Gatta @ Omi Yadav vs The State Of Madhya Pradesh
2021 Latest Caselaw 75 MP

                                                        1                                 CRA-3870-2019
                              The High Court Of Madhya Pradesh
                                         CRA-3870-2019
                                     (GATTA @ OMI YADAV Vs THE STATE OF MADHYA PRADESH)

                      16
                      Jabalpur, Dated : 23-02-2021
                            Shri Sunil Kumar Mishra, Advocate for the appellant.
                            Shri Jitendra Shrivastava, PL for the respondent- State.

Record of the court below has been received.

Appeal is admitted for final hearing.

Also, heard on I.A.No.8634/2020, second application for suspension

of sentence and grant of bail to the appellant. First application was dismissed as withdrawn vide order dated 21/08/2019 with liberty to file a fresh application after six months.

Accused/appellant has been convicted by the learned 1st ASJ, Niwadi District-Tikamgarh by the judgment dated 01.04.2019 in ST No. 158/2012 for offence punishable under Section 397 of IPC and sentenced him to undergo RI for 7 years with fine of Rs. 5,000/- with default stipulation.

Ac c o rd ing to the prosecution case, in short, on 02.06.2012 complainant Pankaj Gupta PW/1 was going to his shop with Rs. 70,000/-

which is kept in his bag, at that time present appellant-accused and other co- accused reached there. Co-accused has katta, then appellant-accused and other co-accused looted Rs. 70,000/- from him, thereafter they ran away. Present appellant-accused caught red handed on the spot and co-accused Satish ran away and fired from katta to save him.

Learned counsel for the appellant/accused submits that the present accused/appellant is in jail since 05.02.2019. During trial he was remained in jail from 03.06.2012 to 01.05.2014, and from 11.09.2014 to 14.11.2014 . Therefore, he has served the substantial jail sentence out of maximum seven years sentence. At the time of incident appellant-accused has no deadly weapon, he did not use any deadly weapon in this incident, so no case is

Signature Not made out under Section 397 of IPC. Apart from this there are so many SAN Verified

Digitally signed by ARVIND KUMAR MISHRA Date: 2021.02.23 17:31:31 IST 2 CRA-3870-2019 contradictions, omissions and improvements in the version of the prosecution witnesses. There are fair chances to succeed in the case. Appeal is of the year 2019 and final hearing of this appeal will take time. Appellant-accused is not previously convicted. If the jail sentence of the appellant is not suspended and he is not released on bail, purpose of filing this application will be futile. In support of his contention learned counsel for the appellant-accused relied

upon the judgment delivered in the case of Ranchhod Vs. State of M.P. 2008(ii) MPWN 77 & Phool Kumar Vs. Delhi Administration, AIR 1975 SC 905. Therefore, learned counsel for appellant prays for allowing of this application.

Panel Lawyer has opposed the application and prayed for its rejection. Considering the contention of both the parties and this fact that accused/appellant is in jail since 05.02.2019. During trial he was remained in jail from 03.06.2012 to 01.05.2014, and from 11.09.2014 to 14.11.2014, therefore, he has served the substantial jail sentence out of maximum seven years sentence, and also this fact that other co-accused has already been released on bail by this Court vide order dated 20.11.2017 passed in Cr.A.No.3343/2017, at the time of incident appellant-accused has no deadly weapon, he did not use any deadly weapon in this incident, this appeal is of t h e year 2019, final hearing of this appeal will take time, but without commenting anything on the merit of the case, I am of the considered opinion that it would be appropriate to suspend the custodial sentence awarded to the appellant and grant bail to him. Consequently, I.A.No.8634/2020 is allowed subject to deposit of fine amount, if not already deposited. The custodial sentence awarded to the appellant shall remain suspended during the pendency of this appeal.

Appellant-Gatta @ Omi Yadav be released from custody subject to his furnishing a personal bond in the sum of Rs. 50,000/- (Rupees Fifty Thousand Only) with one surety in the same amount to the satisfaction of the trial Court. The appellant shall appear and mark his presence before trial Signature SAN Not Verified

Digitally signed by ARVIND KUMAR MISHRA Date: 2021.02.23 17:31:31 IST 3 CRA-3870-2019 Court on 11.05.2021 and shall continue to do so on all such future dates as may be given in this behalf, during pendency of the matter.

I n view of the outbreak of 'Corona Virus disease (COVID-19)' the appellant shall also comply with the rules and norms of social distancing. Further, in view of the order passed by the Hon'ble Supreme Court in suo moto W.P.No.1/2020, it would be appropriate to issue the following direction to the jail authority :-

1. The Jail Authority shall ensure the medical examination of the appellant by the jail doctor before his release.

2 . The appellant shall not be released if he is suffering from 'Corona Virus disease'. For this purpose appropriate tests will be carried out.

3 . If it is found that the appellant is suffering from 'Corona Virus disease', necessary steps will be taken by the concerned authority by placing him in appropriate quarantine facility.

List this matter along with Cr.A. No. 2954/2015 for final hearing in due course, as per listing policy.

C.C. as per rules.

                                                                (RAJENDRA KUMAR SRIVASTAVA)
                                                                           JUDGE
                      MISHRA




Signature
 SAN      Not
Verified

Digitally signed by
ARVIND KUMAR
MISHRA
Date: 2021.02.23
17:31:31 IST