[email protected] Bhujwal vs The State Of Madhya Pradesh
2022 Latest Caselaw 9473 MP

                                   1
             IN THE HIGH COURT OF MADHYA PRADESH
                          AT GWALIOR
                                BEFORE
             HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                           ON THE 12th OF JULY, 2022

       MISCELLANEOUS CRIMINAL CASE No. 32747 of 2022

        Between:-
        BHOJA @ BHUJWAL S/O SHRI KALUA PAL,
        AGED -28 YEARS, OCCUPATION-NOTHING, R/O
        VILLAGE SUNAJ, POLICE STATION KOLARAS,
        DISTRICT SHIVPURI (MADHYA PRADESH)

                                                                .....APPLICANT
        (BY SHRI RAJIV JAIN - ADVOCATE)

        AND

        STATE OF MADHYA PRADESH THROUGH
        POLICE STATION BHONTI, DISTRICT SHIVPURI
        (MADHYA PRADESH)

                                                              .....RESPONDENT
        (BY SMT. ANJALI GYANANI - GOVERNMENT ADVOCATE)

      This application coming on for hearing this day, the court passed the
following:
                                    ORDER

Case diary is available.

This tenth repeat application under Section 439 of Cr.P.C. has been filed for grant of bail. Ninth bail application of the applicant was dismissed by order dated 10/02/2022 passed in MCRC No.5881/2022.

The applicant has been arrested on 14/12/2016 in connection with Crime No.42/2016 registered at Police Station Bhonti, District Shivpuri for offence under Section 307/34 of IPC, Section 25/27 of the Arms Act and Section 11/13 of the MPDVPK Act.

It is a sorry state of affairs where the prosecution in spite of lot of

opportunities to lead evidence could examine only 24 witnesses out of 70 witnesses. The prosecution case is that the applicant is the member of dacoit gang led by Chandan Gadariya. On 29/01/2016 an encounter took place between the dacoits and the police in which Chandan Gadariya lost his life. The applicant and one Chanda were arrested. The applicant is in jail from 14/12/2016. The applicant has filed some of the copies of the order-sheets to show the delay on the part of the prosecution.

From the order-sheets, it is clear that even the police witnesses did not appear in spite of service of summons/bailable warrant and S.I. Devendra Singh Kushwah and S.I. Parmanand Sharma took more than one year to appear

before the Trial Court.

According to the State counsel out of 70 witnesses only 24 have been examined so far. According to Smt. Gyanani the applicant has a criminal history and as many as four more criminal cases have been registered against him. Out of which two have been registered under Section 307 IPC. It is further submitted that in one offence under Section 307 of IPC, the applicant has already been convicted and sentenced to undergo rigorous imprisonment for five years.

However, the counsel for the Sate could not point out any good reason for failure on the part of the prosecution to examine witnesses at the earliest. Even the counsel for the State could not point out the reason as to why two police personnel took more than one year to appear before the Trial Court and why they did not respond to the summons/bailable warrants, which were executed. Even the counsel for the State is unable to point out as to why the police department was unable to serve summons/bailable warrants against Devendra Singh Kushwah and Parmanand Sharma on various occasions. Long

incarceration as an under-trial cannot be upheld specifically when the prosecution is solely responsible for the same. It is true that the allegations on that the applicant was a member of gang of dacoits by Chandan Gadariya, but that allegation by itself is not sufficient to keep him in jail as an under-trial for indefinite period.

Considering the totality of the facts and circumstances of the case as well as period of detention and failure of investigating agency to examine its witnesses and without commenting on the merits of the case, the application is allowed. It is directed that the applicant be released on bail on furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees One Lac Only) with one surety in the like amount to the satisfaction of the Trial Court/Committal Court to appear before the Court on the dates given by the concerned Court.

It is further directed that the applicant shall appear before the S.H.O. Police Station Bhonti, District Shivpuri on 1st and 15th of every month during the pendency of the Trial. In case of bail jump or non-appearance of the applicant before the police station as directed by this Court, this order shall lose its effect.

In the light of the judgment passed by the Supreme Court in the case of Aparna Bhat & Ors. 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.

Certified copy as per rule.

     Digitally signed by PRINCEE
     BARAIYA                                                  (G.S. AHLUWALIA)
     Date: 2022.07.12 16:43:37
     -07'00'
                                                                    JUDGE
Pj'S/-