Madhya Pradesh High Court

Atif Khan vs The State Of Madhya Pradesh on 7 May, 2021

Author: Gurpal Singh Ahluwalia

            THE HIGH COURT OF MADHYA PRADESH 1
                      MCRC 21137 of 2021
                    Atif Khan vs. State of MP

                  Heard through Video Conferencing
Gwalior, Dated : 07/05/2021

       Shri Alok Katare, Counsel for the applicant.

       Shri Nitin Goyal, Counsel for the respondent/ State.

Case diary is available.

This is first application filed under Section 439 of Cr.P.C. For grant

of bail.

The applicant has been arrested on 27/03/2021 in connection with

Crime No. 500/2019 registered at Police Station Gwalior, District

Gwalior for offence under Sections 376, 363, 366, 342, 506 of IPC and

under Section 3 /4 of the POCSO Act.

It is submitted by the Counsel for the applicant that the applicant

has married the prosecutrix and Nikah Nama has been placed on record.

The parties are Muslims by religion and the girl after attaining puberty, is

entitled to get married. The provisions of Prohibition of Child Marriage

Act, 2006 will not have preference over Personal Law governing the

parties. The Punjab and Haryana High Court by judgment dated 25-1-

2021 passed in the case of Shoukat Hussain and another Vs. State of

Punjab and Haryana in CRW.P. No. 733/2021 has granted protection

to the parties, after considering the Muslim Law as well as the provisions

of Prohibition of Child Marriage Act, 2006. It is further submitted that

as per Article 195 from the book 'Principles of Mohammedan Law by Sir

Dinshah Fardunji Mulla', it is clear that in absence of any evidence, THE HIGH COURT OF MADHYA PRADESH 2 MCRC 21137 of 2021 Atif Khan vs. State of MP

puberty is presumed after having attained the age of 15 years, and the

prosecutrix is undisputedly above the age of 15 years. It is further

submitted that the father of the prosecutrix has also given an affidavit

that the applicant and the prosecutrix have performed Nikah and he has

no objection. 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 THE HIGH COURT OF MADHYA PRADESH 3 MCRC 21137 of 2021 Atif Khan vs. State of MP

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, 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 THE HIGH COURT OF MADHYA PRADESH 4 MCRC 21137 of 2021 Atif Khan vs. State of MP

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 HIGH COURT OF MADHYA PRADESH 5 MCRC 21137 of 2021 Atif Khan vs. State of MP

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.

With aforesaid observations, this application is Allowed.

(G.S.Ahluwalia) Judge