Madhya Pradesh High Court

Rajesh Tamrakar vs The State Of Madhya Pradesh on 27 April, 2021

Author: Gurpal Singh Ahluwalia

THE HIGH COURT OF MADHYA PRADESH MCRC No.33487/2021 (RAJESH TAMRAKAR VS. STATE OF M.P. )

Jabalpur, Dated : 27/04/2021

Shri Manish Mishra learned counsel for the applicant.

Shri S.K.Kashyap, learned Panel Lawyer for the State.

None for the complainant.

It is submitted by Shri Kashyap that the prosecutrix has been

served.

Heard finally, through video conferencing.

Case diary is available.

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

grant of bail.

The applicant has been arrested on 06/07/2020 in connection

with Crime No.246/2020 registered at Police Station Kotma, District

Anuppur for offence under Section 363, 376 of IPC and Sections 3,

4, 5k, 5m and 6 of POCSO Act.

This bail application is pending since 10/09/2020. Multiple

opportunities were granted to the State to produce the FSL/DNA test

report. Today also Shri Kashyap submitted that the DNA test report

has not been received.

The Supreme Court in the case of Hussain and others Vs.

Union of India, reported in (2017) 5 SCC 702 has held that High

Court must ensure that the bail applications are decided within a

period of one month. However, the present application is pending for

the last more than one month.

It is submitted by the counsel for the applicant that according

to the prosecution case, a minor girl aged about 8 years went missing

and when the witnesses were searching for her, then they found that

the applicant was coming alongwith girl. Accordingly, the girl was

brought back to her house where her mother noticed that the girl has

been sexually violated. By referring to statement of the Varsha

Tamrakar, the wife of the applicant, it is submitted that she has

specifically stated that her husband (applicant) had informed her that

he has found a minor girl, therefore, he is going to take her back to

her house. It is submitted that there is no eye witnesses in the case.

Sufficient opportunities have been granted to the State to produce the

DNA test report but the DNA report has not been produced.

Per contra, the application is vehemently opposed by the

Counsel for the State. It is fairly conceded by Shri Kashyap that

although this bail application is pending since September, 2020 but

the DNA report has not been received so far. It is further submitted

that this Court by order dated 12/01/2020 had directed the State

counsel to produce the DNA test report and in spite of letters written

to the DNA unit, report has not been received.

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 fact that the sufficient opportunities have been

granted to State to produce the DNA test report and coupled with the

fact that in the light of the judgment passed by Supreme Court in the

case of Hussain (supra), it is always accepted that the High Court

should decide the bail application within a period of one month,

coupled with deteriorating condition 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 on furnishing

the 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

be released on temporary bail for a period of four months from the

date of his release. The applicant shall also furnish an undertaking

that he shall surrender immediately after the period of temporary

bail is over, unless and until the period of temporary bail is extended

by this Court. He shall also furnish an undertaking before the Court,

that he shall abide by all the instructions which may be issued by the

Central Govt./State Govt. or Local Administration for combating

Covid19 from time to time.

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