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HIGH COURT OF CHHATTISGARH
L. C. Bhadoo, Ag. C. J. and Sunil Kumar Sinha, J.
PRAMOD KUMAR MEHTA - Appellant
Versus
STATE OF CHHATTISGARH - Respondents
M. Cr. C 3203 Of 2006
Decided On : FEBRUARY 9, 2007
Held : For the foregoing reasons, we are of the considered opinion that even if an application under Section 439 Cr.P.C. is filed within protective umbrella period and same is not disposed of within that period then the accused is required to be in custody, he cannot be considered to be in deemed custody after expiration of the period of his protective umbrella and the view taken by the learned single judge of this Court vide para 11 in the matter of Ramdhani Yadav (supra) that “once it is held that the application was maintainable when it was filed on 6.1.2005 (during the period of protective umbrella of that case), the same cannot be held to be not maintainable subsequently after a lapse of period of two months from the date of the order dated 16.11.2004 (as it was in that case)” does not lay down the correct position of law. On expiration of protective umbrella period in order to enable the court to take up his application u/s 437/439 Cr.P.C. for consideration, if the accused is not in custody then application is not maintainable. (Para 28)
There was another argument that when application under Section 437/439 is filed, the accused appears before the Court, as per the law, he will be considered to be in custody of the Court if the application is decided on that day, bail is granted, then there is no need to send the accused to the judicial custody. Difficulty arises only when application is adjourned, in that case, the accused has to be sent to the judicial custody. (Para 29)
Obviously, to overcome that difficulty, either Court should decide application under Section 437 or 439 on the same day when the accused appears before the Court or wherever the accused feels, the Court may call for the case diary for the purpose of deciding bail application in that case, the accused is entitled to inform Public Prosecutor in writing at least 5 days in advance that his bail application under Section 437 or 439 is likely to be taken up for hearing by the Court on such and such date, & he will remain present in the Court, therefore, case diary may be kept ready for the purpose of perusal of the Court in order to enable the Court to decide bail application. (Para 30)
In the result, reference is answered in the following terms:-
(i) 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.
(ii) The matter be placed before the learned Single Judge to decide the bail application. (Para 31)
Result : Reference answered accordingly.
( 1 ) THE following order of the Court was passed by L. C. Bhadoo, ag C J.-One of us, Learned Brother (Justice sunil Kumar Sinha), has referred the following question to be adjudicated by a Larger Bench, that is how the matter has been placed before us :-"whether a petition filed u/s 439 cr. P. C. for grant of regular bail, during the period of mandated custody of the protective umbrella shae 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?
( 2 ) IN order to appreciate point of reference made by Brother Justice Sinha, it is necessary to narrate brief facts leading to making of this reference.
( 3 ) APPLICANTS namely, Pramod Kumar mehta and Ankit Mehta were apprehending their arrest in Crime No. 330/2006, registered at Police Station Jamul, District: Durg for offence punishable under Section 379 read with section 34 of the IPC and Sections 126 and 135 of the Electricity Act, 2003. On 4/9/2006, assistant Engineer Ramswaroop Sinha of subdivision chhavni of the Chhattisgarh State electricity Board lodged a written report in the police Station Jamul, Bhilai to the effect that on 4/9/2006 at the time of inspection of electric connection of the mini plant of consumer M/s Kankai Steel Pvt. Limited Service no. 1001077, Plot No. 138, L. I. A. Bhilai. It was detected that consumer was committing theft of electricity by tampering with seal of electric meter. Theft of electricity was estimated to the tune of 9 lakhs unit per month and by committing such theft. Director (Owner) Pramod mehta, Ankit Mehta and other Directors have caused loss to the Electricity Board.
( 4 ) RECEIVING this report, a case was registered under the above offences. Apprehending arrest in the aforesaid crime, applicants filed an application, bearing No. 1748/2006, for anticipatory bail before the Sessions Judge durg. This application came up for hearing before 10th Additional Sessions Judge (FTC), durg on 14/9/2006. Learned Additional sessions Judge after hearing parties passed an order granting protection to the applicants in terms of Section 438 Cr. P. C. that :
A. Applicants/accused should not directly or indirectly attempt to induce threat or promise to any witness for destroying evidence. They will co-operative with the investigating Agency.
B. They will remain present during the investigation, at the places where investigating Agency directs them. This order shall remain effective for a period of 45 days with effect from 14/9/2006. During this period, applicants/accused persons shall be entitled to move regular bail application before competent court and the competent court without being influenced by this order shall decide the application of the accused persons on its own merit.
( 5 ) THEREAFTER, as mentioned in the facts, an application under Section 437 Cr. P. C. was filed on 11-10-2006 before the concerned judicial Magistrate. The said application was dismissed by the Magistrate on 16-10-2006. Thereafter, they had filed another application bearing No. 2021/2006 for regular bail before the Sessions Court under Section 439 Cr. P. C. which was also heard and dismissed by the sessions Court on 26-10-2006.
( 6 ) AFTER dismissal of the said application on 26-10-2006, applicants filed above M. Cr. C. under Section 439 Cr. P. C. before this Court on 28-10-2006. The matter came up for hearing before this Court on 6-11-2006. On that day, a point was raised that since the period of protective umbrella opened in favour of the applicants has ended on 29-10-2006, therefore, application under Section 439 Cr. P. C. , though filed on 28-10-2006, well within the period of protective umbrella, would not be maintainable be
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