IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
MISCELLANEOUS CRIMINAL CASE NO. OF 2019
Applicant : HARISH BATHAM
Versus
Respondent : The State of Madhya Pradesh
I N D E X
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S. No.
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Description of documents
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Annexure
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Pages
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1.
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Index
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1
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2.
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Memo of Application U/s 438
Of The Code Of Criminal Procedure, 1973 (No. 2 Of 1974) alongwith affidavit
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2 TO 11
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3.
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List of documents
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12
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4.
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Copy of the Order of the lower
Court dated 29.08.2018
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A-1.
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13 & 14
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5.
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Certified Copy of the Order
dated 10.12.2018 passed in MCRC NO. 46522 of 2018
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A-2
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15 & 16
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6.
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Copy of the
disability certificate dated 13.09.2012
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A-3.
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17
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7.
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Copy of the Adhar Card
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A-4.
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18
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8.
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Copy of Voter ID dated
23.07.2012
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A-5.
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19
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9.
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Copy of the
Medical prescription
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A-6.
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20
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10.
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Vakalatnama
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PLACE :
JABALPUR
DATE : ADVOCATE
FOR APPLICANT
Format
No. 13
(Chapter
X, Rule 54)
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
MISCELLANEOUS CRIMINAL CASE NO. OF 2019
CAUSE TITLE
Applicant : HARISH BATHAM, Aged about 30 Years,
S/O Mr. Balkishan
Batham, Occupation-Business R/o LIG 54 Saraswati Nagar Jawahar Chowk, Bhopal (Madhya Pradesh). AIRTEL
: 9893020413/ 9893043403
VERSUS
Respondent : The State of Madhya Pradesh
Through
The Police Station Maharana Pratap Nagar, District Bhopal (Madhya Pradesh).
(Application under Section 438 of the Code of Criminal Procedure,
1973)
Particulars of Crime Particulars of Impugned Order
Crime No. 526/2018 Case No. Bail Application No. 2359/2018
Police Station
- Maharana Pratap Nagar Name of
the Judge :
Bhopal Mr. Shiv Charan Pandey
Offence U/s - XIXth
Additional Session Judge, Bhopal, District Bhopal (Madhya Pradesh).
420,467,468,471, 34 of
Indian
Penal Code, 1860 Place
: Bhopal (Madhya Pradesh).
Date
of the Order : 29.08.2018
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S. NO.
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Whether
any bail application is pending before or already disposed of by (if yes give
particulars)
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Particulars
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of Bail
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applications
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NO.
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Date of Order
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Results
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||
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1.
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Hon’ble
Supreme Court of India
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NO
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NO
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NO
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2.
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Hon’ble
High Court(S)
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MCRC
NO. 46522 OF 2018
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10.12.2018
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Dismissed
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3.
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Court(s)
sub-ordinates to the High Court(S)
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Bail
Application No. 2359/2018
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29.08.2018
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Dismissed
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The Applicant named above most humbly and respectfully begs to
submit as under:
1. That,
this is applicant’s second application for bail before the High Court of Madhya
Pradesh.
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S. NO.
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Date of application, if known
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Institution Number
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Date of order
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Name of the Judge
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1.
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14.11.2018
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MCRC
NO. 46522 OF 2018
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10.12.2018
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Hon’ble
Mr. Justice Akhil Kumar Shrivastava, J.
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2. If
an application under Section 438 of the Code of Criminal Procedure for bail of
the applicant is pending before or decided by the Supreme Court, any High Court
or Any Court Subordinate to a High Court, the particulars thereof : No.
3. To the best of the
knowledge of the applicant, the co-accused person (s) have filed following bail
application (s).
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Name of the Accused
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Date of application ifc Known
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Institution Number
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Date of the Order
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Name of the Judge
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MOHAMMAD
ASHIF KHAN
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06.09.2018
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MCRC NO. 36397 OF 2018
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25.09.2018
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Hon’ble
Mr. Justice Akhil Kumar Shrivastava, J.
