the matter of enlargement on bail.

Upon hearing counsel for the parties, true it is that the prosecutrix in her deposition under Section 164 Cr.P.C. and Court statement alleging commission of intercourse by the applicant. However, there is a dispute as regards date of birth, the same shall be adverted to by the trial Judge. At this stage, though this Court is not inclined to enlarge the applicant on bail on merits but regard being had to the long jail incarceration of over three years, the applicant 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 furnishing personal bond in the sum of Rs.3,00,000/- (rupees three lakh 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 mark his attendance before the concerned police station on 2nd Saturday every month between 10:00 a.m. to 12:00 noon.

(ii) the enlargement of the applicant on bail due to long jail incarceration in no way shall have bearing on the pending trial and the trial Court shall be well advised to take independent decision upon consideration of the evidence brought on record.

(ii) the applicant 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 to time in the matter of maintaining social distancing, physical distancing, hygiene, etc., to avoid proliferation of Novel Corona virus (COVID-19);

(iii) 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 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.

(iv) in the event of violation of any of the terms and conditions of the order by the applicant, the prosecution is at liberty to seek cancellation of the bail granted to the applicant.

(v) in future, if the applicant is found to be involved in such nature of cases or any other similar criminal cases or misuse the bail granted by this Court, this bail order shall stand cancelled automatically.

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.

E-certified copy as per rules.