Madhya Pradesh High Court
Chinnu @ Akhilesh vs The State Of Madhya Pradesh on 28 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJ MOHAN SINGH
&
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 28 th OF MAY, 2024
CRIMINAL APPEAL No. 885 of 2010
BETWEEN:-
CHINNU @ AKHILESH S/O PARAMLAL RAJAK, AGED ABOUT 25
YEARS, VILL.HIRDAYPUR DAMOH DISTRICT DAMOH (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI ASHOK LALWANI - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH PS.KOTWALI
DISTRICT DAMOHD (MADHYA PRADESH)
.....RESPONDENTS
(SHRI YOGESH DHANDE - GOVERNMENT ADVOCATE AND SHRI SANKALP
KOCHAR - OBJECTOR)
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T h is appeal came up for hearing on 09.05.2024 and the order was kept
reserved:
ORDER
Heard on I.A No.26388 of 2023 which is an application for cancellation of
suspension of sentence under Second Proviso of Section 389(1) r/w 439(2) of Cr.P.C
and grant of bail to appellant Chinnu @ Akhilesh has been sought by the
applicant/objector Jagjeet Wadhwa.
T he Appellant Chinnu @ Akhilesh has been convicted under Sections 302/149,
329/149 and 148 IPC by judgment dated 22.03.2010 and sentence to life imprisonment.
This Court vide order dated 21.12.2017 granted benefit of suspension of sentence to the
appellant considering the completion of jail sentence of 11 years so also parity with co-
accused Suresh @ Chinkara and Raja Khan. The applicant Jagjeet Wadhwa has sought
cancellation of suspension of sentence and bail on the ground that the appellant has
indulged in various other criminal activities by misusing the benefit of suspension of
sentence granted to him. Admittedly the applicant seeking cancellation of bail has no
concern with the crime that has led to filing of this appeal and the applicant seeking
suspension of sentence is no manner related to the said crime and is neither a
complainant nor related to complainant in any manner, nor a witness nor related to any
witness of the case in any manner. He is seeking cancellation of bail as member of public
being victim of alleged criminal activities of the appellant allegedly by misusing the liberty
granted to the appellant by admitting him to grant of suspension of sentence.
T h e learned counsel for the applicant Jagjeet Wadhwa while pressing the
application for cancellation of bail has submitted that the appellant has committed offence
under Sections 342, 294, 506, 34 of IPC and FIR (Annexure-A/2) at crime No.923/2020
has been registered against the appellant. The applicant Jagjeet Wadhwa is the
complainant of the case. It is further submitted that another FIR at Crime No.671/2002
has been registered at police station Dehat District Damoh under Section 420, 468, 471
of IPC which relates to filing some cancelled death certificate in civil suit against the
applicant Jagjeet Wadhwa. It is further submitted that another FIR at Crime No.711/2022
has been registered at police station Dehat District Damoh under Sections 294, 327, 323,
324 and 506 IPC. Yet another FIR at instance of applicant Jagjeet Wadhwa has been
registered at Crime 190/2023 at the same police station under Section 379 IPC.
The learned counsel for the applicant Jagjeet Wadhwa submits that apart from the
said FIRs, various complaints have been submitted by applicant Jagjeet Wadhwa in the
matter of various crimes committed by appellant Chinnu @ Akhilesh against the applicant
Jagjeet Wadhwa against his person and property and various such applications addressed
to police authorities as well as to other authorities of the State have been placed on
record as Annexure-A/6. It is further submitted that in one revenue case the appellant has
been found in possession of government land. Learned counsel for the applicant submits
that the appellant has been misusing the terms of suspension of sentence granted to the
appellant and that he has been misusing his liberty by engaging in criminal activities.
Thus, it is imperative that benefit of suspension of sentence granted to the appellant
Chinnu @ Akhilesh be cancelled.
Learned counsel for the applicant has relied upon the judgement in the case of
Deepak Yadav Vs. State of U.P and Another reported in 2022 LiveLaw (SC) 562
and in the case of Somesh Chaurasia v. State of M.P. reported in 2021 (19) SCC
P e r contra, it is contended by learned counsel for the appellant Chinnu @
Akhilesh that the application submitted for cancellation of bail is misuse of process of the
Court. It is contended that cancellation of bail can only be preferred either by the public
prosecutor, complainant, or any other aggrieved party of the case. The present applicant
is neither a complainant nor witness nor victim nor public prosecutor. Thus, he has no
locus to file the application for cancellation of bail.
