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Madhya Pradesh High Court · body

2010 DIGILAW 58 (MP)

Sunil Saxena v. State of M. P.

2010-01-15

U.C.MAHESHWARI

body2010
ORDER U.C. Maheshwari, J. Heard. 1. This 7th repeated petition under Section 439 of Code of Criminal Procedure. is preferred for grant of bail to the applicant as he is in custody since 15.12.2007 in connection of Crime No. 58/07, registered at P.S. Chourai District Chhindwara for the offence under Section 420, 467, 409 and 468/34 of Indian Penal Code. 2. As alleged the applicant being cashier in a Co-operative Bank by practicing fraud and fabricating the documents misappropriated the sum of Rs. 25,05,793/-. 3. It is noted that on earlier occasions before filing the charge sheet and thereafter as many as six applications of the applicant have been dismissed either on merits or otherwise and in continuation of the same after framing the charges this 7th application is preferred. 4. The applicant's counsel initially by making his submissions on merits of the matter said that taking in to the period of judicial custody suffered by him he be released on bail. In addition, by referring the provision of Section 437 (6) of Code of Criminal Procedure. it was argued that even after framing the charges on 30.5.2009 the trial has not been concluded within sixty days or subsequent to such period till today. In continuation he said that in view of the mandatory provision of aforesaid Section 437 (6) of Code of Criminal Procedure. the applicant deserves to be released on bail. In support of this argument he placed his reliance on decided case of this Court in the matter of Ram Kumar v. State of Madhya Pradesh reported in 2000 (1) MPHT 661 and also on a case of Chhattisgarh High Court in the matter of Godavari Bai v. State of Chhatisgarh reported in 2004 (4) MPHT 5 and prayed for bail on this count also. 5. On the other hand while opposing the aforesaid prayer learned P.L. said that in view of earlier dismissal of the applicant's applications in this regard on merits, according to the case, applicant being cashier of alleged Co-operative Bank by practicing fraud and fabricating the documents committed the offence of misappropriation of the sum of Rs. 5. On the other hand while opposing the aforesaid prayer learned P.L. said that in view of earlier dismissal of the applicant's applications in this regard on merits, according to the case, applicant being cashier of alleged Co-operative Bank by practicing fraud and fabricating the documents committed the offence of misappropriation of the sum of Rs. 25,05,793/- for which sufficient evidence is available in the case diary as well as in the charge-sheet, therefore, the applicant does not deserve for extending the benefit of bail even under the provision of Section 437 (6) of Code of Criminal Procedure, he further said that by virtue of later part of such Sub-section after recording the reasons the Court is empowered to dismiss such application, in such premises the prayer for dismissal of the bail petition is made. 6. Having heard perused the case diary and the papers placed on the record. It is not in dispute that earlier six applications of the applicant in this regard have been dismissed on merits or otherwise as the case was not found fit for grant of bail. It appears from the earlier order-sheets of the trial Court that the trial of the case has been delayed because of the conduct of the applicant himself. It is true that earlier part of Section 437 (6) of Code of Criminal Procedure. speaks that if the trial of non-bailable offence is not concluded within sixty days from the first date fixed for taking the evidence in the case then such person or accused shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, but later part of this Sub-section empowered the Magistrate to dismiss such application after recording the reasons in the available circumstances of the case. 7. The case laws cited by the applicant's counsel were decided taking into consideration the available circumstance of such case in which the later part of Sub-section (6) of Section 437 of Cr. P. C: was not found to be invoked. So far the principles laid down in the aforesaid cited cases are concerned this Court does not have any dispute but in view of the distinguishable feature of the case the same is not applicable to the case at hand. P. C: was not found to be invoked. So far the principles laid down in the aforesaid cited cases are concerned this Court does not have any dispute but in view of the distinguishable feature of the case the same is not applicable to the case at hand. Earlier on arising the occasion while deciding the case of Arjun Sahu v. State of Madhya Pradesh reported in 2008 (2) JLJ 237 . after taking into consideration the "Ram Kumar's case " (Supra) in view of the law laid down by the Division Bench of Delhi High Court in the matter of Robert Lendi v. The Collector of Customs and Anr. reported in 1987 Cri.L.J 55 and the decision of Jharkhand High Court in the matter of Didar Singh v. State of Jharkhand reported in 2006 Cri. L.J. 1594, it was held that in the available facts and circumstance of the case after recording the reasons the bail application of the accused which is filed even after sixty days from the first date fixed for recording the evidence can be dismissed in the later part of Section 437 (6) of Code of Criminal Procedure and consequently, the bail application of the applicant Arjun Sahu was dismissed in the above mentioned case. 8. In. the present matter on earlier occasions looking to the seriousness of the offence and availability of the sufficient prima-facie circumstance against the applicant the case was not found fit for grant of bail and such applications were dismissed. Even after framing the charges such situation has not been changed only on efflux of time the applicant could not be released on bail. Still prima-facie circumstances are available against the applicant showing that by practicing the alleged fraud and fabricating the documents he committed the offence of misappropriation of the huge amount of Rs. 25,05,793/-. I am, also informed by the State counsel that all the material prosecution witnesses are yet to be examined in the trial in near future and on releasing the applicant on bail he may influence them. The order sheets of the trial Court also showing that the trial has been delayed due to conduct of the applicant himself and not any act of the State. In such circumstances the applicant cannot be benefited by granting the bail under the provision of Section 437 (6) of Code of Criminal Procedure. The order sheets of the trial Court also showing that the trial has been delayed due to conduct of the applicant himself and not any act of the State. In such circumstances the applicant cannot be benefited by granting the bail under the provision of Section 437 (6) of Code of Criminal Procedure. consequently, this seventh repeated bail petition is hereby dismissed.