IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL DHAGAT ON THE 3^rd OF AUGUST, 2022 MISC. CRIMINAL CASE No. 37693 of 2022 Between:-

KHALIK S/O LATE MOHD. KASAM, AGED ABOUT 28 YEARS, OCCUPATION: BUSINESSMAN R/O NEAR IMAMIYA MASZID WARD NO. 23 AZAD WARD P.S GANPATI NAKA TEH. AND DISTRICT BURHANPUR (MADHYA PRADESH)

.....APPLICANT (BY SHRI SHAFIQULLAH - ADVOCATE)

AND THE STATE OF MADHYA PRADESH THROUGH POLICE STATION LALBAGH DISTRICT BURHANPUR (MADHYA PRADESH)

.....RESPONDENT (BY SHRI C.K. MISHRA - GOVERNMENT ADVOCATE)

This application has come up for hearing on this day, the court passed the following:

ORDER

This is second application under Section 438 of the Code of Criminal Procedure as applicant apprehending his arrest in connection with Crime No.231/2022 for the offences punishable under Sections 420, 406, 409, 120-B of the Indian Panel Code registered at Police Station-Lalbagh, District-

Burhanpur (M.P.).

First anticipatory bail application was dismissed on merits vide order dated 23.05.2022 passed in MCRC No.23815/2022.

Learned counsel appearing for applicant submitted that applicant is innocent and has falsely been implicated in the case. Co-accused persons in the case have been enlarged on anticipatory bail. Role of applicant is not very much different from co-accused persons. Applicant is purchaser of scrap material. He has not done cheating or breach of trust. There is no material to show that there was criminal conspiracy between applicant and other co-accused persons. Offence under Section 420 of the IPC is punishable with seven year of imprisonment. Considering the case of Arnesh Kumar Vs. State of Bihar Kumar, reported in (2014) 8 SCC 273, applicant be given notice under Section 41-A of the Cr.P.C. He will co-operate in investigation as and when required and will not free from law. It is further submitted that second bail application is maintainable as the fact which has been raised by applicant was not under consideration before the Court. If any new facts and grounds are raised by the applicant which are different from fact which has been raised in first application then second bail application will be maintainable. First application was dismissed on basis of enquiry report. Applicant is not a Government employee and no enquiry has been done against him. Considering the said facts, repeat bail application of other co-accused persons were considered and entertained by this Court. In view of same, second application for grant of anticipatory bail to present applicant on different set of consideration, is maintainable and same may be allowed.

Learned Government Advocate appearing for State opposed the application. It is submitted by him that investigation is under progress. Applicant will be required for investigation in the case. Useful items which have been sold as scrap are to be seized from applicant and there are chances that evidence in the case may be removed or destroyed by the applicant, therefore, he may not be enlarged on bail.

Heard the counsel for the parties.

On going through the allegations made in FIR, no offence under Section

409 of IPC is made out against the applicant. Offence under Sections 420, 406 of the IPC are punishable with less then seven years. Application is purchaser of scrap material. He had paid money to the State for purchase of material. At present there is no material to indicate conspiracy between applicant and other Government employees. It is also submitted that applicant is a businessman and there is no likelihood that he will flee away from law and he is having permanent resident at Burhanpur. Brother of applicant is also registered under MP Shop and Establishment Act, 1958 as a Shopkeeper. In this regard document Annexure-A/5 is placed on record.

Considering the facts and circumstances of the case, second anticipatory bail application on different set of consideration is entertained and allowed Investigating Officer is ordered to give notice to applicant unde