JUDGMENT

PRADEEP NANDRAJOG, J.

FIR No.755/04 Dated: 30.12.2004

U/S 406/409/420/120 IPC

P.S. Model Town

1. Petitioner, Naresh Kumar, is in judicial custody since 5.5.2006. Petitioner, Kamal Bhola, is in judicial custody since 10.7.2006. Both are accused in the FIR above noted.

2. There is a third co-accused Jyoti Gupta.

3. On 28.5.2007 charges have been framed against the petitioners as also Ms.Jyoti Gupta.

4. The charge framed against Kamal Bhola read as under:

"CHARGE

I, Sanjeev Jain, ACMM, Delhi do hereby charge you accused Kamal Bhola, S/o Sh.M.K.Bhola as under:

That you in the month of June,2004 agreed that Naresh Shah and Jyoti Gupta to do an illegal act i.e. to cheat complainant Raj Kr. Maheshwari and Mahender Soni and other innocent person and thus you have committed an offence punishment u/s 120 B of IPC.

Secondly, in pursuance of abovesaid criminal conspiracy in the month of June,2004 you along with your above said associate cheated complainant Raj Kr.Maheshwari and Mahender Soni and other innocent person by dishonestly inducing them to deliver the diamonds and jewellery worth Rs.90 lacs belonging to complainant and diamonds and jewellery of other innocent persons public victims to you and thus you have committed an offence punishable U.S.420 IPC R/w Sec.120 B of IPC and is within my jurisdiction and cognizance.

And I hereby direct you to be tried on the above said charge by this court."

5. Similar charge has been framed against Naresh Kumar.

6. Thus, at the outset, it may be noted that Kamal Bhola and Naresh Kumar have not been charged with the offence under Section 406 IPC.

7. Before considering whether circumstances exist to release the petitioners on bail, I may note that Jyoti Gupta, the third co-accused, was granted bail by this court on 28.8.2006. The order reads as under:

"Present: Mr.Ramesh Gupta with Mr.Mukesh Kalia for the petitioner.

Mr. Pawan Sharma for the State.

Bail Appl.1601/2006

Learned counsel for the petitioner has argued that though in the FIR lodged against the petitioner and other accused persons number of provision of the Indian Penal Code were included, ultimately after the investigation charge-sheet, which has already been filed, mentions offence under Section 420 read with Section 120-B IPC. He has also placed copy of the order on charge passed by the learned ACMM on 2.6.2006 as per which, charge is framed only under the aforesaid provision. In this charge it is, inter alia, stated that the applicant conspired with the other co-accused Naresh Kumar and Kamal Bhola and cheated the complainant Raj Kumar Maheshwari by dishonestly inducing him to deliver the diamond and jewellery worth Rs.90 lacs. Submission of the learned counsel for the petitioner is that since the charge has already been framed and the petitioner, who is a lady, is in judicial custody since 22.12.2005 and during this period she was released on interim bail for a period of one month only and as even during the pre-trial period she has been in custody for more that 71/2 months, she should be enlarged on bail. In support of this submission the learned counsel for the petitioner has relied upon the judgments of this court in the case of Anil Mahajan Vs. Commissioner of Customs and Anr., 2000 (2) JCC (Delhi) 302 and of Supreme Court in the case of Ashok Dingra V. NCT of Delhi, 2000 Crl.L.J. 4054. He also relies upon unreported order dated 19.5.2006 passed in Bail Appl. No.3033/2005 by this court. On the basis of the aforesaid judgments he has argued that since the offence under Section 420 IPC is punishable with a maximum punishment of 7 years and fine and as the petitioner is in judicial custody for more than 171/2 months, these are sufficient reasons for the petitioner to be enlarged on bail.

Learned counsel for the State has opposed the aforesaid prayer by submitting that in similar circumstances the Supreme Court in the case of Mahesh Kumar Bhawsinghka Vs. State of Delhi, 2000 Crl.L.J. 2786 has refused the bail.