Madhya Pradesh High Court
Nainan Thomas vs The State Of Madhya Pradesh on 15 March, 2023
Author: Vishal Dhagat
Bench: Vishal Dhagat
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 15 th OF MARCH, 2023
MISC. CRIMINAL CASE No. 8964 of 2023
BETWEEN:-
1. NAINAN THOMAS S/O SHRI M.C. NAINAN, AGED
ABOUT 52 YEARS, OCCUPATION: BUSINESS
RESIDENT OF VILLAGE MARAHAR POLICE
STATION DAMOH DEHAT DISTRICT DAMOH
(MADHYA PRADESH)
2. THOMAS S/O SHRI BARGIR THOMAS, AGED
ABOUT 48 YEARS, OCCUPATION: BUSINESS
RESIDENT OF VILLGE IMLAI POLICE STATION
DAMOH DEHAT DISTRICT DAMOH (MADHYA
PRADESH)
3. REENU METHEW S/O SHRI A.K. MATHEW, AGED
ABOUT 39 YEARS, OCCUPATION: BUSINESS
RESIDENT OF VILLAGE MARAHAR POLICE
STATION DAMOH DEHAT DISTRICT DAMOH
(MADHYA PRADESH)
4. SAJAN IBRAHAM S/O SHRI IBRAHAM SAMMUEL,
AGED ABOUT 36 YEARS, OCCUPATION: BUSINESS
RESIDENT OF VILLAGE MARAHAR POLICE
STATION DAMOH DEHAT DISTRICT DAMOH
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI MANISH DATT, SR. COUNSEL WITH SHRI PAWAN GUJAR,
ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION DAMOH DEHAT DISTRICT
DAMOH (MADHYA PRADESH)
2. VICTIM A D/O NOT MENTION NOT MENTION
(MADHYA PRADESH)
.....RESPONDENTS
2
(BY SHRI PRAMOD THAKRE, GOVT. ADVOCATE)
This application coming on for admission this day, the court passed the
following:
ORDER
This is the second bail application filed on behalf of the applicants/accused under Section 438 of the Cr.P.C. for grant of anticipatory bail, as they are under apprehension of their arrest in connection with Crime No.749/2022, registered at Police Station Damoh, District Damoh (M.P.) for the offences punishable under Sections 354, 354(A), 342 and 506/34 of IPC Section 7/8 and 9(f)/10 of POCSO Act, Section 3(1)(da), 3(1)(w(i), 3(1)(w)(ii) and 3(2)(v)(ka) of SC/ST Act, Sections 3(g) and 7 of Religious Institution (Prevention of Misuse) Act, Section 3 & 5 of M.P. Freedom of Religion Act and Section 3/8 of M.P. Vishesh Kshetra Suraksha Adhiniyam.
2. Learned Senior Counsel appearing for the applicants submitted that some of the co-accused persons have been released on anticipatory bail while others have been released on regular bail. It is submitted that offences under SC/ST Act is not made out against the applicants, therefore, bar is not applicable. It is further argued that offence alleged against the applicants are punishable with imprisonment of less than 7 years, therefore, applicants may not be arrested and they may be given the benefit of Section 41-A of CrPC. In these circumstances he prays for grant of anticipatory bail to the applicants.
3. Learned Govt. Advocate appearing for the respondent/State opposed the prayer for grant of anticipatory bail. It is submitted that earlier application filed by the applicants i.e. M.CrC No.2495/2023 was dismissed vide order dated 10.2.2023. Specific finding has been given in that order that bar under Section 18-A of SC/ST Act is attracted. It is also submitted that 3 Superintendent of Police has declared a reward for arrest of applicants. Applicants are absconding from law. Learned Govt. Advocate further submitted that direction cannot be issued in an application under section 438 CrPC. Court may allow or reject the application but no direction can be issued. In these circumstances repeat bail application is not maintainable and same may be dismissed.
4. At this stage, learned Senior Counsel for the applicants submitted that police never made any attempt to arrest the applicants. Police did not given any notice to applicants and applicants where available at their permanent address. In these circumstances Court may exercise its discretion and grant of them anticipatory bail or grant them benefit of judgment passed by the Apex Court in the case of Arnesh Kumar Vs. State of Bihar reported in (2014) 8 SCC 273.
5. Heard learned counsel for the parties.
6. Earlier anticipatory bail application filed by the applicants has been dismissed by this Court and it has been stated that bar under section 18-A of SC/ST Act is attracted. In these circumstances, repeat bail application for grant of anticipatory bail is not entertained and same is dismissed.
7 . Learned Senior Counsel for the applicants prayed that direction be issued to Investigating Agency to comply with provision of Section 41-A of CrPC.
8. Learned Govt. Advocate opposed the said prayer and submitted that no direction can be issued.
9. Apex Court in the case of M. C. Abraham and others vs. State of Maharashtra and others, (2003) 2 SCC 649, disapproved the directions of the High Court for arrest of appellants therein. Apex Court in the case of S. Senthil Kumar vs. State of Tamilnadu, Special Leave to Appeal 4 (Criminal) 2693/2022 held that there is no quarrel with the proposition that no mandatory order or directions should be issued while rejecting the application for pre-arrest bail. It was also held that when a prayer for pre-arrest bail was declined, it is for the investigating agency to take further steps in the matter and whether the investigating agency requires custodial interrogation or not, is also to be primarily examined by investigating agency alone.
10. In view of judgment passed by the Apex Court, no direction can be issued to Investigating Agency to issue notice under section 41-A of CrPC. Investigating Agency may consider facts and circumstances of the case and may exercise its discretion for issuing notice under section 41-A of CrPC and whether applicant/accused is required to be arrested under section 41 of CrPC or not.
11. Anticipatory bail application filed by the applicants, is dismissed.
(VISHAL DHAGAT) JUDGE mms MONSI M Digitally signed by MONSI M SIMON DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=b7a13d854f2b056ad70e55fc14df62a077ba6bb8 03b926572a35493c4e4d4e53, SIMON pseudonym=63536DE44C6576A9B87417147ABF424B0E DF6D68, serialNumber=4FC122D90CF46F5A64D36908C1DA150AF 31ACB0AD0D38223877262704094037E, cn=MONSI M SIMON Date: 2023.03.16 17:15:27 +05'30'