Harpay Kushwaha vs The State Of Madhya Pradesh
2021 Latest Caselaw 5970 MP

THE HIGH COURT OF MADHYA PRADESH MCRC-45978-2021 Harpe Kushwaha and anr. Vs. State of MP

Gwalior, Dated: 24-09-2021

Shri Sheeshu Yadav, Counsel for the applicants.

Shri A.K. Nirankari, Counsel for the State.

Case Diary is available.

This second application under Section 439 of CrPC has been

filed for grant of bail. First application was dismissed as withdrawn

by order dated 02.03.2021 passed in M.Cr.C. No.1078/2021.

The applicants have been arrested on 10.12.2020 in connection

with Crime No.375/2020 registered by Police Station Civil Line

Distt. Datia for offence punishable under Sections 304-B, 498-A, 34

of IPC and Section 3/4 of Dowry Prohibition Act.

It is submitted by the counsel for the applicants that all the

material witnesses have been examined and they have turned hostile

and fairly stated that the deceased was never harassed for want of

any dowry. At present, there is no substantive evidence against the

applicants. The Trial is likely to take sufficiently long time and there

is no possibility of their absconding or tampering with the

prosecution case.

Per contra, the application is vehemently opposed by the

Counsel for the State. However, after going through the deposition-

sheets of the witnesses, it is fairly conceded that all the material

THE HIGH COURT OF MADHYA PRADESH MCRC-45978-2021 Harpe Kushwaha and anr. Vs. State of MP

witnesses have turned hostile. However, it is submitted that either the

witnesses had made false allegation against the applicant or they

have not disclosed correct facts before the Trial Court, therefore,

they are liable to be prosecuted.

So far as the submission made by the counsel for the State

regarding prosecution of the witnesses is concerned, it is a matter

which is to be considered by the Trial Court.

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

THE HIGH COURT OF MADHYA PRADESH MCRC-45978-2021 Harpe Kushwaha and anr. Vs. State of MP

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 material witnesses have turned hostile

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

applicants be released on bail, on furnishing a personal bond in the

sum of Rs.1,00,000/- (Rs. One Lac) each with one surety in the like

amount each to the satisfaction of the Trial Court or C.J.M. or

Remand Magistrate (Whosoever is available). The applicants shall

also furnish an undertaking that they 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

THE HIGH COURT OF MADHYA PRADESH MCRC-45978-2021 Harpe Kushwaha and anr. Vs. State of MP

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

applicants, the jail authorities shall get the applicants examined

by a competent Doctor and if the Doctor is of the opinion that

their Corona Virus test is necessary, then the same shall be

conducted. If the applicants are not found suspected of Covid19

infection or if their test report is negative, then the concerned

local administration shall make necessary arrangements for

sending the applicants to their house as per the directions issued

THE HIGH COURT OF MADHYA PRADESH MCRC-45978-2021 Harpe Kushwaha and anr. Vs. State of MP

by the Supreme Court in the case of IN RE : CONTAGION OF

COVID 19 VIRUS IN PRISONS (Supra), and if they are found

positive then the applicants shall be immediately sent to

concerning hospital for their treatment as per medical norms.

The applicants are 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 applicants have 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 them in custody and would

send them to the same jail from where they were released. The

applicants are further directed to supply a copy of this bail order

to the police station having jurisdiction over their 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.

THE HIGH COURT OF MADHYA PRADESH MCRC-45978-2021 Harpe Kushwaha and anr. Vs. State of MP

In the light of the judgment passed by the Supreme Court in

the case of Aparna Bhat and others Vs. State of M.P. Passed on

18.03.2021 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 Abhi ABHISHEK CHATURVEDI 2021.09.24 15:57:15 +05'30'