Madhya Pradesh High Court
Vijay Singh Tomar vs The State Of Madhya Pradesh on 1 November, 2022
Author: Sunita Yadav
Bench: Sunita Yadav
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 1st OF NOVEMBER, 2022
MISC. CRIMINAL CASE No. 16626 of 2022
Between:-
VIJAY SINGH TOMAR S/O SHRI
TEHSILDAR SINGH TOMAR, AGED
ABOUT 27 YEARS, R/O
HARICHANDRA KA PURA, P.S.
AMBAH, DISTRICT MORENA
(MADHYA PRADESH)
......PETITIONER
(BY SHRI RAJKUMAR JOSHI -
ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
INCHARGE POLICE STATION P.S.
AMBAH, DISTRICT MORENA (MADHYA
PRADESH)
2. YOGENDRA @ KALLA S/O SHRI
LATOORI SINGH TOMAR R/O
HARICHAND KA PURA, THANA AMBAH,
DISTRICT MORENA (MADHYA
PRADESH).
2
.....RESPONDENTS
(SHRI B.M. SHRIVASTAVA LEARNED PUBLIC
PROSECUTOR FOR RESPONDENT NO.1/STATE &
SHRI HARSHIT SHARMA- ADVOCATE FOR
RESPONDENT NO.2)
-------------------------------------------------------------------------------
This petition coming on for hearing this day, the court passed the
following:
ORDER
The present application has been filed under Section 439(2) of Cr.P.C. for cancellation of bail granted in M.Cr.C. No.33466/2020 vide order dated 11/09/2020.
2. The facts in brief to decide the present petition are that upon the report of petitioner/complainant, an FIR bearing crime no.223/2020 for the offence u/Ss.302, 307, 341, 323, 294, 34 of IPC was registered against the respondent No.2- Yogendera @ Kalla. The respondent No.2 filed bail application which was registered as M.Cr.C. No.33466/2020. The Coordinate Bench of this Court granted bail on 11/09/2020 under following conditions;
1. The petitioner will comply with all the terms and conditions of the bond executed by him;
2. The petitioner will cooperate in the investigation/trial, as the case may be.
3. The petitioner will not indulge himself in extending inducement, threat or promise to any 3 person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to the Police Officer, as the case may be;
4. The petitioner shall not commit an offence similar to the offence of which he is accused;
5. The petitioner will not seek unnecessary adjournments during the trials;
6. The petitioner will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be;
7. The learned concerned Magistrate and the prosecution are directed to ensure following of Covid-19 precautionary protocol prescribed from time to time by the Supreme Court, the Central Govt. and as well as the State Govt during release, travel and residence of the petitioner during period of bail as a consequence of this order.
8. The petitioner as a Shiksha Swayamsevak shall render physical and financial assistance to government primary school situated nearest to residence of petitioner for ensuring hygiene and sanitation and for removing deficiencies of infrastructural amenities in the said school from the skill/resources of the petitioner.
3. The case of the petitioner is that respondent no.2 breached the conditions no.2 and 3 of bail by threatening the petitioner/complainant to enter into compromise for which an FIR bearing crime No.154/2022 under Sections 195-A, 294, 506 & 34 of IPC has been registered, so also, he is not cooperating in the trial. Since the respondent no.2 has breached the conditions of bail, therefore, the present application under Section 439(2) of Cr.P.C. 4 be allowed and bail granted to respondent no.-2 be canceled.
4. Heard
5. Learned counsel for the petitioner/complainant argued that in the present case, co-accused persons in connivance with the concerned Police Officers, obtained default bail under Section 167 of Cr.P.C.. Challenging the order of default bail, a writ petition had been filed which was allowed by this Court. Thereafter, a departmental inquiry has been initiated against the concerned Police Officers. All these facts show that the Police is under influence of accused persons. He has further argued that the registration of FIR for threatening the petitioner/complainant for compromise is sufficient to cancel the bail.
6. On the other hand, learned counsel for the respondent argued that mere registration of FIR is not a sufficient ground for cancellation of bail. In support of his submissions, he has relied upon the judgment of Hon'ble Supreme Court in case of Myakala Dharmarajam & Ors. Vs. The State of Telangana and Anr. in Criminal Appeal Nos.1974-1975 of 2019 (@ SLP (Crl.) 5 Nos.8882-8883 of 2019) and order passed by Hon'ble High Court of Karnataka at Bengaluru in the case of Khajim @ Khajimulla Khan Vs. The State of Karnataka in Criminal Revision Petition No.1364/2019 on 12/12/2019.
