Omprakash Bhargava vs The State Of Madhya Pradesh
2022 Latest Caselaw 1809 MP

                                 01

      IN THE HIGH COURT OF MADHYA PRADESH AT
                            GWALIOR
                             BEFORE
 HON'BLE SHRI JUSTICE RAJEEV KUMAR SHRIVASTAVA
                 ON THE 9TH FEBRUARY, 2022
          MISC. CRIMINAL CASE No. 52903 OF 2021
  Between:-
  OMPRAKASH BHARGAVA S/0 SHRI
  KAILASH     NARAYAN     BHARGAVA,
  AGED ABT: 50 YEARS, R/O VILLAGE
  HATLAI, P.S. JIGNA, DATIA (MADHYA
  PRADESH
                                                   .... APPLICANT

   (SHRI AYUSH CHAURASIYA, COUNSEL FOR
   APPLICANT)
   VS.

  1 STATE OF MADHYA PRADESH
  THROUGH    PS:JIGNA DISTRICT
  DATIA (MP)
                              ....RESPONDENTS

  2. ARVIND @ RINKU BHARGAVA, S/O.
  SHRI BADRIPRASAD BHARGAVA,
  R/O. VILLAGE HATLAI, TEHSIL &
  DISTRICT DATIA (MP)

  (SHRI ALOK SHARMA, PANEL LAWYER FOR
  RESPONDENT NO.1/STATE AND SHRI YASH
  SHARMA, COUNSEL FOR RESPONDENT NO.2-
  ACCUSED)
           (Heard through video conferencing)

      This application coming on for HEARING this day, the Court

passed the following:

                              ORDER

Applicant complainant Omprakash Bhargava has filed this

application u/S.439(2) CrPC seeking cancellation/recall of order dated

01/10/2021 passed by this Court in MCRC No.47678 of 2021 by

which respondent No.2-accused Arvind alias Rinku Bhargava has

been enlarged on bail.

(2) It is submitted on behalf of applicant complainant that

respondent No.2-accused Arvind alias Rinku Bhargava was enlarged

on bail by this Court vide order dated 01/10/2021 passed in MCRC

No.47678 of 2021. On 21/09/2020, applicant- complainant had

lodged a report vide Crime No.192 of 2020 at Police Station Jigna,

District Datia for commission of offence under Sections 302, 307,

323, 294, 325, 326, 34 of IPC and Section 25/27 of Arms Act on the

allegation that on 21/09/2020 in the morning, applicant complainant

along with his brothers, namely, Vivek (deceased), Rajesh and son

Rahul was going to the farm and when they reached farm of Murari

Lal Shama, at around 06:30 am, all of a sudden, accused Kapil

Bhargava, who was having with a gun, accused Dilip who was having

a country-made gun, accused Ravi Shankar who was having with a

farsa, reached there. Kapil Bhargava fired a gunshot on Vivek

(deceased) which hit on his thigh as a result of which bleeding was

started. In the meanwhile, accused Bhagwat who was having a sariya,

accused respondent No.2 Arvind alias Rinku Bhargava, who was

having a sariya and accused Umesh, who was having a 315 bore gun

also reached there and thereafter, Bhagwat and respondent No.2-

accused Arvind alias Rinku Bhargava caused injuries on the body of

applicant by means of sariya and Umesh also caused gunshot fires at

applicant causing severe injuries. Thereafter, respondent No.2 accused

Arvind alias Rinku Bhargava started beating on the head of applicant

by mans of sariya. On seeing Rahul and Rajesh, all accused persons

fled away from the place of occurrence and then, PCR was called by

dialing 100. Vivek was sent to hospital where he was declared dead.

(3) It is submitted on behalf of applicant complainant that

respondent no.2- accused was absconded after the incident i.e.

