Surendra Sen vs The State Of Madhya Pradesh
2021 Latest Caselaw 5584 MP

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            THE HIGH COURT OF MADHYA PRADESH
                      CRA No.5444/2021
   (SURENDRA SEN Vs STATE OF MADHYA PRADESH AND ANOTHER)

Gwalior, Dated : 17/09/2021

      Shri Lalan Mishra, learned counsel for appellant.

      Shri C.P. Singh, learned counsel for the State.

      None for the complainant.

      Case diary is available.

      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.

      This first Criminal Appeal for grant of bail has been filed under

Section 14A(2) of Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities), Act, 1989 against the order dated

08.09.2021 passed by Special Judge, the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, Shivpuri by which

the application filed by the appellant for grant of bail has been

rejected.

      The appellant has been arrested on 26.06.2021 in connection

with Crime No.79/2021 registered at Police Station Subashpura,

District Shivpuri for offence punishable under Section 376 of IPC,

under Section 3(1)(w)(i) & 3(2)(v) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities), Act.

      By referring to the statement of prosecutrix recorded under
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           THE HIGH COURT OF MADHYA PRADESH
                     CRA No.5444/2021
   (SURENDRA SEN Vs STATE OF MADHYA PRADESH AND ANOTHER)

Section 164 of Cr.P.C, it is submitted by counsel for appellant that is

is clear that prosecutrix was on talking terms with appellant and on

the fateful day, she went along-with appellant on his motor cycle. She

did not raise any alarm or she did not try to jump from motor cycle

which clearly shows that she was a consenting party and had gone

with appellant voluntarily. Even when appellant was allegedly taking

the prosecutrix to a lonely place, still the prosecutrix did not raise any

alarm. Even after the alleged commission of rape, when the

prosecutrix came back along with appellant on his motor cycle, she

did not raise any alarm and she did not told the incident to anybody.

Only after the villagers came to know about the illicit relationship of

the appellant with the proecutrix, it is alleged that the FIR was

lodged. Thus, it is clear that the prosecutrix was a consenting party.

She is a major and married woman. 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.

Considered the submissions made by the Counsel for the

parties.

The Supreme Court by order dated 23-3-2020 passed in the

case of IN RE : CONTAGION OF COVID 19 VIRUS IN

THE HIGH COURT OF MADHYA PRADESH CRA No.5444/2021 (SURENDRA SEN Vs STATE OF MADHYA PRADESH AND ANOTHER)

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

THE HIGH COURT OF MADHYA PRADESH CRA No.5444/2021 (SURENDRA SEN Vs STATE OF MADHYA PRADESH AND ANOTHER)

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

THE HIGH COURT OF MADHYA PRADESH CRA No.5444/2021 (SURENDRA SEN Vs STATE OF MADHYA PRADESH AND ANOTHER)

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

THE HIGH COURT OF MADHYA PRADESH CRA No.5444/2021 (SURENDRA SEN Vs STATE OF MADHYA PRADESH AND ANOTHER)

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.

(G.S. Ahluwalia) Judge Aman AMAN TIWARI 2021.09.17 17:06:03 +05'30'