Manoj Shrivastava vs State Of Madhya Pradesh

This is fourth application filed under Section 439 of Cr.P.C. for grant of bail. Third application was dismissed by order dated 17/5/2018 passed in M.Cr.C. No.16754/2018.

The applicant has been arrested on 16/9/2017 in connection with Crime No.27/2017 registered by Police Station Sirol, District Gwalior for offence under Sections 420, 406, 409, 120-B of IPC and Sections 166, 188-B of the Companies Act, 2013.

It is fairly conceded by the counsel for the applicant that the previous bail applications of the applicant have been dismissed by this Court on three occasions. The last application was dismissed on merits by order dated 17/5/2018 passed in M.Cr.C. No.16754/2018.

Although in the application a declaration has been made that no application under Section 439 of Cr.P.C. was pending or decided by the Supreme Court or any High Court or any Court subordinate to the High Court except the present application, but the applicant has given the details of the previous bail, which have been dismissed.

Accordingly, the declaration made by the applicant with regard to the fact that no previous application has been dismissed by the High Court is ignored. However, a similar declaration has been made that no application has been dismissed by the Supreme Court also, whereas the applicant had filed a SLP (Cri.) No.5987/2018 before the Supreme Court against the order dated 17/5/2018 and the said SLP was dismissed as withdrawn by order dated 30/7/2018. The applicant was required to mention the fact of dismissal of the SLP by the Supreme Court in the declaration coloumn itself, but that has not been done. Although the applicant has mentioned in the bail application that his SLP against the order dated 17/5/2018 has been dismissed by the Supreme Court by order dated 30/7/2018 and the copy of the said order has also been filed alongwith this petition. Accordingly, the lapse on the part of the applicant in not making disclosure in the declaration coloumn is ignored, however, the applicant is directed to be more vigilant while filling up the declaration coloumns pertaining to the dismissal of the SLP by the Supreme Court.

It is submitted that the applicant is in jail from 16/9/2017 and the facts of the case would indicate that the period of detention already suffered by the applicant is sufficient and the trial is likely to take sufficiently long time.

This Court is aware of the fact that the application filed by the applicant under Section 482 of Cr.P.C. was also dismissed by this Court by order dated 20/9/2018 passed in M.Cr.C. No.31088/2018, against which also, the applicant had filed SLP (Cri.) No.9711/2018 and the said SLP has also been dismissed by the Supreme Court by order dated 14/12/2018, however, there is no reference of the dismissal of the application filed under Section 482 of Cr.P.C. as well as no reference of dismissal of the SLP by the Supreme Court against the said order. Without making any averment in the bail application regarding dismissal of application under Section 482 of Cr.P.C. as well as dismissal of SLP, the applicant has placed those orders on record alongwith a list of document. It is made clear that the practice of filing documents alongwith a printed form of list of documents, without incorporating any pleadings/submissions/grounds in the main petition cannot be appreciated. Whenever, a party wants to rely upon a document, then it must disclose its relevance in the main petition. Thus, this Court is of the considered opinion that the applicant has not approached this court with clean hands. However, instead of dismissing the application on this ground only, the submissions with regard to delay in trial are also considered.

