‘Bar U/S 362 CrPC Not Applicable’: Madhya Pradesh High Court

In Shivam Sharma v. State of Madhya Pradesh and Others (Misc. Criminal Case No. 21851 of 2022), the Madhya Pradesh High Court, Gwalior Bench, recently recalled its order for cancellation of bail passed ex-parte, holding that the person enlarged on bail was not duly served notice and therefore could not appear before the Court to contest the application. Justice Anand Pathak heard an application under Section 482 CrPC to recall the impugned judgement cancelling the Applicant’s bail under Section 439(2) CrPC.

Brief Facts Of The Case: The Applicant, accused with Section 307 IPC offences, was granted bail. The complainant thereafter charged the applicant with another crime under Section 336, 195-A IPC and attempted to cancel his bail. The Court observed in the assailed ruling that the Applicant was provided notice but did not appear. Based on the Complainant’s allegations, the Court revoked the Applicant’s bail ex-parte. The Applicant appealed the order. The Applicant told the court that the registry’s notification never reached him because his address was incomplete. His case was regulated by Section 64 CrPC, not Chapter XV Rule 11 of the High Court of Madhya Pradesh Rules, 2008. He further noted that police had told his wife about the case, despite his being a bachelor. Therefore, the Applicant argued that summons serving was illegal.

The Applicant relied on the Supreme Court’s decisions in Vishnu Agarwal v. State of Uttar Pradesh & Anr. and Asit Kumar Kar v. State of West Bengal to argue that in a case where a person is not served and any order is passed while exercising criminal jurisdiction, Section 362 CrPC does not come into play to the detriment of that person because the provision cannot be considered in a rigid and overtechnical manner to defeat the ends of justice. The State argued that the Applicant was offered options but did not seek court aid. Since he was served by presumed service by registered AD, no intervention was warranted. So, the application was dismissed.

Judgement: The court agreed with the applicant that the Deemed Service Clause didn’t apply. The court further remarked that Section 362 of the Cr.P.C. does not apply if a party seeks to recall a previous ruling in criminal jurisdiction based on lack of hearing.

With the above considerations, the Court decided that as the Applicant was not duly served at the time of hearing for cancellation of bail, he should have been given an opportunity to argue his case. The court recalled the impugned ruling and reinstated the case number to hear the applicant’s arguments anew.



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