Madhya Pradesh High Court
Kishore vs The State Of Madhya Pradesh on 15 December, 2017
1 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE (Kishore vs. State of MP) Indore, dated : 15.12.2017 Shri Jitendra Jhala, learned counsel for the applicant. Shri R. R. Maheshwari, learned Public Prosecutor for the non- applicant - State.
Heard. Perused the case diary.
This fourth repeat application under Section 439 of Cr.P.C. for grant of bail has been filed by the applicant - Kishore S/o Sawant Patel, who is implicated in Crime No.223/2011 registered at Police Station - Lasudia, District Indore for the offence punishable under Sections 302, 147, 148, 149, 120-B and 34 of the IPC and Sections 25 and 27 of the Arms Act.
This repeat application has been filed on the ground of delay in trial.
Vide order dated 21.07.2016 passed in M.Cr.C. No.3681/2016, this Court dismissed the third repeat application for grant of bail of the applicant. Order dated 21.07.2016 reads as under :-
Heard.
2. Perused the case diary.
3. This is IIIrd repeat application for grant of bail by the applicant who is implicated in Crime No.223/11, registered at police station Lasudia, Indore, for the offence punishable under Sections 302, 147, 148, 149, 120-B, 34, IPC and Section 25 & 27 of Arms Act.
4. Learned Senior counsel for the applicant has submitted that after registration of criminal case, he has been arrested on 5.4.2011. An application for grant of bail has been allowed by this court on 15.2.2013, passed in M.Cr.C.No.575/2013. Thereafter, an application for cancellation of bail was filed by the complainant on the ground that after release, the accused - applicant started giving threats to the prosecution witnesses.
2HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE (Kishore vs. State of MP)
5. Considering the aforesaid by order dated 30.9.2015, prayer for cancellation of bail filed by the applicant therein Shri Vinod Thakray has been allowed by passing the following order :-
"Heard. Perused the case diary.
This application under Section 439 (2) of Cr.P.C. has been filed by the applicant - Vinod Thakre S/o Namdev Thakre for cancellation of bail of the non- applicant No.2 -= Kishore Patel. Kishore Patel is implicated in Crime No.223/2011 registered at Police Station - Lasudia, District Indore for the offence punishable under Sections 302, 147, 148, 149 and 120-B of the IPC and Sections 25 and 27 of the Arms Act for committing the murder of deceased - Sanjay Thakre. His application for grant of bail has been allowed vide order dated 15.02.2013 passed in M.Cr.C. No.575/2013.
2. Learned counsel for the applicant submits that immediately thereafter, he started giving threats to the prosecution witnesses and the applicant. On 17.03.2013, a report has been registered by the non-applicant No.1 at the instance of Pradeep Thakre. It is submitted that the non-applicant No.2 and his friends are consistently giving threats to the applicant and his family members. On the intervening night of 16-17/03/2013, some unknown persons damaged his vehicle bearing registration No.MP09-BA-1411 and report to this effect was lodged by the police personnel. It is also pointed out that on 25.03.2015 when witness Vinod Thakre came to give evidence in pursuance to the summons issued by the Trial Court, he was threatened by the non-applicant No.2 and his friends. The non-applicant No.2 is intervening with the trial and trying to influence the prosecution witnesses and threatening them so that they may not adduce their evidence.
3. Shri R. S. Sondhi, learned counsel for the non-applicant No.2 has denied the allegations made in the application for cancellation of bail.3
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE (Kishore vs. State of MP) He submits that the applicant - Vinod Thakre is not a material witness. The statement of the material prosecution witnesses have been recorded and now the witnesses of seizure/recovery memos along with the Investigating Officer is to be examined before the Trial Court. He submits that the applicant has made omnibus statement that all the accused persons gave threats without naming specific person and prayed for rejection of the application.
4. It is well settled that the power of cancellation of bail should be exercised with care and circumspection as cancellation of bail jeopardize the personal liberty of person and involves the review of a decision already made.
