Madhya Pradesh High Court
Haneef Khan vs The State Of Madhya Pradesh on 25 November, 2021
Author: Vishal Dhagat
Bench: Vishal Dhagat
AFR
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. MCRC No. 38255/2021
Parties Name Haneef Khan
vs.
The State of Madhya Pradesh
Date of Order 25/11/2021
Judgment delivered by Justice Vishal Dhagat
Whether approved for reporting yes
Name of counsels for parties Petitioners: Shri Manish Datt, Senior
Advocate with Shri Pushpendra Dubey, Adv.
Respondents:Shri Gaurav Tiwari, Panel
Lawyer.
Law laid down 7. If incorrect facts are relied on by Court for rejecting first anticipatory bail application then repeat bail application on correct facts is maintainable though first bail application was decided on merits. In repeat bail application Court is considering correct facts which were not before Court in first application.
Reconsideration will not amount to review or to re-appreciate facts as sitting in appeal.
Significant paragraph numbers 07
(ORDER)
(25.11.2021)
This is second bail application filed under Section 438 of Code of Criminal Procedure for grant of anticipatory bail to the applicant as he is apprehending his arrest in connection with Crime No.129/2016 registered at Police Station-Singhpur, District-Shahdol (M.P.) for commission of offence punishable under Section 8/20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 and Section 420/34 of the Indian Panel Code.
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2. Learned senior counsel appearing for applicant submitted that as per prosecution case on 08.08.2016 one vehicle bearing registration No.CG-04/3919 was stopped by police and said vehicle was carrying contraband article Ganja in it. Rajkumar Patel driver of vehicle was arrested and made disclosure statement involving applicant in the crime.
Ganja is said to be delivered by Balaji of Odisha. Total seizure of 92.50 kg. of Ganja was made. He further submitted that in pursuant to disclosure statement no contraband was recovered from the applicant. He was not present on spot. Applicant did not abscond and was available to police and he was falsely implicated in the case. Applicant had approached Inspector General of Police, Shahdol and filed an affidavit to establish his innocence and to show false implication in case. Applicant was married to one Kaneez Fatima @ Mangla Patel. Applicant's wife had lodged an FIR against applicant under Section 498-A and 323 of the Indian Panel Code. Applicant contracted second marriage. First wife of applicant is sister of Rajkishore Patel who is co-accused in the case. He was falsely implicated due to enmity with Rajkishore Patel and his wife Kaneez Fatima @ Mangla Patel. Only evidence available against applicant is memorandum statement recorded under Section 27 of the Evidence Act.
3. Senior Counsel placed reliance on judgment reported in 1996 MPLJ 662) {Imratlal Vs. State of Madhya Pradesh} and argued that repeat anticipatory bail application on change circumstances is maintainable and Court can consider such application on its merits. He
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also made submission that wrong fact has been mentioned in order dated 23.07.2021 passed in MCRC No.45078/2019. It was mentioned in said order that as per prosecution story Ganja was seized from possession of applicant and co-accused persons. Wrong fact has been mentioned in earlier bail order, therefore, second anticipatory bail application is maintainable. In view of aforesaid facts and circumstances of the case, counsel appearing for applicant prays for grant of anticipatory bail.
4. Learned Panel Lawyer appearing for State opposed the application for grant of anticipatory bail. It is submitted by him that earlier bail application for grant of anticipatory bail was dismissed on its merits vide order dated 23.07.2021 passed in MCRC No.45078/2019. There is no change in circumstances. It is further submitted that Court considered all the facts available on record and considering the fact that crime has been registered against applicant in year 2016 and present applicant has not been arrested and also not cooperating in investigation and looking to the quantity of Ganja seized in the case, Court held that custodial interrogation of applicant is required and application for bail was rejected. In this circumstances, repeat anticipatory bail filed by applicant shall be dismissed.
5. Heard the counsel for the applicant as well as State.
6. Second application for grant of anticipatory bail is maintainable on change facts and circumstances of the case. If first bail application has been rejected on merits, repeat application based on same facts for grant
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of anticipatory bail is not maintainable. Learned Senior Counsel appearing for applicant has argued that incorrect fact has been mentioned by the Court, therefore, repeat bail application on merits of the case is maintainable.
7. If incorrect facts are relied on by Court for rejecting first anticipatory bail application then repeat bail application on correct facts is maintainable though first bail application was decided on merits. In repeat bail application Court is considering correct facts which were not before Court in first application. Reconsideration will not amount to review or to re-appreciate facts as sitting in appeal.
8. In order dated 23.07.2021 passed in MCRC No.45078/2019, prosecution case has been mentioned where it was recorded that Ganja was seized from possession of applicant and co-accused persons, however in next paragraph of the order case of applicant was discussed and it has been mentioned that Rajkishore has given memorandum statement and thereafter, name of applicant was added as an accused. From aforesaid fact which is mentioned in the order, it is clear that Court was aware of the facts that applicant was made an accused in the case on basis of memorandum statement given by co-accused person. Other facts which are stressed by the applicant like giving application before IGP for establishing his innocence was also considered and representation given by applicant to S.P. Officer was also taken into consideration. Facts of
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personal enmity was also before the Court while considering first bail application.
9. In view of same, it cannot be said that Court has mentioned incorrect facts in order order dated 23.07.2021 passed in MCRC 45078/2016. All the facts mentioned by applicant in its application were recorded by the Court. Court has formed an opinion to reject anticipatory bail application since, applicant is not cooperating in investigation and is at large since 2016 in serious offences punishable under Section 8, 20 of NDPS Act and Section 420 and 34 of the Indian Panel Code. Facts that seizure was not from applicant was also before Court and all documents filed by applicant were also considered, therefore, repeat application for anticipatory bail on same facts is not maintainable.
10. Repeat anticipatory bail application filed by applicant is rejected.
(VISHAL DHAGAT) JUDGE shabana Digitally signed by SHABANA ANSARI Date: 2021.11.26 13:38:51 +05'30'