Madhya Pradesh High Court
Mahesh Tiwari vs The State Of Madhya Pradesh on 3 September, 2021
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
HIGH COURT OF MADHYA PRADESH
M.Cr.C. No. 39941/2021
(Mahesh Tiwari Vs. State of MP)
Gwalior dated 03.09.2021
Shri B.K. Sharma, Advocate for the applicant.
Shri Rohit Mishra, Additional Advocate General for
Respondent/State.
Case Diary is perused.
Learned counsel for the rival parties are heard. The applicant has filed this First application u/S 438, Cr.P.C. for grant of bail.
Applicant apprehends his arrest in connection with crime No. 215/2021 registered at Police Station Baghchini, District Morena for the offence punishable under Section 3 & 7 of Essential Commodities Act.
Allegation against the applicant, in short, is that a complaint has been lodged by the Junior Supply Officer, Jaura, District Morena (M.P.) alleging therein that the fair price shop run by Prathamik Krushi Sakh Sahakari Sanstha, Galetha, the Manager as well as Salesman have illegally withdrawn the stock of food grains meant for seven consumers by putting their finger prints and selling the same in the open market. On the basis of aforesaid, crime has been registered.
Learned counsel for the applicant submits that applicant aged 46 years, who is working as Salesman has been falsely implicated in the case. It is submitted that Manager is the main culprit since without the finger prints of the Manager, the stock of food grains cannot be withdrawn and sold in the open market.
Learned counsel for the applicant 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 Coordinate Bench of this Court, wherein under similar circumstances it has been held as under:-
2HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 39941/2021 "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 every offence punishable under the Act shall be 'cognizable' "
(xxx)2. (xxx)2 - vf/kfu;e dz- 92 lu 1976 }kjk nl o"kksZ a ds fy, rRi'pkr~ vf/kfu;e dz- 18 lu~ 1981 }kjk ¼fn- 1-9-1982 ls½ nl ds LFkku ij iUnzg o"kksZ a d s 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 nonbailable' 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.
3HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 39941/2021 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 'nonest' 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." Learned counsel for the applicant further submits that applicant is innocent and has been falsely implicated in the case. The offence under Section 3/7 of Essential Commodities Act is bailable. Learned counsel for the applicant further submitted that in view of COVID-19 outbreak, detention of applicant in already congested prisons may be detrimental. It is further submitted 4 HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 39941/2021 that applicant is permanent resident of District Morena and there is no likelihood of absconsion or tampering with the prosecution evidence. He is ready to cooperate in the investigation. With the aforesaid submissions prayer for grant of anticipatory bail is made.
In response, learned State counsel has opposed the anticipatory bail application and prays for its rejection.
Taking into consideration the facts and circumstances of the case, but without expressing any opinion on merits of the case, I deem it appropriate to extend the benefit of anticipatory bail to the applicant. The application is, accordingly, allowed and it is hereby directed that in the event of arrest of applicant namely Mahesh Tiwari, he shall be released on bail on furnishing a personal bond of Rs.50,000/- (Rupees Fifty Thousand only) with two local solvent sureties in the like amount to the satisfaction of Arresting Authority. The applicant shall also furnish a written undertaking that he will abide by the terms and conditions of various circulars, as well as, orders issued by the Central Government, State Government and local administration from time to time such as maintaining social distancing, physical distancing, hygiene etc. to avoid proliferation of Corona virus.
This order will remain operative subject to compliance of the following conditions by the applicant:-
1. The applicant shall install Aarogya Setu App (if not already installed) in his mobile phone.
2. The applicant will comply with all the terms and conditions of the bond executed by him;
3. The applicant will cooperate in the investigation/trial, as the case may be;
4. The applicant will not indulge himself in extending inducement, threat or promise to any person 5 HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 39941/2021 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;
5. The applicant shall not commit any other offence during pendency of the trial, failing which this bail order shall stand cancelled automatically without further reference to the Bench.
6. The applicant will not seek unnecessary adjournments during the trial; and
7. The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be.
Learned State counsel is directed to send an e-copy of this order to the Station House Officer of the concerned Police Station for information and necessary action.
E- copy of this order be sent to the trial Court concerned for compliance, if possible, by the office of this Court.
Certified copy / E-copy as per rules / directions.
(S.A. Dharmadhikari) Judge Durgekar* Digitally signed by SANJAY N DURGEKAR DN: c=IN, o=HIGH COURT OF SANJAY N MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, DURGEKAR postalCode=474011, st=Madhya Pradesh, 2.5.4.20=148d33096a059f4adb584e1 b0b1d3a3616b3e020c6aff92108afad4 76190e841, cn=SANJAY N DURGEKAR Date: 2021.09.04 12:04:07 +05'30'