Jagdish Agarwal vs State Of Madhya Pradesh

Heard on I.A. No.6406 of 2020 an application under Section 301 (2) of Cr.P.C for assisting PL in the matter.

For the reasons mentioned therein, the application is allowed and Shri Mayank Pathak Advocate is permitted to assist PL in the matter.

This is second bail application u/S.438 Cr.P.C filed by the applicant for grant of anticipatory bail.

In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by the Government of India, this application has been heard and decided through video conferencing to maintain social distancing. The parties are being represented by the respective counsels through video conferencing, following the norms of social distancing/ physical distancing in letter and spirit.

Applicant is apprehending his arrest by Police Station Padav district Gwalior M.P, in connection with Crime No.281 of 2019 registered in relation to the offence punishable u/S.420, 467, 468, 471 and 120B of IPC.

It is submitted by counsel for the applicant that earlier application of application was rejected on 5.7.2019 in M.Cr.C.No.23759 of 2019 on merits. It is argued that the applicant has moved an application before Superintendent of Police Gwalior for free and fair investigation in the matter, on which, a senior police officer was directed to investigate into the matter. The police officer submitted the report to the Superintendent of Police Gwalior stating that offences under Section 467, 468 and 471 of IPC are not made out in the matter against the present applicant. Therefore, offences under these sections were removed from the FIR. It is submitted that the said report was submitted on 1st January, 2020 that is much after the rejection of the first application, therefore, this application has been filed after subsequent development. It is further argued that second application under Section 438 of Cr.P.C is maintainable as has been held by a coordinate Bench of this court in M.Cr.C.No.5621 of 2020 (Balvir Singh Bundela Vs. State of M.P.). It is further argued that now only offence against the present applicant is under Section 420 of IPC. It is submitted that the cheating has been done against the applicant itself and the flat in question was sold to the present applicant by one Kuldeep Bhadoria on 3.5.2014 which was subsequently sold by Kuldeep Bhadoria to another person vide deed dated 7.5.2014. He has also made complaint to this effect to the police authorities. Applicant has drawn attention of this court to document Annexure A/7, a copy of civil suit filed by the complainant against said Kuldeep Bhadoria but in the said civil suit, the present applicant has not been made party meaning thereby, the complainant has claimed no relief against the present applicant. It submitted that Kuldeep Bhadoria is a habitual offender having criminal cases registered against him for which, details are filed as Annexure A/2 wherein, three criminal cases being Crime Nos. 632 of 2019, 535 of 2019 and 603 of 2019 have been registered at PS Padav district Gwalior for offences punishable under Section 420 and 406 of IPC respectively. As far as criminal history of the applicant is concerned, Case No.929 of 2003 has been disposed of in the court of Civil Judge Class I, Gwalior on 6.6.2003 Ex.A/3, Crime No.42 of 2011 registered at PS Kotwali district Gwalior has been closed on 20.12.2011 vide Ex.P/4, Cr.Appeal No.136 of 2013 has been decided in favour of applicant and he has been acquitted vide judgment dated 9.1.2015 by learned ASJ, Gwalior Ex.A/5 and in Case No.13099 of 2015, he has been acquitted vide judgment dated 26.3.2019 by learned JMFC, Gwalior. It is further submitted that the applicant is a cardiac patient and recently treated for this purpose, in support of which, he has filed certain medical papers. He is ready to furnish adequate surety and is also ready to abide with all the conditions which may be imposed by this court while considering this bail application. It is further argued that the flat in dispute is in possession of complainant. He has further shown his willingness to serve the national cause by making contribution of Rs.10,000/- in PM Care Fund and install Arogya Setu App.

Learned Panel Lawyer appearing for the State has opposed the application stating that the applicant is a habitual offender and after rejection of his earlier application on 5.7.2019, he has not surrendered. But he could not dispute the factum of subsequent investigation made by a senior police officer under instructions of Superintendent of Police, Gwalior and on his report, the offence under Section 467, 468 and 471 of IPC were removed from the list of charges but he is not sure about the date of report.

Counsel for the complainant has also opposed the application stating that the there are other cases registered against the applicant of the similar nature. He further submits that the cheating has been done with the complainant by the applicant who is still absconding and not cooperating with the prosecution agency. However, he could not dispute the factum of subsequent investigation made by a senior police officer under the instructions of Superintendent of Police Gwalior and on his report, the offence under Section 467, 468 and 471 of IPC were removed from the list of charges and the fact that the flat in question is in possession of the complainant.

Considering the facts and circumstances of the case and the fact that the subsequent investigation was done by a senior police officer under the instructions of S.P., Gwalior and on his report, the offence under Section 467, 468 and 471 of IPC were removed from the list of charges and the fact that the flat in question is in possession of the complainant as well as alarming situation of Novel Corona Virus (COVID-19), this Court deems it appropriate to allow this application for grant of anticipatory bail taking into consideration the directions issued by the Hon'ble Supreme Court in the case of IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS in SUO MOTU W.P. (C) No.1/2020 and directions have been issued to all the States to constitute a High Level Committee to consider the release of prisoners in order to decongest the prisons. The Supreme Court has observed as under :-

"The issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID - 19). Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled. We direct that each State/Union Territory shall constitute a High Powered Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as, (ii) Director General of Prison(s), to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. For instance, the State/Union Territory could consider the release of prisoners who have been convicted or are under trial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum. It is made clear that we leave it open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate."

Accordingly, this application is allowed. In the event of arrest, the applicant is directed to be released on bail on furnishing a bank security of Rs.10,00,000/- (ten lac only) with surety bond of Rs.1,00,000/- (Rs. One lac Only) with two solvent sureties in the like amount to the satisfaction of arresting officer. The applicant shall deposit Rs.10,000/- in PM CARES Fund having Account Number : 2121PM20202, IFSC Code: SBIN0000691, SWIFT Code : SBININBB104, Name of Bank & Branch : State Bank of India, New Delhi Main Branch within seven working days from the date of release.

The applicant shall submit written undertaking that he will abide by all terms and conditions of the different circulars, orders as well as guidelines issued by the Central Government, State Government as well as Local Administration for maintaining social distancing, hygiene etc to avoid Novel Corona Virus (COVID -19) pandemic and he will have to install Arogya Setu App, if not already installed.

This order will remain operative for a period of 30 days 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 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.

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 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.

The applicant shall mark his attendant before SHO PS Padav district Gwalior in the first week of every month till conclusion of investigation (pending if any and if charge sheet is being filed, he will mark his presence as per the directions issued by the concerning trial court, failing which, this bail shall stand rejected without reference to the court.

The applicant shall inform the concerned S.H.O. of concerned Police Station about his residential address in the said area and it would be the duty of the Public Prosecutor to send E-copy of this order to SHO of concerned police station as well as Superintendent of Police, concerned who shall inform the concerned SHO regarding the same.

Application stands allowed and stands disposed of.

Applicant shall install Arogya Setu App in his mobile immediately and would intimate his place of residence to the SHO of concerned Police Station; where he resides. Applicant further submit the undertaking to the effect that he will abide by the terms and conditions of different circulars, orders as well as guidelines issued by Central Government, State Government as well as Local Administration for maintaining social distancing, hygiene etc to avoid Novel Corona Virus (COVIC-19) pandemic.

E- copy of this order be provided to the applicant and E-copy of this order be sent to the trial Court concerned for compliance. It is made clear that E-copy of this order shall be treated as certified copy for practical purposes in respect of this order.

CC as per rules.