5. In the present case, specific allegation has been made by the applicant regarding the incident of 17.03.2013 and threats given by the non- applicant No.2. The application dated 25.03.2015 (Annexure-A/2) has been filed before the Trial Court. The application dated 20.03.2014 has been given to the Superintendent of Police, Indore. The mother of the applicant also made an allegation by filing an application before the police personnel, the relevant part of which reads as under :-
eSa ,d o`/n fcekj vkSj fo/kok efgyk gwaA esjs iq= lat; Bkdjs dks dqN yksxksa us tks Hkw ekfQ;k gS us feydj gR;k (eMZj) dj fn;k gS] ftudk dsl vHkh Hkh ls'ku dksVZ bUnkSj esa py jgk gSA bl dkj.k esjh fo/kok cgw ,oa mldh nks NksVh cfPp;ka tks 8 o"kZ ,oa 5 o"kZ dh mez dh gS jgrh gS] ges vk, fnu Hkw ekfQ;k okyksa ls /kkSl feyrh gS fd os eq>s ekj Bkysxs vkSj esjh fo/kok cgq Jherh lhek dks vkSj mldh NksVh NksVh cfPp;ks dks mBk ys tkosxsA pawfd ge vHkh iqfyl DokVZj esa jgrs gS] bl dkj.k ge lqjf{kr gSA esjs vU; nks iq= Hkh gS tks HkwekfQ;kokyks ds Mj ds dkj.k bUnkSj NksMdj egkjk"Vª es jgus pys x, gS vkSj vc ge flQZ efgyk,a gh ;gka jgrh gSA bl dkj.k eq>s Hkh gekjs fuokl dk DokZVj [kjhnus dh vuqefr nh tkus dh d`ik gksA
6. Due to fear of non-applicant No.2 and other accused persons, the applicant left Indore and started residing at Aurangabad.4
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE (Kishore vs. State of MP)
7. Considering these facts and the order dated 15.02.2013, wherein this Court while granting bail very categorically directed that the non-applicant No.2 shall fully cooperate with the trial and shall not directly or indirectly try to influence the trial and in case, if it is found that the non-applicant No.2 is trying to influence the trial directly or indirectly, then the objector is at liberty to file an appropriate application for cancellation of bail. From the documents filed along with the application and averments made in the cancellation application, the non-applicant No.2 himself is the author of the situation. He has violated the terms and conditions of the bail granted to him on 15.02.2013 and started giving threats to the applicant and other prosecution witnesses.
8. While cancellation of bail under Section 439(2) of the Cr.P.C, the primary consideration which weigh with the Court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice.
9. In the case in hand, an attempt has been made by the non-applicant No.2 to tamper with the evidence and interfere with the due course of justice and trying to weaken the prosecution case which will have adverse impact on the society.
10. On due consideration of the facts & circumstances of the case I am of the considered view that in the instant case, the attempts made by the non-applicant No.2 to pressurize the witnesses and tamper with evidence, the non-applicant No.2 is not entitled to continue benefit of bail, prayer for cancellation of bail is allowed. The non-applicant No.2 - Kishore Patel is directed to surrender within two weeks before the concerned Trial Court, failing which, learned Trial Court shall issue arrest warrant against the non-applicant No.2 and submit a report within four weeks from the date of 5 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE (Kishore vs. State of MP) receipt of copy of the order. Trial Court to make all endeavour for early completion of trial, preferably, within six months from the date of receipt of copy of order.
11. With the aforesaid, M.Cr.C. No.3645/2015 stands disposed of.
6. After cancellation of bail, the applicant arrested on 14.12.2015 and challenged the order by filing SLP before the Apex Court. The Hon'ble Supreme Court on 11.1.2016 dismissed the the SLP and upheld the order passed by this Court on 30.9.2015 by passing the following order :-
"Heard the learned counsel for the petitioner. No ground for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India.
The special leave petition is accordingly dismissed.
However, we consider it just and appropriate to reiterate the direction issued by the High Court to the trial Court, namely to make all possible endeavour to complete the trial within six months from the date of receipt of copy of the order passed by this court.
As a sequel to the above pending interlocutory application stands disposed of."
7. Learned Senior counsel for the applicant has submitted that till today trial has not been concluded. He also submitted that statements of complainant (applicant in an application for cancellation of the bail) has been recorded on 24.5.2016 and looking to the fact that trial has not been completed and applicant is in custody since 14.12.2015, it is prayed that this repeat application be allowed and applicant be released on bail.
8. Learned public prosecutor opposed the prayer and prays for it's rejection.
9. As per report of Addl. Sessions Judge, Indore, dated 28.5.2016, Court statements of Surekha Patil and Pradeep Thakrey, material prosecution witnesses and relatives of the deceased are yet to be 6 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE (Kishore vs. State of MP) recorded.
10. On due consideration of the aforesaid, so also the fact that the Apex Court by order dated 11.1.2016, rejected the application for grant of bail and upheld the order dated 30.9.2015, no case for grant of bail, as prayed by the applicant is made out. Learned trial court is directed to to expedite the trial in terms of order passed by this court as well as by the Apex Court and take appropriate steps to secure the presence of prosecution witnesses on the date of trial and conclude it at the earliest without granting unnecessary adjournment to the parties.
11. M.Cr.C.No.3681/2016, has no merit and is accordingly, dismissed.
On due consideration of the status report of the Trial Court and the order dated 21.07.2016, there is no change in the circumstances to consider this repeat bail application. No case for grant of bail, as prayed is made out. M.Cr.C. No.20914/2017 is accordingly, dismissed.
(P. K. Jaiswal) Judge Digitally signed by Geeta Pramod Date: 2017.12.19 11:27:45 +05'30'