Bablu Rathor vs The State Of Madhya Pradesh
2021 Latest Caselaw 4517 MP

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          THE HIGH COURT OF MADHYA PRADESH
                      MCRC No.41425/2021
            (BABLU RATHORE VS. STATE OF M.P. & ANR.)

Gwalior, Dated : 23/08/2021

      Shri Puran Kulshreshtha, learned counsel for the applicant

through video conferencing.

      Shri G.P.Chaurasiya, learned counsel for the State.

      Case diary is available.

      This is third repeat application filed under Section 439 of

Cr.P.C. for grant of bail.

      The applicant has been arrested on 02/02/2021 in connection

with Crime No.24/2021 registered by Police Station City Kotwali,

District Morena for offence punishable under Sections 363, 366,

376(2)N, 120-B/34 of IPC and Section 3/4 of the POCSO Act, 2012.

      It is submitted by the counsel for the applicant that according

to the prosecution case, the applicant alongwith co-accused had

kidnapped the minor prosecutrix and took her to Delhi where

households articles were purchased and she was left in the company

of child in conflict with law. It is submitted that there is no allegation

of rape or molestation against the applicant. The first bail application

was dismissed as withdrawn with liberty to revive the prayer after

undergoing some reasonable period of detention by order dated

24/03/2021

passed in MCRC No.16155/2021. The second bail

application was dismissed as withdrawn by order dated 09/06/2021

passed in MCRC No.27636/2021 after giving liberty to the applicant

to revive the prayer after undergoing further period of two months. It

is submitted by the counsel for the applicant that the applicant is in

jail for the last more than four and half months. 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.

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 period of detention, 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 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

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.

C.C. as per rules.

(G.S. Ahluwalia) Judge Pj'S/-

Digitally signed by PRINCEE BARAIYA Date: 2021.08.23 14:55:40 -07'00'