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MP HC Recalls Order For Cancellation Of Bail, Section 362 CRPC Not Applicableas The Accused Was Not Served A Proper Notice

Mridul Gupta ,
  18 May 2022       Share Bookmark

Court :
The Hon'ble Madhya Pradesh High Court
Brief :

Citation :
Misc. Criminal Case No. 21851 of 2022

CAUSE TITLE:
Shivam Sharma Vs. The State of Madhya Pradesh & Ors.

DATE OF ORDER:
11 May 2022

JUDGE(S):
The Honourable Mr. Justice Anand Pathak

PARTIES:
Plaintiff: Shivam Sharma
Respondent(s): The State of Madhya Pradesh &Ors.

SUBJECT

A petition was filed at the instance of the petitioner/accused for recalling the order passed for cancellation of bail and same was allowed and bail earlier granted to petitioner was recalled and bail was cancelled.

IMPORTANT PROVISION

THE CODE OF CRIMINAL PROCEDURE, 1978 (hereinafter as Cr.P.C.)

  • SECTION 362: Courts not to alter judgement

OVERVIEW

  • A case was filed against the petitioner/accused for violating Section 307 of the IPC. He requested bail, which was granted by the court order. He had personal liberty and, according to him, he did not conduct any crime, but the complainant filed a false complaint against him, and two complaints were filed after the petitioner was released on bail.
  • Respondent filed an application for bail revocation under this guise. The petitioner was granted a registered AD in the application, and Government counsel was directed to notify the petitioner of the pending application.
  • The registered AD issued by the High Court's office never reached petitioner since the endorsement on the envelop and AD showed that the address was incomplete, and thus petitioner could not be served.

ISSUE

  • Whether on pretext of non-opportunity of hearing does the bar created under Section 362 of Cr.P.C. come?

ARGUMENTS ADVANCED BY THE PLAINTIFF

  • Learned Counsel for the petitioner referred to the judgment of Apex Court in the case of Vishnu Agarwal Vs. State of Uttar Pradesh and Anr., [(2011) 14 SCC 813] to explain the legal position that in a case where a person was not served and any order was passed while exercising criminal jurisdiction then bar of Section 362 of Cr.P.C. does not come into play to the detriment of that person because according to Apex Court Section 362 Cr.P.C. cannot be considered in a rigid and over-technical manner to defeat the ends of justice. Therefore, the order can be recalled on this pretext.

ARGUMENTS ADVANCED BY THE RESPONDENT(S)

  • Learned Counsel for the respondent objected to the prayer, arguing that despite opportunities provided to the petitioner/accused, he did not appear before the Court for assistance, and because he was served by presumed service through registered AD, no case for interference was made out. It was requested that the petition be dismissed.

JUDGEMENT ANALYSIS

  • The examination of the office file indicated that an endorsement had been made over the envelope /registered AD in which notice could not be served due to inaccurate address and the concerned Postman urged the authorities to furnish house number for service of notice.
  • Given the mandate of the Supreme Court in the case of Vishnu Agarwal (supra), it was clear that if any party intends to seek recall of an earlier order passed by the Court in criminal jurisdiction on the pretext of non-opportunity of hearing, the bar created under Section 362 of the Cr.P.C. does not apply.

CONCLUSION

Given the overall facts and circumstances of the case, the petitioner was not duly served at the time of the hearing on the motion for cancellation of bail, and because his personal liberty was at stake, it was even more important that he be given a chance to present his case.

The petition was thus granted.

Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE

Click here to download the original copy of the judgement

 
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