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4. A
Copy of the Order of the lower Court is annexed as Annexure A-1. Certified Copy of the Order dated 10.12.2018
passed in MCRC NO. 46522 of 2018 is filed herewith and marked as Annexure A-2.
5. The
applicant is apprehending his arrest in connection with Crime mentioned above.
6. Facts of the Case, in
brief :
1. The applicant submits that the applicant is a
physically challenged person. In this regard, the attention of this Hon’ble
High Court is drawn to a disability certificate issued by the JP Hospital. Copy
of the disability certificate is filed herewith and maredk as Annexure A-3. His Adhar Card and
Voter ID Card is filed herewith and marked as Annexure A-4 & Annexure
A-5 respectively. Applicant respectfully submits that his wife
Mrs. Alka Batham is seriously ill.
Copy of the Medical prescription is filed herewith and marked as Annexure A-6. Even then she had
to look after her disabled husband and 4 years little daughter.
2. Applicant submits that the applicant is not in a
position to walk freely. He submits that in the FIR no over-act is attributed
to him because it is mentioned therein that he was standing at the time of
occurrence of the crime with the co-accused persons. He submits that the
applicant is made an accused of the case as he is having no fault of his own.
He submits that this is the first ever criminal case registered against the
applicant and that he has no criminal antecedents. Upon these submissions,
applicant prays for grant of anticipatory bail to the applicant.
3. Sweeti
Kataria @ Usha Deswal R/o D-64, rajved Colny, Near Comfort School, Kolar Road,
Bhopal is a prime conspirator and matermind in the case in hand. She entered
into Criminal Conspiracy with Co-accused namely Mohd. Asif Khan and Darshan
Singh. Darshan Singh prepared forged documents and posed Mohd. Asif Khan as
owner of the subjected plot. Applicant was asked to come at MP Nagar but he
refused to do so. Applicant fearing his life and liberty not to respond over
the phone call from MP Nagar Police station and the other co-accused persons
had arrested. Applicant father suffers from Heart ailment to which treatment
continues.
4. That
the present FIR has been registered on false and bogus facts. The facts stated
in the FIR are fabricated, concocted and without any basis. The police has
falsely implicated the applicant in the present case, the applicant is a
respectable citizen of the society and is not involved any criminal case. That
the facts stated in the complainant against the applicant are civil disputes
and does not constitute any criminal offence at all. That the applicant is not
required in any kind of investigation nor any kind of custodial interrogation
is required. That the applicant is having very good antecedents, he belongs to
good family and there is no criminal case pending against them. the applicant
is a permanent resident and there are no chances of his absconding from the
course of justice.
5. That
the applicant undertakes to present himself before the police/court as and when
directed. That the applicant undertakes that he will not, directly or
indirectly make any inducement, threat or promise to any person acquainted with
the facts of the case so as to dissuade him from disclosing such facts to the
Court or to any police officer. That the applicant further undertakes not to
tamper with the evidence or the witnesses in any manner. That the applicant
shall not leave India without the previous permission of the Court. That the
applicant is ready and willing to accept any other conditions as may be imposed
by the Court or the police in connection with the case.The
applicant has committed no offence and they has been falsely implicated.
7. Grounds, numbered
serially :
A.
Full Bench of this Court in the
case of Imratlal Vishwakarma v/s State of M.P. [1996 MPLJ 662] has considered
the maintainability of second application for anticipatory bail under Section
438 of the Code and held that :-
"17. In our opinion, the said principle
would apply, on the basis of analogy, in connection with an application filed
under Section 438, Criminal Procedure Code as well as
has been tried to be elucidated by giving examples and, since the law does not
preclude entertainment of any second application under Section
438, Criminal Procedure Code, it cannot be said
that second application would not be maintainable in law. However, as has
already been observed, the said second bail application can of course be
rejected even summarily when it is not based or necessitated on account of
subsequent events and developments or changed circumstances.
B.
