Kamal Kumar vs The State Of Madhya Pradesh
2021 Latest Caselaw 2014 MP

M.Cr.C. No.24503/2021                                                    1



   HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE

                        M.Cr.C. No.24503/2021
           Kamal Kumar v/s The State of Madhya Pradesh
Indore, dated 24.05.2021
        Shri Rajesh Pancholi, learned counsel for the applicant.
        Shri Harshwardhan Sharma, learned Panel Lawyer for the
respondent / State.

With the consent, finally heard.

This is the first application filed by the applicant / accused under Section 438 of the Code of Criminal Procedure, 1973 for grant of anticipatory bail. The applicant is apprehending his arrest in connection with Crime No.59/2021 registered at Police Station - Pipliamandi, District - Mandsaur for the offences registered under Sections 420, 409 and 120-B of the Indian Penal Code.

Learned counsel for the applicant submits that the applicant is son of Thakur Prasad, who has been granted anticipatory bail in M.Cr.C. No.13694/2021 decided on 01.04.2021 (Annexure-P/7). Learned counsel for the applicant submits that as per Section 221 of the Contract Act, the applicant being an agent had a lien on principal's property. If he retains the property for want of payment from co-operative Society, it does not constitute any offence whatsoever. It is further argued that at best the dispute between the parties is contractual / civil in nature. The respondent has entire incriminating material with him. The applicant cannot flee from justice. Applicant was made to sign an affidavit under pressure / coercion on 07.12.2020. Even as per

this affidavit (Annexure-A/3), the amount quantified and required to be paid was Rs.3,32,69,788/-. Thereafter, the Vipnan Sangh itself passed an order dated 23.01.2021 and adjusted the aforesaid amount shown in the affidavit. However, it is mentioned that after adjustment, the applicant is still required to pay Rs.1,31,27,157.88. Shri Pancholi submits that there is no break up, calculation on the basis of which this magic figure is arrived at. The applicant will co-operate with the investigation and will not tamper with evidence or material. Hence, he may granted anticipatory bail because extra judicial confession has no evidentiary value.

The prayer is opposed by learned Panel Lawyer for the respondent / State by contending that (i) investigation is going on which will show whether officers of Vipnan Sangh were also involved in the transaction (ii) Section 221 of the Contract Act permits the agent to retain the material with him but does not permit him to distribute the material to unauthorized person.

This Court in the case of Thakur Prasad (supra) recorded as under:-

"This is the first application filed by the applicant/accused under Section 438 of Cr.P.C for grant of anticipatory bail. The applicant is apprehending his arrest in connection with Crime No.59/2021 registered at Police Station, Pipliamandi, distt. Mandsaur for the offences registered under Section 420, 409, 120-B of IPC.

Learned counsel for applicant submits that applicant is a senior citizen aged about 61 years. He is working as a Peon and has an unblemished service record. The applicant has been falsely implicated in a contractual/civil dispute which arose between his son and the complainant Co-operative Society. The Society aforesaid was not paying the contractual amount to his son

for a long time. The applicant's son being an agent/ carrieer of goods has lien over the goods of Co-operative Society and has a right to retain the goods in case of non payment of his dues by the Society. The reliance is placed on Sec.221 of the Contract Act which deals with agents lien on principals property. Learned counsel further submits that the dispute between the parties is civil in nature and document dated 23/1/2021 (Annexure A/4) clearly shows that most of the amount has already been settled/adjusted. The applicant is arraigned on the basis of an affidavit dated 7/12/2020 which has been procured by prosecution agency from his son under threat/coercion. The FIR was lodged on 19th February, 2021. There is a considerable delay in lodging the FIR. The affidavit obtained under pressure, by no stretch of imagination has any evidentiary value. Extra judicial confession is of no evidentiary value. The applicant will participate in the investigation and will co-operate with trial (if any). He may be given anticipatory bail. In support of his submission, learned counsel has placed reliance upon the judgments of Apex Court in case of SomaBhai Vs. State of Gujarat (1975) 4 SCC 257, State of MP through CBI & Ors. Vs. Paltan Mallah & Ors (2005) 3 SCC 169, Siddharam Satlingappa Mhetre Vs. State of Maharashtra & ors (2011) 1 SCC 694, Kapil Agarwal & Ors. Vs. Sanjay Sharma & Ors 2021 SCC OnLine SC 154, Manoj Kumar Sood & Anr. Vs. State of Jharkhand passed in SLP(Crl.) No.1274/2021 on 19/3/2021 and judgment of this Court in Shiva @ Shivlal & another Vs. State of MP 2009(5) MPHT 424(DB).

The prayer is opposed by learned PL. He fairly submits that the applicant has been arraigned on the basis of affidavit of his son wherein his name is taken by his son.

The Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 has laid down the broad factors and parameters for the purpose of deciding an anticipatory bail. The same are as under:-

"112. (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from

justice;

(iv) The possibility of the accused's likelihood to repeat similar or other offences;

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record."

(emphasis supplied) If present matter is tested on the anvil of

parameters laid down in aforesaid case, it will be clear that; (i) applicant is a senior citizen and has no criminal record; (ii) applicant being an employee will not be able to flee from justice; (iii) there is no material to suggest that applicant will commit another crime; (iv) the applicant will not be able to influence the evidence/material. Considering the aforesaid, in my opinion it is a fit case where anticipatory bail can be granted to the applicant. Thus, without expressing any opinion on the merits of the case, I deem it proper to enlarge the applicant on bail. Hence, this application for grant of anticipatory bail is allowed.

Accordingly, in the event of arrest, the applicant Thakur Prasad be released on anticipatory bail on his furnishing personal bond in the sum of Rs.50,000/- (Rupees fifty thousand only) along with one surety in the like amount to the satisfaction of arresting officer for his appearance before the Investigating Officer during the course of investigation as and when directed. Conditions of Section 438(2) Cr.P.C shall also apply on the applicant during currency of bail. The application stands disposed of.

If present applicant's case is tested on the parameters laid down by the Supreme Court in the case of Siddharam Sadingappa Mehtre (supra) it will be clear that (i) the applicant will not be able to flee from justice (ii) it cannot be said that arrest is the last option because applicant is willing to co-operate with the investigation. In view of the fact that incriminating material is having documentary foundation and prosecution agency is custodian of such record, it is not a case where it can be said that arrest of accused is imperative in the facts and circumstances of this case. Resultantly, I deem it proper to grant anticipatory bail to the applicant. It shall be duty of the applicant to co-operate with the investigation failing which it would be open to the respondent to file an application for cancellation of

bail. Accordingly, the application for grant of anticipatory bail is allowed.

In the event of arrest, the applicant - Kamal Kumar S/o Thakur Prasad be released on anticipatory bail on his furnishing personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety in the like amount to the satisfaction of arresting officer for his appearance before the Investigating Officer during the course of investigation as and when directed. Conditions of Section 438(2) of the Cr.P.C. shall also apply on the applicants during currency of bail.

With the aforesaid, the application stands disposed of. Certified copy, as per Rules.

(SUJOY PAUL) V. J U D G E Ravi Digitally signed by RAVI PRAKASH Date: 2021.05.24 15:12:46 +05'30'