Madhya Pradesh High Court
Akash Kushwah vs The State Of Madhya Pradesh on 16 July, 2021
Author: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
MCRC No.28084/2021
Akash Kushwah vs. State of M.P.
Through Video Conferencing
Gwalior, Dated : 16.07.2021
Shri Prabal Raj Singh Singh Chauhan, Counsel for the
applicant.
Ms. Kalpana Parmar, Panel Lawyer for the respondent/State.
Case diary is available.
This second application under Section 439 of Cr.P.C. has been
filed for grant of bail. The first application was dismissed as
withdrawn by order dated 23.4.2021 passed in
M.Cr.C.No.20081/2021.
The applicant has been arrested on 5.4.2021 in connection with
Crime No.167/2020 registered at Police Station Deepar, District Datia
for offence under Sections 353, 147, 341 of IPC and under Section
33(1)(Kha) of Indian Forest Act.
It is submitted by the counsel for the applicant that according to
the prosecution case, the tractor and trolley which was loaded with
stones was found in an abandoned condition. When the police party
was trying to take away the tractor and trolley, some unidentified
persons attacked the police party and took away the tractor and
trolley. The applicant was identified in the test identification parade
and, accordingly, the first application was withdrawn. However, the
THE HIGH COURT OF MADHYA PRADESH
MCRC No.28084/2021
Akash Kushwah vs. State of M.P.
Co-ordinate Bench of this Court by orders dated 13.5.2021 passed in
M.Cr.C.No.22601/2021 and 24264/2021 has granted anticipatory bail
to the co-accused Haridas @ Hardas Kushwah and Banti @ Sunil
Singh Yadav and the case of the present applicant is identical to that
of the co-accused persons who have been granted anticipatory bail.
The applicant has no criminal history except on case which was
registered under Section 25/27 of the Arms Act. 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. However, it is fairly conceded that the co-
accused Haridas @ Hardas Kushwah and Banti @ Sunil Singh Yadav
have been granted anticipatory bail by the Co-ordinate Bench of this
court.
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
THE HIGH COURT OF MADHYA PRADESH
MCRC No.28084/2021
Akash Kushwah vs. State of M.P.
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 fact that two co-accused persons have been
granted anticipatory bail subsequent to rejection of the bail
application of the applicant coupled with the fact that the applicant is
in jail for the last more than three months, it is directed that the
THE HIGH COURT OF MADHYA PRADESH
MCRC No.28084/2021
Akash Kushwah vs. State of M.P.
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
THE HIGH COURT OF MADHYA PRADESH
MCRC No.28084/2021
Akash Kushwah vs. State of M.P.
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.
THE HIGH COURT OF MADHYA PRADESH
MCRC No.28084/2021
Akash Kushwah vs. State of M.P.
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
(alok)
ALOK KUMAR
2021.07.19 10:07:05 +05'30'
