Madhya Pradesh High Court
Ashok vs Shri Nirmal Kumar Mandloi on 3 September, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
NEUTRAL CITATION NO. 2024:MPHC-IND:25495
1 MCRC-30102-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 3 rd OF SEPTEMBER, 2024
MISC. CRIMINAL CASE No. 30102 of 2024
ASHOK
Versus
SHRI NIRMAL KUMAR MANDLOI AND OTHERS
Appearance:
Shri Ashok - Petitioner in person.
Shri Mukesh Parwal - Public Prosecutor for the respondent/State.
ORDER
The present petition is filed under Section 528 of BNSS seeking recall of order dated 26/4/2023 passed in M.Cr.C No.7309/2023. The said order is reproduced as hereunder:-
"This is a petition under section 482 Cr.P.C. for quashment of the order dated 11.2.2022 passed by Special Judge (SC & ST) Act ADJ-I of District Court, Indore in Sessions Trial No. 699/2016 and also a direction has been sought for release of the bail surety amount forfeited. Prayer has also been made for payment of compensation of Rs.5 Lacs towards legal expenses, conveyance and accommodation charges and for the mental and physical torture caused.
2. The applicant is an accused in crime No.09/2016 Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 04-09-2024 10:18:15 NEUTRAL CITATION NO. 2024:MPHC-IND:25495 2 MCRC-30102-2024 registered at Police Station Crime Branch, MTH Compound, Indore for offences under Section 420, 467, 468, 471, 120B, 201, 424 of IPC. The same is being tried as S.T.No. 699/2016. The applicant was granted bail by this Court by order dated 29.1.2018 subject to deposit of a sum of Rs.25 Lacs and subject to furnishing personal bond of a sum of Rs.25 Lacs. He filed M.Cr.C.No.28839/2019 under section 482 Cr.P.C. for modification of the said condition imposed by this Court while granting bail to the applicant. The said petition was disposed of with the following condition :
''Accordingly, only to the extent this Court has imposed conditions for payment of amount and for furnishing personal bond vide order dated 29.1.2018 are modified. He is permitted to deposit a sum of Rs.1 Lac within thirty days from today and shall also furnish a personal bond in the sum of Rs. 1 Lac. It is further directed that in case the applicant Ashok deposits a sum of Rs.1 Lac, as directed by this Court today and furnishes a personal bond in the sum of Rs. 1 Lac, the trial court shall refund Rs.25 Lacs deposited by him on account of the order passed by this Court within seven days, and the personal bond executed by him for a sum of Rs.25 Lacs shall also stand discharged."
3. In compliance to the said order it is stated that applicant deposited a sum of Rs.1 Lac in cash in Government Treasury and also furnished a personal bond in the sum of Rs.1 Lac. The applicant filed an Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 04-09-2024 10:18:15 NEUTRAL CITATION NO. 2024:MPHC-IND:25495 3 MCRC-30102-2024 application for exemption from personal appearance and permit him to appear through video conferencing. The said application was dismissed The applicant did not appear before the trial court in person and his application under section 70(2) r/w section 439 Cr.P.C. was allowed and he was directed to deposit Rs.2,000/- as penalty from the amount of personal bond and Rs.1 Lac towards local surety and for the same amount surety to ensure his regular appearance before the said court. The applicant challenged the said order before this Court in M.Cr.C.No. 49075/2022 wherein number of reliefs were claimed but he confined his prayer only to challenge to relief clause 'A' regarding quashment of the order dated 11.2.2022. This Court taking into consideration paragraph No.5 of the order dated 23.7.2022 set aside the said order by order dated 18.01.2023 and directed the trial court to decide the application afresh after affording opportunity of hearing to the parties without being influenced by the said order. Thereafter the trial court passed the order dated 20.01.2023 and made it clear that there was no forfeiture of bail bond and by the order dated 24.3.2022 only an amount of Rs.2000/- has been directed to be adjusted from the personal bond. The rest amount of the Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 04-09-2024 10:18:15 NEUTRAL CITATION NO. 2024:MPHC-IND:25495 4 MCRC-30102-2024 personal bond has not been forfeited. It was also clarified that so far as deposit of an amount of Rs.1 Lac in cash is concerned, the same has been deposited by the applicant in terms of modification of the bail order of this Court in its order dated 26.07.2019 passed in M.Cr.C.No.28839/2019. It is submitted that said order is not under challenge.
4. Counsel for the State submits that contention of applicant is erroneous that Rs.1 Lac deposited by him has been directed to be forfeited. Only a sum of Rs.2000/- has been directed to be adjusted from the personal bond after releasing the applicant on bail.
