Kundanmal Jain vs State of M.P.

Hon. Mrs. Justice S.R. Waghmare

By this application filed u/s 438 of the Cr.P.C. the applicants Kundanmal and Smt. Deepika have moved the application for grant of anticipatory bail being implicated in Criminal Case No. 244/2012 registered by police station Alot, Distt. Ratlam for offence under Sections 420, 467 & 468 of the IPC. Counsel for the applicants has candidly admitted that this is second application moved u/s 438 of the Cr.P.C.. Counsel submitted that the applicant No. 1 Kundanmal was the owner of the disputed property and his name was noted in the records of the Nagar Panchayat, Alot and civil litigation is being carried out regarding the same and at present a private complaint has been filed and the JMFC, Alot has directed for recording of evidence u/s 200 of the Cr.P.C. Counsel submits that the applicant No. 1 was 90 years of age and sick an infirm person, whereas applicant No. 2 was a woman. Counsel again prayed for grant of anticipatory bail due to the fact that the Govt. Advocate concerned before this Court had made a mis-statement that the land belongs to the State Govt. and cannot be transferred. Counsel submitted that such a finding was contrary to the evidence on record and established principles of law. Counsel submits that time had been granted to the applicants by this Court to surrender before the Trial Court. However, under the circumstances, the Trial Court is not the Competent Court to grant regular bail to the applicants. The Competent Court would be the Court of the A.S.J., Ratlam. Counsel prayed that the application be allowed and anticipatory bail be granted to the applicants.

Counsel for the applicants has also vehemently urged the fact that this second application is maintainable, by placing reliance on Ravindra Saxena Vs. State of Rajasthan [(2010) 1 SCC (Cri) 884] to state that the Apex Court had held that the application for anticipatory bail had been rejected without considering the case of the applicant solely on the ground that challan had been presented. Moreover the High Court ought to have applied its mind to the facts and circumstances of the case especially since the applicant had moved third application for grant of anticipatory bail and the Court had also held that anticipatory bail can be granted at the time so long as the applicant had not been arrested and the matter cannot be left to the Magistrate alone on the ground that challan has been presented. The Apex Court held that the High Court ought to have applied its own mind, whereas the Trial Court can always assess the merits of the evidence and issues at the time of the trial. Thus Counsel prayed for grant of anticipatory bail.

Counsel for the respondent State, on the other hand, has drawn attention to this Court to the fact that in the order dated 06.08.12, this Court had not rejected the application as is being put forth by the Counsel for the applicant. The application was partly allowed and time was granted to surrender to the applicants and the opportunity has not been used by the applicants. Counsel prayed for dismissal of the application since it is not maintainable and the applicants have also not used the liberty granted by this Court to seek bail from the Competent Court.

On considering the above submissions, I find that reliance placed by the Counsel on Ravindra Saxena (supra) is misplaced. This Court has not rejected the application for grant of anticipatory bail in its order dated 06.08.12. Time was clearly granted to surrender before the Competent Court and seek regular bail and hence any order passed on merits would amount to reviewing the order and cannot be permitted under the provisions of law, therefore, the application is without merit. However, considering the fact that applicant No. 1 is an old infirm person, aged 90 years, at the most the only relief can be granted is that of extension of time to surrender to the applicants.

In view of the above, the application is partly allowed to the extent that the applicants shall surrender themselves within a period of 10 days i.e. on or before 5th of September, 2012 before the Competent Court and they shall file application for regular bail from the Competent Court within said period, the application shall be considered forthwith, in accordance with law. I would like to make it abundantly clear that the application for regular bail shall be considered on its own merit by the trial Court. It is also directed that till then the applicants shall not be apprehended or arrested. In case of failure to do so within the said period and the applicants shall be arrested immediately in accordance with the provisions of law without reference to this Court.

With these directions, the application is disposed of. CC as per rules.