The Supreme
Court in the case of Baboo Singh (1978 Cr.LJ 651) and Division Bench of this
High Court in the case of Imratlal Vishwakarma v. State of M.P., reported in 1996 JLJ 642. This Court after
considering the various decisions has held that the second application for
anticipatory bail under Section 438, Cr.PC is
maintainable. The second application filed under Section 438, Cr.PC has to
be decided on its merits even if earlier application was also dismissed on
merits. No such fetters can be put or applied on the second petition that it
can only be considered when it was withdrawn or was rejected having been not
pressed: It shall, however, be open for the Court to reject it even summarily on
the ground that the said second petition is nothing but a repetition of the
earlier petition and no new ground has been disclosed in the second petition.
It was considered that in Baboo Singh's case (supra), the Supreme Court was
considering a second application after one such application was earlier
rejected. It was then ruled that an order refusing an application for bail does
not necessarily preclude another, on a later occasion, giving more materials,
and further development. It was also held that the Court is not barred from its
second consideration at a later stage and that an interim direction is not a
conclusive adjudication and that an updated reconsideration is not overturning
an earlier negation. Second application was entertained. It was considered that
in view of the aforesaid dictum the second application for grant of
anticipatory bail under Section 438 was
maintainable and it was held that the earlier rejection is not conclusive. The
Court may consider the second bail application on account of subsequent events
and developments.
C.
In the case of Yuvraj Gaud vs
State Of Madhya Pradesh And Anr. on 14 May, 2004 reported in 2004 CriLJ 4576,
2004 (3) MPHT 111 it is clear that second application under Section
438, Cr.PC is not barred and is tenable.
D.
Because the applicant has not
committed any offence and they have been falsely implicated in this case.
E.
Because no seizure has to be
made from the applicant in connection with crime alleged.
F.
Because the release of applicant
on bail will have no pernicious effect on the commencement of trial. On the
contrary there is no real necessity of the detention of applicant in jail
custody for the purpose of trial.
D. Because
the applicant undertakes to abide by the terms and conditions that may be
imposed by this Hon’ble High Court and shall not abuse the liberty, if resorted
to him on this application. The applicants will attend before the trial Court as
and when required and or directed to do so and shall not evade the due process
of Law.
E. Because
there is no chance of abscondecne of the applicant, in as much as, the
applicants are a permanent resident of the place mentioned above and the
abscondecne will pose a serious threat to the day to day substance of the
applicant’s family.
F. Because
the application is bonafide and made in the larger interest of Justice.
8. That
the applicant is a permanent resident of R/o LIG 54 Saraswati Nagar
Jawahar Chowk, Bhopal (Madhya Pradesh).
9. That
the applicant is ready to furnish adequate surety and shall abide by all the
directions and conditions which may be imposed by the Court.
P R A Y E R
It is therefore prayed that the Court may kindly be pleased to
order that the applicant be enlarged on bail in the event of his arrest in this
case.
PLACE : JABALPUR
DATE : ADVOCATE FOR
APPLICANT
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
MISCELLANEOUS CRIMINAL CASE NO. OF 2019
Applicant : HARISH BATHAM
Versus
Respondent : The State of Madhya Pradesh
AFFIDAVIT
I, HARISH BATHAM, Aged
about 30 Years, S/O Mr. Balkishan Batham, Occupation-Business R/o LIG 54
Saraswati Nagar Jawahar Chowk, Bhopal (Madhya
Pradesh). AIRTEL : 9893020413/ 9893043403,
do hereby make oath and state as under:
1. I am the applicant in the instant case and as such competent to
swear this affidavit. I have filed the annexed application for under Section 438
of the Code of Criminal Procedure, 1973.
2. The contents of Para 1) to 9)
of the annexed application have been drafted as per my instructions and are
true to my personal knowledge and belief and nothing suppressed by me. The
pleading regarding Law is based on the legal advice given by my counsel. So
help me god.
PLACE : JABALPUR
DATED : DEPONENT
VERIFICATION
I, the deponent named above do hereby
verify and sign on this ___ day of Janurary, 2019 at Jabalpur that the contents
of Para 1 and 2 above are true to my personal knowledge and belief.
