Rohan Gaud (Adiwasi) vs The State Of Madhya Pradesh
2021 Latest Caselaw 6028 MP

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          THE HIGH COURT OF MADHYA PRADESH
                   MCRC No.47474/2021
            Rohan Gaud (Adiwasi) vs. State of M.P.

Gwalior, Dated : 25.09.2021

       Shri Mohit Shivhare, Counsel for the applicant through video

conferencing.

       Shri     Rajeev     Upadhyay,     Public     Prosecutor   for   the

respondent/State.

Case diary is available.

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

filed for grant of bail.

The applicant has been arrested on 17.6.2021 in connection

with Crime No.359/2021 registered at Police Station Thatipur,

District Gwalior for offence under Section 49-A of NDPS Act.

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

the prosecution case, 10 bulk litres of country made liquor was seized

from the joint possession of the applicant and the co-accused. He was

granted bail by order dated 8.7.2021 passed in

M.Cr.C.No.32285/2021 with stipulation that "in case if in the FSL

report it is found that the seized liquor was unfit for human

consumption, then the bail order shall automatically stand recalled

and the applicant shall surrender before the concerning Trial Court."

It is submitted that at the time of arguments of first bail

application it was projected that the applicant has no criminal history.

THE HIGH COURT OF MADHYA PRADESH MCRC No.47474/2021 Rohan Gaud (Adiwasi) vs. State of M.P.

Later on it was found that in fact the applicant had criminal history,

therefore, M.Cr.C.No.40998/2021 was filed for deleting the condition

of release of the applicant "subject to verification of fact that he is the

first offender". By imposing a cost of Rs.25,000/- on the SHO,

Thatipur, District Gwalior, this Court by order dated 25.8.2021 passed

in M.Cr.C.No.40998/2021 deleted the condition that "subject to

verification of the fact that he is the first offender.". It is submitted

that thereafter the applicant was released. However, the FSL report

was received, according to which the liquor seized from the joint

possession of the applicant and the co-accused was found to be unfit

for human consumption and, accordingly, he has surrendered on

13.9.2021. it is submitted that it is true that the applicant has a

criminal history and, therefore, in the light of criminal antecedents,

the applicant is ready and willing to abide by any stringent condition

which may be imposed by this Court. 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 respondent/State. It is submitted that the liquor seized

from the possession of the applicant and the co-accused has been

found to be unfit for human consumption and the applicant has a

THE HIGH COURT OF MADHYA PRADESH MCRC No.47474/2021 Rohan Gaud (Adiwasi) vs. State of M.P.

criminal history.

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

THE HIGH COURT OF MADHYA PRADESH MCRC No.47474/2021 Rohan Gaud (Adiwasi) vs. State of M.P.

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 cash

surety of Rs.50,000/- (Rs. Fifty Thousand Only) or in the alternative

on depositing original title-deed(s) [not Rin Pustika] of the

immovable property worth of more than the said amount, as directed

by the Supreme Court in the case of Sharo @ Shahrukh vs. The

State of M.P. by order dated 6.9.2021 passed in SLP (Cri.)

No.6321/2021 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

THE HIGH COURT OF MADHYA PRADESH MCRC No.47474/2021 Rohan Gaud (Adiwasi) vs. State of M.P.

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

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

THE HIGH COURT OF MADHYA PRADESH MCRC No.47474/2021 Rohan Gaud (Adiwasi) vs. State of M.P.

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 single default in appearance before the

Trial Court, or in case of registration of new offence, this bail order

shall automatically come to an end and the cash surety so furnished

by the applicant shall automatically stand forfeited without any

reference to the Court.

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

THE HIGH COURT OF MADHYA PRADESH MCRC No.47474/2021 Rohan Gaud (Adiwasi) vs. State of M.P.

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)
 (alok)                                                            Judge




ALOK KUMAR
2021.09.25 17:11:09 +05'30'