The applicant has filed the order-sheets of the trial court, which indicate that the charges were framed on 10/5/2018. The applicant has not filed the previous order-sheets to show that the applicant was not responsible for the delayed framing of charges. Even it is not known that on what date the charge-sheet was filed and on what date the case was committed. Be that as it may. It appears that interlocutory applications were filed on the intervening dates. Although the Public Prosecutor had filed the trial programme on 17/5/2018, i.e. on the next date of framing of charges. Thereafter, the case was adjourned for considering various applications filed by the applicant/accused. Accordingly, those applications were decided and the case was fixed for 10/7/2018 for recording of evidence. On the said date, the prosecution witness Rajiv Shrivastava was present, but his evidence was not recorded and the case was taken up on the next date i.e., 11/7/2018. On 11/7/2018, the prosecution witnesses Ajay Kumar Mishra and Pankaj Tiwari were present, but the counsel for the accused persons refused to cross examine them on the ground that since his application under Section 216 of Cr.P.C. and under Section 212/216 of Cr.P.C. are pending, therefore, they would cross examine the witnesses only after the said applications are decided. Accordingly, the trial court directed for payment of expenses to the witnesses. Thus, it is clear that on 10/7/2018 and 11/7/2018 when the witnesses were present, the applicant did not cross examine them and ensure that their evidence is not recorded. On 20/7/2018, arguments on the interlocutory application filed by the applicant were heard and the case was fixed for 27/7/2018 for orders on the said applications. On 27/7/2018 one application filed under Section 216 of Cr.P.C. was rejected and the case was listed on 3/8/2018. The another application filed by the applicant under Section 216, 212 of Cr.P.C. was partially allowed and in order to avoid any vagueness, slight modification was carried out in the charge. Thereafter, on the same day another application under Section 91 Cr.P.C. was filed by the applicant. The application filed by the applicant under Section 91 of Cr.P.C. was decided by order dated 11/8/2018 and accordingly, the case was fixed for recording of evidence on 29/8/2018 and on the same day another application under Section 91 of Cr.P.C. was filed by the applicant. Accordingly, the arguments of the counsel for the applicant were heard on 16/8/2018 and short time was granted to the Public Prosecutor to make his submissions. Accordingly, on 20/8/2018 the arguments of Public Prosecutor were heard and the case was fixed on 24/7/2018 for orders on the application under Section 91 of Cr.P.C. By order dated 24/7/2018 another application filed by the applicant under Section 91 of Cr.P.C. was rejected and the case was fixed for 11/9/2018 and 12/9/2018 for recording of evidence. On 11/9/2018 no prosecution witness had appeared although summons issued to Rajiv Shrivastava were served. On 12/9/2018 Ajay Kumar Mishra was examined and cross examined. Accordingly, the bailable warrant of arrest was issued against Rajiv Shrivastava and Shashank and the case was fixed for 10/10/2018. On 10/10/2018 an application under Section 319 of Cr.P.C. was filed. The prosecution witnesses were also not present. The case was fixed for 15/10/2018 for consideration of application under Section 319 of Cr.P.C. On 2/11/2018 the respective parties expressed that they do not want to file any reply to the application, accordingly, the case was fixed for 15/11/2018 for augments on the application under Section 319 of Cr.P.C. On 15/11/2018 the counsel for the complainant took time to argue on the said application and accordingly, the case was adjourned to 19/11/2018. On 19/11/2018 the case was adjourned at the request of counsel for the complainant. On 24/11/2018 the arguments were heard and the case was fixed for 4/12/2018 for orders on the application under Section 319 of Cr.P.C. By order dated 4/12/2018 the application filed by the complainant under Section 319 of Cr.P.C. was rejected and the case was fixed for recording of evidence on 8/1/2019 and 9/1/2019. On 8/1/2019 the prosecution witness Rajiv Shrivastava was present and his examination-in-chief was recorded, but because of paucity of time, his cross examination could not be concluded. On 9/1/2019 the prosecution witness Pankaj Tiwari was examined and cross examined and accordingly, summons were issued for Rajiv Shrivastava and bailable warrant was issued against Shashank and the case was fixed for 4/2/2019. On 4/2/2019 the prosecution witness was present, but the case was adjourned on the objection raised by the applicant. Thus, it is clear that the witnesses are regularly appearing before the trial court and there is no lapse on the part of the prosecution.

However, it is submitted by the counsel for the applicant that since the applicant is in jail from 16/9/2017, i.e. more than one and half years, therefore, he may be granted bail.

Considered the submissions made by the counsel for the applicant.

Undisputedly, the SLP filed by the applicant against rejection of his bail order dated 17/5/2018 has also been dismissed by the Supreme Court. Although the applicant was arrested on 16/9/2017, but there is nothing on record as to why the charges could be framed on 5/8/2018 only. The previous order-sheets have not been placed on record. Thus, this Court is not in a position to find out that whether the applicant was responsible for the said delay or not. As the applicant has not placed the entire order-sheets on record, therefore, an adverse inference is drawn against him. Be that as it may. The fact of the case is that the applicant is in jail from 16/9/2017. Two witnesses have been examined and cross examined and cross examination of one witness has also begun. Under these circumstances, this Court is of the considered opinion that as the applicant is in jail, therefore, the trial court may be directed to conclude the trial without adjourning the matter unnecessarily.

It is submitted by the counsel for the applicant that whenever any witness would appear, they will never ask for any adjournment on any ground.

Considering the submissions made by the counsel for the applicant and looking to the controversy involved in the matter, this Court is of the considered opinion that the trial court shall make every endeavour to conclude the trial within a period of nine months from the date of filing of certified copy of this order.

In case if the undertaking given by the counsel for the applicant is not honoured by them and if any adjournment is sought for examination of the witness, then this period of nine months fixed by this Court would automatically lose its effect.

With aforesaid observations and directions, the applications is finally disposed of.