Madhya Pradesh High Court
Deced. Lokendra Zamidar Thru. Saket vs Sanjeev Kanoongo on 2 November, 2017
Author: P. K. Jaiswal
Bench: P. K. Jaiswal
1
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
Single Bench: Hon'ble Shri P.K. Jaiswal, J.
M.Cr.C. No.3523/2016
Deceased Lokendra Zamindar through legal heirs
vs.
Sanjeev Kanoongo S/o Kailashchandra Kanoongo & others
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Shri S. K. Pawnekar, learned counsel for the applicants.
Shri Sunil Gupta, learned counsel for the non-applicant Nos.1
to 3.
Shri Nilesh Sharma, learned counsel for the non-applicant
No.4.
Shri Bhuwan Deshmukh, learned Public Prosecutor for the
non-applicant No.5.
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ORDER
(Indore, 02.11.2017) Per P. K. Jaiswal, J.
This application under Section 439(2) of Cr.P.C. has been filed for cancellation of bail granted to the non-applicant Nos.1 to 4 in M.Cr.C. No.2778/2004 dated 28.07.2004 in respect of non- applicant Nos.1 & 3, M.Cr.C. No.2750/2014 dated 28.07.2004 in respect of non-applicant No.2 and M.Cr.C. No.4957/2004 dated 16.12.2004 in respect of non-applicant No.4, in Crime No.244/2004 registered at Police Station Rawji Bazar, Indore for the offence punishable under Sections 420, 467, 468 and 471 of the IPC.
2. The allegation against the non-applicant Nos.1 to 4 is that they have sold some property of the Society and in fact the property was not owned by them and also filed some forged documents 2 regarding title of the said property.
3. The contention advanced by the learned counsel for the non- applicants at the time of grant of bail was that they have rightly sold the property having right and title over the same and they were also having true and genuine documents regarding the said property in their possession. All the offences are triable by the Judicial Magistrate First Class. Learned Court considering the aforesaid, allowed the application for grant of bail of all the accused in the year 2004.
4. On 07.12.2015, an application for cancellation of bail was filed by the present applicants vide M.Cr.C. No.11187/2015 on the ground that non-applicant Nos.1 to 4 have executed forged sale deed after fabricating the documents in favour of Rochak Grah Nirman Sahkari Sanstha not being the owner of land, on the complaint, Crime No.244/2004 has been registered under Sections 420, 467, 468 and 471 of the IPC against them and charge sheet has been filed and the case is pending since 2004 for the presence of accused.
5. It is also alleged that they have again executed the sale deed of the same land of which earlier they have executed the sale deed, to one Hemant Yadav and Satish Sharma. The bail was granted to them and the condition was imposed that they should not commit the offence by executing the sale deed of the same land to other persons.
6. The non-applicant Nos.1 to 4 have breached the condition of the bail, they are engaged in fabricating the documents and executed the sale deed and they also threatened the complainant, hence their bail is liable to be dismissed.
7. The Coordinate Bench of this Court considering the 3 aforesaid, rejected the application for cancellation of bail on 18.03.2016. Relevant part of the order dated 18.03.2016 reads as under :-
I have considered the submissions of learned counsel and perused the record. So far as locus standi of the applicants is concerned, Hon. Apex Court in the matter of R.Rathinam Vs. State, AIR 2000 SC 1851 has observed in para 8 as under :-
It is not disputed before us that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. Nor is it disputed that the said power can be exercised suo motu by the High Court. If so, any members of the public whether he belongs to any particular profession or otherwise, who has a concern in the matter can move the High Court to remind it of the need to invoke the said power suo motu. There is no barrier either in Section 439 of the Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suto motu. If the High Court considers that there is no need to cancel the bail for the reasons stated in such petition, after making such considerations it is open for the High Court to dismiss the petition. If that is the position, it is also open to the High Court to cancel the bail if the High Court feels that the reasons stated in the petition are sufficient enough for doing so. It is therefore, improper to refuse to look into the matter on the premise that such a petition is not maintainable in law. In the light of the aforesaid observation, submission of learned counsel appearing on behalf of respondents is devoid of any merits.
The grounds for cancellation of bail under sections 437(5) and 439(2) are identical, namely bail granted u/s 437(1) or (2) or 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation (iii) attempts to tamper with evidence of witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation,(v) there is likelihood of his fleeing to another country, (vi) 4 attempts to make himself scarce by going underground or becoming unavailable to the investigating agency,
(vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly restored to.
