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NEUTRAL CITATION NO. 2025:MPHC-IND:13241
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 16TH OF MAY, 2025
MISC. CRIMINAL CASE No. 5655 of 2025
BALVEENDER SINGH
Versus
THE STATE OF MADHYA PRADESH & ANOTHER
Appearance:
Shri Satish Tomar Advocate for the petitioner.
Shri Virendra Khedav Public Prosecutor for respondent No.1-State.
Shri Hitesh Sharma Advocate for respondent No.2.
…..................................................................................................................
ORDER
This application under Section 439(2) of The Code of Criminal
Procedure read with Section 483(3) of Bharatiya Nagarik Suraksha
Sanhita, 2023 is filed for cancellation of bail granted to respondent
Mahendra vide order dated 28.11.2024 by the Court of 3 rd Additional
Sessions Judge, Ujjain for offence punishable under Sections 420, 467,
468, 471 and 34 of IPC at Crime No. 256/2017 P.S. Nanakheda District
Ujjain.
2 Learned counsel for the petitioner submits that learned trial
Court i.e. Court of learned 3rd Additional Sessions Judge Ujjain
extended benefit of bail to respondent-accused/Mahendra on the
ground of parity with co-accused Shantabai who has been extended
benefit of anticipatory bail vide order dated 20.11.2024 passed in
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MCRC No. 43583/2024. Learned trial court committed an error in
considering the parity of the prosecution against respondent Mahendra
with that of Shantabai. Prosecution against Mahendra and Shantabai
are on different footing. Mahendra had induced Shantabai to execute
power of attorney in favour of Mahendra. Mahendra later transferred
the land on the basis of said power of attorney to his brother Jitendra.
Shantabai was extended benefit of anticipatory bail considering her age
and antecedents. Learned counsel further contends that brother of
respondent/Mahendra, Jitendra had approached the High Court for
grant of anticipatory bail. His petitions for grant of anticipatory bail
were rejected vide order dated 13.9.2024 passed in MCRC No.
39024/2024 and order dated 20.11.2024 passed in MCRC No.
44218/2024. The respondent/accused Mahendra while pursuing grant
of anticipatory bail, suppressed the material fact that his brother and
co-accused Jitendra was denied grant of anticipatory bail by the High
Court. Therefore, the impugned order was secured by concealing
material fact.
3 Per contra, learned counsel appearing for respondent No.2
submits that learned trial court after considering the entire material on
case diary extended benefit of bail to respondent/accused Mahendra.
The trial Court considered grant of anticipatory bail in favour of Shanta
bai, who had executed power of attorney in favour of Mahendra. There
was no concealment of any material fact. The counsel for the State
could have brought to the notice of the trial Court the order rejecting
grant of anticipatory bail against Jitendra. Therefore, in view of the law
laid down by the Supreme court in case of Kashmira Singh Vs.
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Duman Singh reported in AIR 1996 SC 2176, the anticipatory bail
granted in favour of respondent/accused Mahendra may not be
interfered with. Learned Counsel further informs that the co-accused
Jitendra has been extended benefit of bail by the Supreme Court vide
Order dated 16.04.2025 passed in SLP (Criminal) Diary No.
12412/2025.
4 In reply, learned counsel for the applicant referring to order dated
19.1.2024 passed in Criminal Appeal No.303 of 2024 in the case of
Kusha Duruka Vs. The State of Odisha and the order of High Court of
Madhya Pradesh in the case of Ramesh Kateha and another Vs. State
of Madhya Pradesh, reported in 1999 CRILJ 4243 contends that
suppression of material fact with regard to rejection of anticipatory bail
applications of co-accused Jitendra is sufficient for cancellation of bail
as trial Court was not aware of this important aspect of the matter.
5 Learned counsel for the State supports the application and
submits that the rejection of anticipatory bail application of co-accused
Jitendra by the High Court should have been brought to the notice of
the trial Court.
