Madhya Pradesh High Court
Rajesh Mishra vs The State Of Madhya Pradesh on 28 June, 2021
Author: Akhil Kumar Srivastava
1 MCRC-9720-2021
The High Court Of Madhya Pradesh
MCRC-9720-2021
(RAJESH MISHRA Vs THE STATE OF MADHYA PRADESH)
7
Jabalpur, Dated : 28-06-2021
Heard through Video Conferencing.
Shri Manish Datt, learned Senior Advocate along with Shri N.P.
Varma, learned counsel for the applicant.
Shri D.K. Khare, learned PL for the respondent/State.
Shri Sandesh Dixit, learned counsel for the objector.
Case diary is available with the learned panel lawyer for the State.
This is the third bail application filed by the applicant under Section
439 of the Cr.P.C. for grant of bail in connection with Crime No.255/2019
registered at P.S. Kotwali, District Jabalpur (M.P.) for the offences
punishable under sections 302, 294, 34 of the IPC and under Section 25/27 of
the Arms Act.
The previous applications filed by the applicant were dismissed by this
court as withdrawn.
As per the prosecution story, it is alleged that the present applicant
along with the co-accused persons were abusing the deceased with filthily
obscene words. The present applicant caught hold hands of deceased who
after freeing himself, slapped present applicant and thereafter accused
assaulted him. It is also alleged that accused Rahul and Akki fired a gunshot
on the deceased by means of Pistol which they were carrying in pocket of
their pants and co-accused Roopak had assaulted the deceased by means of
knife which he brought from his hotel and the present applicant assaulted him
by means of bricks, with these allegation FIR was lodged against the present
applicant.
Learned counsel for the applicant submits that the applicant is
innocent and he is in custody since 06.08.2019 and due to Covid situation
Signature Not there is no progress in the trial. It is stated by the learned counsel for the
SAN
Verified
Digitally signed by
RASHMI RONALD
VICTOR
Date: 2021.06.29
17:25:39 IST
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applicant that his name has not been taken by any of the witnesses or by co-
accused persons. It is further submitted that there is no specific allegation
against the present applicant that he has committed murder of the deceased or
had conspired to do so. He has further stated that there is no common
intention of the applicant with the other co-accused as the applicant was not
knowing that the other co-accused were carrying fire arms in their pants and
all of a sudden co-accused Roopak went his hotel and brought a knife. The
only allegation against the present applicant is that he assaulted the deceased
by means of brick. As per the prosecution story, the death of the deceased is
caused by means of gun shot injury and there were gun shot injury on the
body of the deceased. Due to his continuous incarceration, his family
members are suffering from irreparable loss. In support of his contentions,
learned counsel for the applicant has relied on the judgment of Apex Court in
the cases of Dajya Moshya Bhil and others Vs. State of Maharashtra
reported as AIR 1984 SC 1717 and Harbans Nonia and another Vs. State
of Bihar reported as AIR 1992 SC 125. "The Hon'ble Apex Court has
observed that common intention was one of causing grievous hurt. Further
absence of evidence that there was pre-concert of mind of all accused to
commit murder. In the present case there was no intention to commit the
murder of the deceased". On the aforesaid grounds, prayer is made to release
the applicant on bail.
Learned panel lawyer has opposed the submissions made on behalf of
the applicant and prayed for rejection of the bail application. He submits that
there is sufficient evidence available in the case diary against the applicant.
Learned counsel for the objector has vehemently opposes the prayer
for bail, he submits that there is no material change in circumstances or apart
from that it is not a case of sudden provocation, it is case of murder. The
applicant has actively participated in the alleged incident and there is sufficient
evidence in this regard. About common intention, in the alleged incident, the
applicant along with co-accused have caused gunshot and stab injury,
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material witnessed has not been examined with these submissions prayed to
dismiss the application.
Considering rival contention of learned counsels for both the parties,
entire record perused.
Applicant's first bail application was dismissed as withdrawn vide
order dated 20/01/2020 with liberty to renew the prayer after recording of the
material witnesses. Main witness Leo Paul who is said to be eye witness has
been examined. His second bail application was also dismissed as withdrawn,
however, considering the period of custody, the trial Court was directed to
expedite the trial and conclude the same as expeditiously as possible. Due to
second wave of the COVID-19 pandemic that prevailed in between, trial of
the case was hampered and could not proceed.
So far as, the case of the present applicant is concerned, the allegation
against the present applicant is that he assaulted the deceased by means of
brick. It is admitted fact that the death of the deceased was caused by injury
of fire arms. The applicant is in custody since 06/08/2019.
Considering the entire facts and circumstances of the case, nature of
evidence and the role of the applicant, so also the fact that in near future
conclusion of the trial will take time due to prevailing COVID-19 situation,
therefore, under the change circumstances, this Court is of the view that
applicant who has not caused any fatal injury to the deceased may be
enlarged on bail, hence this application is allowed without commenting
anything on the merits of the case. It is ordered that the applicant/accused be
released on bail on his furnishing a personal bond for the sum of Rs.
1,00,000/- (Rs. One Lakh Only) with one solvent surety in the like amount
to the satisfaction of the trial court for securing his presence before the said
Court on all the dates of hearing fixed in this regard during trial.
The prison authorities are also requested to ensure compliance with the
order passed by the Supreme Court in Suo Moto Writ Petition(C) No. 1/2020
and ensure, that the Applicant is examined by the jail doctor before her
release. If the Applicant shows symptoms of COVID 19, the doctor shall
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forthwith direct him to be produced before the appropriate hospital
designated for the detection and treatment of COVID 19 patients. If the
doctor is of the opinion that the Applicant is not affected with the virus, the
jail authorities shall ensure her transportation from the jail till her place of
residence.
This order will remain operative subject to compliance of the following
conditions by the applicant :-
1. The applicant will comply with all the terms and conditions of the
bond executed by him;
2. The applicant will cooperate in the trial;
3. The applicant will not indulge himself in extending inducement, threat
or promise to any person acquainted with the fact 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;
4. The applicant shall not commit any offence during the entire period
of bail.
5. The applicant will not seek unnecessary adjournments during the
trial;
6. The applicant will not leave India without previous permission of the
trial Court;
7. The applicant shall inform the Court about his/her address and
residence in case the applicant moves out from his/her permanent address for
any point of time; and
8. The applicant shall not contact any of the other accused persons in
this case in any manner whatsoever.
This order shall remain effective till the end of the trial but in case of
bail jump and breach of any of the pre-condition of bail, it shall become
ineffective and cancelled without reference to this Bench.
In the event of breach of any of the conditions imposed by this Court,
the complainant/victim/State will be at liberty to move an application for
5 MCRC-9720-2021
cancellation of bail granted today.
Certified Copy on payment of usual charges.
(AKHIL KUMAR SRIVASTAVA)
JUDGE
RS
