Kamlesh and Santosh vs State of M.P.

Hon''ble Mrs. Justice S.R. Waghmare

By this application filed u/s 438 of the Cr.P.C. the applicants Kamlesh and Santosh have moved the application for grant of anticipatory bail being implicated in Crime No. 22/12 registered by police station Silawad, Distt. Barwani for offence under Sections 120(B), 409, 420, 467, 468 & 471 of the IPC. Counsel for the applicants has vehemently urged the fact that although this is second application moved on behalf of the applicants for grant of anticipatory bail, the applicants were entitled to the same; primarily, because in the three other criminal cases bearing Crime No. 46/2012 at P.S. Pati, Crime No. 23/2012 at P.S. Selavad, Crime No. 128/2012 at P.S. Barwani, all the offences were registered u/Ss. 409, 420, 467, 468, 471 of the IPC, in all these above cases the applicants have been granted anticipatory bail with a direction to deposit Rs. 6 lacs each. Counsel has vehemently urged that the applicant is being deprived the benefit of these orders since in the present case also under the similar facts and circumstances of the case the applicants are entitled to the same relief as granted in the miscellaneous case cited above. However, this Court had earlier rejected the application in M.Cr.C. No. 2837/12 because these orders have been passed only subsequently and now on the grounds of parity the applicants were entitled to the relief. Counsel relied on Imratlal Vishwakarma and others v. State of M.P. [1996 JLJ 642] and Yuvraj Gaud Vs. State of Madhya Pradesh and Another, , Ravindra Saxena Vs. State of Rajasthan [ 2010 (1) SCC (Cri) 884] to state that the second application u/s 438 of the Cr.P.C. was also maintainable. Counsel vehemently urged the fact that the Court had held that principle of res judicata is not applicable in such a matter especially if fresh grounds have been made out. "The Court held that the second application u/s 438 of the Cr.P.C. cannot be jettisoned on technicalities such as challan having been filed and that anticipatory bail cannot be granted." Counsel prayed that the application be allowed.

Counsel for the respondent State, on the other hand, has opposed the submissions of the Counsel for the applicants and has stated that the earlier order was passed on merits and no sympathy is called for since this Court had found that three other punishable offences had been registered against this applicants and the allegations pertain to below standard construction work and custodial interrogation is required. Counsel prayed for dismissal of the application.

On considering the above submissions and looking to the nature of the allegations, I find that the Apex Court has observed that mechanical detention should be demoted and public justice is to be promoted and deprivation of freedom by refusal of bail should not be for punitive purpose only. Moreover in the instant case anticipatory bail has already been granted to the applicants and other co-accused by a direction to pay Rs. 6 lacs each. There is no other ground for refusal to grant the same benefit to the applicants. The application is, therefore, allowed subject to the following conditions.

It is directed that the applicants shall deposit a sum of Rs. 6,00,000/- (Rupees Six lacs only) each before the learned Court below and join the investigation and co-operate with the investigating agency. It is directed that in the event of arrest, the applicants shall be released on bail for the period of 30 days (thirty days) upon their furnishing personal bond to the tune of Rs. 25,000/- (Rupees Twenty five thousand only) each with one surety in the like amount to the satisfaction of the Arresting Officer for their further appearance as and when directed.

The applicants shall apply for regular bail within the aforesaid period of 30 days which shall be dealt with forthwith by the trial Court in accordance with law. It is also directed that the applicants shall abide by all the conditions enumerated u/s 438(2) of the Cr.P.C.