Pintu @ Nitesh Mishra vs State Of Madhya Pradesh

This case is taken up for hearing through video conference.

Counsel for the State submits that the case diary is available with him. This is the second application under Section 438 Cr.P.C. for anticipatory bail.

The first bail application M.Cr.C.No.557/2020 filed by the present application for grant of anticipatory bail was dismissed after considering merit of the

matter on 18.02.2020.

The applicant apprehends his arrest in connection with Crime No.65/2007 registered at Police Station-Kolgawan, District-Satna (M.P.) for the offence

under Sections 364-A, 302, 201, 120-B/34 of IPC.

As per the case of the prosecution, the incident is said to have taken place on 29.01.2007 in which the son of Mridul Chandra Mishra was

kidnapped/abducted by four unknown persons and they demanded Rs. Ten Lac as a ransom for the release of the captive and later on murdered the

child. On an investigation, four persons were arrested and charge sheets were filed against each separately. The present applicant was made accused

on the basis of the memorandum of the co-accused persons.

It is submitted by the learned counsel for the applicant that there is no direct evidence against the present applicant and the applicant has been falsely

implicated in the matter. It is stated that the charge-sheet has been filed and there is nothing against the present applicant. It is further stated that

statement of witnesses have been recorded under Section 161 of Cr.PC and they have not stated anything against the present applicant and also the

statements recorded are not substantive evidence. It is stated that co-accused persons have been released on bail. It is further stated that in the FIR,

there is no allegation against the present applicant nor his name is mentioned in the FIR. The applicant is ready and willing to cooperate with the

investigation and there is no possibility of his absconding or tampering with the prosecution case.

It is further submitted that the applicant never absconded which is obvious from the fact that he has met an accident and after investigation, police had

produced him before the Court where fine was imposed. The only material set to be proof of absconding is of 14.11.2019 and 07.12.2019 and as such,

when the charge-sheet was filed, the police had not given any intimation to the accused and his father. The police even did not try to come to the

house of the applicant and maliciously submitted a charge-sheet against the accused/applicant reason being the trial Judge concerned had rejected the

application under Section 319 of Cr.P.C.

It is submitted that the earlier bail application of the applicant was rejected by this Court applying the principle laid down in the case of Lavesh Vs.

State (NCT of Delhi) reported in (2012) 8 SCC 730. It is stated that the case of Lavesh (supra) and the case of present applicant is different,

therefore, the present application for anticipatory bail is filed.

It is further stated that in the matter of State of MP Vs. Pradeed Sharma report in 2014 (2) SCC 171, it is held that the person is declared as an

absconder/proclaimed offender in terms of Section 82 of Cr.P.C is not entitled to relief of anticipatory bail especially when it appears that the said

person has not been falsely implicated. It is stated that in the present case, there is no evidence in the charge-sheet filed against the applicant, which

would go to indicate that he has committed the offence in question.

It is further submitted that for about 13 years, the police has not taken any action against the present applicant and suddenly, he is made an accused

and is alleged to be not available at his house, the same is incorrect.

Learned Senior Counsel placed reliance in the principle laid down in the cases of Haricharan Kurmi & Anr. Vs. State of Bihar AIR 1964 SC 1184 &

Kashmira Singh Vs. State of MP AIR 1952 SC 159 to the effect that of a co-accused person cannot be treated as substantive evidence and cannot be

made foundation of a conviction. Reliance is placed in the case of Imratlal Vishwakarma & Ors. Vs. State of MP 1996 MPLJ 66 2to the effect that

second application for anticipatory bail maintainable even if earlier application was rejected on merits or was dismissed on account of having been

withdrawn or not pressed. Reliance is also placed in the recent judgment held by the Gwalior Bench of this Court in the Case of Balveer Singh

Bundela Vs. State of MP passed in M.Cr.C.No.5621/2020 on 20th of May, 2020 to the effect that the anticipatory bail application is maintainable even

the person is declared absconder under Section 82 of Cr.P.C.

On these grounds, prayer is made to enlarge the applicant on anticipatory bail.

Per contra, learned counsel appearing on behalf of the State vehemently opposed the application and prayed for its rejection on the ground that this

Court had already rejected the earlier bail application on merit after the applicant was declared as absconder and if he is released on anticipatory bail

he may tamper with the prosecution evidence. It is also stated that the applicant is habitual criminal and is running a gang in the locality of Satna.

Heard counsel for the parties.

Perused the file of this case in the light of the arguments advanced by counsel for the applicant in this matter, it is seen that the applicant has not been

arrested till date, therefore interrogation and investigation regarding his role as stated by the co-accused in his memorandum could not be completed.

So far as the case laws cited by learned Senior counsel are concerned, they are different from the case of the present applicant on factual matrix.

This is a 13 years old case, in which, the applicant is seeking anticipatory bail and avoiding arrest till date, he has not cooperated with the investigation.

It is also material that the first anticipatory bail application filed by the applicant has been dismissed with an elaborate order considering entire

arguments on merit byorder dated 18.02.2020, therefore, there is nothing to take a different view in the matter than the view already taken earlier by

this Court while rejecting the earlier bail application.

Considering all aspects of the matter, this Court is not inclined to grant anticipatory bail to the present applicant.

This 2nd anticipatory bail application is, therefore, dismissed.