Ashok Shivhare vs The State Of Madhya Pradesh
2021 Latest Caselaw 6069 MP

   1      THE HIGH COURT OF MADHYA PRADESH
                 Criminal Appeal No.5673/2021
           Ashok Shivhare Vs. State of MP and another

Gwalior, Dated:27/09/2021

       Shri Yash Sharma, Counsel for the appellant.

       Shri C. P. Singh, Panel Lawyer for the respondent/State.

None for the complainant.

It is submitted by the counsel for the State that the complainant

has been informed about the pendency of this appeal as required

under Section 15-A of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act.

Case diary is available.

This fifth Criminal Appeal for grant of bail has been filed

under Section 14A(2) of Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities), Act, 1989 against the order dated 8.4.2021

passed by Special Judge (Atrocities), Datia by which the application

filed by the appellant for grant of bail has been rejected. The fourth

Criminal Appeal was dismissed as withdrawn by order dated

8.9.2021 passed in Cr.A. No.5047/2021.

The appellant has been arrested on 30.12.2020 in connection

with Crime No.301/2020 registered at Police Station Badoni, District

Datia for offence punishable under Sections 302 r/w Section 34, 147,

149, 201 of IPC and under Section 3(2)(v) of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities), Act.

It is submitted by the counsel for the appellant that all the 2 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal No.5673/2021 Ashok Shivhare Vs. State of MP and another

material witnesses have been examined and they have not supported

the prosecution case. At present there is no substantive evidence

against the appellant. The trial is likely to take sufficiently long time

and there is no possibility of his absconding or tampering with

prosecution case. It is further submitted that this Court by order dated

20.9.2021 passed in Criminal Appeal Nos.5172/2021, 5445/2021 and

5462/2021 has granted bail to the co-accused Rakesh Pal, Ram Ji Lal

Rawat, Kallu @ Devendra Rawat and the case of the appellant is

identical to that of the co-accused persons who have been released on

bail.

Per contra, the appeal is opposed by the counsel for the

respondent/State. However, it is fairly conceded that all the material

witnesses have been examined and they have not supported the

prosecution case.

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 :

3 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal No.5673/2021 Ashok Shivhare Vs. State of MP and another

"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 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 and looking the period of

detention, 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

appellant be released on bail, on furnishing a personal bond in the 4 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal No.5673/2021 Ashok Shivhare Vs. State of MP and another

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 appellant 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 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

appellant, the jail authorities shall get the appellant 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.

5 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal No.5673/2021 Ashok Shivhare Vs. State of MP and another

If the appellant 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 appellant 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 appellant shall be immediately sent to concerning hospital for

his treatment as per medical norms. The appellant 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 appellant 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 appellant 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 6 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal No.5673/2021 Ashok Shivhare Vs. State of MP and another

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 appeal is Allowed.

(G.S. Ahluwalia) Judge (alok)

ALOK KUMAR 2021.09.27 16:25:26 +05'30'