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IN THE HIGH COURT OF DELHI AT NEW DELHI
Vikas Mahajan, J.
Anil Kumar Sharma – Appellant
Versus
State (NCT of Delhi) – Respondent
Bail Appln. 2088 of 2021 & Cr.M.A. 4610 of 2022, Cr.M.A.
Decided On : 01-09-2023
Bail - Regular Bail - Sections 409/406/420/120B IPC - [Section 409/406/420/120B IPC] - The court discussed the provisions of Section 436A CrPC and its mandatory nature, as well as the interpretation and application of the provision by the Supreme Court in similar cases. The court emphasized the principle that 'bail is the rule and jail is an exception' and granted regular bail to the petitioner based on the application of Section 436A CrPC and the absence of responsibility for trial delay on the part of the petitioner.
Fact of the Case:
The petitioner sought regular bail under Section 439 CrPC read with Section 482 CrPC in a case registered under Sections 409/406/420/120B IPC. The charge sheet was filed under Sections 406/409/420/120B IPC, but the charges were framed only under Sections 420/120B IPC. The petitioner was accused of selling/allotting unsanctioned flats in a project, leading to a multi-victim scam.
Finding of the Court:
The court found that the petitioner had undergone detention for more than one-half of the maximum period of imprisonment specified for the offence under Section 420 IPC. It emphasized the mandatory nature of Section 436A CrPC and the principle that 'bail is the rule and jail is an exception'. The court granted regular bail to the petitioner based on the application of Section 436A CrPC and the absence of responsibility for trial delay on the part of the petitioner.
Issues: The main issue was whether the petitioner, having undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for the offence under Section 420 IPC, was entitled to be released on bail.
Ratio Decidendi: The court applied the mandatory provisions of Section 436A CrPC and the interpretation of the provision by the Supreme Court in similar cases, emphasizing the principle that 'bail is the rule and jail is an exception'. It also considered the absence of responsibility for trial delay on the part of the petitioner.
Final Decision: The court granted regular bail to the petitioner based on the application of Section 436A CrPC and the absence of responsibility for trial delay on the part of the petitioner.
JUDGMENT
Vikas Mahajan, J. (Oral)--The present application has been filed under Section 439 CrPC read with Section 482 CrPC seeking regular bail in FIR No.201/2016 registered at Police Station EOW under Sections 409/406/420/120B IPC.
2. It is not in dispute that the charge sheet in this case was filed under Sections 406/409/420/120B IPC, but the charges have been framed only under Sections 420/120B IPC.
3. The aforesaid FIR was registered on the complaint of Sh. Anubhav Jain who bought 26 flats in Tower G-1 of petitioner's companies project "Amrapali Silicon City" proposed to be developed at Plot No. GH-1A, Sector-76, Noida. During the course of investigation, it has been found that Tower G-1 in the aforesaid project was never sanctioned by the Noida Authority and in furtherance of criminal conspiracy, the petitioner sold/allotted 26 flats to the complainant in the said tower and being induced by the accused persons, the complainant agreed to invest in the said project and made full and final payment of Rs.6.60 crores against the said flats in November, 2011.
4. Subsequently, on 28.02.2019, the petitioner along with two other co-accused namely Shiv Priya and Ajay Kumar were arrested in the present case.
5. The learned Senior Counsel for the petitioner submits that the maximum sentence for the offence under Section 420 IPC with which the petitioner has been charged is 7 years whereas the petitioner is in custody for more than 3 years and 6 months.
6. He submits that in view of the mandatory provisions of Section 436A CrPC, the petitioner is entitled to statutory bail after having undergone detention for more than one-half of the maximum period of imprisonment specified for the offence under Section 420 IPC.
7. He further submits that the prosecution has cited as many as 50 witnesses and the conclusion of trial is likely to take long time. He, therefore, urges the court to grant regular bail to the petitioner.
8. Per contra, the learned APP has argued on the lines of the Status Report, she submits that it is a multi-victim scam, therefore, the benefit of Section 436A should not be extended to the petitioner in view of the first proviso to Section 436A CrPC. She urges for the dismissal of the petitioner's bail application.
9. I have heard the learned Senior Counsel for the petitioner, as well as, the learned APP for the State and have perused the record.
10. The learned Trial Court vide order dated 17.11.2022 has concluded that the present petitioner and other co-accused are liable to be prosecuted for the offence punishable under Section 420 IPC read with Section 120B IPC. The maximum punishment for the offence under Section 420 IPC is imprisonment of either description for a term which extends to 7 years and fine.
11. Undisputedly, the petitioner in the present case has undergone detention for a period in excess of one-half of the maximum period of imprisonment specified for the offence under Section 420 IPC.
12. Since the submission of the learned Senior Counsel for the petitioner is premised on Section 436A CrPC, apt would it be to reproduce the said provision, which reads thus:
"[436A. Maximum period for which an undertrial prisoner can be detained.--Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:
Provided further that no such person s
The main legal point established in the judgment is the mandatory nature of Section 436A CrPC and the principle that 'bail is the rule and jail is an exception', emphasizing the right to liberty and ....
The right to a speedy trial under Article 21 mandates release under Section 436-A of the CrPC after serving half of the maximum imprisonment period, regardless of the nature of the offence.
The right to a speedy trial under Article 21 of the Constitution mandates that an undertrial cannot be detained beyond half of the maximum sentence without trial, warranting bail under Section 436-A ....
The right to a speedy trial under Article 21 of the Constitution mandates that an undertrial cannot be detained beyond one-half of the maximum imprisonment period without trial, leading to bail being....
The right to a speedy trial under Article 21 allows for bail under Section 436A of the CrPC if the accused has served more than half of the maximum sentence for the offence charged.
(1) Bail – Provisions of Section 437(6) of Cr.P.C., cannot be considered to be mandatory in nature and cannot be interpreted to grant absolute and indefeasible right of bail in favour of accused.(2) ....
Bail – Section 436-A of Cr.P.C. does not exclude offences under NDPS Act – Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21.
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