Madhya Pradesh High Court
Rahul Jogi vs The State Of Madhya Pradesh on 8 April, 2025
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1
M.Cr.C. No.7664/2024
I N T H E H I G H C O U RT O F M A D H YA P R A D E S H
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
MISC. CRIMINAL CASE NO.7664 OF 2024
Rahul Jogi
Versus
State of Madhya Pradesh & another
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Appearance:
Shri Kapil Duggal - Advocate for the applicant.
Shri Pradeep Gupta - Government Advocate for the respondent
No.1/State.
Shri A. Rajeshwar Rao - Advocate for the respondent No.2.
..........................................................................................
Reserved on : 24.03.2025
Pronounced on : 08.04.2025
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ORDER
This petition under Section 439(2) of Code of Criminal Procedure
1973 has been filed by the petitioner to cancel the bail granted to
respondent No.2 Sunil Yadav vide order dated 22.03.2021 passed in
M.Cr.C.No.26739/2020 and order dated 07.12.2022 passed by Hon'ble
Supreme Court in Criminal Appeal Nos.2217-2218/2022 (Sunil Yadav
Vs. The State of Madhya Pradesh & another).
2. The brief facts as reflected on the record are that the respondent
No.2 filed M.Cr.C.No.26739/2020 for grant of anticipatory bail in
relation to FIR 332/2020, registered at Police Station Shahpura, District
Bhopal for commission of offences punishable under Sections 406 and
420/34 of IPC.
3. The prosecution story, in short, is that Rahul Jogi submitted an
application before the Police Station Shahpura stating that he deals in
construction work. Raj Kumar Sharma, Property Broker had shown
1500 Sqft plot in Jai Bhawani, Phase-II Society. He asked Raj Kumar
Sharma to finalized the deal of the plot. Thereafter Raj Kumar Sharma
along with Shailesh Gupta and Sunil Yadav called him on the plot. Sunil
Yadav shown him the paper of Vikas Kunj and Jai Bhawani plots and
said that documents of the plot is with the society that's why they are
not getting the NOC. If he execute the agreement and pay money, he
will get him building permission sanction. Agreement dated 31.01.2019
of plot No.18 comprising area 1500 sqft part of Khasra No.91 and 92 of
Village Bawadiya Kalan (Jai Bhawani Grah Nirman Shahkari Sanstha
Maryadit) Bhopal (M.P.) is situated in ward No.52. The boundary
thereof as under:-
i. In east side open land.
ii. West side 25 ft wide road.
iii. North side 25 ft wide road.
iv. South side plot No.19.
Beside aforesaid plot the agreement was executed for 5 other plots of
Vikas Kunj Society. He paid Rs.29,50,000/- through cheques NEFT and
cash of Rs.4,00,000/- in total Rs.33,50,000/- were given to Sunil Yadav.
After some time these people handed over the receipt of Municipal
Corporation and certificate of passing map. Today he came to know that
the building permission, which has been given to him is fake and forged
and Society has no record of the plots, about which money has been taken.
It is informed by the President of the Society that earlier registries were
executed without TNCP permission, therefore, registries are not valid.
When he asked them to return his Rs.33,50,000/- they have refused to
return the money. FIR was registered.
4. An application for anticipatory bail was filed before the Court of
Sessions and same was dismissed, therefore, applicant approached this
Court and this Court vide order dated 22.03.2021 granted anticipatory bail
to the respondent No.2/applicant Sunil Yadav subject to condition that he
will furnish the bank draft worth Rs.33,50,000/- in favour of Rahul Jogi
and hand over the draft to the Investigation Officer as earlier as possible.
Aforesaid order was challenged with regard to the condition imposed
before the Supreme Court by filing Criminal Appeal No.2217-2218 of
2022. Hon'ble Apex Court vide order dated 07.12.2022 modified the
condition and passed the order as under:-
"From the special leave petitions itself, it would
appear that the petitioner has received a sum of
Rs.19,50,000/-. It is his case that he has returned a sum
of Rs.5 lakhs. It is disputed by the private respondent.
Under the order of this Court, the appellant has already
deposited a sum of Rs.5 lakhs. While we are not inclined
to direct the appellant to deposit the entirety of
Rs.33,50,000/- which according to him was directed to be
deposited on the basis of the understanding which was
not correct, we would think that interest of justice would
be satisfied if the Court directs that he deposits a sum of
Rs.14,50,000/- (Rupees Fourteen Lakhs and Fifty
Thousand) in place of Rs.33,50,000/- as was directed,
within four months from today in the trial Court."
