Khachhu @ Rajendra Lodhi vs The State Of Madhya Pradesh
2021 Latest Caselaw 4219 MP

                                    1

         THE HIGH COURT OF MADHYA PRADESH
                      CRA No.4483/2021
               (KHACHHU VS. STATE OF M.P. & ANR.)



Gwalior, Dated : 12/08/2021

      Shri Sunil Kumar Dubey, learned counsel for the appellant

through video conferencing.

      Shri Nitin Goyal, learned counsel for the State.

      None for the respondent No.2/ complainant.

It is submitted by the Counsel for the State that the

complainant has been informed about the pendency of this appeal, as

required under Section 15-A of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act.

Case diary is available.

This appeal has been filed under Section 14-A(2) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act against the order dated 20/07/2021 passed by Special Judge,

Atrocities, Shivpuri rejecting the bail application.

The appellant has been arrested on 07/07/2021 in connection

with Crime No.145/2021 registered by Police Station Bhonti, District

Shivpuri for offence punishable under Sections 376 and 506 of IPC,

Section 3(1)(w)(i) and 3(2)(5) of Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act (in short "SC/ST Act").

It is submitted by the counsel for the appellant that according

to the prosecution case, when the prosecutrix reached near the house

of one Devi Singh, the appellant dragged her inside the house of Devi

Singh and committed rape. On hearing of her shouts one minor boy

of the same village came there. When the parents of the prosecutrix

were returning back, then the appellant ran away after bolting the

door from outside. It is alleged that thereafter, the parents of the

prosecutrix rescued the prosecutrix from the house of Devi Singh. It

is submitted that if, the entire allegations are considered, then it is

clear that on their face value, it appears that the prosecutrix was a

consenting party. The age of the prosecutrix is 21 years and,

therefore, she is a major girl. It is further submitted that the offence is

alleged to have been committed in the house of Devi Singh. It is not

the case of the prosecutrix that at the time of commission of offence,

the house of Devi Singh was unlocked and there was no family

member in the house. The trial is likely to take sufficiently long time

and there is no possibility of his absconding or tampering with the

prosecution case.

Per contra, the appeal is opposed by the counsel for the

respondent/State. After going through the police case diary, it is fairly

conceded that the appellant has no criminal history.

Considered the submissions made by the Counsel for the

parties through video conferencing.

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 Powered 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 undertrial 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 allegations and looking the period of

detention, as well as considering the fact that in view of second wave

of Covid19 pandemic, it is also necessary to decongest the jail, and

without commenting on the merits of the case, it is directed that the

appellant be released on bail, on furnishing a personal bond in the

sum of Rs.1,00,000/- (Rs. One Lac) with one surety in the like

amount to the satisfaction of the Trial Court or C.J.M. or Remand

Magistrate (Whosoever is available). The appellant shall also furnish

an undertaking that he shall follow all the instructions which may be

issued by the Central Govt./State Govt. or Local Administration

(General or Specific) from time to time for combating Covid19.

The Supreme Court in the case of IN RE : CONTAGION OF

COVID 19 VIRUS IN PRISONS by order dated 7-4-2020 has

directed as under :

In these circumstances, we consider it appropriate to direct that Union of India shall ensure that all the prisoners having been released by the States/Union Territories are not left stranded and they are provided transportation to reach their homes or given the option to stay in temporary shelter homes for the period of lockdown.

For this purpose, the Union of India may issue appropriate directions under the Disaster Management Act, 2005 or any other law for the time being in force. We further direct that the States/Union Territories shall ensure through Directors General of Police to provide safe transit to the prisoners who have been released so that they may reach their homes. They shall also be given an option for staying in temporary shelter homes during the period of lockdown.

Accordingly, it is directed that before releasing the

appellant, the jail authorities shall get the appellant examined by

a competent Doctor and if the Doctor is of the opinion that his

Corona Virus test is necessary, then the same shall be conducted.

If the appellant is not found suspected of Covid19 infection or if

his test report is negative, then the concerned local

administration shall make necessary arrangements for sending

the appellant to his house as per the directions issued by the

Supreme Court in the case of IN RE : CONTAGION OF COVID

19 VIRUS IN PRISONS (Supra), and if he is found positive then

the appellant shall be immediately sent to concerning hospital for

his treatment as per medical norms. 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 Covid19. 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 send him to the same jail from where he was

released. The appellant is further directed to supply a copy of

this bail order to the police station having jurisdiction over his

place of residence.

The other conditions of Section 437, 439 Cr.P.C. shall remain

the same.

This order shall remain in force, till the conclusion of Trial. In

case of bail jump, or violation of any of the condition(s) mentioned

above, this order shall automatically lose its effect.

In the light of the judgment passed by the Supreme Court in

the case of Aparna Bhat & Ors. vs. State of M.P. passed on

18/3/2021 in Criminal Appeal No. 329/2021, the intimation

regarding grant of bail be sent to the complainant.

With aforesaid observations, this appeal is Allowed.

C.C. as per rules.

(G.S. Ahluwalia) Judge Pj'S/-

Digitally signed by PRINCEE BARAIYA DN: c=IN, o=HIGH COURT OF

PRINCEE MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474011,

BARAIYA st=Madhya Pradesh, 2.5.4.20=ce88aa5b434891871d72ac9 84b02d2ddd305c37fea4a35278b8e9 7535318b1b3, cn=PRINCEE BARAIYA Date: 2021.08.13 14:51:12 -07'00'