Research › Search › Judgment

Madhya Pradesh High Court · body

2020 DIGILAW 1070 (MP)

Irshad Khan v. State Of M. P.

2020-10-09

VISHAL MISHRA

body2020
JUDGMENT Vishal Mishra, J. - In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by the Government of India, this application has been heard and decided through video conferencing to maintain social distancing. The parties are being represented by the respective counsels through video conferencing, following the norms of social distancing/ physical distancing in letter and spirit. 2. This is the fourth bail application u/S.439 Cr.P.C filed by the applicant for grant of bail. Earlier bail applications M.Cr.C.no.51711 of 2019 was dismissed as withdrawn with liberty to repeat after recording of statements of material witnesses on 24.12.2019, second M.Cr.C.no.15349 of 2020 was dismissed as withdrawn vide order dated 19.6.2020 and third one being M.Cr.C.No.31594 of 2020 was dismissed as withdrawn vide order dated 10.9.2020. 3. The applicant has been arrested on 20.9.2019 by Police Station Girwai, district Gwalior, in connection with Crime No.156 of 2019 registered in relation to the offence punishable u/S.458, 394, 395 of IPC read with 11/13 of MPDVPK Act. 4. It is submitted by counsel for the applicant that at time of dismissal of earlier bail application, liberty was extended to repeat the same after recording of statements of material witnesses. But he has filed copies of the ordersheets of the trial court to demonstrate that during this period, three dates were fixed for recording of statements of the witnesses but no prosecution witness appeared. It is submitted that so far as criminal history of the applicant is concerned, he has already been acquitted in four cases out of five cases and in fifth case he has been released on bail by a coordinate Bench of this court in M.Cr.C.No. 51706 of 2019 on 18.12.2019. He submits that there is no likelihood of the regular court functioning having started shortly therefore, he prays that this application may be considered for grant of temporary bail for a period of 90 days. He is ready to abide with all the conditions which may be imposed by this court while considering this bail application. He expressed his willingness to serve the cause by making contribution of Rs.3,000/- to High Court Bar Association, Gwalior, during this Covid 19 Pandemic scenario for welfare of the Advocates who are facing great hardship. On these grounds, the applicant prayed for grant of bail. 5. He expressed his willingness to serve the cause by making contribution of Rs.3,000/- to High Court Bar Association, Gwalior, during this Covid 19 Pandemic scenario for welfare of the Advocates who are facing great hardship. On these grounds, the applicant prayed for grant of bail. 5. Per contra, learned counsel appearing for the State has opposed the application stating that earlier three bail applications of the applicant were dismissed as the applicant is a history sheeter having criminal history of five cases apart from the present case but he could not dispute the factum that he has been acquitted in four cases and in the fifth case he has been released on bail by coordinate Bench of this court. 6. The Hon'ble Supreme Court in the case of IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS in SUO MOTU W.P. (C) No.1/2020 has issued directions to 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 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. 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 he has been sentenced or the severity of the offence with which he/he is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate." 7. Considering the over all facts and circumstances of the case as well as looking to this Covid 19 Pandemic Scenario, but without expressing any opinion on the merits of the case, this application is allowed temporarily for a period of 90 days only from the date of his release. The applicant is directed to be released on bail on furnishing surety bond of Rs.50,000/- (Rs. Fifty thousand Only) with one solvent surety in the like amount to the satisfaction of trial Court. He shall surrender immediately on expiry of period of 90 days before the trial court and intimation to this effect shall be sent to the Registry of this court. 8. The applicant shall submit written undertaking that he will abide by all terms and conditions of the different circulars, orders as well as guidelines issued by the Central Government, State Government as well as Local Administration for maintaining social distancing, hygiene etc to avoid Novel Corona Virus (COVID -19) pandemic and he will have to install Arogya Setu App, if not already installed. 9. This order will remain operative for a period of 90 days only 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 her from disclosing such facts to the Court or to the Police Officer, as the case may be; 4. 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 her from disclosing such facts to the Court or to the Police Officer, as the case may be; 4. The applicant shall not involve any other offence, in case the applicant indulges in any other criminal case the benefit of bail as extended by this Court shall automatically cancelled. 5. The 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. 7. The applicant shall deposit Rs.3,000/- in the account of the High Court Bar Association, Gwalior within a period of seven working days from the date of release, for the purpose of assistance and rehabilitation of the members of the Bar, who are facing financial distress due to lock-down and restrictive functioning of the courts owing to ongoing Covid 19 Pandemic. This Court has no manner of doubt that the office bearers and the senior members of the Bar shall ensure that the donation reaches the rightful and deserving claimants; 8. The applicant will inform the concerned S.H.O. 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 as well as Superintendent of Police concerned who shall inform the concerned SHO regarding the same. 10. Application stands allowed and stands disposed of. 11. The applicant shall install Arogya Setu App in his mobile immediately and would intimate their place of residence to the SHO of concerned Police Station; where they reside. Applicant shall further submits 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. 12. Applicant shall further submits 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. 12. In view of the COVID-19, jail authorities are directed that before releasing the applicant, medical examination of applicant 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 or any test if required, be ensured, otherwise applicant shall be released immediately on bail and shall be given a pass or permit for movement to reach his place of residence. 13. E-copy of this order be provided to the applicant 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. 14. CC as per rules.