21/09/2020 and remained absconding for a period of nine months and

he could be arrested by police on 21/06/2021. In the incident,

respondent No.2 Arvind alias Rinku Bhargava has inflicted multiple

injuries on various part of body of applicant and also caused stitch

wound on the head of applicant by means of iron rod (sariya) with

intention to kill him and as per opinion of the doctor, the injuries

sustained by the applicant were caused by respondent No.2 by means

of hard and blunt object, therefore, the aforesaid act was done by

respondent No.2 in furtherance of common intention, wherein Kapil

Bhargava is the main accused, who has caused gunshot injuries to

deceased Vivek and his bail application was dismissed by this Court

vide order dated 17/02/2021 passed in MCRC 7693/2021. Other co-

accused Dharmendra Bhargava was enlarged on bail by this Court

vide order dated 28/07/2021 passed in MCRC 36681 of 2021 and the

case of co-accused Dharmendra Bhargava was different from that of

accused respondent No.2 Arvind alias Rinku Bhargava, therefore,

respondent No.2 cannot claim parity with co-accused Dharmendra

Bhargava. It is further submitted that earlier the bail applications filed

on behalf of other co-accused, namely, Bhagwat Bhargava were

dismissed by this Court. Respondent No.2 had filed an application for

grant of bail on the ground of parity with co-accused Dharmendra

Bhargava wherein this Court has observed that Dharmendra Bhargava

is the main accused of this case, who has already been granted benefit

of bail. Considering the bail application filed by respondent No.2, bail

was granted to him but there was no parity and the Court has

committed an error in granting bail to respondent No.2 because Kapil

Bhargava is the main accused who has caused firearm injuries to

deceased Vivek and whose application has already been rejected by

this Court vide order dated 17/02/2021 passed in MCRC No. 7693 of

2021. Hence, prayed for cancellation /recall of the bail order dated

01/10/2021 passed by this Court in MCRC 47678 of 2021 by which,

respondent No.2 Arvind alias Rinku Bhargava has been given benefit

of bail by suppressing the material facts that Dharmendra Bhargava is

the main accused. In support of contention, learned counsel for the

applicant has relied upon the judgments passed by Hon'ble Supreme

Court in the case of Kanwar Singh Meena vs. State of Rajasthan &

Another (2012)1 2 SCC 180, Central Bureau of Investigation vs.

V. Vijay Sai Reddy (2013) 7 SCC 452, Ramesh Bhavan Rathod vs.

Vishanbhai Hirabhai Makwana (Koli) and Another (2021) 6 SCC

230 as well as order dated 05/12/2020 passed by a coordinate Bench

of this Court in the case of Hemant Gupta vs. State of MP and

Another [MCRC 40828 of 2020] and the order dated 07/01/2022

passed in Suo Motu State of MP vs. Meena Pal [MCRC No.64003

of 2021]. It is submitted that the law in regard to cancellation of bail

is well-settled in which Hon'ble Apex Court in case of Kanwar Singh

Meena (supra) has thrown light on the following aspect:-

"10. Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Session regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant

bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this court are much wider, this court is equally guided by the above principles in the matter of grant or cancellation of bail."

(4) Learned counsel for the respondent No.2- accused vehemently

opposed the application and submitted that while considering the bail

of respondent No.2, parity was not considered by this Court. Rather,

considering the merits of case, bail application filed by respondent

No.2 was considered and respondent No.2 has not misused the bail

and breached of any of conditions subject to which bail was granted

to him. Therefore, no occasion arises to cancel the bail and this Court

is not having jurisdiction to recall/cancel its own order considering

merits of the case. In support of his contention, counsel for the

respondent No.2 has relied upon the judgment passed by Hon'ble

Supreme Court in the case of Abdul Basit alias Raju & Others vs.

Mohd. Abdul Kadir Chaudhary & Another, reported in (2014) 10

SCC 754. Hence, prayed for dismissal of application filed by

applicant under Section 439(2) of CrPC.

(5) Heard learned counsel for the parties and perused the record.

(6) Section 439(2) CrPC provides for the powers of the High Court

and the Court of Session regarding cancellation of bail granted to an

accused. Section 439(2) of CrPC runs as under:-

''A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. '' (7) On bare perusal of aforesaid provision of Section 439(2) of

CrPC as well as considering the law down by Hon'ble Supreme Court

in Abdul Basit alias Raju (supra), it is apparent that the aforesaid

jurisdiction has to be exercised by the Court whenever any condition

is breached by a particular accused in favour of whom, bail order was

passed. Respondent No.2 has not misused the liberty granted to him.

In the present case, the merits of case has been challenged by the

applicant, which is beyond the jurisdiction of this Court. Accordingly,

this application sans merit and is hereby rejected.

(RAJEEV KUMAR SHRIVASTAVA) JUDGE

MKB

Digitally signed by MAHENDRA BARIK Date: 2022.02.11 16:53:45 +05'30'