6 Heard both the parties and perused the record.
7 In case of Kanwar Singh Meena v. State of Rajasthan & Anr.
reported in (2012) 12 SCC 180, it was held that:-
10. Thus, Section 439 of the Code confers very wide powers on the
High Court and the Court of Sessions regarding bail. But, while
granting bail, the High Court and the Sessions Court are guided by
the same considerations as other courts. That is to say, the gravity
of the crime, the character of the evidence, position and status of
the accused with reference to the victim and witnesses, the
likelihood of the accused fleeing from justice and repeating the
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offence, the possibility of his tampering with the witnesses and
obstructing the course of justice and such other grounds are
required to be taken into consideration. Each criminal case presents
its own peculiar factual scenario and, therefore, certain grounds
peculiar to a particular case may have to be taken into account by
the court. The court has to only opine as to whether there is prima
facie case against the accused. The court must not undertake
meticulous examination of the evidence collected by the police and
comment on the same. Such assessment of evidence and premature
comments are likely to deprive the accused of a fair trial. While
cancelling bail under Section 439(2) of the Code, the primary
considerations which weigh with the court are whether the accused
is likely to tamper with the evidence or interfere or attempt to
interfere with the due course of justice or evade the due course of
justice. But, that is not all. The High Court or the Sessions Court
can cancel bail even in cases where the order granting bail suffers
from serious infirmities resulting in miscarriage of justice. If the
court granting bail ignores relevant materials indicating prima facie
involvement of the accused or takes into account irrelevant
material, which has no relevance to the question of grant of bail to
the accused, the High Court or the Sessions Court would be
justified in cancelling the bail. Such orders are against the well
recognized principles underlying the power to grant bail. Such
orders are legally infirm and vulnerable leading to miscarriage of
justice and absence of supervening circumstances such as the
propensity of the accused to tamper with the evidence, to flee from
justice, etc. would not deter the court from cancelling the bail. The
High Court or the Sessions Court is bound to cancel such bail
orders particularly when they are passed releasing accused
involved in heinous crimes because they ultimately result in
weakening the prosecution case and have adverse impact on the
society. Needless to say that though the powers of this court are
much wider, this court is equally guided by the above principles in
the matter of grant or cancellation of bail.
8. Further, in case of Ajwar v. Waseem, (2024) 10 SCC 768, the
Supreme Court outlined the principles governing cancellation of bail as
under:-
27. It is equally well settled that bail once granted, ought not to be
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cancelled in a mechanical manner. However, an unreasoned or
perverse order of bail is always open to interference by the superior
court. If there are serious allegations against the accused, even if he
has not misused the bail granted to him, such an order can be
cancelled by the same Court that has granted the bail. Bail can also
be revoked by a superior court if it transpires that the courts below
have ignored the relevant material available on record or not
looked into the gravity of the offence or the impact on the society
resulting in such an order. In P v. State of M.P. [P v. State of M.P.,
(2022) 15 SCC 211] decided by a three-Judge Bench of this Court
[authored by one of us (Hima Kohli, J.)] has spelt out the
considerations that must weigh with the Court for interfering in an
order granting bail to an accused under Section 439(1)CrPC in the
following words :
“24. As can be discerned from the above decisions, for cancelling
bail once granted, the court must consider whether any supervening
circumstances have arisen or the 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 [Dolat Ram v. State of Haryana, (1995) 1 SCC 349 :
1995 SCC (Cri) 237] . To put it differently, in ordinary
circumstances, this Court would be loathe to interfere with an order
passed by the court below granting bail but if such an order is
found to be illegal or perverse or premised on material that is
irrelevant, then such an order is susceptible to scrutiny and
interference by the appellate court.”
Considerations for setting aside bail orders
28. The considerations that weigh with the appellate court for
setting aside the bail order on an application being moved by the
aggrieved party include any supervening circumstances that may
have occurred after granting relief to the accused, the conduct of
the accused while on bail, any attempt on the part of the accused to
procrastinate, resulting in delaying the trial, any instance of threats
being extended to the witnesses while on bail, any attempt on the
part of the accused to tamper with the evidence in any manner. We
may add that this list is only illustrative and not exhaustive.
However, the court must be cautious that at the stage of granting
bail, only a prima facie case needs to be examined and detailed
reasons relating to the merits of the case that may cause prejudice
to the accused, ought to be avoided. Suffice it is to state that the
bail order should reveal the factors that have been considered by
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the Court for granting relief to the accused.
