Madhya Pradesh High Court
Ramkaran Singh Kushwah vs The State Of Madhya Pradesh on 10 February, 2020
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
The High Court of Madhya Pradesh
MCRC 2782/2020
[Ramkaran Singh Kushwah and Anr. Vs. State of MP]
Gwalior, dtd. 10/02/2020
Shri HK Shukla, counsel for the applicants.
Shri R. K. Upadhyay, Public Prosecutor for the respondent/ State.
Case Diary is available.
This is first application under Section 438 of CrPC for grant of anticipatory bail. The applicants apprehend their arrest in connection with Crime No.28 of 2017 registered at police station Ambah, District Morena for offence under Sections 406, 294, 34, 420, 467, 468, 471 of IPC.
The Office has raised an objection that the applicant No.2 had already filed an application under Section 438 of CrPC which was registered as MCRC 1578 of 2017.
It is submitted by the counsel for the applicants that it is correct that the applicant No.2 had earlier filed an application under Section 438 of CrPC which was registered as MCRC 1578 of 2017 but after rejection of such application, the applicant was taken into custody and he filed an application for grant of regular bail which was allowed by the Sessions Court by order dated 07/03/2017 and subsequently on the application of the prosecution, the Court below has added additional offence under Sections 420, 467, 468, 471 of IPC. Therefore, it has become necessary for the applicants to file fresh application under Section 438 of CrPC.
Considering the submissions made by counsel for the applicant No.2, 2 the Office objection with regard to maintainability of the application filed by the applicant No.2 is hereby overruled.
It is submitted by the counsel for the applicant that according to the prosecution case, the complainant lodged a FIR on the allegation that she had sold 156 packets of potatoes worth Rs.1,16,017/- to the applicants. The potatoes were kept in the Cold storage. Out of the total amount, the applicants deposited Rs.21,465/- with the cold storage and cash amount of Rs.5,000/- was given to the complainant and it was promised by the applicants that the remaining amount of Rs. 89,552/- shall be paid within ten days and a promissory note was also executed and it was also agreed that the remaining amount shall be paid with interest @ Rs.2 per hundred. Whenever the complainant demanded her money from the applicants, then they avoided to make the payment of the same. On 11/04/2015, when she went to the house of the applicant No.2 to demand her money, then she was humiliated and abused by the applicant No.2. Thereafter, a Panchayat was convened but the applicants are not making payment of the remaining amount of Rs.89,552/. On this report, the police initially registered an offence under Sections 406, 294, 34 of IPC and after considering the allegations made against the applicants, they were granted regular bail by Sessions Court. Thereafter, it appears that the prosecution filed an application before the Trial Court on the ground that the allegations made against the applicants also make out an offence under Section 420, 467, 468 and 471 of IPC and the said application was allowed by the Court of JMFC 3 and the matter was committed to the Sessions Court.
It is submitted by the counsel for the applicants that on the basis of material which was collected by the police, the applicants were granted bail and now, after addition of offence under Sections 420, 467, 468 and 471 of IPC, they may be rearrested. It is further submitted that it is well-established principle of law that once a person has been granted bail after considering the allegations made against him, then merely because some more offences were added without there being any additional evidence against the applicants, then the applicants cannot be denied the benefit of anticipatory bail.
Per contra, it is submitted by the counsel for the State that the Sessions Court while granting bail to the applicant No.2 by order dated 07/03/2017 had merely considered the fact that the trial is a Magisterial trial and there is a likelihood of delay in conclusion of trial and there is no possibility of his absconding or tampering with the prosecution case. The Sessions Court had not considered the effect of allegations made against him.
Heard the learned counsel for the parties.
Although the applicants have not placed the copy of the bail order of the applicant No.1 but copy of the bail order of applicant No.2 has been placed on record. From this order, it is clear that after re-producing the FIR, the application of applicant No.2 was allowed by the Sessions Court on the ground that since the offence is triable by the Magistrate and there is a 4 possibility of delay in trial and there is no possibility of his absconding or tampering with the prosecution case and the applicant is not required for further investigation. From the said order, it is clear that after mentioning the fact in short, the Court had granted bail to the applicant No.2 only on the ground that it is only a Magisterial trial and there is possibility of delay in trial. The gravity of offence was not taken into consideration by the Trial Court.
Therefore, in the considered opinion of this Court, the application for grant of anticipatory bail in the light of additional offence under Section 420, 467, 468 and 471 of IPC has to be considered by this Court on the basis of allegations made against the applicants. Further, the Supreme Court in the case of Mubin Shaikh vs. State of Maharashtra and Another reported in 2018( 3) MPLJ(SC) 57 has held as under:-
"4. We have carefully perused the impugned order(s) granting bail and we find that there is little reference to/or discussion on the merits of the bail applications but we are satisfied that the significant reason for release is mainly the one stated above. We find that the aforesaid reason can, on a fair reading, be understood or misunderstood almost as a mitigating circumstance or a kind of a justification for the murder and it is obvious that the fact that the deceased belonged to a certain community cannot be a justification for any assault much less a murder. While it may be possible to understand a reference to the community of the parties involved in an assault, it is difficult to understand why it was said that "the fault of the deceased was only that he belonged to another religion" and further "I consider this factor in favour of the applicants/accused." We have no doubt that a Court fully conscious of the plural composition of the Country while called upon to deal with rights of various communities, cannot make such observations which may 5 appear to be coloured with a bias for or against a community. It is possible that the learned Judge wanted to rule out a personal motive against the victim, but only emphasize communal hatred. It is also possible that the learned Single Judge may not have intended to hurt the feelings of any particular community or support the feelings of another community but the words are clearly vulnerable to such criticism. The direction cannot be sustained.
5. Since, as observed earlier, there is little discussion on the other relevant factors relating to granting or withholding bail in a murder case, we consider it appropriate to set aside the impugned order(s)."
From the allegations which have been made against the applicants, it is clear that the applicants went to the house of the complainant and offered to purchase 156 bags of potatoes which was kept in Sita Cold Storage for consideration amount of Rs.1,16,017/-. The applicants also executed a promissory note on a stamp paper of Rs.50/-, thereby assuring the complainant that the remaining amount of Rs.89,552/- shall be paid within a period of ten days. The fact that the applicants went to the house of the complainant and persuaded her to sell the potatoes indicates that the solitary intention of the applicants was to cheat the complainant and with the said intention, they executed a promissory note, whereas from the very beginning of the transaction, they were not having any intention to pay the amount. Thus, this Court is of the considered opinion that the Court below did not commit in rejecting the application for grant of bail.
Further this Court in the case of Dr. Haneef Khan Vs. State of MP by order dated 31/12/2018 passed in MCRC 51750/2018 had held that in such a situation, the allegations against the applicant can be reconsidered and the 6 said order has been affirmed by the Supreme Court by order dated 12/02/2019 passed in Special Leave to Appeal (Crl.) No. 1395 of 2019.
Considering the facts and circumstances of the case, this Court is of the considered opinion that no case is made out for grant of anticipatory bail. The application fails and is hereby dismissed.
(G. S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2020.02.13 16:28:13 +05'30' VALSALA VASUDEVAN 2018.10.26 15:14:29 -07'00'