7. Heard learned counsel for the rival parties and perused the material available on record.
8. On perusal of records reveals that upon the report of present petitioner/complainant, an FIR bearing crime no.154/2022 for the offence punishable under Sections 195-A, 294, 506 & 34 of IPC has been registered against the respondent No.2.
9. The Hon'ble Supreme Court in case the case of Dolat Ram Vs. State of Haryana [(1995) 1 SCC 349 : 1995 SCC (Cri) 237] has held that " Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the 6 possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non- bailable case in the first instance and the cancellation of bail already granted"
10. In the case of State of Rajasthan Vs. Mubin and Ors. [2011 Crl. L.J. 3850], the Court has held as under;
9. The primary question which is to be considered by us in this case is as to whether the accused applicants had committed any offence, during the pendency of the appeal, on account of lodging of some first information reports. In other words, can it be said that a person has committed an offence when a first information report is lodged against him. In our considered opinion, merely lodging of a first information report, does not amount to commission of an offence and it is only accusation/allegation which can be said to be leveled against the accused person at the stage. As a matter of fact, the question as to whether an offence has been prim-facie committed or not is considered when an opinion is formed by the Court after applying mind on the material before it. That stage would come only at the time of framing of charge. It would be relevant to mention here that 7 the legislature, in its wisdom, has clearly laid down the distinction in the provisions under Section 228, Cr. P.C. and the terminology used at the stages prior to it. The relevant provisions of the Code of criminal procedure is as under:-
"228. - Framing of charge - (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate (or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the First Class, on such date as he deems fit, and thereupon such Magistrate) shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused."
In other words, an accused can be said to have committed an offence only when a Court, after considering the material before it and hearing the parties, forms an opinion to that effect, at the time of framing of charge. It is only after judicious consideration by a Court and an opinion is formed by it for presuming the commission of an offence that an accused can be said to have committed an offence. Therefore, an offence can be said to have been committed only at the stage of framing of charge when the concerning Court forms an opinion for presuming that the accused has committed the offence and not at earlier point of time. The word 'commit' as per Johnson Dictionary 8 means 'to be guilty of a crime."
In such view of the matter, merely on filing of first information reports against the accused applicants, it cannot be said that they had committed any offence during the period of bail. Consequently, they did not breach the conditions so imposed by the Court while granting order of bail on12-9-2006.
10. For the aforesaid reasons, we are of the view that the accused applicants had not committed any breach of conditions imposed on them on 12.9.2006. Moreover, the accused applicants were awarded acquittal by the learned trial Court on 5.5.2006 and it is against the said judgment that the prosecution had preferred the present appeal in which they were given the benefit of bail, during the pendency of the same. The accused applicants are in custody since 12.6.2008.
11. In the case of Samarendra Nath Battacharjee Vs. State of West Bengal and another [AIR 2004 SC 4207], the Apex Court has held that when already the bail has been granted by exercising powers vested with the Court, then sparingly the same has to be reviewed and cancelled. It is further held that the powers exercised by the Court should be exercised with caution and the Court has to keep in mind that grant of bail has to be exercised as if it should not be a punishment before trial. The same yardstick has been made applicable at the time of cancellation of bail. This 9 proposition of law has been laid down in the case of Abdul Basit @ Raju and Ors. Vs. Mohd. Abdul Kadir Chaudhary and another [(2014) 10 SCC 754].
12. In view of above settled principles of law, it is apparent that merely lodging of First Information Report does not amount to commission of offence and it is only accusation/allegation which can be said to be levelled against the accused person at that stage. In the present case, there is nothing on record to show that the concerned Court after applying mind and the material available before it framed the charges against the respondent no.2 in respect to the offence punishable under Sections 195-A, 294, 506 & 34 of IPC.
13. On perusal of record also reveals that there is nothing to show that the respondent no.2 is not cooperating in the trial.
14. Consequently, present petition sans merits and is hereby dismissed.
(SUNITA YADAV)
vpn JUDGE
Digitally signed
by VIPIN KUMAR
AGRAHARI
VALSALA
VASUDEVAN
2018.10.26
Date: 2022.11.04
12:00:02 +05'30'
15:14:29 -07'00'