5. The respondent No.2 was released on anticipatory bail, in view of
the orders passed by this Hon'ble Court and Hon'ble Supreme Court but
respondent No.2 has not complied with the condition of depositing Rs.14,
50,000/- in place of Rs.33,50,000/- as directed by the Hon'ble Apex Court
as same had to be deposited within four months from the date of order
dated 07.12.2022. Charge sheet has already been filed.
6. Learned counsel for the petitioner has submitted that an amount of
Rs.5 Lakhs deposited by the respondent No.2/accused in compliance of the
Hon'ble Apex Court order was independent and exclusive of amount of
Rs.14,50,000/- and accused has not deposited the aforesaid amount and has
willfully and deliberately violated the orders of the Hon'ble Supreme
Court and, therefore, the bail granted to him be canceled.
7. On the other hand, learned counsel for the State has submitted that
the applicant has not complied with the condition imposed by Hon'ble
Apex Court as same was modified and instead of Rs.33,50,000/- applicant
has to deposit Rs.14,50,000/- before the trial Court within four months
from the order dated 07.12.2022. Counsel for the State has submitted that
the aforesaid amount of Rs.14,50,000/- was independent to the amount of
Rs.5 Lakhs already deposited under the orders of Hon'ble Apex Court, as
applicant has not complied with the condition his bail is required to be
canceled.
8. Counsel for the respondent No.2 has fairly admitted that respondent
No.2 Sunil Yadav has not complied with the conditions of deposit of
Rs.14,50,000/- before the trial Court. In compliance of the Hon'ble Apex
Court order dated 07.12.2022, but placing reliance on the judgment of
Kunhayammed and Others Vs. State of Kerala and another, (2006) 6
SCC 359 and in para 41 of the judgment has held that once a special
leave petition is granted the order of this Court is merged into the order of
Hon'ble Apex Court, therefore, this Court has no right to cancel the bail
granted to respondent No.2. Para 41 and 42 of the judgment is reproduced
as under:-
"41. Once a special leave petition has been granted,
the doors for the exercise of appellate jurisdiction of this
Court have been let open. The order impugned before
the Supreme Court becomes an order appealed against.
Any order passed thereafter would be an appellate order
and would attract the applicability of doctrine of merger.
It would not make a difference whether the order is one
of reversal or of modification or of dismissal affirming
the order appealed against. It would also not make any
difference if the order is a speaking or non- speaking
one. Whenever this Court has felt inclined to apply its
mind to the merits of the order put in issue before it
though it may be inclined to affirm the same, it is
customary with this Court to grant leave to appeal and
thereafter dismiss the appeal itself (and not merely the
petition for special leave) though at times the orders
granting leave to appeal and dismissing the appeal are
contained in the same order and at times the orders are
quite brief. Nevertheless, the order shows the exercise of
appellate jurisdiction and therein the merits of the order
impugned having been subjected to judicial scrutiny of
this Court.
42. "To merge" means to sink or disappear in something
else; to become absorbed or extinguished; to be
combined or be swallowed up. Merger in law is defined
as the absorption of a thing of lesser importance by a
greater, whereby the lesser ceases to exist, but the
greater is not increased; an absorption or swallowing up
so as to involve a loss of identity and individuality."
9. Disputing the arguments by counsel for the respondent No.2,
counsel for the applicant and counsel for the State has submitted that the
order granting anticipatory bail was passed by this Court, Hon'ble Apex
Court has only modified the condition of depositing of Rs.33,50,000/- and
has directed that in place of Rs.33,50,000/- the amount of Rs.5 Lakhs,
which has already been deposited, an amount of Rs.14,50,000/- more have
to be deposited by the applicant before the trial Court within four months.
As anticipatory bail was granted by this Court, it can cancel the order
granting anticipatory bail as accused failed to comply with the conditions
imposed by this Court and modified by the Hon'ble Apex Court.
10. The case of (Kunhayammed & Others) supra relied on by the
counsel for the respondent No.2 is not applicable in the facts of case in
hand, as it is not a case of merger of order, but a case of violation of
condition of bail granted by Court. It is well settled that bail once granted,
ought not to be canceled in mechanical manner. However, un-reasoned or
perverse order of bail is always to be interfered by the Superior Court. If
there are serious allegations, even he has not misused the bail granted to
him, such order can be cancelled by the same Court that has granted the
bail. Bail can also be revoked by superior Court that if it transpires that the
Court below has ignored the relevant material available on record or not
looked to the gravity of the offence.
