Madhya Pradesh High Court
Arvind vs The State Of Madhya Pradesh on 24 July, 2020
Author: Vishal Mishra
Bench: Vishal Mishra
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HIGH COURT OF MADHYA PRADESH
CRA.No.11100/2019
(Arvind and Another Vs. State of M.P.)
Gwalior, Dated : 24.07.2020
Shri Prabal Pratap Solanki, learned counsel for the appellants.
Shri Sumit Mishra, learned Panel Lawyer for the State.
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 counsels
through video conferencing, following the norms of social distancing/
physical distancing in letter and spirit.
Heard on I.A.No.9373/2020, first application under Section 389
(1) of Cr.P.C for suspension of jail sentence and grant of bail on behalf
of the appellant No.2 Om Prakash @ Omi.
This criminal appeal under Section 374 of Cr.P.C has been filed
by the appellant against the judgment of the trial Court order dated
03.12.2019passed in Special Case No.100/2016 by the Second Additional District Judge, Shivpuri, whereby the appellant No.2 has been convicted under Sections 376 (2) (I) read with Section 120 of IPC and sentenced to suffer 10 years RI with a fine of Rs.3000/- and default of payment of fine further imprisonment of one year RI. He has been further convicted under Section 342 of IPC and sentenced to suffer one year R.I..
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HIGH COURT OF MADHYA PRADESH CRA.No.11100/2019 (Arvind and Another Vs. State of M.P.) It is submitted by the counsel for the appellants that as per prosecution story, complainant lodged FIR on 29.08.2016 against the present appellants at Police Station Pohri, District Shivpuri regarding the incident before one month and offence registered under Sections 376, 342, 506/34 of IPC. The prosecutrix stated that she was 15 years old. When she went to toilet at 4:30 am, suddenly both the appellants came and brought her in the house of Sarpanch and committed rape over her and told her that if she informs anyone, they will kill her parents. It is further submitted that the trial Court has erred in not acquitting the appellant No.2 while looking to the evidence and the witnesses, the appellant should have been acquitted. Ten witnesses have been examined. The statements of the witnesses are very much contrary to each other. The prosecutrix and her parents filed the compromise application before the trial Court, but the trial Court ignored the compromise application and convicted the appellants. The prosecutrix accepted her court's statement that she is more than 18 years at the time of incident. It is further submitted that sentence of the appellant No.1 Arvind has been suspended by this Court vide order dated 01.06.2020. It is also submitted that the incident was registered after 40 days without there being proper explanation of the same. The specimen of vaginal slide was taken after 40 days of the incident and the report shows presence of sperm on the slide, whereas the doctor has 3 HIGH COURT OF MADHYA PRADESH CRA.No.11100/2019 (Arvind and Another Vs. State of M.P.) clearly opined that presence of specimen can only last for 72 hours form the time of commission of offence and it is inappropriate that presence of specimen was found on the slide after 40 days for the incident. The case of the appellant is in total parity with the co-accused Arvind. Under these circumstances, counsel for the appellant prays for suspension of jail sentence and grant of bail.
Per contra, learned Panel Lawyer for the State could not dispute the factum of parity.
The Hon'ble Supreme by order dated 23.03.2020 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 4 HIGH COURT OF MADHYA PRADESH CRA.No.11100/2019 (Arvind and Another Vs. State of M.P.) 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 sentence of the appellant No.1 Arvind has been suspended by this Court and considering the directions issued by the Hon'ble Supreme Court, this Court deems it appropriate to consider the application for grant of bail and suspension of jail sentence.
Accordingly, application for suspension of jail sentence is allowed. The appellant No.2 Om Prakash @ Omi is directed to be 5 HIGH COURT OF MADHYA PRADESH CRA.No.11100/2019 (Arvind and Another Vs. State of M.P.) released by suspending his sentence furnishing a personal bail bond of Rs.50,000/- (Rs. Fifty Thousand Only) with one solvent surety of the same amount to the satisfaction of trial Court. The appellant is directed to appear before the Principal Registrar of this Registry for his presence on 21.12.2020 and thereafter, subsequent dates as may be fixed by the Registry from time to time till disposal of the appeal.
The appellant No.2 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 submit 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.
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HIGH COURT OF MADHYA PRADESH CRA.No.11100/2019 (Arvind and Another Vs. State of M.P.) 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.
(Vishal Mishra)
AK/- Judge
ANAND KUMAR
2020.07.24
17:28:40 +05'30'