ORDER

1. This application under section 482 of Cr.P.C. has been filed for bringing a fact on record that the applicant is on parole and the said period has not expired, but still, without mentioning the fact that the applicant is on parole granted in view of Covid 19 Pandemic, he filed M.Cr.C. No. 35888 of 2021 for grant of bail under section 439 of Cr.P.C., which was allowed by order dated 30.7.2021 under an impression that the applicant is in actual custody for a period of 6 months.

2. The necessary facts for disposal of the present application in short are that the applicant was taken into custody in crime No. 438/2020 registered by Police Station Gwalior, Distt. Gwalior for offence under sections 406, 420 of I.P.C.

3. Two bail applications of the applicant were already rejected and he filed third bail application which was registered as M.Cr.C.No. 35888 of 2021. The main ground for filing 3rd bail application was the period of actual custody.

4. As the fact of release of the applicant on parole was neither pleaded in the bail application, nor was brought to the notice of this Court, therefore, under an impression that the applicant is in actual custody of 6 months, he was granted bail.

5. The undisputed fact is that the applicant was already released on parole on 19.5.2021 which is effective till 16.8.2021 and M.Cr.C. No. 35888/2021 was filed on 15.7.2021 on the ground of period of actual detention.

7. The moot question for consideration is that whether the application under section 439 of Cr.P.C. is maintainable when the applicant is on parole granted in compliance of order passed by the Supreme Court in the case of In Re: Contagion of Covid 19 virus in prisons (Suo Motu Writ Petition (c) : 1/2020) or not?

8. It is submitted by Shri Sharma, that custody doesnot mean that an applicant must be behind the bars but even when a person is on bail or parole, still he would continue to remain under the control of the Court and therefore, the application under section 439 of Cr.P.C. is maintainable. To buttress his contentions, the Counsel for the applicant has relied upon the judgments passed by the Supreme Court in the case of State of Haryana v. Dinesh Kumar reported in (2008) 3 SCC 222, Sundeep Kumar Bafna v. State of Maharashtra and another reported in (2014) 16 SCC 623, Kanaksinh Mohansinh Mangrola v. State of Gujarat reported in (2006) 9 SCC 540, Sunil Fulchand Shah v. Union of India and others reported in (2000) 3 SCC 409.

9. Per contra, it is submitted by the Counsel for the respondent, that so long as the applicant is not in actual custody, the application under section 439 of Cr.P.C. is not maintainable. To buttress his contentions, he relied upon the judgment passed by the Supreme Court in the case of Niranjan Singh v. Prabhakar reported in AIR 1980 SC 785, Sunita Devi v. State of Bihar and another reported in (2005) 1 SCC 608, and the order passed by a Co-ordinate Bench of this Court in the case of passed on in M.Cr.C. No 1837 of 2021.

10. Heard the learned Counsel for the parties.

11. The moot question for consideration is that whether an undertrial, who has been granted parole in compliance of the orders passed by the Supreme Court, as well as High Court of Madhya Pradesh from time to time in the wake of Covid 19 Pandemic, can be treated to be in custody while he is on parole or before maintaining his application under section 439 of Cr.P.C., he has to surrender.

12. Although section 31-A of Prisoner’s Act throw some light in respect of convicted prisoners but section 31-A of Prisoner’s Act, 1990 has no application on the undertrial prisoners. Similarly, the State of Madhya Pradesh has framed M.P. Prisoner’s Leave Rules, 1989, but the said Rules are also applicable to convicted prisoner’s only. However, in order to verify as to whether the period of leave/ parole granted to an undertrial prisoner, can be counted for the purposes of detention/sentence or not, this Court can certainly take guidance from section 31-A of