SUMIT PATHAK Vs. STATE OF M.P.

JUDGEMENT

(1.) The applicant has filed this first bail application u/S.439 Cr.P.C for grant of bail. Applicant has been arrested on 24.6.2020 by Police Station, Aswar, District Bhind, in connection with Crime No.24/2020 for the offence punishable under Sections 323 , 294 , 506 / 34 , 327 , 329 of IPC.

(2.) It is the submission of learned counsel for the applicant that false case has been registered against him and he is suffering confinement since 24.6.2020 and charge-sheet has already been filed. It is further submitted that ingredient of offence under Section 329 of IPC is not available in the present case because applicant along with his friends (co-accused) demanded Rajshri Gutka (scented tobacco) and when the complainant refused to give said product, then they have beaten him and caused grievous hurt to him, but since asking for a product is not an offence, therefore, ingredient of Section 329 of IPC is not available. It is further submitted that it was a minor scuffle which converted into ugly event. It is further submitted that co-accused Harendra Tyagi has been granted benefit of bail vide order dated 4.8.2020 in M.Cr.C.No.23542/20. Looking to the challenging times of covid- 19 pandemic and the period of custody as well as the fact that no previous criminal record of the applicant exists, his case be considered sympathetically. He undertakes to perform community service. On these premises, he prayed for bail.

(3.) Learned counsel for the respondent/State opposed the prayer and submits that offence under Section 329 of IPC is made out because applicant and other co-accused tried to seek product namely Rajshri Gutka (scented tobacco) from the complainant who is a small time vendor and said product is prohibited by different orders specially order dated 16.4.2020 passed by the District Magistrate, Bhind, whereby the use of any prohibited item like Gutka was punishable under Sections 268 and 269 of IPC with six months imprisonment and fine of Rs.200/-. Beside that, it was offence under Section 188 of IPC also. Therefore, asking for product which was otherwise prohibited is an illegal act as per Section 43 of IPC. He relied upon the judgments in the cases of Ameen and another vs. State of M.P ., 2001 (2) M.P.H.T. 144 and Virendra Kumar Gun Sagar Shrivastava vs. State of M.P ., 1998(1) M.P.L.J. 511.