Keshav Shivhare vs The State Of Madhya Pradesh
2021 Latest Caselaw 3313 MP

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          THE HIGH COURT OF MADHYA PRADESH
                   MCRC No.34672/2021
               Keshav Shivhare vs. State of M.P.

                    Through Video Conferencing

Gwalior, Dated : 15.07.2021

      Shri Pradeep Katare, Counsel for the applicant.

      Shri    Rajeev    Upadhyay,     Public      Prosecutor   for   the

respondent/State.

Case diary is available.

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

filed for grant of bail. The second application was dismissed as

withdrawn by order dated 26.2.2021 passed in

M.Cr.C.No.11141/2021.

The applicant has been arrested on 23.9.2020 in connection

with Crime No.452/2020 registered at Police Station Dehat, District

Bhind for offence under Sections 409, 420 of IPC.

I.A.No.20677/2021 has been filed for grant of temporary bail

on account of death of father of the applicant.

It is submitted by the counsel for the applicant that he may be

permitted to withdraw the bail application on merits but his prayer for

temporary bail may be considered.

The application on merits is hereby dismissed as withdrawn.

In the first half of the day, when the case was taken up, Shri

Rajeev Upadhyay was directed to verify as to whether the father of

THE HIGH COURT OF MADHYA PRADESH MCRC No.34672/2021 Keshav Shivhare vs. State of M.P.

the applicant has expired on 6.7.2021 and the cremation was done by

the applicant in police custody on 7.7.2021 or not?

The case was taken up at 1:00 PM and after obtaining due

verification from the concerned Police Station, it is submitted by the

counsel for the respondent/State that the father of the applicant has

expired on 6.7.2021.

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 HIGH COURT OF MADHYA PRADESH MCRC No.34672/2021 Keshav Shivhare vs. State of M.P.

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 presence of the applicant would be

necessary in the last rites of his late father, it is directed that on

furnishing cash surety of Rs.50,000/- (Rs. Fifty Thousand Only) to

the satisfaction of the Trial Court or C.J.M. or Remand Magistrate

(Whosoever is available), the applicant be released on temporary

bail up to 21.7.2021. The applicant shall also furnish an undertaking

before the Court below that he shall surrender on 22.7.2021. 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

THE HIGH COURT OF MADHYA PRADESH MCRC No.34672/2021 Keshav Shivhare vs. State of M.P.

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

THE HIGH COURT OF MADHYA PRADESH MCRC No.34672/2021 Keshav Shivhare vs. State of M.P.

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.

It is made clear that in case if the applicant fails to surrender

before the Court below on 22.7.2021, then the cash surety so

furnished by the applicant shall automatically stand forfeited without

any reference to the Court.

Since this application has been allowed on furnishing cash

surety, therefore, it is needless to mention that in case if the applicant

surrenders on 22.7.2021, then the cash surety so deposited by the

applicant shall be returned back to him or to his pairokar on the

instructions of the applicant. However, if the applicant fails to

surrender on 22-7-2021, then the cash surety so furnished by the

THE HIGH COURT OF MADHYA PRADESH MCRC No.34672/2021 Keshav Shivhare vs. State of M.P.

applicant shall stand forfeited without any reference to this Court.

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 finally disposed

of.

(G.S. Ahluwalia) Judge (alok)

ALOK KUMAR 2021.07.16 09:51:15 +05'30'