Mahesh Chandra @ Mahesh Kumar Goyal Vs. State of M.P.

Mahesh Chandra @ Mahesh Kumar Goyal vs State of M.P.

Type Court Judgment Court Madhya Pradesh Decided Aug 30, 1999

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Citation: sooperkanoon.com/508772
Court: Madhya Pradesh High Court
Judge: R.B. Dixit, J.
Decided On: Aug 30, 1999
Case Number: Misc. Criminal Case No. 2476/99
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 147; [A.K. Patnaik, CJ, S.S. Jha & A.M. Sapre, JJ] Liability of Insurer - Third party insurance Held, The insured who is a party to the insurance is not a third party for the purpose of Chapter XI of the Act, particularly Section 147 thereof. Thus, any person ot...

Key legal issue: Criminal
Acts & sections: Code of Criminal Procedure (CrPC) , 1974 - Sections 437, 438 and 439

Parties & Advocates

Appellant / Petitioner

Mahesh Chandra @ Mahesh Kumar Goyal

Advocate J.P. Gupta, Sr. Adv. and ;Sanjay Gupta, Adv.

Respondent

State of M.P.

Advocate S.M.A. Naqvi, Dy. Govt. Adv.

Legal References

Acts: Code of Criminal Procedure (CrPC) , 1974 - Sections 437, 438 and 439
Cases Referred: State v. Anil Sharma
Reported In: 2000(2)MPHT232; 2000(3)MPLJ417

Excerpt

.....be liable for any bodily injury or death of a third party in an accident unless the liability is fastened on the insurer under the provisions of section 147 of the act or under the terms and conditions of the policy of insurance. hence, the mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under section 147 of the act or under the terms and conditions of the insurance policy. an employee is a third party inasmuch as he is not a party to the insurance policy. but merely because an employee is a third party, the insurance company would not be liable to compensate in case such employee suffers bodily injury or dies in an accident in which the motor vehicle is involved unless section 147 of the act fixes such liability on the insured or unless the terms and conditions of the contract of insurance fixes liability on the insurer. section 147 (1)(b) of the act provides that in order to comply with the requirements of chapter xi of the act, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against the liabilities mentioned in clauses (i) and (ii) thereunder. even if an employee is a passenger or a person travelling in a motor vehicle which is insured as per the requirements of sub-section (1) of section 147 of the act, the insurer will not be liable to cover any liability in respect of death or bodily injury of such employee unless such employee falls in one of the categories mentioned in sub-clauses (a), (b) and (c)of clause (i) of the proviso to sub-section (1)of section 147 of the act and further in cases where such employees fall under categories mentioned in sub-clauses (a), (b) and (c) of clause (i) of the proviso to sub-section (1`) of section 147 of the act, the insurer is liable only for the liability under the workmens compensation act, 1923. [national insurance co. ltd. v sarvanlal, 2004 (4)..........225). however in none of these rulings, there is any discussion on the point that where the earlier application was decided under section 438 cr.p.c., the subsequent application under section 439 cr.p.c. has to be placed before the same judge. the fact that sections 437, 438 and 439 cr.p.c. were mentioned in placitum of some of the rulings is of no avail because the point in controversy was not raised in either of the cases referred above. it has been argued for applicant on the basis of decisions in pijush kanti v. state (1985 cr.lj. 1664) and devi das raghunayak v. the state (1989 cr.l.j. 252) that there is no substantial difference in an anticipatory bail and regular bail in so far as grounds of considerations are concerned. i am of the considered opinion that these observations were made in different context of the facts which are not similar to the case in hand.5. to make this point more clear, a constitutional bench decision of the apex court in gurbaksh singh v. state of punjab (air 1980 sc 1632) has to be referred wherein a clear distinction has been made between sections 438 and 439 cr.p.c. and also further decision of apex court in state v. anil sharma [(1997) 7 scc 187] wherein it was laid down that approach of courts in dealing with applications under section 438 cr.p.c. should not be same as that in dealing with the regular post arrest bail application. the clear line of demarcation appears between both the provisions may be described as follows :(i) a distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of the arrest.(ii) filing of fir is always not necessary in case of exercising powers under section 438 cr.p.c. while the stage is changed when the question of filing an application under section 439 cr.p.c. arises,(iii) the stage at which the anticipatory bail is granted is.....

