Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 1214 (MP)

Chainraja v. State of M. P.

2012-11-26

R.C.MISHRA

body2012
JUDGMENT : 1. Arguments heard. 2. Applicants apprehend arrest in connection with Crime No. 224/11 registered at Police Station, Amanganj, Distt. Panna, in respect of the offences punishable under Sections 420, 467, 468 and 471 read with Section 34 of the IPC. At the relevant point of time, applicant Nos. 1 and 2 were working as Sarpanch and Secretary of Gram Panchayat, Majhgawan whereas applicant No. 3 was posted as Sub-Engineer in Janpad Panchayat, Gunnour. 3. Allegations against the applicants, in short, are that they were involved in cheating and forgery of records to facilitate misappreciation of a total sum of Rs. 11,68,645/- allotted to the Panchayat for construction of Wells under the Kapil Dhara Scheme. 4. Learned Senior Counsel submits that the applicants have been falsely' implicated despite the fact that all the Wells were duly constructed. According to him, some of the Wells had collapsed due to heavy rains. However, it would not be desirable to enter into the merits of the defence at this juncture. 5. While opposing the prayer, learned Govt. Advocate points out that the applicants have been able to remain out of clutches of law for a considerable period of time. For this, attention has been invited to the fact that the offences resulting in embezzlement of a huge amount of public money were allegedly committed during the year 2008-09. 6. In response, placing reliance on the decision of the Apex Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra, (2011) 1 SCC 694 , learned Senior Counsel contends that the applicants are entitled to anticipatory bail till ffie end of the trial as custodial interrogation is not at all warranted in the facts and circumstances of the case. 7. 6. In response, placing reliance on the decision of the Apex Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra, (2011) 1 SCC 694 , learned Senior Counsel contends that the applicants are entitled to anticipatory bail till ffie end of the trial as custodial interrogation is not at all warranted in the facts and circumstances of the case. 7. Sub-section (2) of Section 438 of the Code of Criminal Procedure provides that when the High Court or the Court of Sessions makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section. (Emphasis supplied) 8. (Emphasis supplied) 8. For a ready reference, sub-section (3) of Section 437 may be reproduced as under:- "When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under subsection (1), the Court shall impose the conditions,- (a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter, (b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and (c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary." (Emphasis supplied) 9. The offence punishable under Section 420 falls under Chapter XVII of the IPC. 10. As explained by the Apex Court in a recent decision in Rashmi Rekha Thatoi Vs. State of Orissa, (2012) 5 SCC 690 :- "The principle of grant of anticipatory bail for a limited duration in cases of Salauddin Abdulsamad Shaikh, AIR 1996 SC 1042 , K.L Verma, (1998) 9 SCC 348 , Adri Dharan Das, (2005) 4 SCC 303 , Sunita Devi Vs. State of Bihar, (2005) 1 SCC 608 , was held to be contrary to the Constitution Bench decision in Gurbaksh Singh Sibbia Vs. State of Punjab, AIR 1980 SC 1632 by a two-Judge bench in Siddharam Satlingappa Mhetre Vs. State of Maharashtra, (2011) 1 SCC 694 , and accordingly the said decisions were treated as per incuriam. It is worth noting though the Bench treated Adri Dharan Das (supra), to be per incuriam, as far as it pertained to grant of anticipatory bail for limited duration, yet it has not held that the view expressed therein that the earlier decisions pertaining to the concept of deemed custody as laid down in Salauddin Abdulsamad Shaikh (supra) and similar line of cases was per incuriam." 11. At this juncture, it is pertinent to note that an excerpt from the judgment in Gurbaksh Singh's case (supra), was referred to in the cases of Sunita Devi and Adri Dharan (supra), to highlight the distinction between an ordinary order of bail and an order under Section 438 of the Code. 12. In yet another decision rendered in Jai Prakash Singh Vs. State of Bihar, (2012) 4 SCC 379 , the Court has reaffirmed the view expressed in D.K. Ganesh Babu Vs. P.T. Manokaran, AIR 2007 SC 1450 and reiterated in State of Maharashtra Vs. Mohd. Sajid Husain, (2008) 1 SCC 213 and Union of India Vs. Padorn Narain Aggarwal, (2008) 13 SCC 305 , that anticipatory bail can be granted only in exceptional circumstances where the Court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. 13. In Gurbaksh Singh's case (supra), the Constitution Bench, while expounding a rule of caution,that a "blanket order" of anticipatory bail should not generally be passed, also proceeded to consider the question as to duration of such an order. Relevant observations made in Park 33 of the judgment are extracted below :- "Should the operation of an order passed under Section 438 (1) be limited in point of time Rs. Not necessarily. The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But, this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time." 14. Moreover, in Savitri Agarwal Vs. State of Maharashtra, AIR 2009 SC 3173 , a two-Judge Bench of the Supreme Court deduced as any as nine principles from pronouncement in Gurbaksh Singh's case (supra), and the aforesaid guideline was highlighted at serial No. (ix). Incidentally, the decision in Savitri Agarwal's case (supra), was not cited in Siddharam's case (supra), wherein it has been held that anticipatory bail cannot be granted for a limited period. Incidentally, the decision in Savitri Agarwal's case (supra), was not cited in Siddharam's case (supra), wherein it has been held that anticipatory bail cannot be granted for a limited period. However, in view of the apparent conflict between the judgment of the Constitution Bench and a two-Judge Bench decision in Siddharam 's case (supra), the guiding principle laid down by the Constitution Bench and restated in Savitri Agarwal's case (supra), has to be preferred and accordingly, an anticipatory bail may be granted for a limited period. 15. Taking into consideration the nature of allegations and other facts and circumstances of the case, but without expressing any opinion on its merits, I am of the view that each one of the applicants deserves to be enlarged on anticipatory bail for a limited period, subject to condition of depositing 1/3rd of the amount of Rs. 11,68,645/-. 16. The application, therefore, stands allowed and it is, directed that, in the event of arrest, each one of the applicants namely Smt. Chainraja, Santosh Kumar Pandey and Anand Tripathi shall be released on furnishing receipt evidencing deposit of Rs. 3,89,548/- with the Janpad Panchayat and also a personal bond in the sum of Rs. 25,000/- incorporating following condition with a solvent surety in the like amount to the satisfaction of Arresting Officer :- (i) That she/he shall make herself/himself available for interrogation by a police officer as and when required; (ii) That she/he shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. 17. This order shall remain in force for a period of 60 days and in the meanwhile, if the applicants so desire, may move an application for regular bail before the Competent Court, which shall be considered by the Court in accordance with law. 18. Needless to say, nothing contained herein would, in any way, affect the merits of the case. C.C. as per rules.