Research › Search › Judgment

Madhya Pradesh High Court · body

2021 DIGILAW 214 (MP)

Shishupal v. State of M. P.

2021-02-23

VIVEK RUSIA

body2021
ORDER : Vivek Rusia, J. 1. This is the first application filed under Section 438 of Cr.P.C. by the applicant - Shishupal S/o. Jagmohan Singh who apprehends his arrest in connection with Crime No. 351/2019, registered at Police Station Madhav Nagar, District Ujjain for the offence punishable under Section 406, 420, 201, 34 & 120-B of the IPC. 2. As per the prosecution story, on 23.6.2019 complainant - Jaya Rajawat W/o. Late Krishnapal Singh submitted a written complaint in Police Station Madhav Nagar, Ujjain that her husband died on 17.5.2019 due to kidney failure. She is having one son and one daughter aged 16 years and 7 years respectively. Before the death, Krishnapal Singh was suffering from liver damage and the Doctor had advised him for liver transplantation. The sister of Krishnapal Singh viz. Smt. Bhavna @ Pappi and her husband Bharatsingh Chandel (co-accused) were residing with them in order to take care of her husband. On 16.5.2019 after undergoing dialysis and her husband was advised for liver transplantation in the hospital at Delhi. Krishnapal Singh had arranged money and jewellery for he Transplantation and kept it in the briefcase. He gave the keys of his office at Navkar Complex, Teen Batti Chouraha, Ujjain to Bharatsingh Chandel bring the briefcase. Bharatsingh Chandel went to the office at 12.45 in the night of 16.5.2019 but the Security Guard did not permit him to enter the complex. Thereafter, Krishnapal Singh gave a call from his mobile phone to the Security Guard and instructed him thereafter Bharatsingh Chandel to entered the office and brought the briefcase. According to the complainant the entire episode has been recorded in the CCTV cameras installed in the Navkar Complex. Bharatsingh Chandel came from Ujjain to Indore by a car bearing Registration No. MP-13-CA-5836 owned by Krishnapal Singh. Thereafter, all went to Bombay Hospital at Indore where payment of bill amount Rs. 1,91,000/- was made. From Bombay Hospital, the complainant, Bharatsingh Chandel, Vikas Maheshwari and Krishnapal Singh moved towards Delhi by Cardiac Ambulance. On the way to Delhi, the condition of Krishnapal Singh became serious and died. All of them decided to return by Ambulance to Ujjain. They reached Kota, Bharatsingh Chandel told the complainant that his friend Shishupal, (the present applicant), along with Bhavna - his wife has reached Kota and he would come to Ujjain in the car with them. On the way to Delhi, the condition of Krishnapal Singh became serious and died. All of them decided to return by Ambulance to Ujjain. They reached Kota, Bharatsingh Chandel told the complainant that his friend Shishupal, (the present applicant), along with Bhavna - his wife has reached Kota and he would come to Ujjain in the car with them. He got down from the Ambulance along with the briefcase in which the remaining Rs. 45.00 Lakhs, purse, diamond ring of Krishnapal Singh, keys of the office, etc. were kept. The complainant reached Ujjain with the dead body of Krishnapal Singh. Bharatsingh Chandel and his wife came to Ujjain late and when the complainant demanded the cash and other articles and the keys of the office kept in the briefcase, they avoided and after some time returned to Gwalior. 3. On the basis of aforesaid disclosure, FIR has been registered for the aforesaid offences against Bharatsingh Chandel, Bhavna and the present applicant. The co-accused - Bharatsingh Chandel has been granted regular bail by this Court vide order dated 5.11.2019 passed in M.Cr.C. No. 43326/2019. 4. Learned counsel for the applicant submits that the name of the applicant is not there in the FIR. His name came only on the basis of memorandum u/s. 27 of the Evidence Act of the co-accused Bharatsingh Chandel who has simply said that he called his wife Bhavna in the car of the present applicant. The applicant has not misappropriated any article or cash belonging to late. Krishnapal Singh. There is no material against the present applicant except the statement of the complainant and co-accused to connect him with the crime. He has unnecessarily been made accused to built-up pressure on Bharatsingh Chandel to get back the cash and other articles. The police have only collected the CDR of the complainant, Bhavna and Bharatsingh Chandel and the present applicant, which does not disclose any conspiracy between them. Hence, the applicant is entitled to anticipatory bail. 5. On the other hand, learned Panel Advocate appearing for the State as well as Shri Sanjay Sharma learned counsel appearing for the objector, oppose the prayer by submitting that the applicant had filed an application for anticipatory bail before the trial Court and withdrew