Madhya Pradesh High Court
Sudeep Jain vs The State Of Madhya Pradesh on 22 September, 2020
Author: Anand Pathak
Bench: Anand Pathak
HIGH COURT OF MADHYA PRADESH
1 M.Cr.C.No.27647/2020
(Sudeep Jain Vs. State of M.P. & Anr. )
Gwalior Bench: Dated 22/09/2020
Shri Atul Gupta, learned counsel for the
applicant/complainant.
Shri Alok Sharma, learned Panel lawyer for respondent
No.1/State.
Shri Sushil Goswami and Shri D.P.Singh, learned counsel for respondent No.2/accused.
Present application has been preferred by the complainant under Section 439(2) of Cr.P.C. for cancellation of bail granted to respondent No.2/accused by this Court vide order dated 27.7.2020 passed in M.Cr.C.No.16926/2020.
It is the submission of learned counsel for the applicant/complainant that initially a case was registered at the instance of present applicant because of suicide committed by his brother in November, 2019 because of insinuation /threat/intimidation given by respondent No.2/accused and other co-accused for recovery of amount which his brother (deceased) already repaid to the accused persons. Compelled by their pressure and insinuation, he committed suicide and case was registered under Section 306/34 of IPC vide crime No.655/2019 at police Station, Kotwali Distt. Vidisha. Since November, 2019 respondent No.2/accused and other co-accused were evading HIGH COURT OF MADHYA PRADESH 2 M.Cr.C.No.27647/2020 (Sudeep Jain Vs. State of M.P. & Anr. ) their arrest. An application under Section 438 of Cr.P.C. was preferred by respondent No.2/accused before this Court and same got dismissed as withdrawn vide order dated 13.1.2020 passed in M.Cr.C.No.319/2020. Meanwhile respondent No.2 did not cooperate in investigation, therefore, proceedings under Sections 82/83 of Cr.P.C. were initiated against present respondent No.2 along with other co-accused persons. It appears that vide order dated 13.3.2020 (Annexure P/3) proclamation under Section 82 of Cr.P.C. was made by the Chief Judicial Magistrate, Vidisha. This fact was not disclosed by respondent No.2 in his second bail application and preferred such application on different grounds under Section 438 of Cr.P.C. as second anticipatory bail application on 26.5.2020 before this Court. Meanwhile, other co- accused Narendra Raghuwanshi got benefit of anticipatory bail vide order dated 19.5.2020 in M.Cr.C.No.9678/2020 and co- accused Raman Chaukse vide order dated 24.6.2020 in M.Cr.C.No.15074/2020 by Coordinate Bench of High Court. Both these accused have also suppressed the fact regarding proclamation under Section 82 of Cr.P.C. against them and before both the Courts this fact never pressed into service.
In the case of respondent No.2, this Court allowed the HIGH COURT OF MADHYA PRADESH 3 M.Cr.C.No.27647/2020 (Sudeep Jain Vs. State of M.P. & Anr. ) second application for anticipatory bail vide order dated 27.7.2020 on facts so submitted by the accused, but in this case also, such fact was not referred and surfaced, therefore, it appears that due to Covid-19 pandemic situation and other attending circumstances, bail application has been allowed, but later on, when the document regarding proclamation under Section 82 of Cr.P.C. came to the knowledge and possession of the applicant, then this application for cancellation of bail has been preferred. According to him, respondent No.2/accused is not cooperating in investigation, whereas he is facing serious allegations of abetment to suicide and because of his intimidation his brother committed suicide. His name also figured in dying declaration. He is not cooperating in investigation and is a threat to the complainant to depose before investigating officer and on oath before the Court in free and fair manner, therefore, bail granted earlier be cancelled.
Learned counsel for respondent No.1/State fairly submits that documents in the case diary refer the fact that after dismissal of first application for anticipatory bail, proclamation has been made under Section 82 of Cr.P.C. on 13.3.2020 by CJM, Vidisha. It is further submitted that despite full amount of respondent HIGH COURT OF MADHYA PRADESH 4 M.Cr.C.No.27647/2020 (Sudeep Jain Vs. State of M.P. & Anr. ) No.2 being repaid by the deceased, cheques, which were issued by the deceased to respondent No.2/accused as security, were not returned back and pressurized him to pay more, therefore, compelled by the circumstances, he committed suicide.
Learned counsel for respondent No.2/accused opposed the prayer and submits that after dismissal of first application on 13.1.2020 some new facts came to the knowledge of respondent No.2 as well as because of Covid-19 situation, he preferred second bail application under Section 438 of Cr.P.C. and pleaded his innocence. It is the submission of learned counsel for respondent No.2 that at the time of passing of order dated 27.7.2020 in M.Cr.C.No.16926/2020 when anticipatory bail application was allowed, the fact of proceedings under Section 82/83 of Cr.P.C. was submitted by the Government Counsel, but after considering the fact situation, Court has passed the order, therefore, no reason exists for cancellation of bail. It is further submitted that respondent No.2 has been falsely implicated and minor observations have been made in the dying declaration. It is further submitted that his second application for anticipatory bail was maintainable even in wake of proclamation under Section 82/83 of Cr.P.C.
HIGH COURT OF MADHYA PRADESH 5 M.Cr.C.No.27647/2020 (Sudeep Jain Vs. State of M.P. & Anr. ) Heard learned counsel for the parties at length through VC and perused the case diary and documents appended thereto.
