Sheikh Mushtaq vs The State Of Madhya Pradesh
2022 Latest Caselaw 14542 MP

                                                                1

      IN THE HIGH COURT OF MADHYA PRADESH
                    AT INDORE
                            BEFORE
              HON'BLE SHRI JUSTICE ANIL VERMA

               ON THE 10th OF NOVEMBER, 2022

           MISC. CRIMINAL CASE No. 41057 of 2022

BETWEEN:-
SHEIKH MUSHTAQ S/O SHRI SHEIKH
ILIYASH, AGED ABOUT 70 YEARS,
OCCUPATION: BUSINESS KADAR COLONY,
KHAJRANA (MADHYA PRADESH)
                                                .....PETITIONER
(SENIOR ADVOCATE SHRI A.S. GARG
APPEARED FOR THE PETITIONER.
SHRI JITENDRA VERMA, LEARNED
COUNSEL FOR THE PETITIONER .)

AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER THROUGH
POLICE STATION AZAD NAGAR (MADHYA
PRADESH)
                                              .....RESPONDENTS
( SHRI SANTOSH SINGH THAKUR GA
APPEARING ON BEHALF OF ADVOCATE
GENERAL.)
      This application coming on for order this day, the court
passed the following:
                            ORDER

Heard on I.A. no. 11356/2022, which is an application for exemption of filing of types copy of the document written in hand writing.

The alleged documents are legible, therefore, no need to file its typed copy, hence the I.A. Is allowed and the applicant is exempted from filing of typed copy of the alleged document.

The applicant has filed this second bail application filed

under Section 439 of Cr.P.C. for grant of bail in respect of Crime No.617/2019 registered at Police Station - Azad Nagar, Indore for allegedly committing the offence punishable under Section 420, 467, 468, 471 & 120-B of IPC and under Section 72(D) of M.P. Cooperative Societies Act. The applicant is in custody since 15.12.2019.

As per the prosecution story, the applicant and other co-accused persons had formed an association in the name of Mayur Grih Nirman Sanstha, which had encroached upon a land illegally and without obtaining the relevant permissions, such as permission for diversion, layout, certificate regarding the land not belonging to Government from the concerned authority and without obtaining permission from Town & Country Planning etc., had entered into agreements with complainants and other persons and had executed documents of sale of such plots to these persons, which were not got registered and the innocent buyers were thereby duped because the land actually did not belong to Mayur Grih Nirman Sanstha, of which the applicant was the President. The aforesaid land was a disputed land, in which one Ranjeet and others through power of attorney holder Ms. Usha had claimed ownership, whereas the Government was claiming it to be a land coming under Land Ceiling Act and was thus a Government property. Even as the dispute between Usha and the State Government was pending, the applicant and other co- accused persons had encroached upon the land and had sold the land to various persons Learned counsel for the applicant contended that applicant's earlier bail application was dismissed on merit vide order dated

05/10/2021 and liberty was given to renew his prayer after framing of charge. Now, the charges have been framed and the case is pending for prosecution evidence, but only one prosecution witness has ben examined and 43 witnesses have remained to be examined. The applicant is 70 years old person. Other seven co-accused persons have been released on bail by the order of this Court and the order of the trial Court. The applicant was not working as a president at the time of the incident. He has been falsely implicated in this matter. Final conclusion of trial will take considerable long time. He did not execute sale deed or any agreement to sale in respect of the land in question. Present case involves purely civil controversy. Fake criminal case has been registered against him. There is no role of the present applicant in respect of the aforesaid offence. Hence, learned counsel prays that in view of the material changes in the circumstances, the applicant be enlarged on regular bail.

To bolster his submittions, learned counsel for the applicant has placed reliance upon the judgment of Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012) 1 SCC 40, in which it has been held as under :

"The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If

such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual."

Per-contra, learned GA for respondent - State opposes the bail application and prays for its rejection by submitting that the applicant's earlier bail application has been rejected on merit vide order dated 05/10/2021 passed in MCRC no. 40133/2021 and after passing of the earlier order on merit, no material charge has been found, in which, the applicant may deserve for bail.

Perused the impugned order of the trial Court, the statements of the witnesses as well as the case dairy.

Considered all the facts and circumstances of the case, arguments advanced by both the parties, nature of allegation as also took note of the fact that the applicant's earlier bail application was rejected on merit and as per the law laid down by Hon'ble Apex Court in the case of Madhusudhan Singh Vs. Union of India and another reported in 1984 SCC 374 and the order of the co- ordinate Bench of this Court in the case of Mohan Raikwar Vs. State of M.P reported in 1999 (2) MPLJ 663, after cancelation of the earlier bail application, repeat bail application may be entertained and material changes in the circumstances has been observed.

From perusal of the case diary, it appears that there are as many as 19 cases registered against the present applicant. Being president of the said institution, he is prima-facie an accused in the instant case. Due to absconding of several accused persons, the trial is going on delayed. Although charge has been framed and one witness has been examined by the prosecution, but prima-facie, it has been found that the applicant is involved in illegal selling of

concerned plots and case of the present applicant is distinguishable from the other co-accused persons, who have been enlarged on bail. After rejection of earlier bail application, there is no change in circumstances, in which the applicant may be entitled for grant of bail.

In view of the aforesaid, this Court is not inclined to grant bail to present applicant.

Accordingly, this second bail application filed under section 439 of Cr.P.C has no force and is hereby dismissed.

Certified copy, as per Rules.

(ANIL VERMA) JUDGE amol

Digitally signed by AMOL N MAHANAG Date: 2022.11.10 17:48:24 +05'30'