Harisharan vs The State Of Madhya Pradesh
2021 Latest Caselaw 4022 MP

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          THE HIGH COURT OF MADHYA PRADESH
                   M.Cr.C. No.36521/2021
             Harisharan v. State of M.P. and Anr.


                   Through Video Conferencing.

Gwalior, Dated :06.08.2021

      Shri D.S. Tomar, Counsel for the applicant.

      Shri Ravi Vallabh Tripathi, Counsel for the State.

      Case diary is available.

      This is first application filed under Section 439 of Cr.P.C. for

grant of bail.

      The applicant has been arrested on 13.06.2021 in connection

with Crime No.353/2021 registered by Police Station Pichore Distt.

Shivpuri for offence punishable under Sections 376, 342 of IPC.

      It is submitted by Shri Tomar that admittedly the prosecutrix is

major. Infact, at about 9:30 in night, the prosecutrix on her own came

to the flour mill of the applicant. When they were having consensual

sex, it appears that the family member of the prosecutrix came in

search of her and found her in the company of the applicant.

Accordingly, it is submitted that the applicant has been falsely

implicated. It is further submitted that according to prosecution case,

when Avtari Singh and his wife were in their house, they heard the

screams of the prosecutrix and accordingly, they reached to the flour

mill, where they found that the applicant was with the prosecutrix. It

is submitted that the house of Avtari Singh is not situated at nearby

place. Therefore, it is incorrect to say that they could have heard the
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         THE HIGH COURT OF MADHYA PRADESH
                  M.Cr.C. No.36521/2021
            Harisharan v. State of M.P. and Anr.


screams of the prosecutrix from their house. The applicant is in jail

for the last near about one month and 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 application is vehemently opposed by the

counsel for the respondent/State. However, after going through the

spot map, it is fairly conceded that the house of the prosecution

witnesses Avtari Singh and Rani is not shown in the spot map.

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

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.36521/2021 Harisharan v. State of M.P. and Anr.

(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

de-congest 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 HIGH COURT OF MADHYA PRADESH M.Cr.C. No.36521/2021 Harisharan v. State of M.P. and Anr.

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

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.36521/2021 Harisharan v. State of M.P. and Anr.

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

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.36521/2021 Harisharan v. State of M.P. and Anr.

regarding grant of bail be sent to the complainant.

With aforesaid observations, this application is Allowed.

(G.S. Ahluwalia) Judge ar

ABDUR RAHMAN 2021.08.06 17:36:47 +05'30'