Naveen Kushwah vs The State Of Madhya Pradesh
2021 Latest Caselaw 4446 MP

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          THE HIGH COURT OF MADHYA PRADESH
                   M.Cr.C. No.39121/2021
               Naveen Kushwah vs. State of MP

Gwalior, Dated : 18-08-2021

      Shri Ravi Dwivedi, counsel for the applicant through video

conferencing.

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

      Shri Keshav Pathak, counsel for complainant through video

conferencing.

      Case diary is available.

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

filed for grant of bail.

      The applicant has been arrested on 30.06.2021 in connection

with Crime No.55/2019 registered at Police Station Purani Chavni

Distt. Gwalior for offence under Sections 307, 323, 34 of IPC.

      It is submitted by the counsel for the applicant, that although

the offence was allegedly committed on 19.02.2019, whereby

alleging that the applicant had caused a gunshot injury on the elbow

of the complainant but it was purely by way of counter-blast as the

father of the applicant, namely, Hotam Singh was killed by the

complainant and a sessions trial No.265/2016 was pending against

the complainant in which the applicant had also appeared as a

witness. It is further submitted that the complainant has been

convicted for the murder of the father of applicant by judgment dated
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         THE HIGH COURT OF MADHYA PRADESH
                  M.Cr.C. No.39121/2021
              Naveen Kushwah vs. State of MP

23.09.2019

and he has also filed a criminal appeal No.1698/2020

which is pending consideration before this court. It is further

submitted that if the intention of applicant was to kill the

complainant then there was no occasion for him to cause gunshot

injury on the elbow of complainant and he could have caused injury

on the vital part of the body of the complainant. The trial is likely to

take sufficiently long time and there is no possibility of his

absconding or tampering with prosecution witnesses.

Per contra, the application is vehemently opposed by counsel

for the State as well as complainant.

It is submitted by Shri C.P. Singh that not only applicant was

absconding for more than two years but from the FIR, it is clear that

it was the applicant who caused gunshot injury to the complainant

and the ocular evidence of the complainant is also supported by

medical evidence but could not explain as to why applicant did not

cause any injury on the vital part of body of complainant specially

when he had every occasion to do so.

It is submitted by counsel for complainant that although the

complainant has not been released on bail in criminal appeal

No.1698/2020, but he has been granted parole by order of the

Collector, and therefore, at present he is not in jail. It is also

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.39121/2021 Naveen Kushwah vs. State of MP

submitted that it is incorrect to say that there was no intention on the

part of applicant to kill the complainant. In-fact the gunshot was

fired when the complainant was driving a motor cycle and only

because the gunshot was hit on the elbow of complainant, it would

not mean that the intention of the applicant was not to kill the

complainant.

This submission made by counsel for the complainant is

apparently contrary to the allegation mentioned in the FIR, therefore,

he was directed to read the FIR. The relevant part of the FIR reads as

under :

"tSls gh Hknjksyh okyh iDdh lMd ds ikl igqWps fd ihNs ls uhrs'k vkSj uohu dq'kokg eksVjlkbfdy ls vk, vkSj ihNs ls MaMk ekjk flj es yxk eS rFkk iRuh fxj iMs rks uohu us nkfgus gkFk esa dVVk dh cV ekjs rFkk tku ls ekjus dh fu;r ls xksyh pykbZ tks esjs ck, gkFk dh dksguh ds ikl yxh xksyh vkj ikj fudy xbZ"

Thus, it is clear that according to FIR, the gunshot was fired

when the complainant was lying on the ground and not while he was

driving the motor cycle. Whenever an argument is raised, it is

always expected that Lawyer must project the correct facts of the

case and should not add or subtract anything on his own.

Be that whatever it may.

It is next contended by Shri Pathak that applicant has criminal

history and two more offences i.e. crime No. 192/2017 and

372/2016 were registered against him. In crime No.192/2017,

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.39121/2021 Naveen Kushwah vs. State of MP

offence under sections 307, 341, 394 of IPC has been registered,

whereas in crime No.372/2016, offence under sections 457, 380 of

IPC has been registered. Since crime No.192/2017 was subsequent to

the murder of father of the applicant, therefore, Shri Keshav Pathak

was directed to read the FIR of crime No.192/2017. From the FIR of

crime No.192/2017, it is clear that the genesis of that incident was

directly connected with murder of father of applicant. Whether the

said crime was a counter-blast or was falsely alleged with an

intention to falsely implicate the applicant, cannot be decided at this

stage because it is a matter of evidence which is to be considered and

appreciated by the trial Court. However, one thing is clear that in the

FIR of crime no. 192/2017, it is mentioned that the genesis of the

incident was the murder of the father of applicant.

It is true that the applicant was absconding for more than two

years but when this court is of the considered opinion that when there

is a possibility of false implication (this observation should not be

construed as a final conclusion and it is being made just for the

purpose of this bail application), then this court cannot reject the bail

application of applicant specially when he has lost his father as he

was killed by complainant and the complainant has also been

convicted for murder of father of applicant and has not been released

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.39121/2021 Naveen Kushwah vs. State of MP

so far in an appeal filed by him.

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

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.39121/2021 Naveen Kushwah vs. State of MP

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 totality of facts and circumstances of the case

as well as considering the fact that 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

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 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

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.39121/2021 Naveen Kushwah vs. State of MP

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

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

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.39121/2021 Naveen Kushwah vs. State of MP

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

regarding grant of bail be sent to the complainant.

With aforesaid observations, this application is Allowed.

(G.S. Ahluwalia) Judge

Aman AMAN TIWARI 2021.08.18 16:40:30 +05'30'