In the instant case, bail has been granted on 28.07.2004. It is alleged that applicants have sold the land again in favour of Hemant Yadav vide sale deed dated 24.12.2012 and Shailendra has also sold the land bearing Survey No.910/911 New No.1513 to Hemant Yadav vide sale deed dated 16.01.2013, however the petitioners have not filed any document to demonstrate that with regard to aforesaid sale deeds any criminal case has been registered against the petitioners, in such circumstances no ground is made out to cancel the bail granted by this court vide order dated 28.7.2004. The petition is devoid of any merits, which is hereby dismissed.
8. The Coordinate Bench of this Court has held that the applicants had not filed any document to demonstrate that with regard to aforesaid sale deeds, any criminal case has been registered against the accused and rejected the application by holding that no ground is made out for cancellation of bail.
9. Learned counsel for the applicants has drawn my attention to the sale deed dated 05.01.2013 executed by Shailendra through his attorney Annapurna Soni to Hemant Yadav and Satish Sharma which includes the area of 0.441 hectare out of total 0.580 hectare in new survey No.1513. This sale deed is at page-120 (Annexure- A/9).
10. Learned counsel for the applicants has further drawn my attention to the FIR No.75/2016 registered on 02.03.2016 against non-applicant Nos.1 to 4 namely, Sanjeev Kanoongo, 5 Prakashchandra Kanoongo, Sureshchandra Kanoongo and Shailendra Kumar Trivedi as accused Nos.1, 5, 6 and 11 in the aforesaid FIR registered against them under Sections 420, 467, 468, 471 and 120-B of the IPC. In this FIR also, it has been very categorically stated that they executed the sale deed in favour of Hemant Yadav and Satish Sharma. in respect of sale deed, which includes an area of 0.441 hectare of new survey No.1513 (old survey No.910/911), he submitted that earlier application for cancellation of bail was wrongly rejected and prays that this application be allowed and bail orders be cancelled.
11. Per contra, Shri Sunil Gupta and Shri Nilesh Sharma, learned counsel for the respondent Nos.1 to 3 and 4 respectively opposed the prayer and submits that non-applicant Nos.1 to 4 are on bail since 2004 in Crime No.244/2004 and on the basis of which application for cancellation of bail has been filed, learned Trial Court granted anticipatory bail to them. The offence was registered in the year 2004 and after a period of 13 years till today, trial has not been concluded. In M.Cr.C. No.4369/2016, petition under Section 482 of the Cr.P.C. filed by the non-applicants for quashment of FIR No.75/2016 registered at Police Station Khudel, District Indore, an interim relief was granted on 29.06.2016 that there will be no coercive action against them. Thus, looking to the aforesaid facts and circumstances, now at this stage, no case for cancellation of bail, as prayed is made out and prays for its rejection.
12. The discretion to grant bail must be exercised on the basis of available material and the facts of the particular case. In cases where the court of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating 6 agency and he is not likely to abscond in that event custodial interrogation should be avoid the court ignominy humiliation in discretion directed to arrest. Arrest leads to many serious consequences not only of the accused but entire family and at time for entire community.
13. It is settled legal position that the court which grants the bail also have the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the public prosecutor or complainant, on finding new material or circumstances at any point of time. Here in the present case, the application for cancellation of bail has been filed on the ground that he has committed another offence. The said offence is off shot of the main case.
14. The primary question, which is to be considered by me in this case is as to whether the non-applicant Nos.1 to 4 had committed any offence during the pendency of trial on account of lodging of same First Information Report. On perusal of the First Information Report, it is very clear that the allegation is almost same. They have executed sale deed in respect of part of the disputed survey No.910/911 (new survey No.1513), which is also subject matter of Crime No.244/2004. At present only FIR has been registered. No material has been placed by the parties that charge has been framed. All these questions were considered earlier while passing the order dated 18.03.2016. In subsequent offence, the application for grant of anticipatory bail has been allowed by the learned Trial Court.
15. Considering the facts and circumstances of the case, I direct the non-applicant Nos.1 to 4 that they will surrender their passports to the Investigating Officer and will not leave the country without permission of the Court. They will also furnish their present 7 address and contact number to the Investigating Officer and will not shift from the said address or change contact number without the permission of the Investigating Officer.
16. With the aforesaid, M.Cr.C. No.3523/2016 is dismissed.
(P. K. Jaiswal) Judge gp Geeta Digitally signed by Geeta Pramod DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, postalCode=452001, st=Madhya Pradesh, Pramod 2.5.4.20=1dc3d93a178bbacd0e9485f 9f6e99335499bddb32501850a4984b 5b63f6d7a38, cn=Geeta Pramod Date: 2017.11.08 10:33:02 +05'30'