Kamal vs The State Of Madhya Pradesh
2021 Latest Caselaw 1759 MP

                                                                        1                            MCRC-15639-2021
                                            The High Court Of Madhya Pradesh
                                                      MCRC-15639-2021
                                                          (KAMAL Vs THE STATE OF MADHYA PRADESH)


                                   Indore, Dated : 04-05-2021
                                           Ms Sadhna Pathak, learned counsel for the applicant.

                                           Ms Soumya Maru, learned Panel Lawyer for the respondent/State.

Heard through Video Conferencing.

This is third repeat bail application under Section 438 of Cr.P.C for grant of anticipatory bail. The applicant apprehends his arrest in connection

with Crime No. 430/2020 registered at Police Station, Maheshwar Distt. Khargone, for the offence punishable under Section 34(2) of M.P. Excise Act.

His first application was dismissed by order dated 18.01.2020 passed in M.Cr.C. No. 1886/2021. The order so passed is quoted below:

"Learned counsel for the applicant prays for withdrawal of this bail application with a liberty to surrender the applicant before the trial Court and to move an application for regular bail."

His second bail application was dismissed on merits by order dated 27.02.2020 passed in M.Cr.C. No. 7791/2021 quoted below:

"The first application was dismissed on 18.01.2021 in M.Cr.C. no. 1886/2021 on the request of applicant seeking liberty to surrender before the trial Court and apply for regular bail. As a matter of fact once a liberty has been sought for to surrender before the trial Court and apply for regular bail, in the opinion of this Court, on same set of facts and circumstances as existed on the date of withdrawal of the first application is not entertained when there is no change circumstances in the material collected by the prosecution. That too, the second application sought to be pressed on the premise that by a notarized agreement applicant said to have entered an agreement with co-accused Dines Patil allegedly selling his vehcile vide registration No. MP-11-T-0287.

It is a case of 436 bulk litres of liquor was seized form the said vehicle kept unauthorizedly and illegaly. During investigation co-accused Signature Not Verified SAN

Dinesh was apprehended and in his memo under Section 27 of the Evidence Digitally signed by SEHAR HASEEN Date: 2021.05.05 10:37:48 IST 2 MCRC-15639-2021

Act, he has disclosed the name of the present applicant as owner of the vehicle. The applicant does not dispute about being registered owner as on the date of commission of offence. However, the applicant tried to avoid the liability to prove the alleged crime. Till date in the record of Road Transport Officer the name of the applicant continues to be registered owner. Under such circumstances no credence can be attached to such

agreement in the matter of consideration of instant application. The application is dismissed on merits."

Learned counsel for the applicant relying upon the judgment of Division Bench of this Court in the case of Imartilal Vishwakarma Vs. State of M.P. reported in 1996 MPLJ 662 contends that instant application is pending despite dismissal of earlier applications filed u/S 438 Cr.P.C.

This Court has carefully perused the judgment relied upon by counsel for the applicant. In the considered opinion of this Court, the facts in hand are distinguishable from the factual matrix in hand before the Division Bench(supra), in as much as, in the said Judgment, the Division Bench has ruled that if an application u/S 438 Cr.P.C. has been dismissed, that shall not cause any bar for the applicant to apply afresh u/S 438 Cr.P.C. The view of learned Single Judge that after dismissal of the first bail application u/S 438 Cr.P.C., the applicant has only two options i.e. either to surrender and apply for regular bail or to approach the Supreme Court has not been held to be a good law. There is no dispute with the principle of law reiterated in the said judgment by the Division Bench.

In the instant case, the first application was in fact withdrawn by the applicant seeking liberty to apply for regular bail before the trial Court.

In the aforesaid context, this Court granted liberty to the applicant to apply for regular bail and directed the trial Court that if the applicant surrenders within fifteen days from the date of passing of the order and submits an application for regular bail, the same shall be decided expeditiously, as far as possible on the same day. Under these circumstances, Signature Not Verified SAN this Court is of the view that the aforesaid judgment is of no assistance to the Digitally signed by SEHAR HASEEN Date: 2021.05.05 10:37:48 IST 3 MCRC-15639-2021 applicant in the instant case.

That apart, the incident is of 11.11.2020 and the applicant remained absconding. The second detailed order (supra) on merits is referred to and relied upon while declining interference in the instant application also.

Before parting with the case, it is observed that still if the applicant approaches the trial Court to surrender and files an application for regular bail, the trial Court shall consider the application as early as possible, preferably on the same day.

With the aforesaid observation, present bail application u/S 438 Cr.P.C. is dismissed.

(ROHIT ARYA) JUDGE

sh

Signature Not Verified SAN

Digitally signed by SEHAR HASEEN Date: 2021.05.05 10:37:48 IST