Madhya Pradesh High Court

Navalsingh Jamod vs The State Of Madhya Pradesh on 3 September, 2021

Author: Vivek Rusia

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                                                       M.Cr.C. No. 41546/2021



HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
     (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)

                       M.Cr.C. No. 41546 of 2021

Applicant :               Navalsingh Jamod S/o. Dhundhar SinghJamod,
                          Aged 62 years, Occupation - Retd., R/o. R 1 X 1,
                          Scheme No.71, Sector C, Indore.
                                  Versus
Respondent :              State of M.P.
                          through Special Police Establishment,
                           Lokayukta, Indore.


Date: 03.09.2021[ Indore]:
      Shri Manu Maheshwari, learned counsel for the applicant.
      Shri R.S. Raghuwanshi, learned counsel for the respondent/SPE
Lokyukta, Indore.
      Heard the learned counsel for the parties.
                               ORDER

This is the first application filed under section 438 Cr.P.C. seeking anticipatory bail by the applicant who is apprehending his arrest in connection with Crime No.459/2014 registered at Police Station, Special Police Establishment, Lokayukta, Indore for offence punishable under Sections 13(1)(e) and 13(2) of the Prevention of Corruption (PC) Act.

As per the prosecution story, the applicant was appointed as District Registrar on 7.6.1981 by way of direct recruitment through M.P. Public Service Commission. In the year 1985 he was married with Smt. Kalpana Jamod. From November 2005 to April, 2006 he was posted Indore and thereafter, on promotion he was posted as Dy. Commissioner, Gwalior. From 2008 to 2011 he remained posted in Jabalpur and thereafter, during the period from 2012 to 2013 he was posted in Bhopal. In the month of September, 2012 till 17.10.2014 he was posted as Divisional Dy. Commissioner, Excise, Indore. A raid was conducted in his house on 17.10.2014 by the Special Police

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Establishment, Lokayukta, Indore followed by registration of offence at Crime No.0/87/2014 u/s. 13(1)(e) and 13(2) of the P.C. Act based on disproportionate assets recovered from his house. After calculating the value of the entire properties, investments, expenditure and cash , bank balance etc. during the check period from 1.5.2010 to 17.10.2014 the assets valued at Rs.37,25,969/- was found after deducting the income from the known source of the income and the expenditure which is 22.72% disproportionate.

After completing the investigation, a notice was issued to the applicant for his appearance before the Special Judge on 3.8.2021 at the time of filing of the charge-sheet before the Special Judge (PC Act). Instead of appearing before the Special Judge, the applicant filed an application u/s. 438 of Cr.P.C. seeking anticipatory bail. Vide order dated 5.8.2021, learned Special Judge has dismissed the application and fixed the date for applicant's appearance before the Court on 31.8.2021. On the said date also, the applicant did not appear, hence arrest warrant has been issued against him, hence the present application u/s. 438 of Cr.P.C. for anticipatory bail.

Shri Manu Maheshwari, learned counsel appearing for the applicant, submits that from the date of registration of the case till the date of filing of the charge-sheet, the applicant was never arrested by the prosecution agency as he was fully cooperating in the investigation. The applicant never created any hurdle or tried to temper with the evidence. Therefore, at stage of filling Final Report (Challan) , his arrest is not mandatory, hence learned court ought to have granted him anticipatory bail . Even the respondent/SPE Lokayukta did not seek arrest for interrogation of the applicant. It is further submitted by the learned counsel that that the disproportionate assets to the extent of 22.72% has been found for which the applicant has valid explanation. The expenditure of wife of

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the applicant has wrongly been taken into consideration. In support of his contention, he has placed reliance over the judgments of the apex Court in the case of Satender Kumar Antil V/s. CBI [SLP(Crl.) No. 5191/2021 decided on 28.7.2021] and in the case of Siddharth V/s. State of U.P. [Cr. Appeal No.838/2021 decided on 16.8.2021. Learned counsel also submits that the applicant has retired from service after attaining the age of superannuation. He is aged about 62 years and no useful purpose would be served in sending him to jail because the trial will take long time to conclude.

On the other hand, Shri R.S. Raghuwanshi, learned counsel appearing for respondent/State, opposes the aforesaid prayer by submitting that the applicant should have appeared before the Court at the time of filing of the charge-sheet instead of filing an application u/s. 438 of the Cr.P.C. Now, the Court has issued the arrest warrant against him, and he is required to file an application u/s. 70(2) of the Cr.P.C. for cancellation of the arrest warrant. The next date of appearance is fixed on 14.9.2021, therefore, the applicant be directed to appear and surrender before the learned Special Judge with an application for regular bail and till then, no protection is liable to be given as held by the apex Court in the case of Nathu Singh V/s. State of U.P. reported in (2021) 6 SCC 64.

I have heard the learned counsel for the parties and perused the record.

It is not in dispute that the criminal case under PC Act was registered against the applicant in the year 2014. The investigation remained pending for seven years and during the said period, the respondent/SPE Lokayukta did not arrest him. There is no allegation that the applicant did not cooperate amid the investigation. At the time of filing of the charge-sheet, only a notice was given to him for his appearance before the Court. The respondent never sought arrest

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for custodial interrogation of the applicant. In the case of Siddharth (supra), the Apex Court has observed that "the trial courts are stated to be insisting on the arrest of an accused as a pre-requisite formality to take the chargesheet on record in view of the provisions of Section 170 of the Cr.P.C. We consider such a course misplaced and contrary to the very intent of Section 170 of the Cr.P.C." In the case of Satender Kumar Antil (supra), the apex Court has observed that "Prima facie, we cannot appreciate why in such a scenario is there a requirement for the petitioner being sent to custody." Hence the Apex Court has protected the petitioner therein from arrest by staying the execution of the non-bailable warrant.

So far as the judgment of the Apex Court in the case of Nathu Singh (supra) is concerned , in the said case also, the Apex Court has observed that in such extraordinary circumstances, when strict case for grant of anticipatory bail is not made out, and rather investigating authority has made out a case for custodial investigation, it cannot be stated that High Court has no power to ensure justice. It is also held that even when the High Court is not inclined to grant anticipatory bail to the accused, there may be circumstances where the High Court is of the opinion that it is necessary to protect the person apprehending arrest for some time, due to exceptional circumstances until they surrender before the trial Court.

As stated above, in this case, the respondent/SPE Lokayukta never sought arrest of the applicant for custodial interrogation. Only an information was sent to the applicant for his appearance before the Court. Under the advice of the counsel the applicant appeared through counsel with an application u/s. 438 of the Cr.P.C. The learned Special Judge has rejected the applicant and issued the non-bailable warrant of arrest for appearance as the summons sent to him returned unserved. Now, as warrant of arrest has been issued,

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therefore, the apprehension of arrest of the applicant is not baseless. Hence, this application u/s. 438 of the Cr.P.C. is very much maintainable before this Court.

In view of the above, the bail application of the applicant is allowed. It is directed that in the event of arrest of the applicant in connection with the aforesaid crime number, he shall be released on bail upon his furnishing personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand) with one surety in the like amount to the satisfaction of the arresting officer. This order shall also be governed by the following conditions: