Madhya Pradesh High Court
Kamlesh Kushwah vs The State Of Madhya Pradesh on 27 June, 2020
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
1 MCRC No.17017/2020
HIGH COURT OF MADHYA PRADESH
MCRC No.17017/2020
(Kamlesh Kushwah Vs. State of M.P.)
Gwalior, Dated:27/06/2020
Shri Anand Purohit, learned counsel for the applicant.
Shri Arjun Singh Parihar, learned Panel Lawyer, for the
respondent/State.
Shri Sohit Mishra, learned counsel for the complainant. Matter is heard through video conferencing.
I.A. No. 6250/2020, an application for urgent hearing, is taken up, considered and allowed for the reasons mentioned therein.
This is third application under Section 439 of CrPC for grant of bail.
Applicant has been arrested on 10/1/2020 in connection with Crime No. 630/2019 registered at Police Station Civil Lines Morena, District Morena for offence under Sections 452, 323, 325, 294, 147, 148, 149, 307 and 506 of the IPC.
It is submitted by learned counsel for the applicant that this is the third bail application of the applicant. Earlier applications were dismissed on merits. Now, investigation is complete and charge-sheet has been filed. It is further submitted that one cross-case has also been registered against the complainant party by the present applicant, which is registered at Crime No. 629/2019 at Police Station Civil Lines Morena, District Morena and the present case is registered at Crime No. 630/2019, therefore, it is clear that the applicant party are 2 MCRC No.17017/2020 not the aggressors. Rather, the complainant party of this case are the aggressors. It is also submitted that in the cross-case, all the accused persons have been granted bail by a Co-ordinate Bench of this Court. Hence, prayed for grant of regular bail or interim bail for a period of 60 days. He further undertakes to abide by all the terms and conditions of guidance, circulars and directions issued by Central Government, State Government as well as Local Administration regarding measures in respect of COVID-19 Pandemic and maintain hygiene in the vicinity while keeping physical distancing. Hence, prayed for grant of bail to the applicant.
Learned State counsel as well as learned counsel for the complainant have opposed the submission. Learned counsel for the complainant has submitted that in the cross-case, the Co-ordinate Bench of this Court had directed the accused persons to surrender and after surrender of all the accused persons before the trial Court, they have been granted bail by the Co-ordinate Bench of this Court. However, in the present case, some co-accused persons are still absconding. It is further submitted that counsel for the applicant has wrongly submitted that the applicant and other co-accused persons of this case are not the aggressors. They are the aggressors as the offence has been committed at the house of the complainant party. It is also submitted that earlier bail applications of the applicant were rejected on merits and only filing of charge-sheet cannot be said to be change in circumstance under which this third bail application could be 3 MCRC No.17017/2020 considered. Further, looking to the injury caused by the applicant and other co-accused persons, the nature of offence becomes more serious and if the applicant is granted bail then there is possibility of tampering of prosecution evidence. Hence, prayed to reject the bail application of the applicant.
Heard learned counsel for the parties at length through VC and considered the arguments advanced by them and perused the available record.
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 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 4 MCRC No.17017/2020 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."
In view of the aforesaid facts and circumstances of the case and as the working of trial Courts is adversely affected due to present COVID-19 condition and the Courts are unable to dispense with the routine judicial work, without commenting on merits of the case, prayer for ad interim bail for a period of 60 days is allowed. It is directed that the applicant be released on bail for a temporary period of 60 days from the date of his release on his furnishing a personal bond in the sum of Rs.75,000/- (Rs. Seventy Five Thousand Only) with one surety in the like amount to the satisfaction of the Court concerned. The applicant shall surrender before the trial Court immediately after completion of 60 days. The intimation regarding surrender of the applicant be furnished to this Court. In case of failure to comply the order, this bail order shall automatically stand cancelled.
In view of COVID-19 pandemic, the jail authorities are directed that before releasing the applicant, his Corona Virus test shall be conducted and if it is found negative, then the concerned local administration shall make necessary arrangements for sending the 5 MCRC No.17017/2020 applicant to his house, and if the test is found positive then the applicant shall be immediately sent to concerning hospital for his treatment as per medical norms. If the applicant is fit for release and if he is in a position to make his personal arrangements, then he shall be released only after taking due travel permission from local administration. After release, 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 the 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.
This order will remain operative subject to compliance of the following conditions by the applicant :-
1.The applicant will comply with all the terms and conditions of the bond executed by him;
2. The applicant will cooperate in the investigation/trial, as the case may be;
3. The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to the Police Officer, 6 MCRC No.17017/2020 as the case may be;
4. The applicant shall not commit any offence similar to the offence of which he is accused;
5. The applicant will not move in the vicinity of complainant party and applicant will not seek unnecessary adjournments during the trial;
6. The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be; and
7. The applicant will inform the SHO of concerned police station about his residential address in the said area and it would be the duty of the Public Prosecutor to send e-copy of this order to SHO of concerned police station for information.
This application under Section 439 of Cr.P.C. stands disposed of in above terms.
E- copy of this order be sent to the trial Court concerned for compliance, if possible for the office of this Court.
Certified copy/ e-copy as per rules/directions.
(Rajeev Kumar Shrivastava)
AKS Judge
ALOK KUMAR
2020.06.27
16:59:11
+05'30'