DEPONENT
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
MISCELLANEOUS CRIMINAL CASE NO. OF 2019
Applicant : HARISH BATHAM
Versus
Respondent : The State of Madhya Pradesh
L I S T O F D O C U M E N T S
|
S.No
|
Description of document
|
Date of document
|
Original copy
|
Number of page
|
|
1.
|
Order of the lower Court
|
29.08.2018
|
Certified Copy
|
03 (Three)
|
|
2.
|
Order dated passed in MCRC NO. 46522 of 2018
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10.12.2018
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Xerox
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02 (Two)
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3.
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disability
certificate
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13.09.2012
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Xerox
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01 (One)
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4.
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Adhar Card
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06.02.2015
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Xerox
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01 (One)
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5.
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Voter ID
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23.07.2012
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Xerox
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01 (One)
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|
6.
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Medical
prescription
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Xerox
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03 (Three)
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PLACE : JABALPUR
DATE : ADVOCATE
FOR APPLICANT
APPENDIX 1-A
FORMAT OF V A K A L A T N A M A
[Rules 4
(1) of the Rules framed under the Advocates Act, 1961]
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
MISCELLANEOUS CRIMINAL CASE NO. OF 2019
Applicant : HARISH BATHAM
Versus
Respondent : The State of Madhya Pradesh
I, the applicant named below do hereby appoint, engage and
authorize advocate (s) named below to appear, act and plead in aforesaid case /
proceeding, which shall include applications for restoration, setting aside for
ex - parte orders, corrections, modifications, review and recall of orders
assed in these proceedings, in this Court or in any other Court in which the
same may be tried / heard / proceeded with and also in the appellate,
revisional or executing Court in respect of the proceedings arising from this
case / proceedings as per agreed terms and conditions and authorize them to
sign and file pleadings , appeals,
cross objections, petitions, applications, affidavits, or the other documents
as may be deemed necessary and proper for the prosecution / defence of the said case in all its stages
and also agrees to ratify and confirm acts done by them as if done by us.
In witness whereof we do hereby
set our hands to these presents, the contents of which have been duly
understood by us, this – day of ----------------- 201
Particulars (in block letters) of each Party Executing Vakalatnama
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Name
and father s / Husband s Name
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Registered
Address
|
E-Mail
Address (if any)
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Telephone
Number (if any)
|
Status
in the case
|
Full Signature/ **Thumb Impression
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
(6)
|
|
HARISH BATHAM, Aged about 30 Years, S/O
Mr. Balkishan Batham, Occupation-Business
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R/o LIG 54 Saraswati
Nagar Jawahar Chowk, Bhopal (Madhya Pradesh).
|
E-Mail
: rohitg912k@gmail.com
and rohitg912k@rediffmail.com
|
AIRTEL :
9893020413/ 9893043403
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APPLICANT
|
|
Accepted
Particulars (in block letters) of each Advocate Accepting
Vakalatnama
|
|
Full Name & Enrollment No.
in State Bar Council
|
Address for Service
|
E-mail Address (if any)
|
Telephone Number (if any)
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Full Signature
|
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
1.
|
VIJAY RAGHAV SINGH
EN. No. M. P. / ADV / 1554 / 2003
|
SEAT NO. 93, GOLDEN JUBILEE
BUILDING, CHAMBER NO. 317, VIDHI BHAWAN, HIGH COURT PREMISES, JABALPUR 482
001
|
IDEA
98261-43925
|
|
|
|
2.
|
AMIT KUMAR KHARE,
EN. No. M. P. / ADV / 1291/ 2006
|
HOUSE NO. 1483 / 17, SARASWATI
COLONY, BEHIND PARIJAT BUILDING, CHERITAL, JABALPUR 482 001
|
NIL
|
BSNL
94258 66726
LAND LINE 0761 - 2345 005
|
|
|
3.
|
VIJAY KUMAR SHRIVASTAVA, EN.
No. M. P. / ADV / 949/ 2006
|
SEAT NO. 81, HALL NO. 1, FIRST
FLOOR, VIDHI BHAWAN, HIGH COURT PREMISES, JABALPUR 482 001
|
NIL
|
RIM 93015
04927
AIRTEL
97554 82448
|
|
*Score out which is not applicable
** The thumb impression shall be attested by a literate person
giving above particulars.
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