Deepak Agarwal vs The State Of Madhya Pradesh
2023 Latest Caselaw 126 MP

                                                                       1
                               IN     THE       HIGH COURT OF MADHYA PRADESH
                                                     AT JABALPUR
                                                         BEFORE
                                           HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                                   ON THE 3 rd OF JANUARY, 2023
                                             MISC. CRIMINAL CASE No. 59025 of 2022

                         BETWEEN:-
                         DEEPAK AGARWAL S/O SHRI JAGADESH AGRAWAL, AGED
                         ABOUT 32 YEARS, R/o-KATRA BAAZAR GALLA MANDI WARD NO.
                         15 MAIHAR DISTRICT SATNA (MADHYA PRADESH)

                                                                                                 .....PETITIONER
                         (BY SHRI VISHAL DANIEL - ADVOCATE)

                         AND
                         1.    THE STATE OF MADHYA PRADESH THROUGH STATION
                               HOUSE OFFICER STATION HOUSE CIVIL LINES SATNA
                               DISTRICT SATNA (MADHYA PRADESH)

                         2.    SANAJAY AGARAWAL @ CHILLU S/O SHRI JAGDEESH
                               AGRAWAL, AGED ABOUT 55 YEARS, RESIDING AT
                               PRABHAT VIHAR COLONY PANNA ROAD SATNA DISTRICT
                               SATNA (MADHYA PRADESH)

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

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

                         following:
                                                                     ORDER

This is the fourth application filed under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail.

T he applicant is apprehending his arrest in connection with Crime No.320/2018 registered at Police Station Civil Line, Satna District Satna, for the offence punishable under Sections 420, 467, 468, 471 read with Section 34 of Indian Penal Code.

The first bail application of the applicant was dismissed as withdrawn on Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 1/4/2023 3:34:55 PM

22/09/2020, whereas the second one was dismissed on merits vide order dated 03/03/2022 and third application was also dismissed on merits by order dated 13/06/2022.

It is submitted by counsel for the applicant that on earlier occasion this Court has not taken note of the document i.e registered agreement dated 22/02/2017 issued on 23/02/2017 (Annexure-A-3) which clearly indicates that parties into the written and registered agreement are forming a partnership in respect of several contracts and transactions, whereas the alleged contract on the basis of which earlier application has been rejected was prior to the date of agreement and that agreement and contract were not part of registered agreement. It clearly creates doubt about the validity of the

unregistered agreement with regard to forming a partnership of a contract of toll plaza. He submits that in pursuant to the said contract offence under Sections 467, 468 and 471 was constituted, whereas said agreement is fabricated and prepared by the complainant just to create pressure upon the applicant. Further, it is submitted that though this is the fourth bail application and earlier application was rejected on merit but Court can always consider the repeat application of Section 438 of Cr.P.C, if any new thing is brought in the knowledge of the Court. To substantiate his submission, he has placed reliance upon a judgment passed by the Supreme Court in (Babu Singh and others Vs. State of U.P.) reported in (1978) 1 SCC 579.

Per contra, counsel for State has raised an objection with regard to maintainability of the application under Section 438 of Cr.P.C saying that proceeding under Section 82 of Cr.P.C had already been initiated against the applicant and he has been declared absconder/proclaimed offender and, therefore, the application deserves to be dismissed as the same is not maintainable. In support of his submission, he has relied upon a decision passed by the Supreme Court in Cr.A.No.1209/2021 (Prem Shankar Prasad Vs. State of Bihar & another) and (Lavesh Vs. State (NCT of Delhi) reported in Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 1/4/2023 3:34:55 PM

(2012) 8 SCC 730. He submits that as per the case diary, proceedings of Section 82(1) of Cr.P.C has been initiated in which a declaration was made that accused should appear on 28/07/2020 before the Court but despite affixing the said declaration in the respective areas where possibility of locating the accused was expected, applicant did not appear on the given date and thereafter the Court has proceeded under Section 82(4) of Cr.P.C and declared the applicant as a proclaimed offender. A request has also been made by the police from the Court to proceed under Section 83 of Cr.P.C.

In response, counsel for the applicant submits that although the proceedings under Section 82 (1) of Cr.P.C was initiated but no final declaration has been made by the Court after making enquiry to declare the applicant as proclaimed offender and under such a circumstance, bail application is maintainable.

I have heard the submissions made by counsel for both the parties, perused the case diary and documents available on record.

Perusal of case diary and documents clearly reveal that after making a publication under Section 82(1) of Cr.P.C and giving date therein to appear before the Court when applicant did not appear, enquiry was conducted and when Court found that the applicant is not traceable and not inclined to appear before the Court declared him absconder/proclaimed offender. The police has also moved an application requesting the Court to initiate proceeding against the applicant under Section 83 of Cr.P.C.

Under such a circumstance, this Court does not deem it appropriate to grant

benefit of Section 438 of Cr.P.C to the applicant. Accordingly, the same is hereby rejected.

(SANJAY DWIVEDI) JUDGE sushma Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 1/4/2023 3:34:55 PM

Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 1/4/2023 3:34:55 PM