the same on 27.8.2019. Thereafter, he filed second application under section 438 Cr.P.C. which has been dismissed on merit by Additional Session Judge. Thereafter, he filed second application under section 438 Cr.P.C. which has been dismissed on merit by Additional Session Judge. He has been declared as proclaimed offender u/s. 82 of the Cr.P.C., therefore, the present bail application under section 439 Cr.P.C. is not maintainable in view of the judgment of the Apex Court passed in the case of D.K. Ganesh Babu V/s. P.T. Manokaran: AIR 2007 SC 1450 ; Lavesh V/s. State (NCT of Delhi) : (2012) 8 SCC 730 ; and State of M.P. V/s. Pradeep Sharma: (2014) 2 SCC 171 . Learned counsel for the objector further submits that Bharatsingh Chandel and the applicant took the benefit of the situation when the complainant was in deep sorrow due to the death of Krishnapal Singh and misappropriated the amount of Rs. 45.00 Lakhs, golden ring, keys, etc. in the conspiracy. Bhavna w/o Bharatsingh Chandel has not been arrested so far. He also submits that the complainant was throughout with her husband at the time of treatment in the hospital, therefore, it is incorrect to say that she was living separately and getting the maintenance under section 125 of Cr.P.C. it now after the death of Krishnapal Singh, in order to grab the property of Krishnapal Singh she has falsely implicated the present applicant and others. I have heard the learned counsel appearing for the parties and perused the case-diary. 6. So far as maintainability of the application u/s. 438 of the Cr.P.C. is concerned, the co-ordinate Bench of this Court in the case of Balveer Singh Bundela V/s. State of M.P.: 2020 (3) JLJ 435 has held that Article 21 of the Constitution of India and provisions of Section 438 of Cr.P.C. ensure personal liberty of an individual despite the declaration of the proclaimed offender. The Division Bench of this Court in the case of Arif Masood V/s. State of M.P.: 2021 (1) JLJ 158 after considering the judgment passed by the Apex Court, (as relied by Shri Sanjay Sharma, learned counsel for the objector), has held that bail u/s. 438 of Cr.P.C. is maintainable even though the accused is absconding or against whom proclamation u/s. 82 of Cr.P.C. is issued. Therefore, in view of the above, the present application for anticipatory bail is maintainable especially when the trial Court has not declared the present applicant as an absconder so far. Therefore, in view of the above, the present application for anticipatory bail is maintainable especially when the trial Court has not declared the present applicant as an absconder so far. Only the Superintendent of Police vide order dated 28.12.2020 has declared the reward of Rs. 2,000/- for giving any information about the present applicant and Bhavna. 7. So far as the accusation against the present applicant is concerned, he came to Kota from Gwalior along with Smt. Bhawna by his car and thereafter Bharatsingh Chandel Joined them and all came to Ujjain but late. There is an allegation that the briefcase which Bharatsingh Chandel had collected from the office of deceased Krishnapal Singh situated at Navkar Complex was having Rs. 45.00 Lakhs. However, it is a matter of trial as to whether the briefcase was having cash of Rs. 45.00 Lakhs and other articles. The CDRs only reveal that there was a conversation between Bharatsingh Chandel and the present applicant during the period when they were reaching Kota while returning from Delhi after the death of Krishnapal Singh. There is a possibility that they were coordinating with each other in respect of timing to reach Kota at the same time. On the way to Delhi, Krishnapal Singh suddenly died. The only allegation against Bharatsingh Chandel is that he got down from the Ambulance and boarded in the car of the present applicant in conspiracy with his wife and applicant. Prima Facie there was no occasion of the meeting of their mind to make conspiracy to commit the offence before the death of Krishnapal Singh as alleged in the FIR. 8. Considering the facts and circumstances of the case but without commenting on the merits of the case, I deem it proper to grant anticipatory bail to the applicant - Shishupal S/o. Jagmohan Singh. Accordingly, this application is allowed. It is directed that in the event of arrest, Shishupal S/o. Jagmohan Singh be released on bail, on his executing a personal bond in the sum of Rs. 1,00,000/- (Rupees One lakh only) each and furnishing one solvent surety in the like amount each to the satisfaction of the Arresting Authority (Investigating Officer). 9. The applicant Shishupal S/o. Jagmohan Singh shall make himself available for interrogation by a police officer as and when required. He shall further abide by the other conditions enumerated in sub-section (2) of Section 438 of Cr.P.C.