Delay in trial cannot be used as a ground for bail.

ORDER :

1. This successive application for regular bail under Section 439 of the Code of Criminal Procedure, after rejection of his bail application post submission of charge-sheet not only by the Court of Sessions but with reasoned order rejected by this Court having been challenged up to Supreme Court and when that challenge failed, initially filed on 04.01.2022 before the Court of Sessions straightway instead of approaching the Court where trial is going on, is filed before this Court.

2. The applicant – accused herein as recorded in the earlier order is facing charge for offences under Sections 120 B, 406, 420 and 409 of the Indian Penal Code (hereinafter referred to as ‘the Code’). His bail application, post submission of charge-sheet, came to be rejected on the ground that he misappropriated Rs.2,79,99,700/- and utilized the same for repaying his own debts created in satta betting in cricket. Not only that, the co-accused, being accused no.2 is the father and accused no.3 is the maternal uncle, in whose accounts the present applicant – accused transferred Rs.3,45,000/- and Rs.5,00,000/- respectively, were granted bail on condition of deposit of the said amount pending the case. When this successive application for bail is filed, no grievance was raised about the delay in trial, that too, before the trial Court itself. As such, once trial has commenced of the accused, the applicant is expected to file bail application first before the trial Court so that the trial Court can appropriately deal with all the submissions made including delay in trial. However, the application, which is moved before the Sessions Court directly on 31.12.2021, was on the ground that since charge-sheet is already filed offence is triable by the Court of Magistrate and offence under Section 409 of ‘the Code’ is not made out and a request was made to release the accused on bail as only one witness is examined in the trial, and therefore, it may further delay the conclusion, which would amount to pre-trial punishment. Though the said application came to be rejected vide order dated 04.01.2022, the accused has preferred this successive application for bail, after rejection of earlier application post submission of charge-sheet with a reasoned order, which was challenged up to Supreme Court, on the ground that new law point is being raised and pressed into service as change of circumstances being no offence under Section 409 of ‘the Code’ is made out as also another ground raised is that despite the direction by the Supreme Court to expedite and conclude the trial preferably within a period of one year from the date of receipt of production of copy, it has yet not been concluded. The said direction by the Supreme Court is passed vide order dated 10.02.2021.

3. Mr. B.B. Naik, Senior Advocate, learned Counsel assisted by Mr. Premal Rachh, learned advocate for the applicant, vehemently submitted that the applicant – accused while serving as Clerk in Gujarat Fertilizer Dealers Association, cannot be said to be a public servant or that Association being a Banker, provisions of Section 409 of ‘the Code’ cannot be invoked and it is not made out. At best offence under Section 408 of ‘the Code’ can be said to have been made out, which is maximum punishable with seven years imprisonment, and therefore, in view thereof, keeping in mind the ratio of the Supreme Court in the cases of Arnesh Kumar Vs. State of Bihar and Another reported in (2014) 8 SCC 273 and Satender Kumar Antil Vs. Central Bureau of Investigation & Anr. reported in 2022 (11) SCALE 114, it is submitted that in the cases where maximum punishment, which can be imposed is seven years, the accused has to be enlarged on bail. According to his submission, whether offence under Section 409 of ‘the Code’ is made out in this case or not, it is a question of law, and therefore, it is a new ground as change of circumstance raised, which is required to be considered even in successive application for bail. He f