01
IN THE HIGH COURT OF MADHYA PRADESH AT
GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJEEV KUMAR SHRIVASTAVA
ON THE 9TH FEBRUARY, 2022
MISC. CRIMINAL CASE No. 52903 OF 2021
Between:-
OMPRAKASH BHARGAVA S/0 SHRI
KAILASH NARAYAN BHARGAVA,
AGED ABT: 50 YEARS, R/O VILLAGE
HATLAI, P.S. JIGNA, DATIA (MADHYA
PRADESH
.... APPLICANT
(SHRI AYUSH CHAURASIYA, COUNSEL FOR
APPLICANT)
VS.
1 STATE OF MADHYA PRADESH
THROUGH PS:JIGNA DISTRICT
DATIA (MP)
....RESPONDENTS
2. ARVIND @ RINKU BHARGAVA, S/O.
SHRI BADRIPRASAD BHARGAVA,
R/O. VILLAGE HATLAI, TEHSIL &
DISTRICT DATIA (MP)
(SHRI ALOK SHARMA, PANEL LAWYER FOR
RESPONDENT NO.1/STATE AND SHRI YASH
SHARMA, COUNSEL FOR RESPONDENT NO.2-
ACCUSED)
(Heard through video conferencing)
This application coming on for HEARING this day, the Court
passed the following:
ORDER
Applicant complainant Omprakash Bhargava has filed this application u/S.439(2) CrPC seeking cancellation/recall of order dated 02 01/10/2021 passed by this Court in MCRC No.47678 of 2021 by which respondent No.2-accused Arvind alias Rinku Bhargava has been enlarged on bail.
(2) It is submitted on behalf of applicant complainant that respondent No.2-accused Arvind alias Rinku Bhargava was enlarged on bail by this Court vide order dated 01/10/2021 passed in MCRC No.47678 of 2021. On 21/09/2020, applicant- complainant had lodged a report vide Crime No.192 of 2020 at Police Station Jigna, District Datia for commission of offence under Sections 302, 307, 323, 294, 325, 326, 34 of IPC and Section 25/27 of Arms Act on the allegation that on 21/09/2020 in the morning, applicant complainant along with his brothers, namely, Vivek (deceased), Rajesh and son Rahul was going to the farm and when they reached farm of Murari Lal Shama, at around 06:30 am, all of a sudden, accused Kapil Bhargava, who was having with a gun, accused Dilip who was having a country-made gun, accused Ravi Shankar who was having with a farsa, reached there. Kapil Bhargava fired a gunshot on Vivek (deceased) which hit on his thigh as a result of which bleeding was started. In the meanwhile, accused Bhagwat who was having a sariya, accused respondent No.2 Arvind alias Rinku Bhargava, who was having a sariya and accused Umesh, who was having a 315 bore gun also reached there and thereafter, Bhagwat and respondent No.2- accused Arvind alias Rinku Bhargava caused injuries on the body of applicant by means of sariya and Umesh also caused gunshot fires at 03 applicant causing severe injuries. Thereafter, respondent No.2 accused Arvind alias Rinku Bhargava started beating on the head of applicant by mans of sariya. On seeing Rahul and Rajesh, all accused persons fled away from the place of occurrence and then, PCR was called by dialing 100. Vivek was sent to hospital where he was declared dead. (3) It is submitted on behalf of applicant complainant that respondent no.2- accused was absconded after the incident i.e. 21/09/2020 and remained absconding for a period of nine months and he could be arrested by police on 21/06/2021. In the incident, respondent No.2 Arvind alias Rinku Bhargava has inflicted multiple injuries on various part of body of applicant and also caused stitch wound on the head of applicant by means of iron rod (sariya) with intention to kill him and as per opinion of the doctor, the injuries sustained by the applicant were caused by respondent No.2 by means of hard and blunt object, therefore, the aforesaid act was done by respondent No.2 in furtherance of common intention, wherein Kapil Bhargava is the main accused, who has caused gunshot injuries to deceased Vivek and his bail application was dismissed by this Court vide order dated 17/02/2021 passed in MCRC 7693/2021. Other co- accused Dharmendra Bhargava was enlarged on bail by this Court vide order dated 28/07/2021 passed in MCRC 36681 of 2021 and the case of co-accused Dharmendra Bhargava was different from that of accused respondent No.2 Arvind alias Rinku Bhargava, therefore, respondent No.2 cannot claim parity with co-accused Dharmendra 04 Bhargava. It is further submitted that earlier the