O n merits, it is contended that the applicant Jagjeet Wadhwa is a person having
criminal past and has been involved in as many as 12 criminal cases between 1991 to
2013 that includes cases under Sections 427, 447, 448, 365, 307 etc of IPC as well as
under Arms Act and M.P Excise Act. It is further contended that there are property
disputes of civil nature between the present appellant and Jagjeet Wadhwa. All the
criminal cases that has been lodged against the present appellant by the applicant Jagjeet
Wadhwa arise out of civil litigation between the parties. Various documents have been
placed on record to indicate that civil litigation is pending between Jagjeet Wadhwa and
the present appellant. It is further submitted that the appellant is a habitual litigator in civil
cases also and civil cases filed by the applicant Jagjeet Wadhwa are not only pending
against the present appellant but against various other persons. He is a person actively
involved in civil and criminal litigation and the present application for cancellation of bail
has been filed only as a arm-twisting tactics to pressurize the present appellant in the
pending civil litigation and other cases that arise out of civil disputes between the
appellant and applicant Jagjeet Wadhawa.
Heard the learned counsel for the parties at length.
The issue of the locus of applicant Jagjeet Wadhwa is taken up first. The Hon'ble
Supreme Court in the case of R.Rathinam Vs. State By DSP, District Crime
Branch, Madurai District Madurai and Another reported in (2000) 2 SCC 391 has
held that the powers of cancellation of bail can be invoked either by the State or by any
aggrieved party and it can also be exercised suo motu by the High Court. The following
has held by the Hon'ble Supreme Court.
"8. It is not disputed before us that the power so vested in the High Court can be
invoked either by the State or by any aggrieved party. Nor is it disputed that the
said power can be exercised sue motu by the High Court. If so, any member of
the public, whether he belongs to any particular profession or otherwise, who
has a concern in the matter can move the High Court to remind if of the need to
invoke the said power suo motu. There is no barrier either in Section 439 of the
Code or in any other law which inhibits a person from moving the High Court
considers that there is no need to cancel the bail for the reasons stated in such
petition, after making such consideration it is open to the High Court to dismiss
the petition. If that is the position, it is also open to the High Court to cancel the
bail if the High Court feels that the reasons stated in the petition are sufficient
enough for doing so. It is, therefore, improper to refuse to look into the matter
on the premise that such a petition is not maintainable in law."
Learned counsel for the applicant Jagjeet Wadhwa has submitted that the applicant
falls in definition of "any aggrieved party" and further submitted that in any event the
applicant falls in the definition of category of a member of public who can move the High
Court to remind it of the need to invoke the said power suo motu.
It is argued that the consideration for entertaining the application under Second
Proviso of Section 389(1) are identical to those under Section 439(2) Cr.P.C. Thus, the
application filed by the present applicant should be entertained either as "any aggrieved
person" or a member of public to move the High Court to remind the High Court of the
need to cancel the bail.
Considering the aforesaid submissions, it is clear that the application cannot be
thrown out only on the ground of locus and it needs to be considered on merits.
The Hon'ble Supreme Court in the case of Somesh Chaurasia v. State of M.P.
reported in (2021) 19 SCC 480 has held as under:-
"39. There are distinct doctrinal concepts in criminal law, namely,
(i) the grant of bail before trial or, what is described as the "pre-conviction" stage;
(ii) setting aside an order granting bail when the principles which must weigh in the
decision on whether bail should be granted have been overlooked or wrongly
applied;
(iii) the post-conviction suspension of sentence under the provisions of Section
389(1); and
( iv) the cancellation of bail on the ground of supervening events, such as the
conduct of the accused during the period of bail, vitiating the continuance of bail.
40. The present case falls in the last of the above genres where bail was sought to be
cancelled on the ground that the second respondent was implicated in an offence
under Section 302 during the period when his sentence was suspended.
4 1 . This Court in Abdul Basit v. Mohd. Abdul Kadir Chaudhary [Abdul Basit v.
Mohd. Abdul Kadir Chaudhary, (2014) 10 SCC 754 : (2015) 1 SCC (Cri) 257] ,
while discussing the powers of the High Court to cancel bail granted to an accused
under Section 439(2)CrPC, has observed that typically the following conduct of the
accused would result in the cancellation of bail--
(i) misuse of liberty by engaging in similar criminal activity;
(ii) interference with the course of investigation;
(iii) tampering of evidence or witnesses;
(iv) threatening of witnesses or engaging in similar activities which would hinder
the investigation;
(v) possibility of fleeing to another country;
(vi) attempts to become scarce by becoming unavailable for investigation or going
underground; and
(vii) being out of the reach of their surety.
Similar considerations govern the cancellation of bail at the post-conviction stage
under the second proviso to Section 389(1)CrPC.
