Madhya Pradesh High Court
Jaban Singh Alias Jodan vs The State Of Madhya Pradesh on 4 September, 2015
1
Jaban Singh alias Jodan Vs. State of M.P.
M.Cr.C. No.7291/2015
04.09.2015
Shri H.K. Shukla, Advocate for applicant.
Shri B.K. Sharma, Advocate for Respondent/State.
Case Diary is perused.
Learned counsel for the rival parties are heard. The applicant has filed this second application u/S 439, Cr.P.C. for grant of bail. The applicant has been arrested by Police Station Kailaras, District Morena in connection with Crime No.135/2015 registered in relation to the offences punishable u/Ss. 302, 307, 147, 148, 149, 323 and 294 of IPC and 25/27 Arms Act.
Learned Public Prosecutor for the State opposed the application and prayed for its rejection by contending that on the basis of the allegations and the material available on record, no case for grant of bail is made out.
The applicant is in custody since 30.5. 2015. This second application has been filed after rejection of the earlier one which was dismissed on merits.
Learned counsel for the petitioner primarily contends that the petitioner despite being alleged with no overt act is suffering incarceration. Even if the story of the prosecution is taken to be gospel truth, the first bail application was rejected erroneously.
In sum and substance, learned counsel for the petitioner contends that the order of rejection of bail passed on 2.7. 2015 was erroneous.
Allowing of this bail application would amount to review of the order passed in M.Cr.C. No. 5487/2015 which cannot be countenance in the scheme of Cr.P.C which does not recognize the concept of review. The petitioner is always free to approach the higher court. Moreover, no new circumstance has been 2 Jaban Singh alias Jodan Vs. State of M.P. M.Cr.C. No.7291/2015 raised by the learned counsel for the applicant. Another reason assigned is the prolonging period of incarceration as the petitioner is in custody since 4.5.2015( wrongly mentioned as 5.3.2015).
As regards the ground of delayed trial, it is seen that the petitioner is in custody since about four months only and therefore looking to the gravity of offence, it cannot be said that there is any prejudice on account of delayed trial.
Learned counsel for the applicant with great emphasis has argued that even when the application was rejected on merits earlier, this court while exercising it's discretionary power u/S. 439 of Cr.P.C can allow a repeat bail application on the same ground on which it was rejected earlier despite there being no new circumstance. This court is afraid that the submission of the learned counsel of the petitioner runs contrary to the law laid down by the Apex Court in the case of Abdul Basit v. Mohd. Abdul Kadir Chaudhary, (2014) 10 SCC 754.
Relevant extract of the aforesaid decision is reproduced below.
"19. Therefore, the concept of setting aside an unjustified, illegal or perverse order is different from the concept of cancellation of a bail on the ground of accused's misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation and a perusal of the aforesaid decisions would present before us that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the court superior to the court which granted the bail and not by the same court.
20. xxxxxx
21. It is an accepted principle of law that when a matter has been finally disposed of by a court, the court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for relief in the matter unless and until the previous order of final disposal has been set aside or modified to that extent. It is also settled law that the judgment and order granting bail cannot be reviewed by the court passing such judgment and order in the absence of any express provision in the Code for the same. Section 362 of the Code operates as a bar to any alteration or review of the cases disposed 3 Jaban Singh alias Jodan Vs. State of M.P. M.Cr.C. No.7291/2015 of by the court. The singular exception to the said statutory bar is correction of clerical or arithmetical error by the court. ..."
In view of the above, present bail application deserves to be and is therefore rejected.
(Sheel Nagu) Judge ar