Madhya Pradesh High Court

Brajendra Kushwah vs The State Of Madhya Pradesh on 29 July, 2021

Author: Gurpal Singh Ahluwalia

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         THE HIGH COURT OF MADHYA PRADESH
                    MCRC-35618-2021
             Brajendra Kushwah Vs. State of MP

                   Through Video Conferencing

Gwalior, Dated : 29-07-2021

      Shri Amit Lahoti, Counsel for the applicant.

      Shri R.K. Awasthi, Counsel for the State.

      Case diary is available.

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

filed for grant of bail. Second application of the applicant was

dismissed as withdrawn by order dated 23.04.2021 passed in M.Cr.C.

No.17733/2021.

      The applicant has been arrested on 25.01.2021 in connection

with Crime No.110/2016 registered at Police Station Shahdora Distt.

Ashoknagar for offence under Sections 363, 366-A, 376(2)(n) of IPC

and 5(i)/6 of POCSO Act.

      It is submitted by the Counsel for the applicant, that first bail

application was dismissed as withdrawn by order dated 15.02.2021

with liberty to revive the prayer after the examination of the

prosecutrix. The prosecutrix has been examined. She has stated that

she had gone to Surat on her own where she performed marriage with

the applicant and has given birth to a child on 19.11.2020. It is

submitted that date of birth of the prosecutrix is 03.01.2000 and the

applicant got married with the prosecutrix on 01.02.2018 and the
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          THE HIGH COURT OF MADHYA PRADESH
                     MCRC-35618-2021
              Brajendra Kushwah Vs. State of MP

marriage was got registered and registration certificate is of

03.04.2018

. Thus, it is clear that on the date of marriage, the

prosecutrix had attained the majority. It is submitted that so far as the

question of kidnapping is concerned, whether the applicant had

enticed the prosecutrix or not and whether the case of the applicant

would be covered by the judgment passed by the Supreme Court in

the case of Anversinh @ Kiransinh Fatesinh Zala Vs. State of

Gujarat by order dated 12.01.2021 passed in Cr.A. No.1919/2010

or not, is yet to be considered by the Trial Court. The applicant is

having eight months' old child. He is in jail from 25.01.2021. 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

THE HIGH COURT OF MADHYA PRADESH MCRC-35618-2021 Brajendra Kushwah Vs. State of MP

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 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,

THE HIGH COURT OF MADHYA PRADESH MCRC-35618-2021 Brajendra Kushwah Vs. State of MP

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

THE HIGH COURT OF MADHYA PRADESH MCRC-35618-2021 Brajendra Kushwah Vs. State of MP

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