Brajesh Khare vs State Of Madhya Pradesh

In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona Virus (COVID-19) and considering the advisories issued by the government of India, this application has been heard and decided through video conferencing to maintain social distancing. The parties are being represented by the respective counsel through video conferencing, following the norms of social distancing/physical distancing in letter and spirit.

Heard learned counsel for the parties.

The applicant has filed second bail application u/S.438, Cr.P.C. for grant of anticipatory bail. Earlier bail application was dismissed as withdrawn vide order dated 14.08.2020 passed in M.Cr.C No. 21913/2020.

The applicant is apprehending his arrest in connection with Crime No.238/2020, registered by police station Padav, District Gwalior, in relation to the offences punishable under Sections 377, 323 and 506 of IPC.

It is submitted that applicant has falsely been implicated in the present case and he has not committed any crime in any manner. It is submitted that owing to some dispute between husband and wife, the complaint was made by the wife. The Every possible efforts are being made to amicably settle the matter. Even the wife has submitted an affidavit to the aforesaid effect along with the application for assisting the Government Advocate on 07.09.2020. It is submitted that if the applicant is sent to jail, all possibilities of amicable settlement between husband and wife will be ruled out. It is argued that the applicant being the husband assures to keep the wife properly. He is ready to abide by all the terms and conditions as may be imposed by this Court and looking to the fact that the matrimonial life of the between the husband and wife will be ruled out, if the applicant sent to jail. He has shown his willingness to contribute an amount of Rs.15,000/- in the account of High Court Bar Association, Gwalior for benefit of the lawyers during this COVID-19 scenario.

Learned Public Prosecutor for the State has opposed the application stating that it is serious allegation under Section 377 of IPC committed by the present applicant. The allegations are serious which are medically corroborated. Counsel for the State has argued that at the time of arguments on the first application, the aforesaid opportunity was available to the applicant, but they have failed to avail the opportunity despite all efforts being made by the State counsel as well as this Court also. Wife has not agreed to the aforesaid preposition on the earlier date. The husband is also not surrendered thereafter and not cooperated in the investigation. He submits that subsequent application under Section 438 of Cr.P.C on the same cause of action is not maintainable.

Counsel for the complainant has submitted that she is willing to settle the matter with the husband as the dispute is between husband and wife and if the bail is granted to the husband, she is not having any objection for the same as the same will save the matrimonial relationships between the husband and wife, therefore, in the interest of wife as well as her child and considering the fact that sending the husband to jail will ruined the matrimonial life. She submits that bail may be extended to him. Every possible efforts are being made by the elders of the family to get the matter amicably settle between them.

The case was listed for hearing on 15.09.2020, this Court has directed the wife to submit a detailed affidavit with respect to the advanced argument her. Counsel before the Court and she has filed a detailed affidavit on 15.09.2020 which is as under:-

Heard learned counsel for the parties at length.

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 Level 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 under trial 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."

The second bail application under Section 438 of Cr.P.C is maintainable as has been considered and held by the coordinate Bench of this Court in the case of Balveer Singh Bundela Vs. State of M.P. in M.Cr.C No.5621/2020 order dated 12.05.2020.

Thus, in view of the aforesaid, this Court has considered the second bail application under Section 438 of Cr.P.C. It is not in dispute that the aforesaid registration of an FIR is owing to dispute between husband and wife. Although the allegations are levelled against the husband are serious in nature, but taking into consideration the fact and amicable settlement between husband and wife can reunite them and their married life will be saved, coupled with the fact that they are having a child aged about 7 years and by sending the husband to jail will not be fruitful and will not be in the interest of child as well as the wife.

Considering the overall facts and circumstances of the case and also the affidavit submitted by the wife that all possible efforts are being made to get the matter amicably, this Court deems it appropriate to allow this application in the interest of saving marriage of the parties at large. Accordingly, the application is allowed. It is hereby directed that in the event of arrest, the applicant shall be released on bail on his furnishing personal bond of Rs.50,000/- (Rupees Fifty Thousand only) to the satisfaction of Investigation Officer / trial Court, as the case may be with submission of written undertaking 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 (COVIC-19) pandemic and he will has to install Arogya Setu App, if not already installed.

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

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

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

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 him from disclosing such facts to the Court or to the Police Officer, as the case may be;

The applicant shall not commit an offence similar to the offence of which he is accused;

The applicant will not seek unnecessary adjournments during the trial;

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

The applicant shall deposit Rs.15,000/- in the account of High Court Bar Association, Gwalior for the purpose of assistance and rehabilitation of those members of the Bar, who are facing financial distress due to Lockdown and restrictive functioning of the courts owing to ongoing COVID-19 pandemic, within seven days from today.

The applicant will inform the SHO 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 for information.

Application stands allowed and disposed of.

E- copy of this order be sent to the trial Court concerned for compliance, if possible for the office of this Court. Certified copy/ e-copy as per rules/directions.