Full Judgment

ORDER

R.B. Dixit, J.

2. Heard learned counsel of the applicant and the learned Dy. Govt. Advocate for State.

3. This application under Section 439 Cr.P.C. has been marked on the top of the title page as 2nd application while the first was allowed by me under Section 438 Cr.P.C. in Misc. Case No. 1691/99 vide order dated 29-7-99. In the circumstances, this being the first application under Section 439 Cr.P.C. cannot be marked as 2nd application so as to create impression that it is to be heard by the same Judge who allowed an earlier application under Section 438 Cr.P.C.. When a querry was raised on behalf of this Court, the learned Counsel of the applicant raised a further point of law by stating that there is no difference between Sections 438 and 439 Cr.P.C. in so far as marking he application as 2nd in turn which is to be heard by the same Judge. This being against the established practice of this Court, the learned Advocate for applicant was further directed to place the entire law on the point before the Court.

4. The learned counsel of the applicant has cited a leading case of the Apex Court reported in Shahzad Hasan Khan v. Ishtiaq Hasan Khan [AIR 1987 SCC (Cri) 415] and Daini v. State of M.P. (1989 JLJ 323) Hari Mohan Dixit v. State of M.P. [1986 (II) MPWN 58] Dharmendra Rao v. State of M.P. (1993 JLJ 476) and Full Bench Decision in Narayan Prasad v. State of M.P. (1993 JLJ 225). However in none of these rulings, there is any discussion on the point that where the earlier application was decided under Section 438 Cr.P.C., the subsequent application under Section 439 Cr.P.C. has to be placed before the same Judge. The fact that Sections 437, 438 and 439 Cr.P.C. were mentioned in placitum of some of the rulings is of no avail because the point in controversy was not raised in either of the cases referred above. It has been argued for applicant on the basis of decisions in Pijush Kanti v. State (1985 Cr.LJ. 1664) and Devi Das Raghunayak v. The State (1989 Cr.L.J. 252) that there is no substantial difference in an anticipatory bail and regular bail in so far as grounds of considerations are concerned. I am of the considered opinion that these observations were made in different context of the facts which are not similar to the case in hand.

5. To make this point more clear, a Constitutional Bench decision of the Apex Court in Gurbaksh Singh v. State of Punjab (AIR 1980 SC 1632) has to be referred wherein a clear distinction has been made between Sections 438 and 439 Cr.P.C. and also further decision of Apex Court in State v. Anil Sharma [(1997) 7 SCC 187] wherein it was laid down that approach of Courts in dealing with applications under Section 438 Cr.P.C. should not be same as that in dealing with the regular post arrest bail application. The clear line of demarcation appears between both the provisions may be described as follows :

(i) A distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of the arrest.

(ii) Filing of FIR is always not necessary in case of exercising powers under Section 438 Cr.P.C. while the stage is changed when the question of filing an application under Section 439 Cr.P.C. arises,

(iii) The stage at which the anticipatory bail is granted is different in the sense that there may not be full facts and evidence which are available at the time of considering an application under Section 439 Cr.P.C.

(iv) The Apex Court, therefore, in Gurbaksh Singh's case (supra) has termed the difference between both the provisions as of 'striking dis-similarity' of both considerations and of different stage of proceedings.

6. From the above discussion, I am not inclined to interfere in established practice of this Court that rejection of an application under Section 438 Cr.P.C. is not a ground to entertain fresh application under Section 439 Cr.P.C. by the same Judge, who has rejected earlier application under Section 438 Cr.P.C. This application under Section 439 Cr.P.C. should have been marked as first application and be placed according to the current roster before Single Bench (Cr. No. 1).

7. Let it be listed before Singh Bench (Cr. No. 1) on 31st of this month.

Same Court & Year Madhya Pradesh · 1999 Same Parties Mahesh Chandra @ Mahesh Kumar Goyal vs State of M.P. Same Subject Criminal Same Judge R.B. Dixit, J. Acts & Sections Code of Criminal Procedure (CrPC) , 1974 - Sections 437, 438 ...

Criminal