In the case in hand, respondent No.2 and several co- accused are either facing investigation or trial. As per the case diary, some of the co-accused have been charge-sheeted and some of the co-accused, including present accused i.e. respondent No.2, is facing heat of investigation under Section 173(8) of Cr.P.C. and investigation against respondent No.2 is still pending. First application under Section 438 of Cr.P.C. was dismissed on 13.1.2020 as counsel for respondent No.2 sought withdrawal of the application. Thereafter, documents (Annexure P/3) placed by the applicant/complainant indicates that CJM, Vidisha, has proceeded under Section 82/83 of Cr.P.C. against some of the accused including present respondent No.2 as well as Deependra Jain, Raman Chaukse, Narendra Raghuwanshi, Kamal Prakash Jain and Arvind Pandit. So far as submission of respondent No.2 that even after proceedings under Sections 82/83 of Cr.P.C. accused has a right to prefer application under Section 438 of Cr.P.C. is concerned, same may be maintainable, but this has to be tested on merits and on the four factors enumerated under Section 438(1) of Cr.P.C. Factors as enumerated in Cr.P.C.
HIGH COURT OF MADHYA PRADESH 6 M.Cr.C.No.27647/2020 (Sudeep Jain Vs. State of M.P. & Anr. ) include nature of allegation, criminal antecedents, chance of fleeing from justice etc. and here in the case it appears that after dismissal of first application on 13.1.2020, respondent No.2/accused did not cooperate in investigation and evaded arrest warrant, therefore, proceedings under Section 82/83 of Cr.P.C. were initiated on 13.3.2020. Those proceedings were never referred by respondent No.2 in his bail application. Beside that, so far as the submission of respondent No.2 regarding the fact that factum of proceedings under Section 82/83 of Cr.P.C. was referred by the Government counsel is concerned, same sans merit on the ground that bail order dated 19.5.2020 of co-accused Narendra Raghuwanshi in M.Cr.C.9678/2020 and bail order dated 24.6.2020 of co-accused Raman Chaukse in M.Cr.C.No.15074/2020 also reveal that those facts have never been referred by Government Counsel in those orders also, and therefore, fact regarding said proceeding did not find place in those orders also. In the bail orders, different Government Counsel appeared, therefore, it can be presumed that those facts were never referred. Omission may be perhaps because of new mode of video conferencing where case diaries are received online by the Government Counsel and at times minutes before HIGH COURT OF MADHYA PRADESH 7 M.Cr.C.No.27647/2020 (Sudeep Jain Vs. State of M.P. & Anr. ) hearing and may be due to technical glitch, this fact may not have been referred effectively. Interestingly, anticipatory bail of co- accused Narendra Raghuwanshi in M.Cr.C.No.9678/2020 was granted by this Court in which no reference of proceedings under Sections 82/83 of Cr.P.C. was made and in the case of co-accused Raman Chaukse (M.Cr.C.No.15074/2020) Coordinate Bench passed the order, but in that case also, no reference of proceedings under Section 82/83 was made, therefore, on this count also, submission of counsel for respondent No.2 deserves to be rejected.
Even in this case (application for cancellation of bail) this Court vide order dated 24.8.2020 directed the respondent/State/police authorities to intimate respondent No.2 about the pending application and matter was posted on 3.9.2020 but accused did not appear despite intimation given by the police authorities. Therefore, in the interest of justice to give another chance to the accused Court again directed the authorities to intimate the accused and matter was posted on 21.9.2020. Then accused appeared. The proceedings further indicate that respondent No.2 was not cooperating in investigation and proceedings and in a way violated bail conditions No.1 to 3.
HIGH COURT OF MADHYA PRADESH 8 M.Cr.C.No.27647/2020 (Sudeep Jain Vs. State of M.P. & Anr. ) However, at present, applicant has placed the order of proclamation dated 13.3.2020 under Section 82 of Cr.P.C., that cannot be overlooked and Court has based this order primarily on this aspect. Beside that, nature of allegations, coupled with the fact that respondent No.2 is constantly evading his arrest and avoiding cooperation in investigation, therefore, all these circumstances go against respondent No.2 and no other conclusion can be derived by this Court except to cancel the bail.
One co-accused Deependra Jain vide M.Cr.C.No.23163/2020 also preferred the application for bail under Section 438 of Cr.P.C. and his application also considered today and since he is also facing proceedings under Sections 82/83 of Cr.P.C., therefore, his application also decided against him primarily on this ground of pending proceedings under Section 82/83 of Cr.P.C.
In the overall fact situation of the case and in the considered opinion of this Court, applicant succeeds and application is therefore allowed. The order dated 27.7.2020 passed in M.Cr.C.No.16926/2020 is hereby recalled/cancelled. Respondent No.2 shall have to submit on or before 28th September, 2020 before the trial Court, in absence thereof, trial HIGH COURT OF MADHYA PRADESH 9 M.Cr.C.No.27647/2020 (Sudeep Jain Vs. State of M.P. & Anr. ) Court and investigating officer shall be at liberty to proceed in accordance with law.
(Anand Pathak) Judge ms/-
Digitally signed by MADHU MADHU SOODAN PRASAD DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF SOODAN MADHYA PRADESH BENCH GWALIOR, postalCode=474011, st=Madhya Pradesh, 2.5.4.20=d6b55bd7b8b095e45b0 PRASAD d58a876e9dd057f98aa4a26968ac c4ea58035d05b0084, cn=MADHU SOODAN PRASAD Date: 2020.09.25 15:07:19 -07'00'