The main legal point established in the judgment is that for a bail application under Sections 437 and 439, Cr. P.C. to be maintainable, the accused has to be in custody after the expiration of the period of protective umbrella.

Advocates appeared:

Shri P. Diwakar, Sr.. Advocate with Shri P.R. Patankar, Advocate, for the Applicants.

Shri P.K. Verma, Additional Advocate General with Shri Ashish Shukla, Additional Public Prosecutor, for the State.

Shri Kanak Tiwari,Sr. Advocate & Shri Y.C. Sharma, Advocate, Present to assist the Court.

JUDGMENT

1. 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 Under Section 439, 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 ?

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 Sub-Division 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, of 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, LIA 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 months 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-operate 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

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