Afroz Khan vs The State Of Madhya Pradesh
2023 Latest Caselaw 1440 MP

                                                      1
                           IN   THE     HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                  BEFORE
                                HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                                          ON THE 25 th OF JANUARY, 2023
                                      MISC. CRIMINAL CASE No. 59751 of 2022

                          BETWEEN:-
                          SALMAN KHAN S/O SHRI ANWAR KHAN, AGED ABOUT
                          28 YEARS, OCCUPATION: LABOUR NEAR TEDHI NEEM
                          HANUMANTAL JABALPUR       DISTRICT JABALPUR
                          (MADHYA PRADESH)

                                                                            .....APPLICANT
                          (BY SHRI HAKIM KHAN - ADVOCATE )

                          AND
                          THE STATE OF MADHYA PRADESH THROUGH POLICE
                          STATION KOTWALI DISTRICT JABALPUR (MADHYA
                          PRADESH)

                                                                          .....RESPONDENT
                          (BY SHRI AMIT PANDEY - PANEL LAWYER )

                                      MISC. CRIMINAL CASE No. 57085 of 2022

                          BETWEEN:-
                          AFROZ KHAN S/O KALLU KHAN, AGED ABOUT 30
                          YEAR S, OCCUPATION: LABOUR R/O ANAND NAGAR
                          MOHARIYA P.S. ADHARTAL DISTRICT JABALPUR M.P.
                          (MADHYA PRADESH)

                                                                            .....APPLICANT
                          (BY SHRI RAMRAJ CHOUHAN - ADVOCATE )

                          AND
                          THE STATE OF MADHYA PRADESH THROUGH P.S.
                          KOTWALI DISTRICT JABALPUR (MADHYA PRADESH)

                                                                          .....RESPONDENT
                          (BY SHRI AMIT PANDEY - PANEL LAWYER)
Signature Not Verified
Signed by: DEEPA MISHRA
Signing time: 1/27/2023
1:02:23 PM
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                                These applications coming on for admission this day, the court passed
                          the following:
                                                             ORDER

These second bail application under Section 439 of the Code of Criminal Procedure has been filed on behalf of the applicants for grant of bail, pending the trial. Their first bail applications were dismissed as withdrawn and not pressed.

T h e applicants are in custody since 23.2.2022 and 25.2.2022 in connection with Crime No.73/2022, registered at P.S.-Kotwali, District-Jabalpur (M.P.) for the offence punishable under Sections 380, 454 of IPC.

As per prosecution case, on 23.2.2022 Ram Yadav R/o Nutbaba ki Gali,

Dixitpura, appeared at police station Kotwali and lodged an FIR stating that on 14.2.2022 at around 2 P.M., two boys were walking in the street and were telling to get the keys prepared and repaired. He called them and asked them to prepare the keys of his almirah kept inside the home. After sometime, they both demanded water from him. At this, when he went inside to bring water, in the meantime they stole one ring, one gold mangalsutra, silver anklets and other jewellery worth Rs.30,000/- to Rs.35,000/-. FIR was registered. In the course of investigation both applicants were arrested on 23rd and 25th February, 2022 and on the basis of disclosure memo by them, one gold mangalsutra pendant and one silver ornament of 252 gms worth Rs.41,000/- were seized from the possession of Afroz Khan and one gold ring of 3.023 gms and one pair of silver anklets worth Rs.25,000/- were seized from the possession of Salman Khan. After investigation, charge sheet has been filed and applicants are facing trial for commission of offence.

Learned counsel for the applicants has submitted that the applicants have Signature Not Verified Signed by: DEEPA MISHRA Signing time: 1/27/2023 1:02:23 PM

n o t committed any offence. They are innocent. They have been falsely implicated. Nothing has been seized from their possession. It is argument of learned counsel that co-ordinate Bench of this Court in M.Cr.C. No.1747/2023 by order dated 13.1.2023 has released on bail one Shweta Sisodiya who was charged for committing theft of Rs.45,000/- from the bag of the complainant. She was also having criminal antecedents of four cases but the co-ordinate Bench of this Court has released her on bail. It is also the contention of learned counsel for the applicants that they are in jail for last 11 months. The old criminal antecedents should not be taken into consideration to refuse the bail to the applicants.

Learned counsel has further submitted that witnesses of the seizure memo have been examined before the trial Court. They have turned hostile. Therefore, it has been prayed that applicants be released on bail.

O n the other hand, learned Panel Lawyer for the respondent/State has opposed grant of bail to the applicants and submitted that applicant - Salman Khan has criminal background of seven cases and all cases are under Section 457 and 380 of IPC. Likewise, Afroz Khan has a criminal background of 22 cases and out of those cases most cases are under Section 457 and 380 of IPC. As per learned counsel for the State both the applicants are not only pre- convict accused but also habitual offenders. Therefore, he has prayed for

rejection of their bail applications.

On a perusal of the copy of judgment produced by learned counsel for Salman Khan, it is revealed that they are pre-convict for commission of offence under Section 457 and 380 of IPC, as they were sentenced by JMFC, Mandla for commission of offence under Section 457 and 380 of IPC and sentenced to 2-2 years R.I. and fine of Rs.300/- for each offence with default stipulation. Signature Not Verified Signed by: DEEPA MISHRA Signing time: 1/27/2023 1:02:23 PM

Appeal preferred by them against their conviction and order of sentence was dismissed by 2nd ASJ, Mandla. Thus, it is apparent that they are pre-convict for commission of offence under Section 457 and 380 of IPC.

The applicants have long criminal antecedents and that too of same nature. Mere period of detention cannot be a ground to release such habitual criminals on bail.

As far as the argument regarding witnesses of seizure having turned hostile, is concerned, that has to be taken into consideration by the learned trial Court while assessing the evidence of witnesses at the time of delivery of judgment.

As far as bail order of co-ordinate Bench of this Court is concerned, that has no application in the facts of the present case as list of criminal antecedents of both the applicants is higher than the lady applicant who was released on bail.

Therefore, having taken into consideration all the facts and circumstances of the case, I am of the view that no case for grant of bail is made out. Therefore, these two second bail applications filed on behalf of Salman Khan and Afroz Khan are dismissed.

As prayed by learned counsel for the applicants, learned trial Court is directed to conclude the trial expeditiously as applicants are in jail for the last 11 months. Therefore, learned trial Court is directed to conclude the trial expeditiously as early as possible within a period of four months because as per learned counsel for the applicant- Salman Khan, in trial only one more witness has to be examined for closing the prosecution evidence.

Signature Not Verified Signed by: DEEPA MISHRA Signing time: 1/27/2023 1:02:23 PM

(DINESH KUMAR PALIWAL) JUDGE mrs. mishra

Signature Not Verified Signed by: DEEPA MISHRA Signing time: 1/27/2023 1:02:23 PM