11. The orders passed by this Court and by Hon'ble Apex Court on
07.12.2022 in above quoted orders clearly demonstrates that respondent
No.2 has not complied with the conditions imposed by the Hon'ble Apex
Court and by hook and crook did not intend to comply with the condition
despite passage of more then two years and four months of the order
passed by the Hon'ble Apex Court and despite ample opportunity granted
by this Court. The aforesaid conduct of the respondent No.2 clearly shows
that even after getting ample opportunities respondent No.2 has not
complied with the condition imposed by this Court and modified by
Hon'ble Apex Court and taking excuse, which is not tenable. It is apparent
that in compliance of the order dated 07.12.2022 passed by Hon'ble Apex
Court, respondent No.2 has not deposited even a single penny before the
trial Court. Thus, it is quite vivid that respondent No.2 has deliberately not
complied with the conditions within the specified period as granted by the
Hon'ble Supreme Court and despite ample opportunities granted to him,
on which the bail was granted by this Court.
12. In view of the above, this Court has to examine whether any
circumstances are available on record to exercise the power of cancellation
of bail as provided under Section 439(2) of Cr.P.C. It is pertinent to
reproduce the provision of Section 439 of Cr.P.C., which reads as under:-
"439, Special powers of High Court or Court of
Sessions regarding bail. (1) A High Court or Court of
Session may direct--
(a) that any person accused of an offence and in
custody be released on bail, and if the offence is
of the nature specified in Sub-Section (3) of
section 437 may impose any condition which it
considers necessary for the purposes mentioned
in that Sub-Section;
(b) that any condition imposed by a Magistrate
when releasing an person on bail be set aside or
modified; Provided that the High Court or the
Court of Session shall, before granting bail to a
person who is accused of an offence which is
triable exclusively by the Court of Session or
which, though not so triable, is punishable with
imprisonment for life, give notice of the
application for bail to the Public Prosecutor
unless it is, for reasons to be recorded in writing,
of opinion that it is not practicable to give such
notice.
(2) A High Court or Court of Session may direct
that any person who has been released on bail
under this Chapter be arrested and commit him to
custody."
13. The only question to be considered herein is whether the second
respondent/accused herein violated the bail conditions so as to cancel his
bail. It is true that cancellation of bail is a harsh order and, therefore, the
same cannot be done in a casual manner. For cancelling bail once granted,
the Court must consider whether any supervening circumstances have
arisen or conduct of the accused post grant of bail demonstrates that it is no
longer conducive to a fair trial to permit him to retain his freedom by
enjoying the concession of bail during trial. To put it differently, in
ordinary circumstances, this Court would be loath to interfere with an
order granting bail.
14. The law regarding cancellation of bail has already been settled. The
Apex Court in Myakala Dharmarajam and others Vs. State of Telangana
and another (2020) 2 SCC 743 has relied on the decision in the case of
Reghuveer Singh Vs. State of Bihar (1986) 4 SCC 481 and held :-
"Bail can be cancelled where (i) the accused
misuses his liberty by indulging in similar criminal
activity, (ii) interferes with the course of
investigation, (iii) attempts to tamper with
evidence or witnesses, (iv) threatens witnesses or
indulges in similar activities which would hamper
smooth investigation, (v) there is likelihood of his
fleeing to another country, (vi) attempts to make
himself scarce by going underground or becoming
unavailable to the investigating agency, (vii)
attempts to place himself beyond the reach of his
surety, etc. The above grounds are illustrative and
not exhaustive. It must also be remembered that
rejection of bail stands on one footing but
cancellation of bail is a harsh order because it
interferes with the liberty of the individual and
hence it must not be lightly resorted to.
15. In Mahipal Vs. Rajesh Kumar alias Polia and another (2020) 2
SCC 118, the Supreme Court has observed :-
"16. The considerations that guide the power of
an appellate court in assessing the correctness of
an order granting bail stand on a different footing
from an assessment of an application for the
cancellation of bail. The correctness of an order
granting bail is tested on the anvil of whether there
was an improper or arbitrary exercise of the
discretion in the grant of bail. The test is whether
the order granting bail is perverse, illegal or
unjustified. On the other hand, an application for
cancellation of bail is generally examined on the
anvil of the existence of supervening
circumstances or violations of the conditions of
bail by a person to whom bail has been granted. In
Neeru Yadav v State of Uttar Pradesh [(2014) 16
SCC 508] the accused was granted bail by the
High Court. In an appeal against the order of the
High Court, a two judge Bench of this Court
surveyed the precedent on the principles that guide
the grant of bail. Justice Dipak Misra (as the
learned Chief Justice then was) held:
....It is well settled in law that
cancellation of bail after it is granted
because the accused has misconducted
himself or of some supervening
circumstances warranting such
cancellation have occurred is in a
different compartment altogether than an
order granting bail which is unjustified,
illegal and perverse. If in a case, the
relevant factors which should have been
taken into consideration while dealing
with the application for bail and have not
been taken note of bail or it is founded on
irrelevant considerations, indisputably the
superior court can set aside the order of
such a grant of bail. Such a case belongs
to a different category and is in a separate
realm. While dealing with a case of
second nature, the Court does not dwell
upon the violation of conditions by the
accused or the supervening circumstances
that have happened subsequently. It, on
the contrary, delves into the justifiability
and the soundness of the order passed by
the Court.....
