Anuj Pawar vs The State Of Madhya Pradesh
2021 Latest Caselaw 5968 MP

                                                           1                           MCRC-31917-2021
                              The High Court Of Madhya Pradesh
                                        MCRC-31917-2021
                                    (ANUJ PAWAR Vs THE STATE OF MADHYA PRADESH AND OTHERS)

                      7
                      Jabalpur, Dated : 24-09-2021
                            Heard through Video Conferencing.
                            Shri Manish Datt, learned Senior counsel with Shri Mayank Sharma,
                      learned counsel for the applicant.
                            Shri Mukund Chourasia, learned panel lawyer for the respondent/State.

Shri Naval Gupta, learned counsel for the objector.

This is second bail application under Section 439 of Cr.P.C filed by the applicant for grant of bail.

The applicant has been arrested on 05.12.2020 by Police Station Kurai, District Seoni in connection with Crime No.519/2020 registered in relation to the offence punishable under Sections 363, 376(3), 376(2)(n) of the Indian Penal Code read with Section 5L & 6 of POCSO Act.

Earlier bail application was dismissed as withdrawn vide order dated 24.04.2021 in M.Cr.C.No.1189/2021 granting liberty to the applicant to revive his prayer after recording of statement of material witnesses.

It is alleged that the material witnesses have been examined that is the prosecutrix and her parents and they have not supported the prosecution story. He has drawn the attention of this Court to the statement of the victim recorded on 16.03.2021 wherein, she has stated that she used to frequently talk with the accused on mobile phone and she out of her own will has gone with the present applicant. In cross-examination, she has stated that no offence of rape was committed by the accused with her. It is further pointed out that the examination of mother and father have been recorded, wherein they have admitted the fact that on the instructions of the police authorities she has admitted the statement given under Section 161 Cr.P.C. He has further drawn the attention of this Court to the statement of Dr. Swati Uikey

Signature Not (PW-7); wherein, she has stated that there is no definite opinion regarding SAN Verified

Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.09.25 11:57:41 IST 2 MCRC-31917-2021 commission of rape. The medical report shows the age of the prosecutrix to be 16 years. The applicant is a first offender and he is in custody since 05.12.2020. In such circumstances, he prays for grant of bail looking to the custody period, as there are no likelihood that the trial will be concluded at an early date as 17 prosecution witnesses are being mentioned in the list of witnesses and out of which only 7 witnesses have been examined. He is ready

to abide with all the terms and conditions as may be imposed by this Court while considering the application for grant of bail. He has relied upon the judgment rendered by the Hon'ble Supreme Court 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 wherein, while considering the situation arising out of the Covid 19 Pandemic scenario, it has directed all the States to constitute a High Level Committee to consider the release of prisoners in order to decongest the prisons if they are not required any further in custody and by Division Bench of this Court Principal Seat at Jabalpur in W.P.No.9320 of 2021 on 17.5.2021. Upon these grounds, counsel for the applicants prayed for grant of bail.

Per contra, learned counsel appearing for the State as well as the learned counsel for the objector have vehemently opposed the application and stated that the victim is minor aged about 16 years. Date of birth of the victim as shown in the mark sheet is 05.03.2005 and the offence has taken place on 20.11.2020. Thus, she is admittedly a minor. The statement of Headmaster has been recorded in the school wherein he has supported the case of the prosecution. It is contended that the victim has not turned hostile in the matter before the Trial Court and the consent of the minor is having no value. In such circumstances, they prayed for rejection of the application.

Considering the over all facts and circumstances of the case and also the fact that no definite opinion regarding commission of rape is given by the Doctor, coupled with the fact that the victim has not stated in her statement before the Court that applicant has committed rape with her. In such Signature SAN Not Verified

Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.09.25 11:57:41 IST 3 MCRC-31917-2021 circumstances, without commenting upon the merits of the case, subject to verification of the fact that the applicant is a first offender and taking into consideration the judgment passed by Hon'ble Apex Court in W.P. (C) No.1/2020 on 23.3.2020 and by the Division Bench of this Court at Main Seat Jabalpur in W.P.No.9320 of 2021 on 17.5.2021 respectively, as stated herein above, this Court deems it appropriate to allow this application. Accordingly, the application is hereby allowed. The applicant is directed to be released on bail and on furnishing surety bond of Rs.50,000/- (Rs. Fifty thousand Only) with one solvent surety in the like amount to the satisfaction of trial Court.

The Trial Court may conclude the proceedings of the trial at an early

date expeditiously without being effected by any of the observations made in this order.

The applicant shall submit written undertaking that he will abide by all terms and conditions of the different circulars, orders as well as guidelines issued by the Central Government, State Government as well as Local Administration for maintaining social distancing, hygiene etc. to avoid Novel Corona Virus (COVID-19) pandemic and he will have to install Arogya Setu App, if not already installed.

This order will remain operative subject to compliance of the following conditions by the applicant :-

1. The applicant will comply with all the terms and conditions of the bond executed by him;

2. The applicant will cooperate in the investigation/trial, as the case may be;

3. The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or to the Police Officer, as the case may be;

4. The applicant shall not commit an offence similar to the offence of Signature SAN Not Verified

Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.09.25 11:57:41 IST 4 MCRC-31917-2021 which he is accused;

5. The applicant will not seek unnecessary adjournments during the trial;

6. The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be.

7. If the applicant is found involved in any other case except present one, the bail granted to the applicant shall stand rejected without reference to the court;

8.The applicant will inform the concerned S.H.O. of concerned Police Station about his residential address in the said area and it would be the duty of the Public Prosecutor to send E-copy of this order to SHO of concerned police station as well as Superintendent of Police concerned who shall inform the concerned SHO regarding the same.

Application stands allowed and disposed of. The applicant 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 reside. Applicant shall 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 (COVID-19) pandemic.

In view of the COVID-19, jail authorities are directed that before releasing the applicant, medical examination of applicant 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 applicant shall be released immediately on bail and shall be given a pass or permit for movement to reach his place of residence.

E-copy of this order be provided to the applicant and E-copy of this order be sent to the trial Court concerned for compliance. It is made clear Signature SAN Not Verified

Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.09.25 11:57:41 IST 5 MCRC-31917-2021 that E-copy of this order shall be treated as certified copy for practical purposes in respect of this order.

Certified copy as per rules.

                                                                          (VISHAL MISHRA)
                                                                               JUDGE


                      AM




Signature
 SAN      Not
Verified

Digitally signed by
ANINDYA SUNDAR
MUKHOPADHYAY
Date: 2021.09.25
11:57:41 IST