Rakesh vs The State Of Madhya Pradesh
2021 Latest Caselaw 6594 MP

  HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
                           M. Cr. C. No.44775/2021
               (Rakesh S/o Vishnu Prasad Parmar Vs. State of M. P.)
                                      -1-
Indore, dated 21/10/2021

         Mr. Manish Yadav, learned counsel for the applicant.

         Ms. Seema Maheshwari, learned Panel Lawyer for the respondent /

State.

This is the second bail application under Section 439 of Cr.P.C.

Earlier bail application i.e. M.Cr.C.No.31200/2021 was dismissed on merits

vide order dated 06/07/2021. The applicant is in custody since 31/05/2021

in connection with Crime No.160/2021 registered at Police Station -

Sunera, District Shajapur for the offence punishable under Section 306 of

the Indian Penal Code, 1860.

As per prosecution story, applicant is the husband of deceased Puja

Parmar. Their marriage was solemnized about four years ago. It is alleged

that the deceased was being harassed by her husband / applicant due to

unable to conceive. Soon before the death, on account of harassment, she

committed suicide in her marital home by hanging herself. Therefore, the

crime has been registered under 306 of the IPC against the present

applicant.

Learned counsel for the applicant submits that applicant is innocent

person and he has been falsely implicated in this offence. He has not done

anything wrong with the deceased. The applicant is in custody since

31/05/2021. Conclusion of the trial is likely to take sufficient long time. The

applicant is the sole bread earner of his family. Applicant's first bail

application has been rejected by this Court vide order dated 06/07/2021 but

after passing the earlier bail order, father of the deceased Tejulal (PW-2)

and mother of the deceased Geeta Bai (PW-1) have been examined before HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE M. Cr. C. No.44775/2021 (Rakesh S/o Vishnu Prasad Parmar Vs. State of M. P.)

the trial Court and there are so many contradictions and omissions in their

statements. Therefore, their statements cannot be relied upon. In view of

the material change in the circumstances, the applicant deserves to be

enlarged on bail. Hence, he prays for applicant be released on bail on such

terms and conditions, as this Court deems fit and proper.

Per contra, learned Panel Lawyer for the respondent - State opposes

the bail application and prays for its rejection by submitting that applicant's

earlier bail application was rejected on merit and there is no material

changes in the circumstances, which entitles the applicant for grant of bail.

Considering all the facts and circumstances of the case, nature and

gravity of offence, arguments advanced by the learned counsel for the

parties and also taking note of the fact that mother of deceased Geeta Bai

(PW-1) and father of the deceased Tejulal (PW-2) have been examined

before the trial Court and they are not turned hostile. It may be possible that

there are some contradictions and omissions in their testimony but the fact

remains that the prosecution evidence is still continuing before the trial

Court.

The Hon'ble apex Court in the case of Satish Jaggi Vs. State of

Chattisgarh and Others (Appeal (Crl.) No.651 of 2007, decided on

30/07/2007) has held as under:-

"The learned Chief Justice recorded that among the witnesses examined on behalf of the prosecution to prove the charge of criminal conspiracy against the accused, PW-97 and PW-100 have categorically denied that they were present in the meeting alleged to have held on 21/05/2003 at the Hotel Green Park. He has also observed that PW-126 has stated that he ws not at all in Raipur on 21/05/2003. He says that only isolated evidence in support of the charge is that of PW-85 but it was suggested that his testimony is unreliable not only in view of the evidence of PW-73 but also for the reason that PW-85 has a HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE M. Cr. C. No.44775/2021 (Rakesh S/o Vishnu Prasad Parmar Vs. State of M. P.)

motive to falsely involve the accused in the commission of the offence.

Learned Chief Justice has further noted in paragraph 20 that the evidence so far adduced by the prosecution does not appear to prove the case of the prosecution that Ram Avtar Jaggi was murdered by Chiman Singh in pursuance of a conspiracy hatched in the meeting held on 21/05/2003 at the Hotel Green Park, Raipur. He further goes on to state that the two eye- witnesses, namely, Abdul Jameel Khan and Banke Bihari, who were examined to prove the above charge have turned hostile in Court. He further observed that the conspiracy theory propounded by the prosecution against the accused stands shattered.

In paragraph 21 of the judgment, he further observed that from the quality of the evidence so far adduced by the prosecution to prove the charge of criminal conspiracy in the murder of Ram Avtar Jaggi by Chiman Singh in pursuance of that criminal conspiracy, it cannot be said that there is a prima facie evidence against the applicant-accused to prove his involvement in the alleged crime.

In paragraph 24 of his judgment, the learned Chief Justice observed that only evidence of PW-85 regarding criminal conspiracy attributed to the accused is suspicious and tenous and the same stands contradicted by the evidence of the witnesses PW-126 and PW-73. He further observed that there is no corroboration to the testimony of PW-85.

On the aforesaid reasoning, the learned Chief Justice thought it fit to grant bail. Mr. A.K. Ganguly, learned senior counsel appearing on behalf of the appellant-complainant, Mr. Amarendra Sharan, learned ASG appearing on behalf of the CBI and Mr. Rajiv Datta, learned senior counsel appearing on behalf of the State of Chhattisgarh strenuously contented that having regard to the observations and findings of the learned Chief Justice as recorded above, it clearly show that the learned Chief Justice while granting bail to the accused virtually decided the case on merit which amounts to acquitting the accused of the criminal charge levelled against him without trial. Per contra, Mr. Vivek Tankha, learned senior counsel contended that now evidence is closed so there is no question of accused tampering with the prosecution witnesses or fleeing from justice. He further contended that now the arguments in the case has finally started and the arguments of the prosecution are over and only the defence is to give its reply. He, accordingly, contended that the bail granted by the learned Chief Justice need not be disturbed.

Normally in the offence of non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE M. Cr. C. No.44775/2021 (Rakesh S/o Vishnu Prasad Parmar Vs. State of M. P.)

nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the Court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial.

In the present case, the findings recorded by the learned Chief Justice, as referred to above, virtually amounts to the regular trial pointing out the deficiency and reliability/credibility of prosecution evidence. Such findings recorded at the stage of consideration of bail, in our view, cannot be allowed to sustain."

As per the principles laid down by the Hon'ble apex Court in the

aforesaid case, this Court can only go into the question of prima-facie case

established for granting bail. At the stage of consideration of the bail, this

Court cannot go into the question of credibility and reliability of the

witnesses put up by the prosecution. After rejecting the applicant's earlier

bail application on merits, there is no material changes in the

circumstances. Hence, the applicant is not entitled for grant of bail.

Accordingly, this second bail application filed under Section 439 of

Cr.P.C. on behalf of the applicant is hereby dismissed.

Certified copy as per rules.

(ANIL VERMA) JUDGE Tej

Digitally signed by TEJPRAKASH VYAS Date: 2021.10.21 17:50:00 -07'00'