Balbeer @ Balbeera Kushwah vs The State Of Madhya Pradesh
2021 Latest Caselaw 6292 MP

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48854/2021 Balbeer @ Balbeera Kushwah Vs. State of M.P.

Gwalior, Dated : 01/10/2021

Shri D.S. Rajawat, counsel for applicant.

Shri C.P. Singh, counsel for State.

Case diary is available.

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

for grant of bail.

The applicant has been arrested on 03.08.2021 in connection

with Crime No.596/2021 registered at Police Station City Kotwali

Distt. Guna for offence under Section(s) 457, 380 of IPC.

It is submitted by the counsel for the applicant that according to

the prosecution case, theft was committed in the house of complainant

Neeraj Jain. It is alleged that a 40 inch micromax lcd tv has been

seized from the possession of applicant. It is further submitted that the

Police had also implicated the applicant in two other criminal cases in

which he has already been granted bail by the court below. The trial is

likely to take sufficiently long time and there is no possibility of his

absconding or tempering with prosecution case. It is further submitted

that in view of the criminal antecedents of the applicant, he is ready

and willing to abide by any stringent condition which may be imposed

by the Court.

Per contra, the application is vehemently opposed by the

counsel for the State. It is submitted that apart from present case, one

more offence under Sections 457, 380 of IPC and one offence under

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48854/2021 Balbeer @ Balbeera Kushwah Vs. State of M.P.

Section 49-A of M.P. Excise Act have been registered against the

applicant.

Considered the submissions made by the Counsel for the

parties.

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

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48854/2021 Balbeer @ Balbeera Kushwah Vs. State of M.P.

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 period of lockdown. For this purpose, the Union of India may issue appropriate directions under the Disaster

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48854/2021 Balbeer @ Balbeera Kushwah Vs. State of M.P.

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

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48854/2021 Balbeer @ Balbeera Kushwah Vs. State of M.P.

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 further directed that the applicant shall appear before the

S.H.O. Police Station City Kotwali, District Guna on 1st of every

month during the pendency of the trial.

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

Aman

AMAN TIWARI 2021.10.01 16:50:32 +05'30'