16. It is thus well settled that once a bail is granted to an accused, the
same can only be cancelled if it is shown that the bail order suffers from
infirmities or the accused while on bail has misused his liberty and has
acted in such a manner which is prejudicial to the case of prosecution.
Cancellation of bail is a harsh order, as it interferes with the liberty of
individual and thus cannot be restored to lightly.
17. In Dolat Ram and others Vs. State of Haryana, (1995) 1 SCC 349, the
Hon'ble Apex Court has observed as follows :
"Rejection of bail in a non-bailable case at the
initial stage and the cancellation of bail so granted,
have to be considered and dealt with on different
basis. Very cogent and overwhelming
circumstances are necessary for an order directing
the cancellation of the bail, already granted.
Generally speaking, the grounds for cancellation
of bail, broadly (illustrative and not exhaustive)
are: interference or attempt to interfere with the
due course of administration of Justice or evasion
or attempt to evade the due course of justice or
abuse of the concession granted to the accused in
any manner. The satisfaction of the court, on the
basis of material placed on the record of the
possibility of the accused absconding is yet
another reason justifying the cancellation of bail.
However, bail once granted should not be
cancelled in a mechanical manner without
considering whether any supervening
circumstances have rendered it no longer
conducive to a fair trial to allow the accused to
retain his freedom by enjoying the concession of
bail during the trial. These principles, it appears,
were lost sight of by the High Court when it
decided to cancel the bail, already granted. The
High Court it appears to us overlooked the
distinction of the factors relevant for rejecting bail
in a non-bailable case in the first instance and the
cancellation of bail already granted."
18. In Dataram Singh Vs State of U.P. and another, (2018) 3 SCC 22,
the Hon'ble Apex Court observed as under :
"It is also relevant to note that there is difference
between yardsticks for cancellation of bail and
appeal against the order granting bail. Very cogent
and overwhelming circumstances are necessary for
an order directing the cancellation of bail already
granted. Generally speaking, the grounds for
cancellation of bail are, interference or attempt to
interfere with the due course of administration of
justice or evasion or attempt to evade the due
course of justice or abuse of the concessions
granted to the accused in any manner. These are all
only few illustrative materials. The satisfaction of
the Court on the basis of the materials placed on
record of the possibility of the accused absconding
is another reason justifying the cancellation of
bail. In other words, bail once granted should not
be cancelled in a mechanical manner without
considering whether any supervening
circumstances have rendered it no longer
conducive to a fair trial to allow the accused to
retain his freedom by enjoying the concession of
bail during the trial."
19. The Hon'ble Supreme Court in Deepak Yadav Vs. State of U.P. &
another, reported in AIR 2022 SC 2514, has held at paragraph No.30 to 34
as under:-
"30. This Court has reiterated in several instances
that bail once granted, should not be cancelled in a
mechanical manner without considering whether
any supervening circumstances have rendered it no
longer conducive to a fair trial to allow the
accused to retain his freedom by enjoying the
concession of bail during trial. Having said that, in
case of cancellation of bail, very cogent and
overwhelming circumstances are necessary for an
order directing cancellation of bail (which was
already granted). A two-Judge Bench of this Court
in Dolat Ram And Others Vs. State of Haryana
laid down the grounds for cancellation of bail
which are :-
(i) interference or attempt to interfere with the due
course of administration of Justice
(ii) evasion or attempt to evade the due course of
justice
(iii) abuse of the concession granted to the accused
in any manner
(iv) Possibility of accused absconding
(v) Likelihood of/actual misuse of bail
(vi) Likelihood of the accused tampering with the
evidence or threatening witnesses.
31. It is no doubt true that cancellation of bail
cannot be limited to the occurrence of supervening
circumstances. This Court certainly has the
inherent powers and discretion to cancel the bail of
an accused even in the absence of supervening
circumstances. Following are the illustrative
circumstances where the bail can be cancelled :-
a) Where the court granting bail takes into account
irrelevant material of substantial nature and not
trivial nature while ignoring relevant material on
record.
b) Where the court granting bail overlooks the
influential position of the accused in comparison
to the victim of abuse or the witnesses especially
when there is prima facie misuse of position and
power over the victim.
c) Where the past criminal record and conduct of
the accused is completely ignored while granting
bail.
d) Where bail has been granted on untenable
grounds.
e) Where serious discrepancies are found in the
order granting bail thereby causing prejudice to
justice.
f) Where the grant of bail was not appropriate in
the first place given the very serious nature of the
charges against the accused which disentitles him
for bail and thus cannot be justified.
g) When the order granting bail is apparently
whimsical, capricious and perverse in the facts of
the given case.
