Indian Kanoon - Search engine for Indian Law

Madhya Pradesh High Court

Vikash Raghuvanshi vs The State Of Madhya Pradesh Thr on 10 April, 2017

                                  1                    Mcrc.14363/16
               Vikash Raghuvanshi Vs. State of M.P. & others

10/4/17
         Shri Deependra Raghuvanshi, Advocate for the petitioner.
         Shri Ajmer Singh Yadav, Panel Lawyer for respondent No.1/State.

Shri Raju Sharma, Advocate for respondent No.2-accused Kamal Singh.

Power of cancellation of bail u/S. 439(2) of Cr.P.C. is invoked for cancellation of bail order passed in favour of the private respondent.

Learned counsel for the petitioner submits that the bail order in favour of private respondent was passed on wrong assumption that no prosecution witnesses had been examined between the last rejection of 27/6/2014 in Mcrc.No.3465/14 and till passing of the order of bail sought to be cancelled. This assumption as per learned counsel for the petitioner is incorrect as on 8/9/214 PW Pahalwan had turned up but was given up by the prosecution. On 5/11/2014, deposition of PW-15 was recorded but remained incomplete. On 10/11/2014 deposition of PW16 was recorded. On 12/5/2015 incomplete deposition of PW-15 was completed and on 6/6/2015 deposition of PW-17 was recorded. Thus, it is submitted that the order of bail granted in favour of the private respondent is passed on suppression of material fact.

Another ground raised by the learned counsel for the petitioner is that the order sought to be reviewed was passed in regard to application which was termed as 5th bail application whereas said application is 6 th bail application and the private respondent intentionally suppressed disclosure of rejection of 5th bail application on 16/1/2015 in Mcrc.No.12088/14.

On the other hand, learned counsel for the private respondent submits that the bail order was rightly passed and since scope under Section 439(2) of Cr.P.C. is extremely limited it cannot be exercised in the given facts and circumstances where only remedy available to the petitioner is to approach higher forum if the order sought to be cancelled is erroneous.

Vikash Raghuvanshi Vs. State of M.P. & others From perusal of the order of bail granted to private respondent on 24/7/2015, it is clear that the same was passed solely on the ground of prejudice on account of delayed trial as the private respondent was in custody since 24/12/2012 and this court was under the impression that no further Pws turned up for examination and cross-examination and looking to the period of custody suffered by the respondent which was more than 2 and ½ years, this court was of the view that right to speedy trial under Art. 21 of the Constitution was breached.

It is pertinent to mention that the order of bail granted in favour of the private respondent was not passed on merits as the nature of allegation and the degree of complicity of the private respondent in the offence alleged was not considered and therefore it was solely passed on the ground of delay.

This court is of the considered view that if the factum of four witnesses having not been examined on five different dates as mentioned above, which fell between 27/6/2014 to 24/7/2015 was brought to the notice of this court, the court would not have granted bail to the private respondent. It is further settled principle of law that the order obtained by suppression of material fact is a nullity in law and ought not to be allowed to stand in the interest of justice.

In view of above, the present application is allowed. The order of bail granted on 24/7/2015 in Mcrc.No.6250/15 in favour of private respondent stands cancelled.

The order passed by this court today be communicated to the trial court concerned to take necessary steps for making arrest of the private respondent immediately.

(Sheel Nagu) Judge (Bu)