The State Of Madhya Pradesh vs Hari Kushwah
2024 Latest Caselaw 3963 MP

Madhya Pradesh High Court

The State Of Madhya Pradesh vs Hari Kushwah on 9 February, 2024

Author: Milind Ramesh Phadke

Bench: Milind Ramesh Phadke

                                                              1
                            IN        THE    HIGH COURT OF MADHYA PRADESH
                                                   AT GWALIOR
                                                        BEFORE
                                      HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                                               ON THE 9 th OF FEBRUARY, 2024
                                            MISC. CRIMINAL CASE No. 228 of 2024

                           BETWEEN:-
                           THE STATE OF MADHYA PRADESH INCHARGE POLICE
                           STATION THROUGH POLICE THANA SABALGARH
                           DISTRICT MORENA MP (MADHYA PRADESH)

                                                                                           .....APPLICANT
                           (BY SHRI R.K. UPADHYAY - PUBLIC PROSECUTOR)

                           AND
                           HARI KUSHWAH S/O PURUSHOTTAM KUSHWAH, AGED
                           ABOUT    27 YEARS, GIRRAJBHATTA WALI GALI
                           SABALGARH DISTRICT MORENA MP (MADHYA
                           PRADESH)

                                                                                        .....RESPONDENTS


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

The present application under Section 439(2) of Cr.P.C. has been filed b y the petitioner/State seeking cancellation/recalling of order dated 14.07.2023 passed by Co-ordinate Bench of this Court in M.Cr.C. No.28343 of 2023 extending the bail to respondent - Hari Kushwah on the ground that one of the conditions as enumerated in Sub-Section (2) of Section 438 of Cr.P.C. was flouted which laid down in the case of involvement of respondent in other offence.

Vide order dated 08.02.2024 passed in M.Cr.C. No.4132 of 2024 titled

as ''Sanjay Singh Gurjar vs. State of M.P. & Othe r'' this Court has held as under:

"The coordinate Bench of this Court in the matters of Dr. Sharad Singh Chauhan (Supra) and Vinod Gurjar (supra) while taking exception to the judgment passed by Hon'ble Apex Court, has held that mere lodging of FIR does not amount to commission of offence. It is only an accusation/allegation and an accused can be said to have committed the offence only when that the Court has taken cognizance as per Section 190(1)(a) of Cr.P.C after applying its mind and as of date, there is no material on record to show that cognizance has been taken by a competent Court. Therefore, it can not be said that there is involvement of present petitioner of any kind in the offence. Accordingly, this Court has no hesitation to hold that no condition as envisaged in the bail order dated 11/06/2021 has been violated.

Accordingly, this Court deems it fit to set aside the order dated 16/12/2022 passed in Special Case No.153/2020 and it is set aside. Present petition is allowed."

In light of the aforesaid order dated 08.02.2024, the present petition is dismissed.

(MILIND RAMESH PHADKE) JUDGE pwn*