Violating conditions under Section 438(2) of Cr.P.C shall lead to cancellation bail bonds: Madhya Pradesh High Court

MCRC 21301 2021 The High Court Of Madhya Pradesh The High Court Of Madhya Pradesh MCRC 21301 2021 AMAR KUMAR CHAUDHARY Vs THE STATE OF MADHYA PRADESH Jabalpur Dated : 10 05 2021 Heard through Video Conferencing Shri Siddharth Kumar Sharma learned counsel for the applicant Smt.Gulab Kali learned Government Advocate On account of prevailing conditions worldwide brought about by the COVID 19 virus the appeal has been heard through video conferencing in order to maintain social distancing. The necessary parties have effectively been represented by their respective counsel via video conferencing The applicant is apprehending his arrest in connection with Crime No.572 2020 registered at Police Station Madhotal District Jabalpur for the offences punishable under Sections 406 and 420 read with Section 34 of the IPC According to case the applicant is accused of Crime No.572 2020 registered at Police Station Madhotal District Jabalpur for the offences punishable under Sections 406 and 420 read with Section 34 of the IPC. As per the prosecution story on the complaint the police official raided in the godown under the ownership of Amar Kumar Chaudhary and found that a truck containing government wheat was unloading by the labourers. During investigation it is found that the present applicant and other co accused persons namely Vijay Kumar Azam Kha Amar Kumar Vijay Singh Lodhi and Gudda Khan have committed cheating by delivering the government wheat to Private Godown in place of Government Fair Price Shop. During investigation the Investigating Officer has not arrested the applicant in view of the compliance of Section 41(1) of Cr.P.C. directing MCRC 21301 2021 him to appear before the Court while filing the charge sheet. Despite giving intimation the applicant did not appear before the JMFC Jabalpur at the time of filing of charge sheet by the prosecution hence the learned JMFC has issued the arrest warrant against the applicant. Learned counsel for the applicant submits that a false case has been registered against the applicant whereas the applicant is not involved in the alleged offences. The wheat has already been obtained by the M.P State Civil Supply Corporation on Supurdginama. Intimation regarding filing of charge sheet has not been given to applicant. The trial Court has issued the arrest warrant at the first instance without giving any opportunity of hearing to the applicant. He has relied upon the judgment passed by the Hon ble Apex Court in the case of Indar Mohan Goswami Ors. V. State of U.P. & Ors. reported in8 SCC 77 passed by the Hon ble Supreme 2. Mayank vs. State of M.P. reported in 2 MPHT 3. Rajendra Kori vs. State of M.P. in M.Cr.C.No.17501 2016 350 passed by this High Court. passed by this High Court. anticipatory bail to the applicant Therefore learned counsel for the applicant prays for grant of Per contra learned P.L. for respondent State opposes the bail application submitting that applicant has committed serious crime and he is not entitled to get anticipatory bail. On perusal of case it appears that the applicant made as an accused in the case being proprietor of private godown where the government wheat was unloading. Charge sheet has been filed in the case and the applicant is apprehending his arrest on the reason of his absence before the trial Court while filing of charge sheet by the police. During investigation the applicant has not been arrested by the police in compliance of Section 41(1) of Cr.P.C. directing the applicant to remain present before the trial Court at the time of filing of charge sheet. As per the prosecution despite giving notice to the applicant he did not appear MCRC 21301 2021 before the trial Court and therefore the trial Court has issued arrest warrant against him. The learned Senior counsel for the applicant confronted the same relying upon the judgement and orders passed by the Hon ble Supreme Court as well as this High Court submitting that at the first instance arrest warrant should have not been issued by the learned trial Court. Summons could be issued against him. Prima facie it seems that the arrest of present applicant is not required to the police for investigating purpose but they may arrest him in compliance of arrest warrant issued by the trial Court due to non presence of the applicant while filing of charge sheet. Considering the aforesaid circumstances and submissions raised by the learned Senior counsel but without expressing any opinion on merits o f the case this Court is of the view that it would be appropriate to enlarge the applicant on anticipatory bail. Consequently the application under Section 438 of Cr.P.C. is hereby allowed is directed that Applicant Amar Kumar Choudhary will surrender himself before the trial Court within thirty days from the date of receipt of certified copy of this order and in the event of arrest he be released on bail on his furnishing bail bond in the sum of Rs.50 000 Rupees Fifty Thousand Only) with one solvent surety in the like amount to the satisfaction of the trial Court The applicant shall abide by the conditions enumerated in sub sectionof Section 438 of Cr.P.C Certified copy as per rules VIJAY KUMAR SHUKLA

Summary: Prima facie, it seems that the arrest of present applicant is not required to the police for investigating purpose but they may arrest him in compliance of arrest warrant issued by the trial Court due to nonpresence of the applicant while filing of charge-sheet. This was said in the case of Amar Kumar Chaudhary Vs The State Of Madhya Pradesh [MCRC-21301-2021] by Justice Vijay Kumar Shukla in the High Court of Madhya Pradesh The facts of the case are that the applicant is apprehending his arrest in connection with Crime, for the offences punishable under Sections 406 and 420 read with Section 34 of the IPC. Learned counsel for the applicant submits that a false case has been registered against the applicant whereas the applicant is not involved in the alleged offences. Intimation regarding filing of charge-sheet has not been given to applicant. The trial Court has issued the arrest warrant at the first instance without giving any opportunity of hearing to the applicant. He has relied upon the judgment passed by the Hon’ble Apex Court in the case of Indar Mohan Goswami &amp; Ors. V. State of U.P. &amp; Ors [(2007)12 SCC 1], submitting that the warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind due to the extremely serious consequences and ramifications which ensure on issuance of warrants but the trial Court has directly issued the arrest warrant against the applicant. Besides the above, learned Senior counsel argued that investigation is complete, charge-sheet has been filed and no purpose would be serve to send the applicant behind the bars. An opportunity of hearing should have been given to the applicant prior to issuance of arrest warrant. There is no criminal antecedent against the present applicant. There is no probability of his absconding or tampering with the evidence of prosecution Per-contra, learned P.L. for respondent/State opposes the bail application submitting that applicant has committed serious crime and he is not entitled to get anticipatory bail.