Madhya Pradesh High Court
Shiv Narayan vs The State Of Madhya Pradesh on 18 August, 2021
Author: Gurpal Singh Ahluwalia
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THE HIGH COURT OF MADHYA PRADESH
MCRC No.37526/2021
(SHIV NARAYAN VS. STATE OF M.P.)
Gwalior, Dated : 18/08/2021
Shri Gaurav Mishra, learned counsel for the applicant.
Shri Nitin Goyal, learned counsel for the State.
Case diary is not available. Accordingly, the bail application is
being decided on the basis of the averments made in the application
as well as facts mentioned in the impugned order.
This is first application filed under Section 439 of Cr.P.C. for
grant of bail.
The applicant has been arrested on 17/07/2021 in connection
with Crime No.193/2021 registered by Police Station Kumbhraj,
District Guna for offence punishable under Section 353 of IPC and
Section 34(2) of M.P. Excise Act.
It is submitted by the counsel for the applicant that according
to the prosecution case, 65 liters of country made liquor has been
seized from the possession of the applicant. The applicant is in jail
from 17/07/2021. It is further submitted that the applicant is not
released on parole in the wake of Covid-19 pandemic and he has not
criminal history. 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 State. It is submitted by Shri Goyal that in absence of
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police case diary, he is not in position to make a statement as to
whether the applicant has any criminal antecedent or not ?
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
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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
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
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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
order shall automatically lose its effect, and the Local
Administration/Police Authorities shall immediately take him in
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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.
Before releasing the applicant on bail, the Court below shall
verify the criminal antecedents of the applicant and if it is found that
more offence(s) have been registered against the applicant, then this
order shall automatically come to an end and the Court below shall
not be obliged to release the applicant on bail.
Before releasing the applicant on bail, the Court below shall
verify as to whether the applicant was ever released on temporary
parole in the wake of Covid-19 pandemic or not. If it is found that the
applicant was released on temporary parole, then this order shall
automatically come to an end and the Court below shall not be
obliged to release the applicant on bail.
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.
C.C. as per rules.
(G.S. Ahluwalia)
Judge
Pj'S/-
Digitally signed by PRINCEE BARAIYA
PRINCEE
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH
COURT OF MADHYA PRADESH BENCH
GWALIOR, postalCode=474011,
BARAIYA
st=Madhya Pradesh,
2.5.4.20=ce88aa5b434891871d72ac984
b02d2ddd305c37fea4a35278b8e97535
318b1b3, cn=PRINCEE BARAIYA
Date: 2021.08.18 14:54:03 -07'00'
