Jitendra Sharma @ Jittu vs The State Of M.P.
2021 Latest Caselaw 3726 MP

                         1
         THE HIGH COURT OF MADHYA PRADESH
                  MCRC No.33047/2021
      (JITENDRA SHARMA @ JITU VS. STATE OF M.P.)

                     Through Video Conferencing

Gwalior, Dated : 30/07/2021

      Shri Prakhar Dengula, Counsel for the applicant.

      Shri B.S.Gaur, Counsel for the respondent/State.

Shri Atul Gupta, Counsel for the complainant.

Case diary is available.

This first application under Section 439 of Cr.P.C. has been

filed for grant of bail.

The applicant has been arrested on 21/03/2021 in connection

with Crime No.259/2021 registered at Police Station City Kotwali

Morena, District Morena for offence under Sections 376, 376(2)(n)

of IPC.

It is submitted by the counsel for the applicant that according

to the prosecution case, the prosecutrix is a married woman having

two children. It is her contention that she was left by her husband but

that does not mean that her marriage was severed by a decree of

divorce. It is submitted that according to the prosecution case, on the

pretext of false marriage, the applicant had asked the prosecutrix to

come to Barrier Chauraha, Morena, where she was raped by the

applicant in a truck. It is submitted that once the first marriage of the

prosecutrix was still in subsistence and merely because she was

residing separately from her husband, it would not mean that she can

perform second marriage during the subsistence of first marriage.

Furthermore, the incident is alleged to have taken place on

26/02/2021 whereas FIR was lodged on 20/03/2021 i.e.

approximately after one month of the incident. Ever otherwise, the

allegations are that the rape was committed under a bridge in a truck.

If the prosecutrix was not a consenting party, then she could have

easily raised an alarm inviting the attention of by passers. The

applicant is in jail from 21/03/2021. The Trial is likely to take

sufficiently long time and there is no possibility of his absconding or

tempering with prosecution witnesses.

Per contra, the application is vehemently opposed by the

counsel for the State.

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, 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 applicant 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 applicant 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

applicant, the jail authorities shall get the applicant 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 applicant 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 applicant 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 applicant shall be immediately sent to concerning hospital

for his treatment as per medical norms. The applicant 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 applicant 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 applicant 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 application is allowed.

Certified copy as per rule.

                                                                           (G.S. Ahluwalia)
Pj'S/-                                                                            Judge
         PRINCEE BARAIYA
         2021.07.31
         10:23:59 -07'00'