Sunil Gour vs The State Of Madhya Pradesh
2022 Latest Caselaw 16147 MP

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                            IN    THE       HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                     BEFORE
                                       HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                              ON THE 6 th OF DECEMBER, 2022
                                         MISC. CRIMINAL CASE No. 51434 of 2022

                      BETWEEN:-
                      SUNIL GOUR S/O LATE SHRI SHIV NARAYAN GOUR, AGED
                      ABOUT 57 YEARS, OCCUPATION: JOB R/O NEAR KALI
                      VISHWANATH MANDIR ADARSH NAGAR NARMADAPURAM
                      DISTT. NARMADAPURAM (MADHYA PRADESH)

                                                                                              .....PETITIONER
                      (BY SHRI J.L.SONI - ADVOCATE)

                      AND
                      THE STATE OF MADHYA PRADESH THROUGH P.S. KOTWALI
                      DISTRICT NARMADAPURAM (MADHYA PRADESH)

                                                                                            .....RESPONDENTS
                      (BY SHRI L.A.S.BAGHEL - DY.GOVERNMENT ADVOCATE)

                            T h is application coming on for admission this day, t h e cou rt passed the
                     following:
                                                              ORDER

This is the first application filed under Section 438 of the Code of Criminal

Procedure on behalf of the applicant for grant of anticipatory bail.

The applicant is apprehending his arrest in connection with Crime No.156/2011 registered at Police Station Kotwali District Narmadapuram for the offence punishable under Sections 420, 467, 468, 171 and 120-B of IPC.

Counsel for the applicant submits that FIR was lodged against present applicant and other co-accused persons alleging that co-accused Suraj Bali obtained a home loan to the tune of Rs.2,75,000/- from HUDCO and fabricated certain documents. The allegation against the present applicant is that he being an Engineer submitted the Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/7/2022 3:36:57 PM

valuation report of property which was being purchased by them. As per the prosecution, all the accused persons colluded with each other and obtained a loan on the basis of fabricated documents. It is submitted by counsel for the applicant that present applicant remained absconding and was not arrested by the police as he was beyond their reach. He submits that charge sheet was filed under Section 299 of Cr.P.C in respect of present applicant and thereafter Court proceeded further and recorded the statement of witnesses and judgment was passed on 04/07/2022 in respect of the accused who were appearing and participating in the trial. In the said judgment passed by the Sessions Court some of the accused persons have been convicted and some of them have been acquitted. However, in respect of two accused persons the present applicant and one

P.L.Pawar, no judgement has been passed as against them permanent arrest warrant has been issued. Counsel for the applicant has tried to establish that there was sufficient reason for not attending the trial but in view of the settled principle of law when charge- sheet is produced under Section 299 of Cr.P.C and court recorded the statement of witnesses presuming that there is no possibility of arrest of the accused then bail application under Section 438 of Cr.P.C cannot be considered.

Per contra, counsel for State submits that in the circumstances when charge-sheet has been filed under Section 299 of Cr.P.C treating the present applicant as absconder, the bail application under Section 438 is not maintainable. He relied upon a judgment passed by the Gwalior Bench of this Court in Bhupendra Singh Vs. The State of Madhya Pradesh vide order dated 21/12/2017 in M.Cr.C.No.24897/2017, in which the bail under Section 438 of Cr.P.C has been refused on the ground that charge-sheet has beenfiled treating the accused absconding and that order has finally affirmed by the Supreme Court. On relying upon the order passed by the Supreme Court the Gwalior Bench of this Court further passed an order on 09/09/2020 in M.Cr.C.No.32950/2020 Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/7/2022 3:36:57 PM

(Gaurav Malviya Vs. State of M.P).

Considering the submissions made by counsel for parties and the orders passed by Co-ordinate Bench in M.Cr.C.No.32950/2020 and M.Cr.C.No.24897/2017 which has been later on affirmed by Supreme Court, this Court does not deem it appropriate to grant benefit of Section 438 of Cr.P.C to the applicant. The bail application is accordingly rejected.

(SANJAY DWIVEDI) JUDGE sushma

Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/7/2022 3:36:57 PM