GYANESH SHARMA Vs. STATE OF MP
LAWS(MPH)-2010-1-49
HIGH COURT OF MADHYA PRADESH
Decided on January 08,2010

GYANESH SHARMA Appellant
VERSUS
STATE OF MADHYA PRADESH Respondents

JUDGEMENT

- (1.)The applicant has filed this application under section 438 of Cr.P.C. for grant of anticipatory bail. He is apprehending his arrest in Crime No. 229/09 registered at Police Station Maharajpura, district Gwalior, for the offence under section 420 and 188 of IPC.
(2.)It is submitted that the allegation against the applicant is for sale of some mis-branded Ghee, which was found in his possession in the Industrial area at Maharajpura, on which basis this case has been registered. IT is further submitted that the District Administration has also taken action for the detention of the applicant under National Security Act but subsquently that order has been recalled by the Competent Authority. The offence registered against the applicant under section 420 IPC is triable by JMFC whereas the offence under section 188 IPC is bailable. Similarly there is nothing on record in the investigation that as to which person has been cheated by the applicant by selling the aforesaid stored Desi Ghee. In that case prima facie no case is made out for the offence punishable u/s. 420 IPC. Similarly, the prosecution has also not submitted any order, for which disobedience the case under section 188 IPC has been registered. Therefore, if no prima facie case is proved against the applicant and applicant is ready to cooperate with the further investigation, hence prayed for grant of anticipatory bail to the applicant.
Learned Public Prosecutor for the State opposed the application and submits that looking to the nature of the allegation made against the applicant for storing the mis-branded Desi Ghee in his possession the applicant is not entitled to be enlarged on anticipatory bail. Hence, prayed for rejection of the application.

After consideration of the rival contention of both the counsel, similarly on perusal of the order dated 14.12.2009 passed by the Division Bench in W.P.No. 11729/2009 Smt. Meera Agrawal v. Union of India and others, 2010 1 MPWN 103 at Main Seat Jabalpur in the identical matter challenging the order passed by the competent authority under National Security Act, whereby the division bench has allowed the petition, it is apparent that in such type of cases no case of cheating or the offence u/s. 188 IPC can be made out. For the ready reference, it will be useful to quote here the relevant portion of the said order dated 14.12.2009 passed by the division bench at main seat, which reads here as under :-

"Ture it is that in some of the cases, offences under section 420 of the Indian Penal Code have been registered. Though the question is not directly before us, but we will have to observe that such registration in itself would not be sufficient because the First Information Reports do nowhere say that who were cheated and how an offence punishable under section 420 of the Indian Penal Code is made out. We are of the prima facie opinion that offences punishable under section 420 of the Indian Penal Code are not made out because there is no material on record to show that somebody was cheated. It is nobody's case that the manufacturer or suppliers of ghee persuaded somebody to part with their property by telling them that the petitioners would be selling them pure ghee and by that further persuaded them that they would be getting pure ghee. There is nothing on record to show or suggest that somebody ever made any complaint that in absence of such a persuasion, he would not have purchased ghee nor would have parted with his property as price of ghee. Be that as it may, the question before us is that whether registration of an offence under section 420 of the Indian Penal Code and some of the cases registration under section 188 of the Indian Penal Code would add to the gravity, for purposes of detention.

(3.)Section 188 of the Indian Penal Code relates to disobedience to order duly promulgated by public servant. SECTION 188 requires that if any person willfully disobeys an order promulgated by public servant, then he may be punished in accordance with law. In the present, not even in a single matter, the order issued by/promulgated by public servant has been brought on record." The facts of the aforesaid cases are identical to the facts of the present case. In this case also the allegation against the applicant is for storing Desi Ghee for sale. Looking to the aforesaid finding given by division bench for present application filed on behalf of the applicant deserves to be allowed. Resultantly, the application filed on behalf of the applicant is allowed and it is directed that in case of arrest of the applicant in the crime No. 229/09 by Police Station Maharajpura for offence u/Ss. 420,188 of IPC the applicant be released on bail, on his furnishing personal bond of Rs. 1,00,000/- (Rupees One Lac Only) with two solvent sureties of Rs. 50,000/- each to the satisfaction of the arresting officer, with the condition that he shall cooperate with the investigation and shall also remain present as and when called by the investigating Officer. This order will be operative for a period of 45 days, during which he is free to move regular bail application before the Competent Court. A copy of the order he sent to the Court concerned, Police Station. Lawyer for State.


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