5. After hearing the applicant and upon perusal of order dated 26.7.2019 passed in M.Cr.C.No. 28839/2019 the order dated 24.3.2022 and order dated 20.01.2023, it is evident that the amount of Rs.1 Lac which was directed to be deposited as one of the condition of the bail bond has not been forfeited by the Court and therefore, there is no question of setting aside the order of forfeiture as only an amount of Rs.2000/- has been directed to be adjusted from the personal bond and to refund Rs. 1 lac to the applicant. There is no illegality in the order impugned as deposit of an amount of Rs.1 Lac is one of the condition of the bail, which Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 04-09-2024 10:18:15 NEUTRAL CITATION NO. 2024:MPHC-IND:25495 5 MCRC-30102-2024 cannot be directed to be refunded to the applicant. The another prayer for compensation of Rs.5 Lacs cannot be passed unless it is established that the applicant has been implicated in a false case and subjected to mental and physical torture. The same is a matter of evidence. The trial is still going on, therefore, the said prayer cannot be considered.
In view of aforesaid, the M.Cr.C. is dismissed."
2. In earlier petition i.e M.Cr.C No.7309/2023, the applicant had prayed following reliefs:-
In view of what stated hereinabove, it is most respectfully prayed that this Hon'ble Court may be pleased to :-
(a) Set aside the Impugned Order Dated 11/02/2022 Passed by Special Judge SC/ST Act, Shri. Deepak Gupta, ADJ-I of District Court Indore in Session Trail No. 699/2016 and issue direction for release the bail surety amount forfeited.
(b) Pass compensation of Rs. 5 Lakhs towards legal expenses, conveyance and accommodation charges and for the mental and physical torture caused during the period from 11/02/2022 just due to the arbitrarily order dated 11/02/2022 when no cognizable offence is made out against the Petitioner.
(d) Pass any other and/or further Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 04-09-2024 10:18:15 NEUTRAL CITATION NO. 2024:MPHC-IND:25495 6 MCRC-30102-2024 order which this Hon'ble Court may deem fit and proper in the interest of justice.
3. The applicant has impleaded the following respondent in earlier M.Cr.C No.7309/2023:-
Respondent : State of Madhya Pradesh through the Crime Branch Police, MTH Compound, Indore.
4. In the original petition i.e M.Cr.C No.7309/2023, the respondent Nos.1&2 were not party. In the present petition for recall of the order dated 26/4/2023, the applicant has impleaded the respondent No.1/Special Public Prosecutor and the respondent No.2/the Presiding Officer by name. Since they were not party in the original petition, they cannot be impleaded as respondent Nos.1&2 in the present petition which is filed for recall of the order. Accordingly, the present petition suffers from joinder of unnecessary party alleging malafide against Special Public Prosecutor and the Presiding Judicial Officer those who were not made party in the earlier petition.
5. So far challenge to the order dated 11/2/2022 passed by Special Judge, SC/ST Act in Session Trial No.699/2016 and direction for release of the bail surety amount and relief for compensation of Rs.5,00,000/- towards legal expenses, conveyances and accommodation charges and the mental and physical torture is concerned, it has already been considered in para 4 & 5 of the said order dated 26/4/2023 which has already been reproduced. The same cannot be reconsidered under the garb of an application for recall of the said order.
Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 04-09-2024 10:18:15NEUTRAL CITATION NO. 2024:MPHC-IND:25495 7 MCRC-30102-2024
6. The next submission of the applicant that his submissions and pleadings and citation of judgments pleaded in the petition have not been not considered. He referred the judgments passed in the case of Gurdev Singh and Anr. Vs. State of Bihar reported in (2005) 13 SCC 286 wherein it has been held that the cancellation of bail cannot be done without giving notice to the accused and without giving him opportunity of being heard and also judgment of P.K Shaji @ Thammanam Shaji vs. State of Kerala reported in (2005) 13 SCC 283 where the Apex Court held that the accused must be heard before his bail is cancelled. He argues that this Court ought to have gone through the entire pleadings and to mention the judgments quoted in the petition.
7. Upon perusal of the order dated 26/4/2023 in M.Cr.C No.7309/2023 which is already reproduced, it is manifest that the Court has taken into consideration the entire facts and various orders and the order-sheets of the Courts. After hearing the applicant, this Court finds that in the facts of the present case, the aforesaid judgments cited by the applicant would not have changed the result of the order dated 26/4/2023 passed by this Court in M.Cr.C No.7309/2023. The order passed by this Court under the garb of an application for recalling the order cannot be reopened and reargued. The doctrine of finality has to be attached to a litigation. Even otherwise the Court is not under obligation to go through the entire pleadings and the judgments pleaded in the petition, if the same has not been argued. The Court has to consider the arguments raised by the parties and to answer the same. The order which is sought to be recalled was passed after considering Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 04-09-2024 10:18:15 NEUTRAL CITATION NO. 2024:MPHC-IND:25495 8 MCRC-30102-2024 the submissions made by the parties.
8. In view of the aforesaid no case is made out for recall of the order dated 26/4/2023 passed in M.Cr.C No.7309/2023. Accordingly present petition is dismissed.
(VIJAY KUMAR SHUKLA) JUDGE PK Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 04-09-2024 10:18:15