Asif vs The State Of Madhya Pradesh
2021 Latest Caselaw 1552 MP

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                                                               MCRC No.15506/2021

         High Court of Madhya Pradesh, Jabalpur
                     Bench at Indore
       Miscellaneous Criminal Case No.15506/2021
                            (Asif s/o Usman Khan
                                     Versus
                         The State of Madhya Pradesh)
Indore, Dated 24.04.2021
      Hearing through Video Conferencing.

      Shri Veer Kumar Jain, learned Senior Counsel along with Shri

Abhishek Tugnawat, learned counsel for the applicant.

      Shri Valmik Shakargayen, learned Panel Lawyer for the re-

spondent / State of Madhya Pradesh.

      Shri Anil Kumar Dawale, learned counsel for the objector /

complainant.

      Heard on IA No.8761/2021, which is an application for correc-

tion of the date of arrest of the applicant, as he was arrested on

31.12.2020

. On due consideration, the same stands allowed and the

amended first page of the bail application be taken on record.

They are heard. Perused the case diary / challan papers.

This is the applicant's second bail application under Section

439 of Criminal Procedure Code, 1973. He is implicated in

connection with Crime No.185/2018 registered at Police Station

Kotwali Mandsaur, District Mandsaur (MP) for offence punishable

under Sections 365, 330, 364-A and 506/34 of the Indian Penal

Code, 1860. His earlier bail application M.Cr.C. No.8591/2021 was

dismissed as withdrawn from this Court on 24.02.2021. The

MCRC No.15506/2021

applicant is in jail since 31.12.2020.

The allegation against the applicant is that he along with other

co-accused persons abducted the complainant on 10.04.2018 and

demanded a sum of rupees one crore from his family members.

Shri Veer Kumar Jain, learned Senior Counsel for the applicant

has vehemently argued before this Court and it is submitted that the

applicant has been falsely implicated in the case which is apparent

from the depositions of the material witnesses including the

complainant Anwar s/o Fakru as also the victim Nahru s/o Fakru

himself who, in a trial which was earlier held against the other co-

accused persons namely Asif s/o Babu and Man Singh have turned

hostile.

Learned Senior Counsel has also drawn attention of this Court

to the depositions of the aforesaid two witnesses to submit that even

in their examination-in-chief, they have not supported the case of the

prosecution and in their cross-examination also, they have

specifically denied the involvement of the present applicant.

Counsel has also drawn the attention of this Court to the

affidavits filed by the complainant Anwar and victim Nahru, who, in

their separately affidavits, have clearly stated that the present

applicant has been falsely implicated in the case and they have no

objection, if this bail application is allowed.

Counsel for the State, on the other hand, has opposed the

MCRC No.15506/2021

prayer and it is submitted that no case for grant of bail is made out,

especially when his earlier application M.Cr.C. No.8591/2021 was

dismissed as withdrawn on 24.02.2021 itself and there is no change

in circumstances.

Heard counsel for the parties and perused the record.

From the record, it is found that the applicant's earlier bail

application M.Cr.C No.8591/2021 was dismissed as withdrawn on

24.02.2021 itself and on perusal of the present bail application, it is

found that it was drafted on 10.03.2021 i.e. after around sixteen days

from his earlier dismissal of the bail application, although the same

was filed on 16.03.2021 itself i.e. within one month of the earlier

dismissal. Although there is no denying the fact that an accused can

file as many bail applications as he pleases, but in the considered

opinion of this Court, such repeat application must be on some

reasonable ground other than that that there is a change of the

arguing counsel.

A perusal of the facts and grounds of this bail application also

reveals that it has been filed rather haphazardly by the counsel for

the applicant, as if he had to catch a train. Even the date of arrest

was not mentioned, although subsequently another application was

filed to amend the same. In the bail application also, there is no

mention as to what are the changed circumstances and most

importantly, why the applicant was absconding after the date of

MCRC No.15506/2021

incident, has also not been pleaded specially when the incident took

place on 09.04.2018 and he was arrested on 31.12.2020 i.e. after

around 2 years and 8 months. It appears that the applicant was

waiting for the fate of the other co-accused persons who were earlier

arrested, as admittedly, the said trial has resulted in acquittal as the

material witnesses have turned hostile. It is also found that despite

submitting that the other two co-accused persons have already been

acquitted, learned counsel for the applicant has not taken care to file

the judgment of acquittal of the other co-accused persons. The order

of lower Court also reveals that the applicant was arrested in some

other offence and subsequently he has been arrested in the present

case as well. The bail application is also silent as to under which

other offence he was arrested. From the affidavits filed by the

complainant Anwar and victim Nahru, it is apparent that the

applicant has already influenced the witnesses to depose in his

favour, even before the trial has commenced against him.

In the said factual backdrop, in the considered opinion of this

Court, the practice adopted by the applicant to ensure his release

from the Jail is highly deprecated. If such practice is allowed, then it

would only encourage other such hardened criminals to adopt the

same, because, after committing any offence, they would abscond

and allow the trial to commence against the arrested other co-

accused persons and after the witnesses have turned hostile, they

MCRC No.15506/2021

would surrender and claim that the witnesses have already turned

hostile and have not supported the case of the prosecution. This

practice, which mocks at the present process of dispensation of

justice, cannot and would not be allowed to prevail and must be

discouraged.

A perusal of the case diary also reveals that in a written

complaint the complainant Anwar and after his recovery, victim

Nahru had named the applicant and another accused to be the main

culprits and a detailed investigation has also ensued resulting in

filing of the charge sheet, citing as many as 29 witnesses. It is also

found that the complainant Nahru, at the time when he was

recovered from a Jungle, had various injuries on his body, but both

the complainant Anwar and victim Nahru have turned hostile,

resulting in the acquittal of the other co-accused persons resulting in

total wastage of human resources which include the time and energy

of the department of police, the courts as also the witnesses, to say

the least of the huge financial burden on the State to prosecute. And,

this is just one of such umpteen number of cases.

In the considered opinion of this court, it is high time that

legislature must come out with a solution that in each and every case

some responsibility be also fixed on the complainants/victims as well

and they must know that their complaint, if turned out to be false, is

not without consequences, as at present the penal provisions

MCRC No.15506/2021

regarding perjury viz., s.191 which provides for the ingredients of

false evidence and s.193 which provides for the punishment for false

evidence are totally inadequate to tackle the situation and are hardly

resorted to by the courts.

In view of the aforesaid discussion, the application being

absolutely without merit is hereby dismissed.

Let a copy of this order be sent to the Secretary, Legislative

Department, Ministry of Law and Justice, Government of India

through e-mail for their information and necessary action. A copy of

the order be also sent to the Office of the Advocate General, Indore

for information and necessary action.

(Subodh Abhyankar) Judge Pithawe RC

RAMESH CHANDRA PITHWE 2021.05.01 15:17:55 +05'30'