Kamlan @ Kalyan Jatav vs State Of M.P

G.S. Ahluwalia, J

This is first application under Section 438 of Cr.P.C. has been filed for grant of anticipatory bail.

The applicant apprehends his arrest in connection with Crime No.133/2021 registered at Police Station Gijorra, District Gwalior for offence under Sections 452, 323, 294, 506-B and 34 of IPC.

It is the case of the complainant that after locking the house, he shifted to Jamnagar for doing labour work. The co-accused Sashikant was requested to look after the property. The shop of the complainant was lying vacant. On the festival of Raksha Bandhan, when he came back, then found that co-accused Chhotu who is the relative of co-accused Shashikant is doing the business of Chicken and eggs. Since, the business of Chhotu was not to the liking of the complainant, therefore, he requested him to vacate the premises. On this issue, co-accused Chhotu and Sashikant assaulted him. At that time, the applicant and Sohan Singh also came on the spot and entered inside his house and he was again assaulted.

It is submitted by the counsel for the applicant that so far as the allegation of house trespass is concerned, the said allegation has been leveled falsely in order to make the offence non-bailable and all the other offences are bailable. The applicant is ready and willing to co-operate with the Investigating Officer. 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 State. However, it is fairly conceded that except the offence under Section 452 of Cr.P.C., all the other offences are bailable.

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 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 fact as well as considering the fact the deteriorating situation in view of second wave of Covid19 pandemic, and without commenting on the merits of the case, it is directed that if the applicant appears before the Investigating officer on or before 04/10/2021 and furnishes his personal bond in the sum of Rs. 1,00,000 (Rs. One Lac) to the satisfaction of the investigating officer, then he shall be released on bail. 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 other conditions of Section 438 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.

In case, if the applicant fails to appear before the investigating officer on the specified date, then this order shall 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.