Arvind Balmiki vs The State Of Madhya Pradesh
2021 Latest Caselaw 6355 MP

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48925/2021 Arvind Balmiki vs. State of M.P.

Gwalior, Dated : 04-10-2021

Shri Shahrukh Alam, counsel for the applicant.

Shri C.P. Singh, counsel for the 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 25.08.2021 in connection

with Crime No.489/2021 registered at Police Station Kotwali Distt.

Shivpuri for offence under Section 49 (A) of Excise Act.

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

to the prosecution case, two persons were going on a motor cycle.

One was driving the same and pillion rider was carrying a container.

They were stopped with the help of police force. The co-accused was

driving motor cycle whereas applicant was carrying the container. It

was found that the container was containing 5 liters of country made

liquor which was unfit for human consumption. It is further

submitted that although the applicant is in jail since 25.08.2021 but

the FSL report has not been received. The trial is likely to take

sufficiently long time and there is no possibility of his absconding or

tampering with prosecution witnesses.

Per contra, the application is vehemently opposed by the

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48925/2021 Arvind Balmiki vs. State of M.P.

counsel for the State. However, after going through the police case

diary it is fairly conceded that there is nothing to indicate the criminal

antecedent of 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

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48925/2021 Arvind Balmiki vs. State of M.P.

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

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48925/2021 Arvind Balmiki vs. State of M.P.

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

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48925/2021 Arvind Balmiki vs. State of M.P.

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.

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.

It is made clear that after the FSL report is received, if it is

found that the liquor seized from the possession of the applicant is

unfit for human consumption, then this order shall lose its effect and

the applicant shall be under obligation to immediately surrender

before the Trial Court. Otherwise, this order shall remain in force,

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.48925/2021 Arvind Balmiki vs. State of M.P.

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 2021.10.04 17:10:18 +05'30'