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Madhya Pradesh High Court · body

2009 DIGILAW 1403 (MP)

SUMITRA v. STATE OF MADHYA PRADESH

2009-12-24

PIYUSH MATHUR

body2009
Judgment Piyush Mathur, J. ( 1. ) Arguments heard and perused the Case Diary. ( 2. ) This is a repeat application ( Second application), under Section 439 of Cr.P.C. for grant of bail. The applicant has been arrested by Police Station Kotwali, District Morena in crime no. 643/2009, registered for the offence punishable under Sections 393 IPC and 11/13 MPDVPK Act. ( 3. ) The case of the Prosecution is that Applicant Sumitra along with one Co-accused Sapna had made an attempt to commit the Offence of Dacoity on Date 22.08.09 at a Public Place with the assistance of two Male Assistant and a serious attempt to commit the offence was made but since the residents of the Locality intervened therefore the Accused/Applicant was caught on the spot and was arrested by the Police. ( 4. ) The Counsel for the Applicant submits that from the perusal of the Chargesheet, it can not be said at this stage that the Applicant has committed the offence with an intention to commit Dacoity in terms of the offence punishable under Section 393 IPC and the elements of Section 11/13 MPDVPK Act is also missing. He submits that the Applicant is in custody since 23.08.09 and is a Lady who has no criminal antecedents. ( 5. ) The Madhya Pradesh Dacaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981, is a special legislation made by State Legislature, in relation to certain offences in the "Dacaiti and Kidnapping affected Areas" of Madhya Pradesh, with a view to curb effectively the commission of specified offences, in view of the menace of organized and unorganized gangs of the dacoit as also with a view to break the chain of vested interests, assisting or associated with such gangs. The Legislature has also made provision for the attachment and confiscation of the huge properties, alleged to have been acquired through the commission of specified offences and therefore the Legislature has given a wide definition of "Dacoity " which includes not only a person who has committed Dacoity for the first time but also the person who has already committed offence under Section 395 of IPC. Similarly, certain offences described in IPC have been picked up for classifying as "Specified Offences". Similarly, certain offences described in IPC have been picked up for classifying as "Specified Offences". The Definition of a Dacoit and the specified offences mentioned in Section 2(b) and Section 2(f) are quoted herein below for ready reference : 2(b) "dacoit" in relation to a dacoity and kidnapping affected area, means a person who commits or has committed an offence punishable under Section 395 of the Indian Penal Code (XLV of 1860) or a specified offence, or as the case may be, a person accused of commission of any such offence; 2(f) "specified offence" means - (i) an offence specified in the schedule offence committed in relation to an area declared under section 3 being an offence forming part of arising out of or connected with the commission of dacoity or kidnapping; (ii) an offence for which punishment has be: provided under section 9, 11 and 12 of this Act; (iii) an offence punishable under section 212, 216, 216-A, 311, 347, 392, 393, 394, 395, 396, 397, 398, 399, 402 and 412 of the Indian Penal Code, 1860 (XLV of 1860) committed in relation to an area declared under section 3; and includes abatement or attempt to commit any of the offences specified in sub-clauses (i),(ii) and (iii). ( 6. ) While dealing with the merits of the present matter, where charges under Sections 11 and 13 of the Adhiniyam have been incorporated alongwith other offences, it would be pertinent to examine the scope of the provisions contained therein, therefore Section 11 and Section 13 are quoted herein below for ready reference : 11. Punishment for specified offences generally : A dacoit who commits a specified offence shall, if no specific punishment is provided for that Act in the Indian Penal Code (XLV of 1860) and that act is also not punishable under section 9, be punished with imprisonment which may extend to ten years and with fine. 13. Minimum period of imprisonment: Notwithstanding anything contained in section 11 and 12 or any other law for the time being in force, minimum punishment with which a specified offence shall be punished shall be imprisonment for three years. ( 7. 13. Minimum period of imprisonment: Notwithstanding anything contained in section 11 and 12 or any other law for the time being in force, minimum punishment with which a specified offence shall be punished shall be imprisonment for three years. ( 7. ) While examining the Scheme of the Dacoity Adhiniyam, it appears that the Legislature has provided a bar in relation to grant of bail, by making provisions in Section 5 of the Adhiniyam, where not only the anticipatory bail but the regular bail has also been qualified with a non-obstante clause with an added condition of opposition of the State Counsel. For ready reference Section 5 is quoted herein below : 5. Regulation of grant of bail :-(1) Notwithstanding anything contained in the Code, no application for an anticipatory bail shall be entertained by any court in respect of a dacoit. (2) Notwithstanding anything contained in the Code, no application for bail of a dacoit shall be allowed, if opposed: Provided that no court or Magistrate shall authorize the detention of a person accused of a specified offence in custody during the course of investigation for a period exceeding 120 days and on the expiry of such period (in the event of the police report under sub - section (2) of Section 173 of the Code being not filed,) the accused shall be released forthwith if he is prepared to and does furnish bail. ( 8. ) When initially the need to curb menace of Dacoity was felt in the State of M.P. particularly in the areas