BEFORE THE HON’BLE HIGH COURT OF MADHYA

PRADESH BENCH AT INDORE

(APPELLANT IN JAIL SINCE 14.11.2016)

Cr. A. of 2019

APPELLANT: Manoj @Nepal S/O Satyanarayan Berva

Age: 30 Years, Caste: Berva
R/o 144, Kala Patthar, Indore Road,
District: Ujjain (M.P.)

Versus

RESPONDENT: State of Madhya Pradesh

Through P.S. Industrial Area Ratlam

FIFTH CRIMINAL APPEAL U/S 14A (2) SCHEDULE CASTE AND

SCHEDULED TRIBE (PREVENTION OF ATROCITIES) ACT, 1989
READ WITH SECTION 439 OF THE CODE OF CRIMINAL
PROCEDURE, 1973 FOR GRANT OF BAIL.

Whether any bail application Particulars of Bail Application

is pending before or already
disposed of by (If yes, give
particulars) Number Date of Result
order

Hon’ble Supreme court of N.A. N.A. N.A.

India

Hon’ble High Court Cr. A 74/17 13.04.2017 Dismissed

as
Withdrawn

Cr. A. 25.10.2017 Dismissed

1290/17
Cr. A. 07.02.2018 Dismissed
1046/18
Cr. A. 06.02.2019 Dismissed
183/19 as
Withdrawn

Spl. St. No. 06.01.2018 Dismissed

280/16
 Court(s) subordinate to High
court(s)

Particulars of Crime Particulars of

Impugned Order

-Crime No: 856/2016 -Cr. A: 183/2019

-Police Station: Industrial Area ,
Ratlam
-District - Ratlam
-Offence u/s: 212/120B r/w
302/307/294/34 IPC and 3(2)(5)
SC ST Act, 1989
-Name of the Judge:
Hon’ble Mr. Justice S. K. Awasthi
-Designation of the Court:
Hon’ble High Court of M.P.
- Place: Indore
-Date of the Order: 06.02.2019

It is most humbly and respectfully submitted on behalf of

the Applicant/accused as under:

1. That, as per instruction given by the applicant/accused,

this is 5 t h Criminal Appeal under section 14 A(2) of SC
ST Act, 1989 read with section 439 Cr.P.C. for
bail/release of appellant before this Hon’ble High Court
of M.P., Bench at Indore .
2. That, the appellant/petitioner declares that he has not
filed any application under section 439 of the Code of
Criminal Procedure before any court or the Hon’ble
Supreme Court and the same is not pending or decided.

FACTS OF THE CASE IN BRIEF:

1. That the case of the prosecution is that on 07.11.2016

at 10:30 PM complainant Dharmendra along with his

friends Durgesh, Daulat Chawda, Anand Chawda and

Dharmendra @ Kalu Anda were sitting and smoking

near Samshan Ghat Temple, Rajeev Nagar when

accused Ankit @Jata, Rahul Tai along with other two

 accused persons came in two motorcycles and started

abusing. Anand Chawda asked the accused persons

not to abuse them and their family members on the

mean time accused Ankit @Jata and other co -accused

caught hold of Anand and Ankit @Jata started stabbing

him in stomach and chest. It is further alleged that

when Dharmesh @Dharmendra and Daulat Chawda

interceded they were also caught hold by the accused

persons and stabbed in chest, stomach and legs.

Further the four of the accused fled away on their

respective bikes. The complainant Dharmendra and

Durgesh with the help of local persons took injured

Anand, Daulat and Dharmesh to Hospital where they

were declared dead and a case was registered vide

Crime No. 856/16 u/s 302, 294, 34 IPC at PS

Industrial Area, Ratlam.

2. That on 30.12.2016 the appellant filed 1 s t regular bail

application before the Ld. Special Judge, SC ST Act,

Ratlam under section 439 Cr.P.C . The Ld. Trial court

was pleased to dismiss the said bail application vide

order dated 30.12.2016. Copy of order dated

30.12.2016 rejecting 1st bail applicat ion is annexed

herewith as Annexure A/1.

3. That the Appellant/Petitioner filed 1st appeal under

section 14(A)(2) SC ST Act r/w section 439 Cr .P.C.

before this Hon’ble Court being Cri. A. No. 74/2017

 seeking release of the applicant which was withdrawn

by the Appellant/Petitioner herein vide order dated

13.04.2017 of this Hon’ble Court . Copy of order dated

13.04.2017 is annexed herewith as Annexure A/2.

4. That the Appellant/Petitioner filed 2 n d appeal u/s

14(A)(2) SC ST Act before this Hon’ble Court being Cri.

A. No. 1290/2017 seeking release of

Appellant/Petitioner. This Hon'ble Court vide its order

dated 25.10.2017 was pleased to dismiss appeal for

bail of the Appellant/Petitioner. The copy of order

dated 25.10.2017 is annexed herewith as Annexure

A/3.

5. That the Ld. Trial court in the meantime framed

charges against the Appellant/Petitioner under section

212 IPC initially. That the Ld. Special Judge, SC ST

Act, further, altered/added section 120 -B IPC against

the Appellant/Petitioner.

6. That the Appellant/Petitioner again filed a second

regular bail application before the Ld. Special Judge,

SC ST Act, Ratlam which was dismiss ed by the Ld.