42. This Court in Pampapathy v. State of Mysore [Pampapathy v. State of Mysore,
1966 SCC OnLine SC 67 : 1966 Supp SCR 477 : AIR 1967 SC 286] , had held that
the High Court had the power to revoke the suspension of sentence granted under
sub-sections (1) and (2) of Section 426 [389. Suspension of sentence pending the
appeal; release of appellant on bail.--(1) Pending any appeal by a convicted person,
the appellate court may, for reasons to be recorded by it in writing, order that the
execution of the sentence or order appealed against be suspended and, also, if he is
in confinement, that he be released on bail, or on his own bond:(2) The power
conferred by this Section on an appellate court may be exercised also by the High
Court in the case of an appeal by a convicted person to a court subordinate
thereto."] of the erstwhile Code of Criminal Procedure, 1898 ("CrPC, 1898") using
its inherent powers under Section 561-ACrPC, 1898. The accused were alleged to
have misused their liberty while their sentence was suspended. Sub-sections (1) and
(2) of Section 426CrPC, 1898 are similar to Section 389(1) of the present CrPC.
It may be noted that in Pampapathy [Pampapathy v. State of Mysore, 1966 SCC
OnLine SC 67 : 1966 Supp SCR 477 : AIR 1967 SC 286] , the issue of cancellation
of bail of a convict, by taking recourse to Section 561-ACrPC, 1898, arose because
the second proviso, which, now, has been added to sub-section (1) of Section
389CrPC, did not exist under the earlier legal framework. However, since the
second proviso to sub-section (1) of Section 389CrPC, now, deals with the
cancellation of bail, no inherent power, would be required for revocation of
suspension of sentence and bail granted to a convicted person during the pendency
of appeal at the appellate court.
43. This Court in its order passed in Ramesh Kumar Singh v. Jhabbar Singh [Ramesh
Kumar Singh v. Jhabbar Singh, (2003) 10 SCC 195 : 2004 SCC (Cri) 1067] , has
held that if the accused misuses their liberty by committing other offences during
the suspension of sentence under Section 389(1)CrPC,they are not entitled to the
privilege of being released on bail. In that case, the accused was convicted under
Section 302IPC for killing the father of the complainant and during the suspension
of his sentence, when he was out on bail, he had committed the murder of the
brothers of the complainant. This Court set aside the bail that was granted to the
accused by the High Court."
It is evident that the conduct of accused can result in cancellation of bail especially
where the misuse of liberty by engaging him in similar criminal activity has been
committed by the accused/convict which is the allegation in the present case. As held by
the Hon'ble Supreme Court in the case of Abdul Basit v. Mohd. Abdul Kadir
Chaudhary, (2014) 10 SCC 754, there are various types of conduct of the accused
that can result in cancellation of bail. Out of the said various conducts that can result in
cancellation of bail, the conduct alleged in present case is the misuse of liberty by
engaging in criminal activity.
The criminal activity in which the appellant indulged that has led to conviction in
the present case is offence under Section 302 and 329 etc. The applicant does not allege
any such conduct of the present appellant during the period he has been enlarged on bail
by granting suspension of sentence. Various FIRs and criminal complaints have been
placed on record and upon perusal of the said FIRs and complaints made to police
authorities, it is evident that the applicant Jagjeet Wadhwa has been making various
complaints about the conduct and activities of present appellant Chinnu @ Akhilesh
against the person and property of the applicant Jagjeet Wadhwa. Thus, the alleged
misuse is against one particular person only. Along with the reply to I.A No.36388/2023,
the appellant has brought on record the pending litigation between the appellant and the
applicant who is seeking cancellation of bail. It is evident that various civil litigations are
pending between the parties and out of those civil suits, Civil Revision No.414 of 2021
and M.A No.56825 of 2023 have arisen which are pending before this Court. The fact of
pendency of civil litigation between the appellant and the applicant are not disputed.
Looking to the nature of allegations in the FIRs and other complaints which have
been registered at behest of the applicant Jaggid Wadhawa would show that all these
complaints arise out of or are either off shoots of the pending civil disputes between the
appellant and the applicant.
It is not indicated from the perusal of the complaints annexed with the application
seeking cancellation of bail that the appellant has carried out criminal activity against
public at large. Filing of criminal complaints in the FIRs by a similar person against the
present appellant with whom he is shown to have civil dispute in property dispute cannot
form a basis to form opinion that appellant has misused the liberty and engaged in similar
criminal activity. The FIR (Annexure-A/4) though is filed by some other person, but is
under Section 327 and other concurring provisions of IPC and looking to the allegations
made therein also, no case is made out for cancellation of bail.
Apart from this, it is shown by the appellant that the applicant seeking cancellation
of bail is involved in various other civil litigations with various other persons and also had
been involved in as many as 12 criminal cases as an accused.
Consequently, this Court does not find that any conduct of the accused appellant
has been made out by the applicant warranting cancellation of bail that has been granted
to the appellant.
Accordingly, I.A No. 26388 of 2023 is dismissed.
(RAJ MOHAN SINGH) (VIVEK JAIN)
JUDGE JUDGE
Prar