of Gwalior, Morena, Bhind, Datia, Shivpuri, Guna, Sagar, Damoh, Tekamgarh, Chattarpur and Panna, an Ordinance was promulgated which was captioned in the description in which the present Adhiniyam is couched and this Court had an occasion to deal with the provisions of the Ordinance, when the Full Bench of this Court has found the provisions of the Ordinance to be intra virus, while considering the scope and stages of grant of bail. The judgment delivered by the Full Bench of this Court in the case of Gulabchand Kannoolal Vs. The judgment delivered by the Full Bench of this Court in the case of Gulabchand Kannoolal Vs. State of M.P. and Others reported as 1982 MPLJ 7 (FB) had dealt with the situation, wherein an associate of a gangster engaged in commission of kidnapping and abduction had facilitated raising of a demand and encashment of ransom money, within the notified Dacoity Area, where The Full Bench while considering yet another Judgment of the Division Bench of this Court in the case of Pramod Kumar Khare Vs. The Governor of M.P. and Others reported as 1982 Criminal Law Reporter (M.P.) 1 has found that the findings given in the case of Pramod Kumar Khare (supra) about section 5 (2) being ultra virus, are not correct and instead of giving any opinion further about this judgment, the Full Bench has carved out four stages of filing and entertainment of bail application by the High Court. The Full Bench has observed thus : In all such cases, the ban on the grant of bail to a dacoit under Section 5 (2) of the Ordinance will not apply. Putting it differently a person arrested for dacoity or a specified offence under the Ordinance can apply for bail in spite of section 5(2) at the stage immediately, after his arrest on the ground that there was no reasonable suspicion of his being concerned in such offence, at the stage after twenty four hours of his arrest and during investigation on the ground that there are no grounds that the accusation or information against him is well founded and at the stage after the investigation is complete on the ground that there is no sufficient evidence or prime facie proof against him in support of the accusation. We may add that bail has also to be granted, as pointed out later in this judgment, when the investigation is not complete within 120 days from the date of arrest under the proviso to section 5 (2). ( 9. ) Therefore, it is very much clear that the charged offence must not be only a "Specified Offence" but it should arise out of commission of the Dacoity and the offence must have a nexus with the commission of the Dacoity and it would be required to ascertain, as to whether the nexus existed at the material time of the commission of the offence. ( 10. ( 10. ) Similarly, while examining the Legislation, the Full Bench of this Court has found that an accused person would be entitled to move a Bail Application at four stages; firstly immediately after his arrest where he can demonstrate that no reasonable suspicion of his being involved/concerned exist; secondly upon completion of 24 hours, during the currency of the investigation where he can demonstrate that the accusation is not well founded against him, thirdly, after completion of the entire investigation where he can demonstrate before the Court that no sufficient evidence and prima facie proof is available against him and fourthly based upon the language of the proviso appended to sub-Section 2 of Section 5, when the investigation is not completed within 120 days, when he can claim the consideration of his Application for his release. ( 11. ) Since Dacoity Adhiniyam happens to be a special Legislation, therefore the Legislature in its wisdom has calculatedly engrafted two non-obstante clause in sub Sections (1) and (2) of Section 5 of the Adhiniyam which carves out two .." different categories and situations about the grant of bail, then the One provided in the Code of Criminal Procedure, in relation to the grant of Anticipatory Bail, Temporary Bail and Regular Bail. Keeping in view, the Legislative Intendment, it would be necessary to examine the merits of the matter very cautiously while dealing with the Bail Application by ascertaining as to under which category, the accused person has made out a case for Bail and in what manner his case for grant of bail could be considered. ( 12. ) The effect and implementation of the provision of Dacoity Adhiniyam has been examined in several subsequent judgments delivered by several Single Judges of this Court, which also suggest for analyzing each case on its merit. ( 13. ) Therefore, while examining the merits of the present case, and the perusal of the Chargesheet, it can not be said at this stage that the Applicant has committed the offence with an intention to commit Dacoity in terms of the offence punishable under Section 393 IPC and the elements of Section 11/13 MPDVPK Act is also missing. ( 14. ) Therefore, while examining the merits of the present case, and the perusal of the Chargesheet, it can not be said at this stage that the Applicant has committed the offence with an intention to commit Dacoity in terms of the offence punishable under Section 393 IPC and the elements of Section 11/13 MPDVPK Act is also missing. ( 14. ) Considering the aforesaid circumstances as also the action of the accused person in attempt to commit the Offence as also on account of the fact that the Challan has been filed, I allow this Application and direct that the applicant be released on bail on her furnishing a personal bond in the sum of Rs. 30,000/-(Rs. Thirty thousand only) with one solvent surety in the like amount to the satisfaction of the trial Court on the condition that she shall remain present before the Court concerned during trial and also comply with the conditions enumerated under Section 437 (3) of Cr.P.C. ( 15. ) A copy of this order be sent to the Court concerned for compliance. C.C. as per rules. Order accordingly.