Dr. Balwant Harshey vs The State Of Madhya Pradesh
2023 Latest Caselaw 7866 MP

                                                           1
                           IN    THE      HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                     BEFORE
                                       HON'BLE SMT. JUSTICE NANDITA DUBEY
                                                ON THE 12 th OF MAY, 2023
                                        MISC. CRIMINAL CASE No. 20549 of 2023

                          BETWEEN:-
                          1.    DR. BALWANT HARSHEY S/O LATE DR. M .G.
                                HARSHEY, AGED ABOUT 64 YEARS, OCCUPATION:
                                DOCTOR R/O 659 GOLE BAZAR JABALPUR
                                (MADHYA PRADESH)

                          2.    SUJAL BHATIA S/O LATE DR. ANUPAM BHATIA,
                                AGED ABOUT 53 YEARS, OCCUPATION: BUSINESS
                                R/O 252-A GUPTESHWAR JABALPUR (MADHYA
                                PRADESH)

                          3.    SMT. NIRUPAMA HARSHEY W/O DR. BALWANT
                                HARSHEY, AGED ABOUT 63 YEARS, OCCUPATION:
                                DOCTOR R/O 659 GOLE BAZAR JABALPUR
                                (MADHYA PRADESH)

                          4.    DR. NEETA BHATIA W/O SHRI SUJJAL BHATIA,
                                AGED ABOUT 52 YEARS, OCCUPATION: DOCTOR
                                R/O 252-A GUPTESHWAR JABALPUR (MADHYA
                                PRADESH)

                                                                                       .....APPLICANT
                          (BY SHRI MANISH DATT - SENIOR ADVOCATE WITH SHRI SIDDHARTH
                          SHARMA - ADVOCATE )

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

                                                                                    .....RESPONDENTS
                          (BY SHRI ADITYA GUPTA - PANEL LAWYER FOR THE
                          RESPONDENT/STATE )
                          (SHRI S.H. KHAN - ADVOCATE FOR THE OBJECTOR)

                                This application coming on for admission this day, the court passed the
                          following:
Signature Not Verified
Signed by: SMT. GEETHA
NAIR
Signing time: 5/13/2023
4:54:43 PM
                                                              2
                                                               ORDER

This is repeat (second) application filed by the applicants under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail relating to FIR No.33/2023 dated 09.01.2023 registered at Police Station Lordganj, District Jabalpur (M.P.) for the offences punishable under Sections 406/120-B of IPC, enhanced offences under Sections 409, 420, 467, 468, 471 and 420 of I.P.C.

Applicants were earlier granted anticipatory bail in M.Cr.C. No. 4113/2023 by order dated 31.01.2023. The present application is filed for the reason that subsequent to grant of anticipatory bail, offence under sections 409, 420, 467, 468 and 471 of I.P.C. has been added and the final report/charge

sheet dated 17.04.2023 against the present applicants has been prepared.

Learned Senior Counsel for the applicants submits that while considering the first bail application, this Court has considered all the aspects of the matter and granted anticipatory bail by hearing all the parties. Referring to the observations made in para 7 of the order, it is urged that the dispute between the parties is predominantly of civil nature, as the dispute is with regard to misuse of the funds, rendition of accounts and the use of good will. It is stated that on the same set of documents and allegations, the police added Sections 409, 420, 467, 468 and 471 of I.P.C. to the charge sheet and on the basis of these enhanced offences, trying to arrest the applicants. He further pointed out that writ petition for appointing the Arbitrator is already pending as is also reflected from the earlier order dated 31.01.2023. Learned counsel further submits that the issue "as to whether in a case where an accused has been bailed out in a criminal case, if subsequently new offences are added, is it necessary that bail earlier granted should be cancelled for taking the accused in custody" came to be considered by the Supreme Court in the case of Pradeep Signature Not Verified Signed by: SMT. GEETHA NAIR Signing time: 5/13/2023 4:54:43 PM

Ram Vs. State of Jharkhand and another reported in (2019) 17 SCC 326. The same has been answered in para 31.4 of the judgment, that, "in a case, where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it needs to obtain an order of arrest the accused from the Court which has granted bail." It is pointed out that no application has been made by prosecution seeking permission of this court to arrest the applicants.

Learned counsel for objector has vehemently opposed the bail application. It is pointed out that earlier bail order was obtained by making incorrect statement that the complaint filed by the complainant has earlier being closed. Such objections of Shri Khan cannot be sustained as while hearing of first anticipatory bail application on 31.01.2023, no such objections or arguments were raised. Further, on this ground till date, no application for cancellation of bail has been filed by the objector.

Learned counsel for the State, on the other hand, submitted that on the basis of additional statement recorded on 06.02.2023, the aforestated offences were added. However, he fairly submits that no new documents have been produced by the complainant.

A perusal of the additional statement, recorded on 06.02.2023, reveals

that the complainant has made an additional statement before the police authorities that the bail order dated 31.01.2023 was obtained by making incorrect statement before the Court, rest of the allegations are repetition of what was stated by him earlier while lodging the FIR. This, however cannot be made the basis for enhancing the aforementioned offences.

On enquiry from the counsel for the objector as well as the counsel for Signature Not Verified Signed by: SMT. GEETHA NAIR Signing time: 5/13/2023 4:54:43 PM

the State, it has been admitted that the applicants have not misused the liberty granted to them by this Court. Learned Panel Lawyer further admits that no application seeking permission of this Court to arrest the applicants has been filed by the prosecution till date.

The applicants were granted the benefit of anticipatory bail after considering the entire documents on record. Nothing has been brought to the notice of this Court which may show that during investigation and after 31.01.2023, any new evidence/documents have been recovered by the police. It is thus clear that on the same set of facts and documents which were considered in detail during the hearing of first application for grant of anticipatory bail on 31.01.2023, new offence as aforementioned have been added.

Considering the aforesaid, this application is allowed. It is directed that in the event of arrest, the applicants shall be released on bail on their furnishing a personal bond in the sum of Rs.50,000/- (Rs.Fifty Thousand only) each with one surety in the like amount to the satisfaction of arresting officer. It is further directed that the applicants shall also comply with the provisions of Section 438(2) of Cr.P.C.

Certified copy as per rules.

(NANDITA DUBEY) JUDGE gn

Signature Not Verified Signed by: SMT. GEETHA NAIR Signing time: 5/13/2023 4:54:43 PM