IMPORTANT POINT
Where application for grant of regular bail is filed within protective umbrella order passed u/s 438 CrPC but same is not decided within the protective umbrella then before such bail application is taken up for hearing, accused has to be in custody, only then bail application would be maintainable.

JUDGMENT

Sunil Kumar Sinha, J. - 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.C. 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 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 labourers 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 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 umbre