Madhya Pradesh High Court
Dharmendra vs The State Of Madhya Pradesh on 1 July, 2020
Author: Virender Singh
Bench: Virender Singh
1
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
M.Cr.C. Nos.16446 and 13053 of 2020
M.Cr.C. No.16446 of 2020
Dharmendra Vs. State of M. P.
&
M.Cr.C. No.13053 of 2020
Gauravsingh Vs. State of M.P.
Indore, Dated:- 01/07/2020
Shri Sanjay Kumar Sharma, learned Counsel for the
petitioner--Dharmendra S/o Ashok Gurjar (M.Cr.C.
No.16446/2020)
Shri O.P. Solanki, learned Counsel for the petitioner--
Gauravsingh S/o Gajvelsingh (M.Cr.C. No.13053/2020)
Shri Awdhesh Polekar, learned Panel Lawyer for the
respondent/State.
Heard with the aid of case diary.
ORDER
1. These are the second applications of the petitioners Gaurav and Dharmendra under Section 439 Cr.P.C. for granting bail in crime number 709/2019 registered at the Police Station - City Kotwali, Mandsaur under Section 392, 365, 419, 34 of the IPC.
2. First application of petitioner Gaurav was dismissed as withdrawn vide order dated 10.02.2020 passed in MCRC number 5591/2020, while first application of petitioner Dharmender was dismissed on merits vide order dated 24.02.2020 passed in MCRC number 6483/2020.
3. According to the prosecution case on 27/11/2019, complainant Umraomal Jain had come Mandsaur to deliver gold jewellery weighing 111 grams at the shop of 2 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. Nos.16446 and 13053 of 2020 Sajanmal Gajendra Kumar Mehta from Ratlam. After deboarding the train at Mandsaur Railway Station, when he came out of the platform at 10:30 and was about to take an auto rickshaw, a police constable came and asked him to come with him to Police Station. The complainant tried to contact President of Mandsaur Sarafa Vyapari Sangh, but he did not allow him. At that time, one I-20 car having no number plate arrived there. A person in civil dress came out and both the constable and that person in civil dress forced the complainant to sit in the car but he refused, because it was not looking like an official police car. At the same time one other constable in uniform came on a motorcycle. Both the constables asked him to sit on motorcycle and made him to sit between both of them. They took him near to the police petrol pump via Nahata Chourah. I-20 car also followed them and reached there. leaving the complainant and the other constable sitting behind him, the constable, who was driving the motorcycle left the place. A person came out of the car. Both, the constables stayed on the spot and the person came out from the car, forced him to sit in that I-20 car. He sat beside the driver seat and constable in uniform sat on the back seat. They drove the car through Nahata Chourah, BPL Chourah and reached up to the police control room. The complainant asked them to stop the car at Police Control Room, but they did not stop. He tried to pull the hand break of the car but the person sitting behind him in 3 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. Nos.16446 and 13053 of 2020 police uniform restrained him to do so. They further took the car towards Highway via MIT Chourah. The constable sitting behind him snatched his bag, took out gold jewellery and asked him to reveal more jewellery, stating that he had information that he (complainant) had some more jewellery. He also searched his pant, shirts but find nothing. During the search, they were threatening him to keep quiet. After sometime, they stopped the car at Dalouda. The police constable get off the car and disappeared along with his jewellery. The person sitting on the driving seat moved the car and after covering some distance stopped it before Manankheda Toll, took out both SIMs of his mobile and destroyed them and asked him to get off the car. Leaving him on the road, he went off towards Mandsaur. The complainant took a bus and came back to his home at Ratlam, revealed the incident before his family and thereafter lodged the report.
4. During investigation, after going through the recording of close circuit cameras installed at various places, the police identified a constable Yuvraj, who brought the complainant from the railway station up to the police petrol pump by motorcycle. On interrogation, he revealed that he was asked to do so by constable Dharmendra (petitioner), stating that co-accused Gopal has instructed him to do so. Constable Dharmendra (petitioner) was also taken into custody and interrogated. He admitted his involvement, along with constable Gaurav 4 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. Nos.16446 and 13053 of 2020 Singh (petitioner), who was in I-20 car. Both petitioners Dharmendra and Gaurav named co-accused Gopal in their disclosure statement stating that on his instruction, they have taken the complainant to the police station.
5. The bail is pleaded on the ground that the petitioners are public servants, were on duty at some different place. Their careers are at stake for the offence not committed by them. There is no possibility of their absconding. They are in jail since 02/12/2019. Investigation is over and charge- sheet has been filed. They are implicated only on the basis of statement of co-accused Yuvrajsingh recorded under Section 164 of Cr.P.C. There is no test identification parade conducted by the prosecution. The petitioners are in jail since 02/12/2019, therefore, they be granted bail.
6. This time the bail is pleaded mainly on the ground of period of custody. It is submitted that the petitioners are in jail since 2.12.2019 and have completed more than seven months in the custody. Possibilities of conclusion of the trial in near future are very bleak. The petitioners are police constables and there is no possibility of their absconding. Besides, it is reiterated that no TIP was conducted during the investigation and still no memo of TIP is produced by the prosecution before the trial Court and similarly no document showing recording of CCTV is produced in the Court.
7. Learned panel lawyer appearing for the State has fairly admitted that no TIP was conducted during the 5 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. Nos.16446 and 13053 of 2020 investigation. No memo of test identification is produced by the police with the charge-sheet. Similarly no recording of CCTV or it's transcript is available in the case diary.
8. Having regard to the aforesaid, I deem it appropriate to allow the ball to the petitioners.
9. Therefore, without commenting on the merits of the case, both the petitions are allowed. Petitioners Gauravsingh S/o Gajvelsingh and Dharmendra S/o Ashok Gurjar be released from the custody, subject to their furnishing bond in the sum of Rs.50,000/- each with separate solvent sureties of the like amount to the satisfaction of the trial Court for their appearance before the Trial Court as and when required. The petitioners shall be abide by the conditions as enumerated in Section 437 (3) of the CRPC.
10. Accordingly, both the petitions are allowed and disposed off.
11. However, liberty is granted to the prosecution to move an application for cancellation of bail, in case any other evidence, like CCTV recordings is found against the petitioners.
(Virender Singh) Judge Pankaj Digitally signed by Pankaj Pandey Date: 2020.07.07 14:10:37 +05'30'