29. In Jagjeet Singh [Jagjeet Singh v. Ashish Mishra, (2022) 9 SCC
321 : (2022) 3 SCC (Cri) 560] , a three-Judge Bench of this Court,
has observed that the power to grant bail under Section 439CrPC is
of wide amplitude and the High Court or a Sessions Court, as the
case may be, is bestowed with considerable discretion while
deciding an application for bail. But this discretion is not
unfettered. The order passed must reflect due application of judicial
mind following well-established principles of law. In ordinary
course, courts would be slow to interfere with the order where bail
has been granted by the courts below. But if it is found that such an
order is illegal or perverse or based upon utterly irrelevant material,
the appellate court would be well within its power to set aside and
cancel the bail. (Also refer : Puran v. Rambilas, (2001) 6 SCC
338; Narendra K. Amin v. State of Gujarat, (2008) 13 SCC 584)
9 The factual matrix of the matter in hand is examined in the light
of aforestated preposition of law. Respondent/accused Mahendra was
extended benefit of anticipatory bail by the trial Court vide order dated
28.11.2024. Learned Trial Court had examined the case diary and
considered the allegations against applicant in detail. The grant of
anticipatory bail to Shantabai by the High Court was one of the factors
considered by the trial Court. The impugned order cannot be said to be
perverse or illegal based on irrelevant material or ignorance of material
on record. The main contention/objection raised by the petitioner for
cancellation of bail relates to suppression of the fact that co-accused
Jitendra was denied bail by the High Court. The objection is rendered
insignificant in view of the fact that Jitendra has been extended benefit
of bail by the Supreme Court. There is no allegation of misuse of
liberty by respondent Mahendra after grant of the bail. Therefore, in
view of the above discussion and the factual matrix of the case,
cancellation of bail granted to respondent Mahendra by the trial Court
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is not required for the purpose of fair trial or to secure ends of justice.
10 Consequently, the petition under Section 439(2) of Cr.P.C. read
with Section 483(3) of BNSS is dismissed.
11 However, before parting with the order, the important aspect
about suppression/non mentioning of relevant particular about denial
of bail to co-accused Jitendra needs to be addressed. The Supreme
Court in case of Kusha Duruka v. State of Odisha, (2024) 4 SCC 432
laid down as under:-
22. In our opinion, to avoid any confusion in future, it would be
appropriate to mandatorily mention in the application(s) filed for
grant of bail:
22.1.Details and copies of order(s) passed in the earlier bail
application(s) filed by the petitioner which have been already
decided.
22.2.Details of any bail application(s) filed by the petitioner, which
is pending either in any court, below the court in question or the
higher court, and if none is pending, a clear statement to that effect
has to be made.
22.2.1.This Court has already directed vide order passed in
Pradhani Jani case [Pradhani Jani v. State of Odisha, (2024) 4
SCC 451] that all bail applications filed by the different accused in
the same FIR should be listed before the same Judge except in
cases where the Judge has superannuated or has been transferred or
otherwise incapacitated to hear the matter. The system needs to be
followed meticulously to avoid any discrepancies in the orders.
22.2.2. In case it is mentioned on the top of the bail application or
any other place which is clearly visible, that the application for bail
is either first, second or third and so on, so that it is convenient for
the court to appreciate the arguments in that light. If this fact is
mentioned in the order, it will enable the next higher court to
appreciate the arguments in that light.
22.3. The Registry of the court should also annex a report
generated from the system about decided or pending bail
application(s) in the crime case in question. The same system needs
to be followed even in the case of private complaints as all cases
filed in the trial courts are assigned specific numbers (CNR No.),
even if no FIR number is there.
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22.4. It should be the duty of the investigating officer/any officer
assisting the State counsel in court to apprise him of the order(s), if
any, passed by the court with reference to different bail applications
or other proceedings in the same crime case. And the counsel
appearing for the parties have to conduct themselves truly like
officers of the court.
23. Our suggestions are with a view to streamline the proceedings
and avoid anomalies with reference to the bail applications being
filed in the cases pending trial and even for suspension of sentence.
24. Though considering the conduct of the petitioner, one of the
option available was to cancel his bail, however, we do not propose
to take such an extreme step in the case in hand. However, this can
be the option exercised by the Court if the facts of the case so
demand seeing the conduct of the parties.
12 The compliance of aforesaid directions should be ensured by all
concerned. Therefore, a copy of this order be forwarded to learned
Principal Registrar (Judicial) to take up the matter with regard to the
requisite amendment in practise directions and the Rules,
commensurate with the aforestated directions in Kusha Duruka (supra).
C.C. as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
Digitally signed by BHUNESHWAR DATT
BHUNESH
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
BENTCH AT INDORE, ou=HIGH COURT OF
MADHYA PRADESH BENTCH AT INDORE,
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74a94a5534aed3a66d9385cfcfc201e0,
WAR DATT
postalCode=452001, st=MADHYA PRADESH,
serialNumber=89FD75A8D0C99E05779A327974
E46BC85102826CE0604B211E4C91102B4D1269,
cn=BHUNESHWAR DATT
Date: 2025.05.19 19:20:38 +05'30'