bail applications filed on behalf of other co-accused, namely, Bhagwat Bhargava were dismissed by this Court. Respondent No.2 had filed an application for grant of bail on the ground of parity with co-accused Dharmendra Bhargava wherein this Court has observed that Dharmendra Bhargava is the main accused of this case, who has already been granted benefit of bail. Considering the bail application filed by respondent No.2, bail was granted to him but there was no parity and the Court has committed an error in granting bail to respondent No.2 because Kapil Bhargava is the main accused who has caused firearm injuries to deceased Vivek and whose application has already been rejected by this Court vide order dated 17/02/2021 passed in MCRC No. 7693 of 2021. Hence, prayed for cancellation /recall of the bail order dated 01/10/2021 passed by this Court in MCRC 47678 of 2021 by which, respondent No.2 Arvind alias Rinku Bhargava has been given benefit of bail by suppressing the material facts that Dharmendra Bhargava is the main accused. In support of contention, learned counsel for the applicant has relied upon the judgments passed by Hon'ble Supreme Court in the case of Kanwar Singh Meena vs. State of Rajasthan & Another (2012)1 2 SCC 180, Central Bureau of Investigation vs. V. Vijay Sai Reddy (2013) 7 SCC 452, Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana (Koli) and Another (2021) 6 SCC 230 as well as order dated 05/12/2020 passed by a coordinate Bench of this Court in the case of Hemant Gupta vs. State of MP and 05 Another [MCRC 40828 of 2020] and the order dated 07/01/2022 passed in Suo Motu State of MP vs. Meena Pal [MCRC No.64003 of 2021]. It is submitted that the law in regard to cancellation of bail is well-settled in which Hon'ble Apex Court in case of Kanwar Singh Meena (supra) has thrown light on the following aspect:-
"10. Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Session regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant 06 bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this court are much wider, this court is equally guided by the above principles in the matter of grant or cancellation of bail."
(4) Learned counsel for the respondent No.2- accused vehemently opposed the application and submitted that while considering the bail of respondent No.2, parity was not considered by this Court. Rather, considering the merits of case, bail application filed by respondent No.2 was considered and respondent No.2 has not misused the bail and breached of any of conditions subject to which bail was granted to him. Therefore, no occasion arises to cancel the bail and this Court is not having jurisdiction to recall/cancel its own order considering merits of the case. In support of his contention, counsel for the respondent No.2 has relied upon the judgment passed by Hon'ble Supreme Court in the case of Abdul Basit alias Raju & Others vs. Mohd. Abdul Kadir Chaudhary & Another, reported in (2014) 10 SCC 754. Hence, prayed for dismissal of application filed by applicant under Section 439(2) of CrPC.
(5) Heard learned counsel for the parties and perused the record. (6) Section 439(2) CrPC provides for the powers of the High Court and the Court of Session regarding cancellation of bail granted to an 07 accused. Section 439(2) of CrPC runs as under:-
''A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. '' (7) On bare perusal of aforesaid provision of Section 439(2) of CrPC as well as considering the law down by Hon'ble Supreme Court in Abdul Basit alias Raju (supra), it is apparent that the aforesaid jurisdiction has to be exercised by the Court whenever any condition is breached by a particular accused in favour of whom, bail order was passed. Respondent No.2 has not misused the liberty granted to him.
In the present case, the merits of case has been challenged by the applicant, which is beyond the jurisdiction of this Court. Accordingly, this application sans merit and is hereby rejected.
(RAJEEV KUMAR SHRIVASTAVA) JUDGE MKB Digitally signed by MAHENDRA BARIK Date: 2022.02.11 16:53:45 +05'30'