Chattisgarh High Court
Umeshwar Dubey vs State Of Chhattisgarh on 16 February, 2005
HIGH COURT OF CHHATTISGARH AT BILASPUR
M.CR.C. NO. 2508 OF 2004
Umeshwar Dubey,Ambikapur
....Petitioner
-Versus-
State of Chhattisgarh,Police Station Kelhari,Korea
....Respondent
! Shri Rajesh Pandey, counsel for the petitioner.
^ Shri M.P.S.Bhatia, Panel Lawyer for the respondent/State.
Hon'ble justice Shri V.K.Shrivastava.
Dated: 16/02/2005
: Judgment
Heard on the point whether this bail
application will be treated as first or second and whether this application will be heard and decided by this Bench.
Initially an application under Section 438 of the Cr.P.C. was filed by the petitioner Umeshwar Dubey in this Court which was registered as M.Cr.C.No.2084/2001 and the same was rejected on 7-9- 2001. Thereafter, second application under Section 438 of the Cr.P.C. for grant of anticipatory bail was filed by him which was registered as M.Cr.C.No.2614/2001. On 5-12-2001, this Court granted him ad-interim anticipatory bail in the M.Cr.C.No.2614/2001, and in compliance therewith, he remained on anticipatory bail upto 28-4-2003. On 28-4-2003, the M.Cr.C.No.2614/2001 was dismissed by this Court. Against that order of dismissal, he approached Hon'ble the Apex Court. Hon'ble the Apex Court, vide order dated 3-6-2003, directed that, in the event of surrender and filing of application for grant of regular bail by the petitioner, the trial Court shall consider his application as expeditiously as possible.
Petitioner's contention is that, afterwards, on 2-8-2004, the Police arrested him, and since then he is behind the bar. His bail application for grant of regular bail has been rejected by the trial Court as well as by the Sessions Court, therefore, he has moved the present application under Section 439 of the Cr.P.C. for grant of regular bail.
The petitioner's first application under Section 438 of the Cr.P.C. was dismissed by the Bench of Hon'ble Shri Justice R.S.Garg. He was granted ad- interim anticipatory bail on 5-12-2001 in his second application i.e. M.Cr.C.No.2614/2001 by the Bench of Hon'ble Shri Justice Fakhruddin, and the said M.Cr.C. was finally dismissed on 28-4-2003 by the Bench of Hon'ble Shri Justice L.C.Bhadoo.
Hon'ble the High Court of Madhya Pradesh in Mahesh Chandra @ Mahesh Kumar Goyal vs. State of M.P., reported in 2000 (2) M.P.H.T. 232, has specifically laid down that there is clear distinction between Sections 438 and 439 of the Cr.P.C., therefore, rejection of an application under Section 438 of the Cr.P.C. is not a ground to entertain fresh application under Section 439 of the Cr.P.C. by the same Judge who had earlier rejected the application under Section 438 of the Cr.P.C. Therefore, relying on the above citation, the present application, filed under Section 439 of the Cr.P.C., is to be heard by this Bench as the roster of cases filed under Sections 438 and 439 of the Cr.P.C. is at present with this Bench.
Heard on merit.
The petitioner has preferred this application under Section 439 of the Cr.P.C. for grant of bail. He is accused in Crime No.42/2001, registered at Police Station Kelhari, District Korea (C.G.), for commission of offence punishable under Sections 201, 409, 380, 381 and 450 read with Section 34 of the I.P.C.
The allegation against the petitioner, leveled by the prosecution, is that, he, with the help of two persons, entered the Bank and took Rs.5,90,000/- from its locker, and the said amount was shifted through the persons accompanied with him. On 30-6- 2001, the petitioner himself lodged a written report to the Police regarding theft of the said amount from the Bank. The Police registered a case under Sections 457, 380 of the I.P.C. On investigation, it was found that the petitioner himself, who was Branch Manager of the said Bank, had removed the said amount from the locker of the Bank and misappropriated it.
Petitioner's contention is that, he has been falsely implicated in this case. He remained on ad- interim anticipatory bail for about 1+ years. Neither he absconded nor in any way tampered any evidence. He himself surrendered before Judicial Magistrate First Class. On his surrender, he was taken to judicial custody and was sent to Jail on 20-8-2001. On 21-9- 2001, the Police made his formal arrest in Sub-Jail, Baikunthpur. Although the prosecution opposed the grant of bail to the petitioner before the Judicial Magistrate First Class, it did not submit any application for grant of remand. As a result thereof, the petitioner was released from judicial custody on 21- 9-2001 itself.
Petitioner's further contention is that, now, the Police has no authority or right to arrest him without prior permission of the concerned Court. Despite that, the Police has unauthorisedly arrested him and kept behind the bar.
The amount of Rs.5,90,000/-, alleged to be missing or taken by the petitioner, has not so far been recovered nor the other persons, said to be involved in the offence, have been identified or arrested or prosecuted. Only on the basis of the statement of Peon Ramdin, who has stated that, he accompanied the petitioner to go to the Bank, and the petitioner, along with one another person, entered the Bank, and removed the amount from its locker and kept the same in a bag, and the person, who had entered the Bank along with the petitioner, took the said amount in a vehicle, the charge-sheet against the petitioner has been filed. The statement of Ramdin was recorded by the Police on 3-7-2001.
The offence is triable by Judicial Magistrate First Class. There appears nothing to suggest that the petitioner will abscond or will tamper with the evidence. The petitioner is behind the bar since 1-8- 2004. Neither other persons, said to be involved in the crime, have so far been identified or arrested or prosecuted nor any amount from any corner has so far been seized.
Taking into account all the facts and circumstances of the case, I am of the opinion that, the petitioner is entitled to be released on bail. Therefore, the petition, filed by him under Section 439 of the Cr.P.C., is allowed, and it is directed that, on furnishing a personal bond of Rs.1,00,000/- (Rupees One Lakh) with two solvent sureties of the like sum by the petitioner to the satisfaction of the concerned Court for his appearance before the concerned Courts as and when directed, accompanied with the following conditions, he be released on bail : -
1. He shall not commit any offence similar to the offence of which he is an accused.
2. He shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court.
3. He shall not leave the State of Chhattisgarh without prior permission of the Court.
Certified copy as per rules.
JUDGE