The State Of Madhya Pradesh vs Ashish Das
2023 Latest Caselaw 6459 MP

                                                               1
                           IN       THE      HIGH       COURT OF MADHYA                      PRADESH
                                                          AT INDORE
                                                       BEFORE
                                       HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                                   ON THE 21 st OF APRIL, 2023
                                            MISC. CRIMINAL CASE No. 19187 of 2022

                           BETWEEN:-
                           THE STATE OF MADHYA PRADESH STATION HOUSE
                           OFFICER THROUGH POLICE STATION LASUDIYA
                           (MADHYA PRADESH)

                                                                                            .....APPLICANT
                           (SHRI S.S. THAKUR - DEPUTY GOVERNMENT ADVOCATE)

                           AND
                           ASHISH DAS S/O SHRI GOPALDAS KHANDELWAL, AGED
                           ABOUT 50 YEARS, OCCUPATION: BUSINESS 64,
                           DASSHARA MAIDAN, UJJAIN AND AT PRESENT- 1078,
                           ANURAG NAGAR, INDORE (MADHYA PRADESH)

                                                                                          .....RESPONDENT
                                (SHRI VISHAL BAHETI - ADVOCATE)

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

1. Heard on IA No.12204/2022, an application for recalling of the order dated

01.09.2022 and also heard on IA No.12205/2022, an application for stay.

2. By order dated 01.09.2022, the bail granted to the respondent/accused has been canceled and the application filed by the State under section 439(2) of the Cr.P.C has been allowed. The trial Court and the authorities have been directed to take necessary steps for taking the respondent/accused in custody. The copy of the order was directed to be sent to the concerned trial Court for necessary compliance.

3. The respondent is an accused in crime no.866/2017 registered at police Signature Not Verified Signed by: SOURABH YADAV Signing time: 21/04/2023 6:25:44 PM

station Lasudiya, Indore for commission of offence under section 420/34 of the IPC.

4. The facts of the case is that a complaint was filed against the respondent/accused stating that the mother of the complainant had booked a flat and deposited a sum of Rs.25,00,000/- through RTGS in the account of Pinnacle d'Dreams. However, even after allotment of the flat no sale deed has

been executed in favour of her and on 03.09.2014 the said flat was allotted to some other person by the Director of the company.

5. After hearing the accused and the State, this Court granted conditional bail to the respondent/accused in M.Cr.C No.17187/2019 on the following

conditions:-

"(i) The applicant shall allot the flat no. 1701 situated in Pinnacle d'Dreams to the complainant within a period of six months from the date of release of the applicant.

iI) The complainant shall pay balance amount to the applicant at the time of execution of registered sale deed.

iII) The complainant shall hand over the possession of flat no. 602 to the applicant after getting possession of flat no. 1701. iV) The applicant shall mark his presence at the police station concerned once in a month, till the trial is pending.

v) The applicant shall not leave India without permission of the Court and shall surrender the passport before the trial Court. vI) The applicant shall co-operate in the trial/ investigation, as the case may be;

vII) The applicant will not seek unnecessary adjournments during trial. It is made clear that if the aforesaid conditions are not fulfilled by the applicant, the complainant shall be free to approach this Court for cancellation of this bail order."

6. The State filed an application for cancellation of bail on the ground that the respondent/accused has violated the terms and conditions of the bail order. He is not marking his presence at police station once in a month as directed by this Court and further he is not attending the proceedings before the trial Court. On the said application, notice was issued to the respondent/accused. The same was received back with a note that the respondent has last three years is not Signature Not Verified Signed by: SOURABH YADAV Signing time: 21/04/2023 6:25:44 PM

residing on the said address and is absconding. Thereafter, the Court heard the matter on merits and has taken into consideration the attendance register of the concerned police station which made it exometric that the respondent/accused was not marking his presence before the concerned police station as per the condition no.6 of the bail order. Further, he was not attending the proceedings before the trial Court regularly as per the direction of the Court which was causing delay in process of delivering justice.

7. After the said consideration, the application under section 439(2) of the Cr.P.C was allowed and the bail order was cancelled.

8. Learned counsel for the respondent/accused submits that the aforesaid order of cancellation of bail has been passed without giving opportunity of hearing to the respondent. It is further argued that the bail cannot be cancelled without giving opportunity of hearing to the accused. In support of his submissions, he has placed reliance on the judgment passed by the co-ordinate bench of this court in the case of Suryakant Vs. Chandanmal passed in M.Cr.C No.6099/2016.

9. The bail was cancelled by order dated 01.09.2022 but till this date, admittedly the respondent/accused has not surrendered before the trial Court. Further, on going through the conditions of the bail order, it was made clear that if the aforesaid conditions are not fulfilled by the accused then the complainant

shall be free to approach this Court for cancellation of bail order.

10. Learned counsel for the respondent could not produce any document to show that he has been marking his presence before the concerned police station as per the condition no.6 of the bail order. Further, he also did not appear before the trial Court. He submits that due to Covid he did not mark his presence and made communication through E-mail to the concerned police Signature Not Verified Signed by: SOURABH YADAV Signing time: 21/04/2023 6:25:44 PM

station. He he would have been given opportunity, he would have justified the same.

11. After hearing learned counsel for the parties and taking into consideration that the applicant has violated the conditions of the bail order that he did not mark his presence before the concerned police station in every month during the trial and he also did not appear before the trial Court. The Covid period was only for a limited period and after the grant of bail, the whereabouts of the applicant was not made known to either police station or the trial court. Further, despite of cancellation of bail, the respondent/accused yet not surrendered before the trial Court.

12. The judgment relied upon by the respondent/accused would not apply to the facts and circumstances of the present case. The bail has been cancelled as per the terms and conditions of the order itself for violating the conditions of the bail.

13. In view of the aforesaid, I do not find any case for recalling the order.

12. Accordingly, both the IAs stands dismissed.

(VIJAY KUMAR SHUKLA) JUDGE Sourabh

Signature Not Verified Signed by: SOURABH YADAV Signing time: 21/04/2023 6:25:44 PM