Santram Urf Lala Tandiya vs The State Of Madhya Pradesh
2023 Latest Caselaw 18906 MP

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IN         THE HIGH COURT OF                                                       MADHYA                          PRADESH
                                                   AT JABALPUR
                                                            BEFORE
                      HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                  ON THE 8th OF NOVEMBER, 2023
                                         M.CR.C. NO. 28801 OF 2023

BETWEEN:-

SANTRAM URF LALA TANDIYA, S/O. MOHAN DAS
TANDIYA, AGED ABOUT 25 YEARS, OCCUPATION:
LABOUR, R/O. GRAM BAHERA TOLA, TEHSIL
PUSHPRAJGARH, POLICE STATION KARAN PATHAR,
DISTRICT ANUPPUR (M.P.)
                                                                                                               ....APPLICANT

(BY SHRI SANDEEP KUMAR JAIN - ADVOCATE)

AND

THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION SOHAGPUR, DISTRICT SHAHDOL
(M.P.)
                                                                                                             .....RESPONDENT
(BY SHRI S.K. KASHYAP - GOVERNMENT ADVOCATE)
............................................................................................................................................
Reserved on                : 26.09.2023
Pronounced on : 08.11.2023
............................................................................................................................................

           This application having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:
                                  ORDER

This is the second application filed by the applicant under Section Section 439 read with section 167(2) of the Code of Criminal Procedure for grant of bail relating to Crime/FIR No.377/2021 dated (not mentioned) registered at Police Station Sohagpur, District Shahdol

(M.P) for the offence under Sections 8/20, 25, 29 of N.D.P.S Act. The applicant is in jail since 14.08.2021.

2. The earlier bail application (M.Cr.C No.53932 of 2021) of the applicant was dismissed as withdrawn vide order dated 14.03.2022 with liberty to renew the same after a period of six months, if the said issue is decided by the Supreme Court.

3. Learned counsel for the applicant submits that in the present case challan has been submitted by the respondent/prosecution but FSL report was not part of the same and, therefore, challan filed against the applicant should be treated as incomplete and as such, the applicant is entitled to get the benefit of default bail as per Section 167(2) of Cr.P.C. He further submits that the issue with regard to the fact whether challan filed by the prosecution without FSL report can be considered to be a complete challan or incomplete is pending consideration before the Supreme Court in case of Mohd. Arbaz Vs. State of NCT of Delhi, SLP (Crl.) 8164-8166/2021. Thus, in view of the law laid down by the Supreme Court in case of Union Territory of Ladakh and others Vs. Jammu and Kashmir National Conference and another passed in Civil Appeal No.5707 of 2023 wherein it is held that if the reference is pending, the matter should not be avoided to be decided but it can be decided on the basis of the prevailing view. In the aforesaid case, the Supreme Court has held as under:-

"35. We are seeing before us judgments and orders by High Courts not deciding cases on the ground that the leading judgment of this Court on this subject is either referred to a larger Bench or a review petition relating thereto is pending. We have also come across examples of High Courts refusing deference to judgments of this Court on the score that a later Coordinate Bench has doubted its correctness. In this regard, we lay down the position in law. We make it absolutely clear that the High Courts will proceed to decide

matters on the basis of the law as it stands. It is not open, unless specifically directed by this Court, to await an outcome of a reference or a review petition, as the case may be. It is also not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later Coordinate Bench. In any case, when faced with conflicting judgments by Benches of equal strength of this Court, it is the earlier one which is to be followed by the High Courts, as held by a 5-Judge Bench in National Insurance Company Limited v Pranay Sethi, (2017) 16 SCC 6805. The High Courts, of course, will do so with careful regard to the facts and circumstances of the case before it."

He has further placed reliance upon a decision of Delhi High Court in case of Amanpreet Kaur @ Preeti Vs. State passed in Crl. Rev. P. 471/2023 wherein the bail has been granted only on the ground that reference is pending before the Supreme Court and till the decision is taken, the bail can be granted as per the prevailing view and cannot be refused and wait till the decision is taken in the reference case. He further submits that in the present case, the co-accused has also been granted bail and, therefore, the present applicant is also entitled to be released on bail on the ground of parity.

4. On the other hand, learned counsel for the respondent/State has opposed the submission made by counsel for the applicant and submitted that instead of granting bail to the applicant, the trial Court can be directed to conclude the trial and since the reference is pending before the Supreme Court and no decision has been taken thereon, the bail application can be rejected.

5. Considering the submissions made by counsel for the parties and taking note of the decision of the Supreme Court in case of Union Territory of Ladakh (supra) and decision of Delhi High Court in case of Amanpreet Kaur (supra) as also the fact that the issue with regard to the fact whether in absence of FSL report, the challan filed by the

prosecution is complete or not is under pending consideration before the Supreme Court in case of Mohd. Arbaz (supra), I am inclined to consider and allow this bail application. Therefore, without commenting anything on merit, this application is allowed.

6. It is directed that the applicant be released on bail upon his furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees One Lakh) with one solvent surety of the like amount to the satisfaction of the trial Court concerned for his appearance on the dates given by it.

7. It is further directed that the applicant shall abide by the conditions enumerated in Section 437(3) of the Code of Criminal Procedure.

Certified copy as per rules.

(SANJAY DWIVEDI) JUDGE

rao

Digitally signed by SATYA SAI RAO Date: 2023.11.09 15:34:00 +05'30'