Madhya Pradesh High Court
Mahendra Singh vs The State Of Madhya Pradesh on 25 November, 2019
Author: Vivek Rusia
Bench: Vivek Rusia
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No. 40511/2019
Mahendra Singh V/s. State of M.P.
-: 1 :-
Indore, dated : 25.11.2019
Petitioner by Shri R.K. Shastri, Advocate.
Respondent/State by Shri Abhinav Dhanodkar, Dy.
Advocate General.
ORDER
This is an application under Section 438 Cr.P.C. by petitioner - Mahendra Singh, who apprehends his arrest by Police in Crime No.235/2019 registered at Police Station Bajna, District Ratlam, concerning offence u/s. 3/7, Essential Commodities Act.
2. Heard the learned counsel for the parties and perused the case diary.
3. As per allegations levelled against the applicant, he is not doing the work of workman properly and he is not opening the fair-price shop timely.
4. Learned counsel for the petitioner has placed reliance upon the judgment dated 07.05.2015 passed in M.Cr.C No. 2914/2015 (Santosh Sahare Vs. State of M.P.) by the Gwalior Bench of this Court wherein under similar circumstances this Court has held as under:-
"5. Learned Panel Lawyer for the State opposes the aforesaid submission on the ground that there is prima-facie evidence available against the applicant and prays for dismissing the same.
6. Firstly, I would like to reproduce the relevant provision of Act of 1955 to clear the position as to whether offence under section 3/7 of Essential Commodities Act, 1955 is bailable or non-bailable.
7. Section 10(A) of the Act of 1955 reads as under :-
"Offence to be cognizable and bailable notwithstanding anything contained in the Code of Criminal Procedure,1973 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 40511/2019 Mahendra Singh V/s. State of M.P. -: 2 :- every offence punishable under the Act shall be 'cognizable' "(xxx)2.
(xxx)2 - vf/kfu;e dz- 92 lu 1976 }kjk nl o"kksZa ds fy, rRi'pkr~ vf/kfu;e dz- 18 lu~ 1981 }kjk ¼fn- 1-9-1982 ls½ nl ds LFkku ij iUnzg o"kksZa ds fy,] 'kCn ^^vkSj vtekurh;^^ LFkkfir fd;s x, Fks A fn-31-8-1997 dks iUnzg o"kZ iw.kZ gks tkus ds dkj.k /kkjk vius ewy :i esa LFkkfirA^^
8. From the bare perusal of aforesaid section it appears that by the Essential Commodities (Special Provision) Act-1981 Section 10(A) of the original Act of 1955 was amended and after the word 'cognizable', the words 'and non-bailable' were introduced. The said Act of 1981 was to remain in force for a period of 5 years only from the date of commencement of 1981 Act. Thereafter by the Essential Commodities (Special Provisions) Continuance Act, 1987 para-2 of the preamble of 1981 to the Essential Commodities (Special Provisions) Act,1981 was amended and in place of 5 years, period of 10 years was substituted. Thereafter by Third Amendment, the said period of continuance was made to 15 years. After expiry of 15 years no amendment Act was brought into force but certain ordinance were issued. The last ordinance was issued in the year 1988, which lost its life and efficacy by lapse of time. Thereafter no Act or ordinance has been issued to continue the Provisions of 1981 Act.
9. When 1981 Act has lost its life, then any amendment incorporated by the said Act which was to remain in force for a period of 5,10 or 15 years would come to an end and additional words 'and non-bailable' shall become 'non-est' and 'otiose' Section 10(A) without the said amendment shall now be read as "notwithstanding anything contained in the Code of Criminal Procedure- 1973, every offence punishable under the Act shall be cognizable"
10. In view of the above legal provisions, the offence is not nonbailable. Cognizance of such an offence can be taken but in the absence of any other provision showing the offence to be nonbailable, The offence would continue to be bailable in view of schedule II of the Code of Criminal Procedure,1973.
11. Therefore, as the offence is bailable, an application under section 438 of Cr.P.C. would not be maintainable. However, keeping in view the relevant provision as well as the possibility of the non- wareness of the relevant provisions of Act of 1955 and amended Act,1981 and the interpretation, it would be appropriate to direct the Arresting Officer/Authority that in the event of arrest of applicant, the officer arresting the applicant shall release the applicant Santosh Sahare on bail treating the offence to be bailable. In the alternative, the applicant may also appear before the Special Court along with the copy of this order and furnish bail to the satisfaction of the said Court.
12. The petition is disposed of accordingly." THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 40511/2019 Mahendra Singh V/s. State of M.P. -: 3 :-
5. Learned counsel for the applicant submits that applicant is innocent and he has been falsely implicated but offence of Section 3/7 of Essential Commodities Act is bailable. He is ready to cooperate in the investigation in the matter. Upon these grounds, he prays for bail.
6. On the other hand, learned Public Prosecutor for State has opposed the bail application and prayed for dismissal of the bail application.
7. Taking into consideration the facts and in view of the judgment passed by the Gwalior Bench of this court, without expressing any opinion on merits of the case, this Court deems it appropriate to allow this application filed by applicant.
8. It is hereby directed that in the event of arrest, the applicant shall be released on bail on their furnishing a personal bond of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety of the like amount to the satisfaction of Arresting Officer/Investigating Officer.
9. This order will remain operative 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 shall make himself available for interrogation by a police officer as and when required. He shall further abide by the other conditions enumerated in sub-Section (2) of Section 438 of Cr.P.C.
3. The applicant will not indulge the in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 40511/2019 Mahendra Singh V/s. State of M.P. -: 4 :- him from disclosing such facts to the Court or to the Police Officer, as the case may be;
4. The applicant shall not commit an offence similar to the offence of which he is accused;
5. The applicant will not seek unnecessary adjournments during the trial; and
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 have to mark his appearance in first week of every month before concerned Police Station, till filing of charge-sheet.
C.C. as per rules.
( VIVEK RUSIA ) JUDGE Alok/-
Digitally signed by Alok GargavDate: 2019.11.25 16:43:08 +05'30'