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2007 DIGILAW 196 (CHH)

M. K. RUGI v. STATE OF C. G.

2007-03-08

S.K.SINHA

body2007
ORDER 1. Heard. 2. This is an application filed under Section 439 of the Code of Criminal Procedure for grant of regular bail to the applicant This relates to crime No:43/2006, registered at Police Station -Sukma, District - South Bastar, Dantewada (C.G) for the offence punishable under Sections 409, 467, 468 & 420 of the I.P.C 3. Earlier, this applicant was admitted to anticipatory bail by this Court vide order dated 07.12.2006 passed in M.Cr:e. No. 3424/2006. It was directed that in the event of arrest of this applicant he shall be released on bail on his furnishing a personal bond in Sum of Rs.20,000/- with one surety in the like sum to the satisfaction of the Officer arresting him with a further direction that the said order shall remain in force for a period of 60 days from the said date, during which, the applicant may apply for regular bail before the concerned Court. 4. Learned counsel for the applicant submits that the applicant had applied for regular bail under Section 437 Cr.P.C. before the J.M.F.C., Sukma, which was dismissed by the said Court on 22.12.2006. He submits that thereafter, he again filed an application under Section 439 Cr.P.C. before the Sessions Court, Dantewada and the said application was also dismissed by the Additional Sessions Judge, Dantewada on 10.1.2007. It is after dismissal of the said application, the present application under Section 439 Cr.P.C. has been filed before the High Court on 23.1.2007. 5. The brief facts are that in the earth work, tank digging work and other related works under the Janpat Panchayat, Chhindgarh, in District Dantewada, which were being executed under Sukha Rahat Scheme, some wrong measurements were done by two Sub-Engineers namely Vilas Jadhav and P.R. Thakur. The allegations are that Vilas Jadhav made such a measurements, on account of which, in two different works, the government had to pay a sum of Rs.3,35,512/- and Rs.3,34,173/- in excess to the labours engaged in the said works. The further allegations are that the other Sub-Engineer namely P.R. Thakur also made such measurements, on account of which, the government had to pay Rs. 1,94,760/- and Rs. 2,35,748/- in excess to the labours and thereby, they caused a great loss to the exchequer. The further allegations are that the other Sub-Engineer namely P.R. Thakur also made such measurements, on account of which, the government had to pay Rs. 1,94,760/- and Rs. 2,35,748/- in excess to the labours and thereby, they caused a great loss to the exchequer. The allegations against the present applicant are that he did not supervise the work properly in the capacity of S.D. O. and the aforesaid irregularities were committed by his sub-ordinates. 6. Learned counsel for the applicant submits that the aforesaid works were being executed under Sukha Rahat Scheme at the instance of the Panchayat and the payment was directly being made to the labourers engaged in the said work, therefore, making extra measurements for over payments on account of less work done would not benefit the applicant in any manner and the allegations appear to be unreasonable. He also submits that these are the earth works of the year 2004-2005 and it is just possible that in the next rainy season, the measurements of actual work done and later measurements may lead into a difference and such events may take place. He further submits that two other co-accused persons namely - Vilas Jadhav and P.R. Thakur have already been released on regular bail by this Court vide order dated 26.9.2006 passed in M.Cr.C. No. 2730/2006 (Annexure-A/2). He prays for releasing the applicant on regular bail. 7. On the other hand, learned counsel for the State Opposes the bail application. He raises the point that since the period of protective umbrella has already expired by now, this application filed under Section 439 Cr.P.C would not be maintainable as the applicant would not be in mandated custody after expiration of the said period. 8. So far as the question of maintainability of this application is concerned, the point raised by learned counsel for the State is no longer res integra. Almost in a similar situation, where a regular bail application was filed during the period of protective umbrella but the said period has expired on the date of hearing, the petition was referred to the Larger Bench in the matter of Pramod Kumar Mehta & another Vs. Almost in a similar situation, where a regular bail application was filed during the period of protective umbrella but the said period has expired on the date of hearing, the petition was referred to the Larger Bench in the matter of Pramod Kumar Mehta & another Vs. State of Chhattisgarh in M.Cr.C. No. 3203/2006 for answering the point as follows: "Whether a petition filed u/s439 Cr,P.C., for grant of regular bail, during the period of mandated custody of the protective umbrella shall be maintainable even after expiration of the period of mandated custody during the pendency of such application without the applicants being surrendered to the custody? or, such petitions would not be maintainable after expiration of the period of protective umbrella opened in favour of the applicants and that shall be dismissed as not maintainable after expiration of the said period ?" 9. The Division Bench has answered these questions in the following terms : "Even if bail application under Section 437/439 of the Cr.P.C. for grant of regular bail is filed within protective umbrella period, but the same is not decided within the period of protective umbrella & is adjourned beyond period of protective umbrella, then before such bail application is taken up for hearing, the accused has to be in "custody", only thereafter bail application is maintainable, otherwise same is not maintainable." 10. The word "custody" has been interpreted by the Apex Court in the matter of Niranjan Singh Vs, Prabhakar Rajaram Kharote1 in the following terms: "The crucial question is when is a person in custody, within the meaning of Section 439 of the Criminal Procedure Code? When he is in duress either because he is held by the investigation agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity not presidential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. The Court further held that he can be in custody not merely when the police arrests him, produced him before a Magistrate and gets a remand to judicial or other custody. The Court further held that he can be in custody not merely when the police arrests him, produced him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions." 11. This view was reiterated by the Apex Court in the matter of Nirmal Jeet Kaur Vs. State of M.P. and another2 and Sunita Devi Vs. State of Bihar and and the? The Division Bench of this Court held in the said matter (reference) that if the person appears before the Court, the same is also custody for the purpose of Section 439 Cr.P.C., as he is in subjection to the lawful authority of the Court. 12. In the facts and circumstances of the case, particularly on the basis of order passed in above reference, needless to say that when the applicant himself has appeared before this Court along with the counsel, his application for regular bail filed under Section 439 Cr.P.C., which was filed during the 'period of mandated custody of protective umbrella, shall be maintainable for hearing and the same can not be dismissed on the said ground. The objection raised by counsel for the State has no merits and the same is over ruled. 13. So far as the merits is concerned, as I have already discussed in earlier paragraphs that the applicant was supervisory authority and two other co-accused persons who had done the measurements, have already been admitted to regular bail, therefore, the applicant is also entitled to be released on regular bail. 14. His application filed under Section 439 Cr.P.C. deserves to be allowed and the same is allowed. 15; It is directed that the applicant, who has appeared/surrendered before this Court today, shall be released on regular bail on his furnishing a Personal bond in sum of Rs.20,000/- with one surety in the like sum to the satisfaction of the trial Court for his appearance before the said Court on each dateofhearii1g till disposal I of the trial. He shall furnish such bail bond within a period of 15 days from today. If he fails to furnish the bail bond in the said period, this order shall be liable to be cancelled and he shall be taken into custody forthwith. Bail Granted.