32. In Neeru Yadav Vs. State of Uttar Pradesh And
Another 18, the accused was granted bail by the
High Court. In an appeal against the order of the
High Court, a two-Judge Bench of this Court
examined the precedents on the principles that
guide grant of bail and observed as under :-
"12...It is well settled in law that cancellation of
bail after it is granted because the accused has
misconducted himself or of some supervening
circumstances warranting such cancellation have
occurred is in a different compartment altogether
than an order granting bail which is unjustified,
illegal and perverse. If in a case, the relevant
factors which should have been taken into
consideration while dealing with the application
for bail and have not been taken note of bail or it is
founded on irrelevant considerations, indisputably
the superior court can set aside the order of such a
grant of bail. Such a case belongs to a different
category and is in a separate realm. While dealing
with a case of second nature, the Court does not
dwell upon the violation of conditions by the
accused or the supervening circumstances that
have happened subsequently. It, on the contrary,
delves into the justifiability and the soundness of
the order passed by the Court"
33. This Court in Mahipal (Supra) held that: -
"17. Where a court considering an application for
bail fails to consider relevant factors, an appellate
court may justifiably set aside the order granting
bail. An appellate court is thus required to consider
whether the order granting bail suffers from a non-
application of mind or is not borne out from a
prima facie view of the evidence on record. It is
thus necessary for this Court to assess whether, on
the basis of the evidentiary record, there existed a
prima facie or reasonable ground to believe that
the accused had committed the crime, also taking
into account the seriousness of the crime and the
severity of the punishment."
34. A two-Judge Bench of this Court in Prakash
Kadam And Others Vs. Ram Prasad Vishwanath
Gupta And Another19 held that:-
"18. In considering whether to cancel the bail, the
court has also to consider the gravity and nature of
the offence, prima facie case against the accused,
the position and standing of the accused, etc. if
there are serious allegations against the accused,
his bail may be cancelled even if he has not
misused the bail granted to him.
19. In our opinion, there is no absolute rule that
once bail is granted to the accused then it can only
be cancelled if there is likelihood of misuse of
bail, that factor, though no doubt important, is not
the only factor. There are several other factors also
which may be seen while deciding to cancel the
bail."
20. Now coming to the facts of this case, it is apparent that this Court
granted anticipatory bail to the second respondent, who is accused in FIR
No.332/2020, registered at Police Station Shahpura, District Bhopal (M.P.)
for commission of offence punishable under Sections 406 and 420/34 of
IPC. This Court has imposed condition of depositing a bank draft of
Rs.33,50,000/- in favour of the applicant Rahul Jogi with Investigating
Officer as earlier as possible. The said order was challenged before the
Hon'ble Apex Court and Hon'ble Apex Court vide order dated 07.12.2022
passed in Criminal Appeal No.2217 - 2218 of 2022 (Sunil Yadav Vs. The
State of Madhya Pradesh and another) directed to deposit a sum of
Rs.14,50,000/- in addition to Rs.5,00,000/- already deposited in
compliance of the Hon'ble Supreme Court order within four months from
the date of its order before the trial Court.
21. It is admitted by the counsel for the respondent No.2 that respondent
No.2 has not deposited the aforesaid amount with the trial Court in
compliance of the Supreme Court order despite passage of time of almost 2
years and has deliberately avoided in fulfilling the conditions imposed by
the Court. Thus there is sufficient material on record to cancel the
anticipatory bail granted to the respondent No.2 on 22.03.2021 by order
passed in M.Cr.C.No.26739/2020 and modification of the aforesaid order
by Hon'ble Apex Court in Criminal Appeal No.2217 - 2218 of 2022.
Accordingly this petition is allowed the bail granted to the respondent No.2
by this Court in M.Cr.C.No.26739/2020 on 22.03.2021 is cancelled. He is
directed to surrender before the trial Court within seven working days from
today. If he surrenders, he be taken into custody forthwith. If applicant,
fails to surrender within seven working days from today the trial Court
shall issue arrest warrant for his arrest and shall commit him to jail.
Accordingly, this petition for cancellation of bail is allowed.
(DINESH KUMAR PALIWAL)
JUDGE
Vin**
