Mahendra Kirar vs State Of M.P

G.S. Ahluwalia, J

This first application under Section 439 of Cr.P.C. has been filed for grant of bail.

The applicant has been arrested on 27/09/2020 in connection with Crime No.325/2020 registered at Police Station Hazira, District Gwalior for offence

under Section 49-A of MP Excise Act.

It is submitted by the counsel for the applicant that according to the prosecution case, the applicant and co-accused Raj alias Rahman Shah were

going on a motorcycle. The applicant was driving the motorcycle and co-accused Raj alias Rahman was carrying a container in which 25 liters of

liquor was found. It is submitted that the applicant has no criminal history and the trial is likely to take sufficiently long time.

Per contra, the application is opposed by the counsel for the State. It is submitted by the counsel for the State that the investigation is complete and the

charge sheet has been filed and as per the FSL report, the liquor seized from the joint possession of the applicant and co-accused Raj alias Rahman

was found unfit for human consumption.

However, it is fairly conceded that the applicant has no criminal history.

Considered the submissions made by the Counsel for the parties through video conferencing.

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

â€" 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.â€​

Considering the facts and circumstances of the case as well as considering the fact that in view of Covid 19 pandemic, it is also necessary to de-

congest the jail and without commenting on the merits of the case, the application is allowed. It is directed that the applicant be released on bail on

furnishing the personal bond in the sum of Rs.1,00,000/- (Rupees One Lac) to the satisfaction of the Trial Court or C.J.M. or Remand Magistrate

(Whosoever is available). It is further directed that the applicant shall mark his presence before the S.H.O., Police Station Hazira, District Gwalior on

1st of every month for a period of next one year. The applicant shall also furnish an undertaking that he will abide by 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 Covid-19. It is further directed

that, the applicant shall also furnish one surety in the like amount to the satisfaction of Trial Court within a period of one month after the lock- down is

completely lifted.

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. 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 Sections 437, 439 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.

With aforesaid observations, this application is Allowed.