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Madhya Pradesh High Court · body

2000 DIGILAW 152 (MP)

Nemichand Bansal v. State Of M. P. And Ors.

2000-02-15

FAKHRUDDIN

body2000
ORDER Fakhruddin, J. 1. This petition under Section 482, Cr. P.C. read with Section 401 and Section 439(2), Cr. P.C. is against the order dated 20.8.1998, passed by Sixth Additional Sessions Judge, Gwalior whereby the bail granted to non-applicant No. 2, vide the impugned order, challenged here in this petition. 2. It was submitted that the non -applicant No. 2 Mahavir Prasad Goyal alongwith his wife Smt. Kusum, daughter Ku. Preeti and two sons namely Pankaj and Manoj (husband of the deceased) were being prosecuted for the offence under Sections 304B and 498A of I.P.C. 3. In the case in hand, initially the applications for grant of an anticipatory bail were moved under Section 438, Cr. P.C. on behalf of the, wife of the non-applicant No. 2 and their daughter Ku. Preeti, being registered as Cri. Misc. C. No. 3083/96, Smt. Kusum Goyal v. State of M.P., and Cri. Misc. C No. 3140/96, Ku. Preeti v. State of M.P. The aforesaid two applications were rejected by the Court below vide order dated 5.11.1996, Annexure-A4, passed in Cri. Misc. C No. 3083/96 and the order dated 6.11.1996, Annexure A5, passed in Cri. Misc. C No. 3140/96. Thereafter, the applicants therein surrendered before the Court on 26.11.1996 and then moved an application under Section 439, Cr.P.C. before the Court below, which was allowed vide order dated 26.11.1996, as per Annexure-A7. 4. So far as the non-applicant No. 2 is concerned, it was submitted that earlier he alongwith his two sons named above, applied for bail under Section 438, Cr. P.C, which application was rejected as not pressed. Thereafter, another application was moved on 30.7.1998 before the Sessions Court under Section 438, Cr. P.C. by these applicants registered as Misc. Cri. C. No, 1929/98. The said application was transferred to the Court of Sixth Additional Sessions Judge, Gwalior. The same was pending consideration. In the meanwhile, on 20.8.1998, the applicants surrendered before the Court and moved an application under Section 439, Cr. P.C. and this application was considered by the Court below on the ground that the applicant Mahavir Prasad alongwith his two sons surrendered to the custody and since they had surrendered and suitable application was made before the Sessions Court informing about their surrender to the custody, seeking conversion of the application from Section 438 to Section 439, Cr. P.C, as such the prayer was allowed in the circumstances indicated hereinabove. P.C, as such the prayer was allowed in the circumstances indicated hereinabove. 5. The learned Addl. Sessions Judge having considered the entire facts and circumstances and the material on record and the fact that the non-applicant No. 2 Mahavir Prasad is a person of old age and is also suffering from illness, taking into consideration all these aspects, found a fit case for grant of bail to the applicant and directed his release on bail on furnishing a personal bond in the sum of Rs. 50,000/- with two sureties of the like amount to the satisfaction of the Judicial Magistrate First Class, Gwalior, subject to the condition that he shall not leave the city of Gwalior without the permission of the Court. So far as applicants Pankaj and Manoj are concerned, Counsel appearing for them did not press the application for grant of bail to them/and thus the application was rejected, as not pressed. 6. Having been aggrieved by the order granting bail to the non applicant No. 2 Mahavir Prasad, the present applicant has filed this petition contending that the Court below had no jurisdiction to entertain the said application, and the applicants ought to have filed the application in the office of Sessions Judge. 7. This case came up for hearing on 16.10.1998 and on the request of the Counsel appearing for the applicants was adjourned to 2.11.1998. On 2.11.1998, Counsel for the applicant submitted before this Court that a bail application was filed directly in the Court of Sixth Additional Sessions Judge and the Court below has considered the application and granted bail to the non-applicant No. 2, while it had no jurisdiction to entertain. 