Madhya Pradesh High Court
Kailash Narayan Ahirwar vs The State Of Madhya Pradesh on 21 April, 2020
Equivalent citations: AIRONLINE 2020 MP 1705
Author: Anand Pathak
Bench: Anand Pathak
1
THE HIGH COURT OF MADHYA PRADESH
Criminal Appeal No.2686/2020
(Kailash Narayan Ahirwar Vs. State of M.P.)
Gwalior, dated :21.04.2020
Shri B.K. Sharma, learned counsel for the appellant.
Shri Rohit Mishra, learned counsel for the
respondent/Lokyukta.
Looking to the challenge of COVID-19 pandemic which is posing existential problem to human beings, this case has been taken through Video Conferencing in which this court, counsel for the respective parties and the Members of Staff (who took the dictation) jointly shared the hearing on Video Conferencing (VC) arranged by the Computer Section of the Gwalior Bench of High Court of Madhya Pradesh and counsel for the parties connected from their residence through VC and therefore, norms of social distancing/physical distancing were followed in letter and spirit.
Both the counsel expressed their reluctance initially to advance arguments because of the resolution passed by Bar Association Gwalior, M.P.. However they were apprised by the fact that they are advancing arguments through video conference from their respective homes, therefore, rigors of movement to High Court premises are ruled out and it would be a beginning of new procedural era for administration of justice. Considering the same, case was heard on application for suspension of sentence.
The present appeal under Section 374 (2) of Cr.P.C. has been filed by the appellant against the order dated 22.02.2020, passed in 2 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal No.2686/2020 (Kailash Narayan Ahirwar Vs. State of M.P.) Sessions Trial No.02/2017, by the trial Court, Shivpuri, whereby the appellant has been convicted under Sections 7 of the Prevention of Corruption Act and sentenced to undergo 3 years RI with fine of Rs.5,000/- and Section 13(1)D read with Section 13(2) of the Prevention of Corruption Act and sentenced to undergo 5 years RI with fine of Rs.7000/- with default stipulation.
Heard on I.A. No.2625/2020, first application for suspension of sentence filed on behalf of the appellant.
It is the submission of learned counsel for the appellant that appellant is retired Patwari and is suffering from Paralysis and is facing severe medical condition and took medical treatment at Jayarogya Hospital, Gwalior and all facts are mentioned in the appeal as well as application. It is further submitted that complainant (PW-5) himself denied the fact regarding allegation and even otherwise no proceedings in respect of mutation were pending at the relevant point of time with the appellant and therefore, no occasion existed for demand of money.
Learned counsel also pressed into service the recent circular issued by the Central Government which has been referred in the application for urgent hearing in which the persons suffering incarceration up to 5 years have been directed to be treated with leniency for release on bail, but since it was a case of Prevention of Corruption Act, therefore, he could not be released. He seeks 3 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal No.2686/2020 (Kailash Narayan Ahirwar Vs. State of M.P.) sympathetic consideration.
It is further submitted that looking to the fact situation and medical condition as well as the period of custody (for last two months he is suffering incarceration) of appellant, counsel for the appellant sought suspension of sentence for 45 days in view of the circular of Central Government and undertakes to reiterate the prayer after 45 days. He further undertakes to abide by the terms and conditions as imposed by the court and would act as responsible citizen if he is released on bail.
On the other hand learned counsel for the respondent/Lokayukt opposed the prayer and submitted that submission advanced and documents filed are to be verified. It is further submitted that the case of the appellant is not covered in Central Government Circular therefore, he cannot be given benefit of bail. Therefore, he prayed for dismissal of application for suspension.
Heard learned counsel for the parties at length. Written application and arguments considered.
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 Level Committee to consider the release of prisoners in order to decongest the prisons. The Supreme Court 4 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal No.2686/2020 (Kailash Narayan Ahirwar Vs. State of M.P.) 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 under trial 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."
After considering the rival submissions as well as considering the peculiar fact situation, wherein, we are facing wrath of pandemic COVIC-19, this Court is of the considered opinion that appellants deserves to be released on bail.
As this Court is not in a position to consider the facts of the 5 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal No.2686/2020 (Kailash Narayan Ahirwar Vs. State of M.P.) case in detail, however, considering the fact in view of Covid19 pandemic and overall facts and circumstance of the case and looking to the submissions and undertaking as given above, without commenting on the merits of the case as there is no possibility of early hearing of this criminal appeal before this Court, I.A. No.2625/2020 is allowed and it is ordered that on furnishing a personal bond of Rs.1,00,000/- (Rupees One Lac Only) to the satisfaction of the concerned trial Court, appellant's jail sentence shall remain suspended temporarily for a period of 45 days. The appellants shall be at liberty to reiterate his prayer before lapse of 45 days. Appellant shall install Arogya Setu App in his mobile immediately and would intimate his place of residence to the SHO of concerned Police Station; where he resides. Appellant further submit the undertaking to the effect that he will abide by the terms and conditions of different circulars, orders as well as guidelines issued by Central Government, State Government as well as Local Administration for maintaining social distancing, hygiene etc to avoid Novel Corona Virus (COVIC-19) pandemic.
In view of the COVID-19, jail authorities are directed that before releasing the appellant, medical examination of appellant shall be undertaken by the jail doctor and on prima facie, if it is found that he is having the symptoms of COVID-19, then consequential follow up action including the isolation/quarantine 6 THE HIGH COURT OF MADHYA PRADESH Criminal Appeal No.2686/2020 (Kailash Narayan Ahirwar Vs. State of M.P.) or any test if required, be ensured, otherwise appellant shall be released immediately on bail and shall be given a pass or permit for movement to reach his place of residence.
E- copy of this order be provided to the appellant and E-copy of this order be sent to the trial Court concerned for compliance. It is made clear that E-copy of this order shall be treated as certified copy for practical purposes in respect of this order.
The appeal be listed for further order in the Month of July, 2020.
(Anand Pathak) Judge jps/-
JAI PRAKASH SOLANKI 2020.04.21 15:56:04 -07'00'