Session Court vide order dated 06.01.2018 . The order

dated 06.01.2018 is annexed as Annexure A/4.

7. That the Appellant/Petitioner filed 3 r d appeal u/s

14(A)(2) SC ST Act before this Hon’ble Court being Cri.

A. No. 1046/2018 seeking bail. The Court was pleased

to dismiss the third appeal for bail . The Copy of order

 dated 07.02.2018 of this Hon’ble Court is annexed as

Annexure A/5.

8. That the Appellant/Petitioner filed 4 th appeal u/s

14(A)(2) SC ST Act before this Hon’ble Court being Cri.
A. No. 183/2019 seeking bail. The said order was
dismissed as withdrawn vide order dated 06.02.2019
by this Hon’ble Court. The Order dated 06.02.2019 is
annexed as Annexure A/6.

GROUNDS:

That, Therefore, the applicant inter alia is filing

present appeal/bail application before this Hon’ble
Court on following amongst other available grounds:

A. Because it has been ignored that the

Appellant/Petitioner/appellant has nowhere named in
the FIR by the complainant and charge sheet and the
statements of complainants and witnesses fail to
disclose commission of any cognizable offence.

B. BECAUSE the Appellant/Petitioner/appellant is having

no acquaintance with the accused persons before the
committal of offence. Hence no prior meeting of mind
can take place between the accused persons and
Appellant/Petitioner. Further, the CDR analysis shows
that on the date of alleged incident o nly accused
Kuldeep and accused Govind were in contact with each
other and they made total six calls on that day to each
other. Hence the CDR also nowhere shows that the
Appellant/Petitioner was in contact with the other
accused persons or had prior meeti ng of minds.

C. BECAUSE the appellant/Appellant/Petitioner has been

languishing in the jail for more than 3 years. The
 Appellant/Petitioner has been lodged in jail only on the
pretext that the accused persons alongwith one of the
accused Kuldeep a relative of Appellant/Petitioner
reached his house and asked for shelter. Further the
Appellant/Petitioner on the request of Kuldeep i.e. the
Appellant/Petitioner’s relative bonafidely and without
knowing the intentions of the accused persons and in
order to oblige his relative gave a room to Kuldeep and
his friends. Further, the accused persons in order to
avoid arrest hided their mobile phones beneath an
almira in Appellant/Petitioner’s house and of which the
Appellant/Petitioner had no knowledge.

D. BECAUSE a bare reading of the charge sheet makes it

very clear that the Appellant/Petitioner was not aware
about the malafide of the accused persons and had no
clue or knowledge of the mobile phones in his house and
thus it is clear that the Appellant/Petitioner had no role
to play in the commission of crime.

E. BECAUSE in the charge sheet no conscious role has

been assigned rather a fictional role has been assigned
to the appellant/Appellant/Petitioner. Thus the liberty
of the Appellant/Petitioner should not be curtailed a nd
therefore Appellant/Petitioner should be instantly
released on bail.

F. BECAUSE neither active role has been assigned to the

Appellant/Petitioner by the prosecution nor there are
any allegations against the Appellant/Petitioner of
causing any injury to injured and deceased as well.
Thus the Appellant/Petitioner has no active
participation in the commission of offence and thus
deserves to be released on bail and it is a trite law that
an act without the essential elements of mens rea and
 actus rea will not in any circumstance constitute a
crime.

G. BECAUSE the Appellant/Petitioner’s father is medically

unfit and needs constant monitoring and care of his
family. After having suffered one heart attack and a
paralysis attack recently, keeping the
Appellant/Petitioner in jail while the trial is pending is
not only inhumane it also serves no purpose apart from
presupposing the guilt of the Appellant/Petitioner.

H. BECAUSE it has been repeatedly held by Supreme Court

in various pronouncements that freedom of an
individual is of utmost importance and that cannot be
allowed to be curtailed for indefinite period. In the
present case also, the guilt of the Appellant/Petitioner
is yet to be proved by the investigating agency by
leading cogent and convincing evidence and thus there
is no reason to let the Appellant/Petitioner incarcerate
in jail for indefinite period.

I. BECAUSE the appellant/Appellant/Petitioner has been

residing with his family members in Ujjain since his
birth and as such, there is no likelihood of him fleeing
from justice. Considering the said fact, coupled with the
fact that there are total 35 witnesses out of which
material witnesses have been examined and it will take
considerable time to complete the examination of the
witnesses and also of the fact that the
Appellant/Petitioner is in custody since 16.11.2016,
the Appellant/Petitioner ought to be released on Bail.

J. BECAUSE the Appellant/Petitioner is a young man of

age 31 years and is the only bread earner in the family.
Thus, the family of the Appellant/Petitioner is on the
 verge of starving due to non grant of bail by the Hon’ble
High Court.

K. The balance of convenience lies in favour of t he

Appellant/Petitioner, qua who, admittedly the

investigation has been completed and there is no need

for his custodial interrogation.

PRAYER:

In view of the above it is most respectfully prayed that this

Hon’ble Court may be pleased to:

a. Kindly allow the appeal/bail application and

release the appeal on bail;
b. Pass such other order or further orders as this Hon’ble

Court may deem fit and proper in the circumstances of the

case.

Submitted by,

AMOL PUJARI & RITUPARN UNIYAL

Counsels for the Appellant/Petitioner

Indore
Dated: .12.2019