8. In the aforesaid circumstances, this Court called for the comments of the learned Sessions Judge. The comments have been received from the learned Judge. The learned Judge submitted that the applicants Mahavir Prasad and others filed bail application (Misc. Cri. C. No. 1929/98) on 30.7.1998 before the Sessions Court which was thereafter transferred to the Court of the then Presiding Officer on 3.8.1998. In that case, the record of the Criminal Case No. 335/97 was called for from the Court of Judicial Magistrate First Class, Gwalior on 20.8.1998 and after receiving the same, the arguments were heard. Cri. C. No. 1929/98) on 30.7.1998 before the Sessions Court which was thereafter transferred to the Court of the then Presiding Officer on 3.8.1998. In that case, the record of the Criminal Case No. 335/97 was called for from the Court of Judicial Magistrate First Class, Gwalior on 20.8.1998 and after receiving the same, the arguments were heard. It is submitted that during the course of the arguments, Counsel representing the applicants Pankaj Goyal and Manoj Goyal did not press their application and as such, the prayer for their release on bail was rejected. So far as the non-applicant No. 2 Mahavir Prasad is concerned, the Court after going through the entire facts and circumstances of the case and looking to the old age and the sickness of the applicant, granted bail to the applicant vide impugned order. 9. Learned Counsel appearing for the non-applicant No. 2 contended that there is no illegality in the order passed by the Court below. It was further submitted that the Court below had the jurisdiction to entertain the application. Reliance was placed on the decision of the Apex Court reported in the case of Shahzad Hasan Khan v. Ishtiaq Hasan Khan, AIR 1987 SC 1613 , and the decision of this Court in case of Munna Singh v. State of M.P., 1989 JLJ 35. 10. It is further submitted on behalf of the non-applicant No. 2 that the accused was sent to the judicial custody that day and the bail was furnished on the next day and, thereafter, he was released, It is stated that so far as cancellation of the bail is concerned, the cancellation can be made when the case as such is made out and for that very cogent and overwhelming circumstances are required to be considered. Reliance is placed on the decision of the Apex Court reported in 1984 CAR 111 (SC), Bhagirath Singh v. The State of Gujarat, and 1992 SCC (Cri.) 870, Aslant Babalal Desai v. State of Maharashtra, to the effect that the factum of dismissal of bail on earlier occasion is not relevant and the cancellation Of the bail is different from refusal to grant bail, which involves review on merits of the decision granting bail. 11. 11. Learned Counsel for the non-applicant No. 2 further relies on the decision of this Court reported in l996 (II) MPWNSN 240, Khah7-Ur-Rchman (Dr.) v. Ah" "The power to cancel bail is to be exrcised with great care and circumspection. If it is proved beyond reasonable doubt that the accused, who was granted bail has misused it by interfering with the course of justice and fair trial and has made efforts to tamper with the prosecution witnesses, then this would be a sufficient ground for cancellation of bail, or there have to be circumstances such as likelihood of the accused to abscond or that he would abuse his freedom by tampering with the evidence." 12. As regards conversion of the bail from Section 438 to Section 439, Cr. P.C., learned Counsel for the non-applicant No. 2 submitted that the Court has the jurisdiction to convert the application from Section 438 to Section 439, Cr. P.C. In this context, certain decisions of this Court (unreported) have been placed for perusal of this Court. They are certified copies of the orders passed in Cri. Misc. C. No. 245/86, Bhayalal v. State of M.P., decided on 8.4.1986; Cri. Misc. C. No. 20/ 89, Kamta Prasad v. State of M.P., decided on 25.1.1989; Cri. Misc. C No. 1337/ 87, Narayan v. The State of M.P., decided on 16.10.1987; and Cri. Misc. C. No. 1306/ 87, Bhupat v. State of M.P., decided on 13.11.1987 to show that the petitioner under Section 438, Cr.P.C. can be treated and heard as a petition under Section 439, Cr.P.C, on the request of the petitioner, in case of his surrendering to the custody. 13. Having considered the above and after going through the record, it is borne-out that the application under Section 438, Cr.P.C. was filed; before the Sessions Court, but since the applicants surrendered before the Court and they were taken into custody, they prayed for conversion of their application to Section 439, Cr.P.C. The learned Court below after considering the entire material and hearing the parties allowed the conversion of the application under Section 438, CrP.C to that of Section 439, Cr.P.C, since the accused-applicants had surrendered. 14. This Court has considered the comments received from the learned Court below and taking over all the facts and circumstances brought on record finds that there is no illegality or error of jurisdiction in the order. 14. This Court has considered the comments received from the learned Court below and taking over all the facts and circumstances brought on record finds that there is no illegality or error of jurisdiction in the order. No case has been made out for cancellation of bail, invoking exercise of jurisdiction under Section 482, Cr.P.C. 15. The petition fails and is dismissed.