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2007 DIGILAW 261 (CHH)

Pramod Kumar Mehta v. State of Chhattisgarh

2007-04-09

S.K.SINHA

body2007
ORDER Sunil Kumar Sinha, J. 1. Heard. 2. This is an application filed under Section 439 of the Code of Criminal Procedure for grant of regular bail to the applicants. It relates to Crime No. 330/2006, registered at Police Station, Jamul, District Durg (CG) for commission of the offence punishable under Sections 379/34 of the IPC and Sections 126 and 135 of the Electricity Act, 2003. 3. The brief facts are that on 4-9-2006, a team of Electricity Board raided the premises of the applicants known as M/s. Kankai Steel Pvt. Ltd., Bhilai. On inspection, it was found that there was tempering in the seal of the meter and ultimately, by applying necessary methods, the team assessed theft of about 9 lacs units of electricity by the concern of the applicants and ultimately, they raised a demand of Rs. 2,13,20,845/- and simultaneously, a First Information Report was also lodged. 4. Apprehending arrest in connection with the aforesaid crime, the applicants, who are the Directors of the aforesaid concern, filed an application for grant of anticipatory bail before the Sessions Court, Durg and ultimately, the said Bail Application No. 1748/2006 came up for hearing before the 10th Additional Sessions Judge, (FTC), Durg on 14-9 2006 and the learned ASJ, after hearing the parties, passed an order granting protection to the applicants in terms of Section 438, Cr.PC. The last para of the order reads as under: 5. According to the said order, a protective umbrella was opened in favour of the applicants and the applicants had to approach to the Regular Court within period of 45 days from the date of said order, i.e., 14-9-2006. Thereafter, the applicants filed an application under Section 437, Cr.PC before the concerned Magistrate on 11-10-2006, but the said application was dismissed by the Magistrate on 16-10-2006 and another application under Section 439, Cr.PC was filed before the Sessions Court, which was also dismissed by the said Court on 26-10-2006 in Bail Application No. 2021/2006. After dismissal of the said application on 26-10-2006, the applicants filed this application under Section 439, Cr.PC before the High Court on 28-10-2006 and the matter came up for hearing before the Court on 6-11-2006. After dismissal of the said application on 26-10-2006, the applicants filed this application under Section 439, Cr.PC before the High Court on 28-10-2006 and the matter came up for hearing before the Court on 6-11-2006. On that date, a point was raised at bar that since the period of protective umbrella opened in favour of the applicants ended on 29-10-2006 this application filed under Section 439, Cr.PC, though on 28-10-2006, i.e., within the period of protective umbrella opened in favour of the applicants would not be maintainable before the High Court, as the applicants would not be held in mandatory custody for the purpose of filing/ hearing of an application under Section 439, Cr.PC by virtue of protective order granted in their favour under Section 438, Cr.PC. 6. After hearing the arguments on the point of maintainability of the application, this Court (Single Bench) ultimately, made an order for reference to the matter to the Larger Bench for deciding the following questions: Whether a petition filed under Section 439, Cr.PC, 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 they shall be dismissed as not maintainable after expiration of the said period? 7. This reference was placed before the Division Bench of this Court and ultimately, by an order dated 9th February, 2007, the Division Bench answered the reference in the following terms: Even if bail application under Section 437/439 of the Cr.PC 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 the same is not maintainable. The matter be placed before the learned Single Judge to decide the bail application. 8. It is after all this; the matter has again listed before the Single Bench for the decision of the application filed under Section 439, Cr.PC. 9. The matter be placed before the learned Single Judge to decide the bail application. 8. It is after all this; the matter has again listed before the Single Bench for the decision of the application filed under Section 439, Cr.PC. 9. This time, learned Senior Counsel, appearing for the applicants argues that as per the contents of Division Bench's judgment and further on the basis of principles laid down in the matter of Niranjan Singh v. Prabhakar Rajaram Kharote , the applicants, who are present before this Court, shall be deemed to be in custody for the purpose of filing/hearing of this application, filed under Section 439, Cr.PC. He also submits that the demand raised by the Electricity Board has been set aside by the regulatory commission vide its order dated 3-4-2007 (Annexure A-12 filed along with I.A. No. 1/2007). He submits that since excessive demand was raised as an effect of wrong assessment by the Board, the Commission has set aside the demand for the time being and has remanded the matter to the concerned authority for assessment under the provision of Electricity Act. He refers to Para 7 of the aforesaid order. In these circumstances, he prays that the applicants be admitted to regular bail. 10. On the other hand, learned Additional Advocate General for the State, argues that appearance of the applicants before this Court will not amount to custody for the purpose of filing/hearing of an application under Section 439, Cr.PC and the application should be dismissed at the threshold on this ground alone. However, he does not raise much objection on the merits of the matter. 11. So far as the point of custody is concerned, the Division Bench of this Court, in the reference matter, has taken into account many judgments pronounced by the Apex Court, including the judgment of Niranjan Singh's case (supra), the contents of which are produced vide Para 23 of the judgment. 11. So far as the point of custody is concerned, the Division Bench of this Court, in the reference matter, has taken into account many judgments pronounced by the Apex Court, including the judgment of Niranjan Singh's case (supra), the contents of which are produced vide Para 23 of the judgment. I was also a member of the Bench hearing the reference, therefore, I am not reproducing all those points again and ultimately, I stick to the decision given by the Division Bench that in such a situation, when the protective umbrella was granted in favour of the applicants and even the bail application under Section 439, Cr.PC for grant of regular bail was filed within the period of protective umbrella, but the same was not decided within such period of protective umbrella and was adjourned beyond such period then before such bail application is taken up for hearing, the accused has to be in custody, only thereafter, the bail application would be maintainable, otherwise, the same would not be maintainable. 12. If we apply the above view taken by the Division Bench on the basis of various pronouncements of the Apex Court, it makes clear that if the person is in custody; his application under Section 439, Cr.PC would be maintainable. 13. Needless to say that custody has been defined in detail by various judgments, including the judgment of Apex Court in the matter of Niranjan Singh (supra), and on the basis of those principles, if the application was already pending before this Court since long back (since the period of protective umbrella) and the applicants are physically present before this Court, they shall be deemed to be in custody for the purpose of hearing their application under Section 439, Cr.PC and I hold it accordingly. 14. The first objection raised by the learned Additional Advocate General cannot be sustained and the same is overruled. 15. So far as the merits of the case are concerned, admittedly these applicants were granted facility of anticipatory bail by the Sessions Court and during the period of pendency of this application, the assessment made by the Electricity Board against their concern has been set aside for the time being and a reassessment is to be made. It is also brought to the notice of this Court by Shri Diwakar that a security deposit of Rs. It is also brought to the notice of this Court by Shri Diwakar that a security deposit of Rs. 58,82,000/- is already lying with the Electricity Board and the applicants are also challenging the action taken by the concerned persons of the Board for the purpose of determining the question of theft and also regarding the assessment. Therefore, considering the facts and circumstances of this case, I am of the opinion that present is a fit case, in which these applicants should be released on regular bail also. 16. Their application filed under Section 439, Cr.PC is allowed. 17. It is directed that these applicants shall be released on bail on each of them furnishing a personal bond in sum of Rs. 1,00,000/- (Rupees One lac) with one surety each in like sum to the satisfaction of the Trial Court for their appearance before the said Court on each date of hearing till the disposal of the trial. The bail bonds shall be furnished within a period of 15 days from today. The petition stands finally disposed of.