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Madhya Pradesh High Court

Kandu Kushwaha vs The State Of Madhya Pradesh on 12 April, 2022

Author: Vivek Agarwal

Bench: Vivek Agarwal

                                                            1
                                    IN THE HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                         BEFORE
                                           HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                  ON THE 12th OF APRIL, 2022

                                       MISC. CRIMINAL CASE No. 17161 of 2022

                               Between:-
                               KANDU KUSHWAHA S/O THALLU KUSHWAHA ,
                               AGED ABOUT 30 YEARS, OCCUPATION: LABOUR
                               R/O  PALERAN   PURVA,   POLICE  STATION
                               ISHANAGAR, DISTRICT CHHATARPUR (M.P.)
                               (MADHYA PRADESH)

                                                                                         .....APPLICANT
                               (BY SHRI ANOOP KUMAR SAXENA, ADVOCATE)

                               AND

                               THE STATE OF MADHYA PRADESH THROUGH
                               POLICE STATION CIVIL LINE CHHATARPUR
                               DISTRICT  CHHATARPUR    M.P. (MADHYA
                               PRADESH)

                                                                                     .....RESPONDENTS
                               (BY SHRI ATMARAM BEN, DEPUTY GOVERNMENT ADVOCATE)

                            This application coming on for hearing this day, the court passed the
                      following:
                                                             ORDER

This is first application filed under section 438 of the Cr.P.C. for grant of anticipatory bail to applicant Kandu Kushwaha, apprehending his arrest in connection with Crime No.696/2021 is registered at Police Station Civil Line Chhatarpur, District Chhatarpur (M.P.) for offences punishable under sections 379, 414 of IPC, Section 4/21 of M.P. Khan Khanij Adhiniyam (Vikas Evam Viniyaman) Adhiniyam 1957.

It is submitted that applicant was given a notice under Section 41-A of Cr.P.C. He appeared before the I.O. and has cooperated through out with the I.O. It is submitted that applicant has deposited the fine and, therefore, there is no justification in proceeding with criminal case.

Learned counsel for the applicant submits that applicant's case is similar to that of Rajendra Pateriya as decided in M.Cr.C. No.63099/2021 and, therefore, Signature SAN Not Verified same relief be granted to the applicant.

Learned Deputy Government Advocate in his turn submits that High Court 18:36:59 IST 2 of Madhya Pradesh, Bench at Indore has decided M.Cr.C. No.49338/2019 vide order dated 11.05.2020 and has held that the ingredients of offence under Section 378/379 of Indian Penal Code, Section 247 of Madhya Pradesh Land Revenue Code, Section 4/21 of Mines and Minerals (Development and Regulation) Act and Rule 53 of Minor Mineral Rules are different and distinct. They deal with and operates in different fields. Action taken under Rule 53 of the Rules of 1966 does not bar the Magistrate to take action under other relevant laws and still the Courts can take cognizance for offence under Section 379 of Indian Penal Code, 247 of Madhya Pradesh Land Revenue Code and 4/21 of Mines and Minerals (Development and Regulation) Act or under any other enactment.

Thus, plea of the applicant is that applicant is innocent and no parallel proceedings can be drawn once applicant has deposited fine under the provisions of relevant minor rules, I am of the opinion that civil and criminal liability being in different domain, that argument is not very attractive.

However, taking this fact into consideration that applicant was given a notice under Section 41-A of Cr.P.C. and there is no dispute to the proposition that he has cooperated through out with the officer in-charge of the concerned Police Station and also taking into consideration the law laid down by the Supreme Court in the case of Satender Kumar Antil versus Central Bureau of Investigaton & Others in Special Leave to Appeal (Criminal) No.5191/2021 decided on 7.10.2021, it is evident that the applicant has been charged for the offence punishable with imprisonment of seven years or less not falling in category B&D. It is held that if applicant is not arrested during investigation and has cooperated throughout in the investigation including appearing before the Investigating Officer whenever called then after filing of charge sheet/complaint, following courses should be adopted, namely, (a) ordinary summons at the first instance/including permitting appearance through lawyer; (b) if such an accused does not appear despite service of summons then bailable warrant for physical appearance may be issued; (c) Non-bailable warrant on failure to appear despite issuance of bailable warrant; (d) non-bailable warrant may be cancelled or converted into a bailable warrant/summons without insisting physical appearance of accused, if such an 3 application is moved on behalf of the applicant before execution of the non- bailable warrant on an undertaking of the accused to appear physically on the next date(s) of hearing; and (e) bail applications of such accused on appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is decided.

In view of such directions of the Supreme Court in Satender Kumar Antil versus Central Bureau of Investigation (supra), it will be proper for the applicant to appear before the Trial Court where charge sheet has been filed and move bail application which the Trial Court shall consider in terms of the directions issued by the Supreme Court in Satender Kumar Antil versus Central Bureau of Investigation (supra).

In above terms, application is disposed of.

(VIVEK AGARWAL) JUDGE AT