Lallu Kushwah @ Rajnesh vs The State Of Madhya Pradesh
2021 Latest Caselaw 3688 MP

                          1
        THE HIGH COURT OF MADHYA PRADESH
                 MCRC No.35309/2021
    (LALLU KUSHWAH @ RAJNESH VS. STATE OF M.P.)
              Through Video Conferencing

Gwalior, Dated : 29/07/2021

       Shri Aditya Singh Ghuraiya, Counsel for the applicant.

       Shri Ravi Ballabh Tripathi, Counsel for the respondent/State.

Case diary is available.

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

filed for grant of bail.

The applicant has been arrested on 08/01/2018 in connection

with Crime No.17/2018 registered at Police Station Mau, District

Bhind for offence under Sections 376(D), 120(B) and 506 of IPC and

Sections 67, 67(A) and 67(B) of I.T.Act.

This application for grant of temporary bail has been filed on

the ground of Covid-19 pandemic. It is submitted that although the

previous bail applications of the applicant have already been

dismissed on merits but in the light of expected third wave of

pandemic, the applicant can be granted temporary bail for a period of

60 days so that he may make necessary arrangements for the safety of

his family and siblings. It is submitted that the applicant is in jail for

the last more than three and half years and he was never released on

temporary parole. It is further submitted that although, the evidence

of the prosecutrix has been recorded and she has support the

prosecution case but the prosecution evidence is still going on. The

applicant would follow all Covid 19 protocols as decided by the

Central Government or the State Government or Local

Administration.

Per contra, the prayer for grant of temporary bail is vehemently

opposed. However, after going through the order-sheets, which have

been placed on record, it is fairly conceded that as per the order-sheet

dated 05/04/2021, the prosecution evidence is still going on.

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 fact that the applicant is in jail for the last three

and half years and his contention he was never released on temporary

parole in the wake of Covid-19 pandemic and the submission made

by the counsel for the applicant in view of expected third wave of

Covid 19 pandemic, he may be granted temporary bail so that he may

make necessary arrangements for the safety of his family and siblings

appears to be bona fide as well as considering the fact that it is also

necessary to decongest the jail, and without commenting on the

merits of the case, it is directed that on furnishing the 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 be released on

temporary bail for a period of 2 months from the date of his release.

The applicant shall also furnish an undertaking that he shall surrender

immediately after the period of temporary bail is over, unless and

until the period of temporary bail is extended by this Court. 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 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.

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, the prayer for bail is rejected

however prayer for temporary bail is allowed.

C.c. as per rules.

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

         PRINCEE BARAIYA
         2021.07.29
         17:12:30 -07'00'