Gaurav Yadav vs The State Of Madhya Pradesh
2021 Latest Caselaw 6545 MP

   1      THE HIGH COURT OF MADHYA PRADESH
                   M.Cr.C. No.47332/2021
                Gaurav Yadav Vs. State of M.P.

Gwalior, Dated:20/10/2021

       Shri Avinash Kulshrestha, Advocate for applicant through

video conferencing.

       Shri R.K. Awasthy, Public Prosecutor for respondent/State.

Case diary is available.

This third application under Section 439 of Cr.P.C. has been

filed for grant of bail. Second application was dismissed as

withdrawn by order dated 7/12/2018 passed in M.Cr.C.

No.48952/2018.

The applicant has been arrested on 7/5/2017 in connection with

Crime No.231/2017 registered at Police Station Kotwali Morena for

offence under Section 392 of IPC and Sections 11, 13 of the

MPDVPK, Act.

It is submitted by the counsel for the applicant that although

the first bail application of the applicant was dismissed on merits by

order dated 23/10/2018 passed in M.Cr.C. No.41662/2018, but the

applicant is in jail from 7/5/2017. Although some of the witnesses

have been examined, but he is in jail for the last more than four years

and the trial has not come to an end. To substantiate his submissions,

the counsel for the applicant has also filed copy of the order-sheets of

the Trial Court to show that the witnesses are not appearing.

Per contra, the application is vehemently opposed by the 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.47332/2021 Gaurav Yadav Vs. State of M.P.

counsel for the State. However, the counsel for the State could not

point out any valid reason for delay in trial and non-appearance of the

police witnesses.

Heard learned counsel for the parties.

According to the order-sheets of the Trial Court, on 4/10/2018

a bailable warrant was issued against prosecution witness Satish

Goyal and summons were issued against Naresh Sharma, ASI T.D.

Shukla and Town Inspector Jang Bahadur Singh. The next order-

sheet which has been filed by the applicant is dated 28/11/2019.

According to this order-sheet also, the prosecution witnesses were

absent. The warrant of arrest issued against Jang Bahadur and

bailable warrant issued against Naresh Sharma, who both are police

personnel, were received back unserved. Thereafter, the case was

taken up on 9/1/2020 and on the said date also the bailable warrant

issued against Naresh Sharma and warrant of arrest issued against

Jang Bahadur were received back unserved. On 6/2/2020 although

the prosecution witness Naresh Sharma was present, but the co-

accused Bhupesh did not appear and accordingly, his bail bonds were

forfeited and warrant of arrest was issued. On 6/3/2020 the warrant of

arrest issued against Bhupesh was received back unserved.

Thereafter, on account of covid-19 pandemic, the proceedings came

to a halt and ultimately by order dated 24/11/2020 the warrant of 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.47332/2021 Gaurav Yadav Vs. State of M.P.

arrest was once again issued against the absconding accused

Bhupesh. By order dated 9/12/2020 it was observed that the warrant

of arrest issued against co-accused Bhupesh was not received back

either served or unserved and accordingly, fresh warrant of arrest was

issued. On 29/1/2021 again the warrant of arrest issued against co-

accused Bhupesh was not received back either served or unserved

and accordingly, the case was adjourned to 19/3/2021. On 19/3/2021

a report was submitted that co-accused Bhupesh is detained in Dabra

jail in connection with some other case and accordingly, production

warrant was issued. Thereafter, on 14/6/2021 and 7/7/2021 fresh

production warrants were issued and ultimately on 9/7/2021 the co-

accused Bhupesh was produced in execution of production warrant.

Thereafter, on 28/7/2021 the case was fixed for examination of

prosecution witnesses and bailable warrant of arrest was issued

against Naresh Sharma and warrant of arrest was issued against Jang

Bahadur. Again on 7/8/2021 the police witnesses did not appear.

Under these circumstances, this court is left with no other option but

to release the applicant on bail.

Accordingly, it is directed that the applicant shall be released

on bail on furnishing cash surety of Rs.1,00,000/- (Rupees One

Lack Only) or in the alternative on depositing original title-deed(s)

[not Rin Pustika] of the immovable property worth of more than the 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.47332/2021 Gaurav Yadav Vs. State of M.P.

said amount, as directed by the Supreme Court in the case of Sharo

@ Shahrukh Vs. The State of MP by order dated 06.09.2021

passed in SLP (Cri) No. 6321/2021 to the satisfaction of the Trial

Court/Committal Court to appear before the Court on the dates given

by the concerned Court.

This order shall remain effective till the end of trial but in case

of bail jump, it shall become ineffective.

It is made clear that single default in appearance before the

Trial Court, or in case of registration of new offence, this bail order

shall automatically come to an end and the cash surety so furnished

by the applicant shall automatically stand forfeited without any

reference to the Court.

In the light of the judgment passed by the Supreme Court in the

case of Aparna Bhat and others Vs. State of M.P. Passed on

18.03.2021 in Criminal Appeal No. 329/2021, the intimation

regarding grant of bail be sent to the complainant.

Before parting with this order, this Court would like to express

its anguish on non-execution of bailable warrants as well as warrants

issued against the police personnel themselves. It is really shocking

that in spite of the circulars issued by the Police Headquarter dated

30/3/2019 and 3/4/2019 with regard to continuous monitoring of

summons / bailable warrants / warrants which are being issued 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.47332/2021 Gaurav Yadav Vs. State of M.P.

against the police witnesses, the ground staff is not ready to comply

the said circulars. The Police Department must realize that speedy

trial is the fundamental right of an accused. However, District

Morena is projecting a very sorry state of affairs and is not in a

position to execute bailable warrants / warrants of arrest issued

against its own police personnel. The Police Department cannot take

a defence that they were not in a position to trace out their own police

personnel who are either in service or who might have retired. Even

if a person has retired, still he must be receiving pension and,

therefore, the Police Department must be aware of his latest address.

Non-execution of summons / bailable warrants / warrants simply

indicates that the Police Department is not concerned about the

fundamental rights of the citizen of country as well as in adjudication

of trials and in spite of various orders passed by this Court as well as

the circulars issued by the Police Department, the District Police,

Morena is not interested at all in compliance thereof. It is a high time

when the Police Department must introspect the negligence of its

own police officers.

Accordingly, the Director General of Police, State of M.P.,

Bhopal is directed to look into the matter and to take serious

departmental actions against those erring police officers who have

miserably failed in complying the circulars dated 30/3/2019 and 6 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.47332/2021 Gaurav Yadav Vs. State of M.P.

3/4/2019 issued by the Police Headquarter (Crime Investigation

Department) Bhopal.

So far as the present applicant is concerned, it is the Police

Department only who is responsible for the release of the applicant.

Let a copy of this order be sent to the Director General of

Police, State of M.P., Bhopal for necessary information and

compliance.

With aforesaid observations, the application is allowed.

(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.10.21 15:20:10 +05'30'