Chandra Prakash vs State of MP

Sheel Nagu, J.—Case Diary is perused. Learned counsel for the rival parties are heard.

The applicant has filed third first application u/s 439, Cr.P.C. for grant of bail. The applicant has been arrested by Police Station Kotwali, District Datia in connection with Crime No. 72/2011 registered in relation to the offences punishable u/S. 420 IPC.

Learned Public Prosecutor for the State opposed the application and prayed for its rejection by contending that on the basis of the allegations and the material available on record, no case for grant of bail is made out.

This is the third bail application u/s 438 of Cr.P.C. after the rejection of the first bail on 20.4.2012 passed in M.Cr.C. No. 1982/2011 which was dismissed as withdrawn after hearing arguments of the learned counsel for the applicant for some time and after extending liberty to surrender and to move before the Court for regular bail and the second one having been dismissed as withdrawn on 06.02.2012 without hearing on merits.

Learned counsel for the petitioner contends that earlier two orders of rejection dated 20.04.2011 and 06.02.2012 cannot be treated as orders which were passed on merits and in support of his contention reliance is placed on the decisions in the case of Ghanchi Rubina Salimbhai Vs. Metubha Diwansingh Solanki and Others, and Mansab Ali Vs. Irsan and Another, to contend that every order of rejection of an application for regular bail should contain reasons, no matter how brief, and if the order is bereft of reasons then the order can not be termed as "an order on merits".

As regards the liberty granted to the applicant to surrender and apply for regular bail before the competent Court granted by order dated 20.04.2011 while dismissing the first bail application is concerned, it is submitted by the learned counsel for the applicant that the said liberty also cannot take away the right of the applicant to argue on merits in the present third bail application without surrendering as no such order can be passed at the time of dismissing an anticipatory bail application without considering the same on merits.

True it is, the first rejection of anticipatory bail of the applicant on 20.04.2011 contained no reasons for rejection obviously because the counsel had prayed for withdrawal before completing his arguments and before the view of the Court could be transmitted into words on paper, possibly sensing an adverse view. Thus, since the counsel sought a withdrawal there was no occasion for the Court to record reasons and therefore, the order dated 20.04.2011 for all technical and practical purposes is being treated as an order not having been passed on merits thereby entitling the applicant to be heard on merits.

A perusal of the case diary and the order of the lower Court, indicate that certain piece of land which the applicant was not authorized to alienate was sold by him in respect of which a decree had been passed on 09.07.2010 in Civil Suit No. 7-A/2008 in the case of Jitendra Singh Vs. Chandra Prakash Shrivastava and seven others whereby the sale deed executed by the applicant in the capacity of a seller to the extent of 0.88 RA of land was declared to be null and void and the applicant was directed to refund the amount of consideration to that extent. It appears that subsequently a complaint case u/s 200 of Cr.P.C. has been filed against the applicant on 01.02.2012 alleging cheating on the part of the applicant in regard to the sale transaction which was the subject matter of the above said suit leading to issuance of non-bailable warrant of arrest against the applicant.

This Court is of the view that since the factum of cheating punishable u/s 420 of IPC is yet to be established and the dispute has already been subjected to a round of litigations before the competent Court of civil jurisdiction, it would be extremely onerous to send the applicant to custody and in matters of this nature incarceration may diminish the possibility of settlement in future and, therefore, this Court is inclined to extend the benefit of anticipatory bail to the applicant.

Accordingly, this application is allowed and it is directed that the applicant be released on bail on his furnishing a personal bond in the sum of Rs. 1,00,000/- (Rs. One Lac only) with two solvent sureties in the like amount to the satisfaction of the concerned Trial Court. This order will remain operative subject to compliance of the following conditions by the applicant :-

The applicant will comply with all the terms and conditions of the bond executed by him;

The applicant will cooperate in the investigation/trial, as the case may be;

The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to the Police Officer, as the case may be;

The applicant shall not commit an offence similar to the offence of which he is accused;

The applicant will not seek unnecessary adjournments during the trial; and

The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be.

A copy of this order be sent to the Court concerned for compliance.

The applicant will mark his attendance at the concerning trial Court once in a week.

C.c. as per rules.