Madhya Pradesh High Court
Brajesh vs The State Of Madhya Pradesh on 23 September, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.47123/2021
Brajesh Vs. The State of M.P.
Gwalior, Dated:23/09/2021
Shri Ambuj Jain, Advocate for applicant.
Shri A.K. Nirankari, Public Prosecutor for respondent/State.
Shri Dhirendra Singh Niranjan, Advocate for complainant. 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 28/8/2021 in connection with Crime No.295/2021 registered at Police Station Khaniyadhana, District Shvipuri for offence under Sections 307, 294, 147, 148 of IPC.
It is submitted by the counsel for the applicant that he has been falsely implicated. In fact on 19/9/2019 a gunshot injury was caused to his father by one Shishupal on the ground that the father of the applicant is in habit of committing theft of fish from the dam. The said case was fixed for recording of evidence on 6/9/2021 and accordingly, summons were also served on the complainant. Since Shishupal was pressurizing the applicant to turn hostile and as he did not accede to his prayer, therefore, this false allegation of assaulting and throwing the complainant in dam has been made. He is in jail from 28/8/2021. The trial is likely to take sufficiently long time and there is no possibility of his absconding or tampering with the 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.47123/2021 Brajesh Vs. The State of M.P. prosecution case.
Per contra, the application is vehemently opposed by the Counsel for the State as well as the counsel for the the complainant. It is submitted that the complainants are the employees of the contractor, who has taken a contract of fishing in dam. The applicant and other co-accused persons were fishing in the dam in an illegal manner and when the complainant and Devendra Kushwaha objected that since he has the contract of fishing, then why the applicant and other co-accused persons are committing theft of fish, then it was alleged that the accused persons threatened that in case if the complainants and other witnesses remain alive, then they would continue to cause trouble for them and accordingly, they climbed onto the boat of the complainants and started assaulting Vinod. Thereafter, Kalla instigated that the complainant should be thrown in the dam and accordingly, all the four persons, i.e. the Krishna, Satyendra, Vinod and Bhagwan Singh, were thrown in the dam and their belongings were also thrown. However, they saved their lives by swimming. By referring to the MLC of Krishna, it is submitted that he did not sustain any external injury. By referring to the MLC of Vinod, it is submitted that he sustained one contusion with swelling, one abrasion on left leg and no external injury was seen. By referring to the MLC of Bhagwan Singh, it is submitted that he had not 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.47123/2021 Brajesh Vs. The State of M.P. sustained any injury and by referring to the MLC of Satyendra, it is submitted that he had also not sustained any injury.
It is submitted by the counsel for the complainant that the present incident has nothing to do with the evidence which is going on in ST No.88/2019 pending in the Court of Sessions Judge, Datia. However, after going through the copy of the FIR filed by the applicant alongwith the list of documents on 22/9/2021, it is fairly conceded that a gunshot injury was also caused to the father of the applicant only on the ground that he was illegally fishing in the dam.
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
4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.47123/2021 Brajesh Vs. The State of M.P. 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 nature of allegations as well as considering the nature of injuries sustained by Vinod as well as the period of detention, this Court is of the considered opinion that it is a fit case for grant of bail.
Accordingly, 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 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.47123/2021 Brajesh Vs. The State of M.P. 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 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.
6 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.47123/2021 Brajesh Vs. The State of M.P. 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 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 7 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.47123/2021 Brajesh Vs. The State of M.P. 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 Arun* ARUN KUMAR MISHRA 2021.09.24 15:13:17 +05'30'