Madhya Pradesh High Court
Vikas vs The State Of Madhya Pradesh on 28 July, 2021
Author: Anil Verma
Bench: Anil Verma
1
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No. 2871/2021
(Vikas Vs. State of MP)
Indore, Dated: 28/7/2021
Shri Hitesh Sharma, learned counsel for the applicant.
Shri Shalabh Sharma, learned Panel Lawyer, for the
respondent/State.
Both the parties heard through video conferencing. This is eighth application under Section 439 of the Code of Criminal Procedure, 1973. The applicant is in Jail since 28/3/2017 in connection with Crime No. 804/2016 registered at P.S. Neelganga District Ujjain for commission of offence punishable u/S 102-B, 406, 420 of IPC. The result of the earlier bail applications filed on behalf of applicant is as under:-
Sr.No. M.Cr.C. No. Date of order Result 1 4126/17 03/05/17 Dismissed 2 8413/17 22.8.2017 Dismissed 3 23673/17 10/01/18 Dismissed 4 7533/18 14.3.2018 Dismissed 5 36041/18 14.11.2018 Dismissed 6 41385/19 16.10.2019 Withdrawn 7 32876/20 04/11/20 Withdrawn
As per prosecution story, the applicant firm i.e. M/s Om Sai Om Developers entered into an agreement with the complainant for sale of flat no. B- 504 and received some of Rs. 24 lakhs from the complainant and later on said flat has been sold to some other person and against said sum of Rs. 24 lakhs no agreement was executed and only a receipt was given for said amount to the 2 complainant.
Learned counsel for the applicant contended that applicant is innocent and he has been falsely implicated in the offence. He is in custody for last 3 and half years. Conclusion of trial will take a long sufficient time, the applicant has not misused the temporary bail granted to him. He places reliance upon the judgement of the Apex court in case of Umarmia Alias Mamumia Vs. State of Gujarat reported in (2017) 2 SCC 731, the judgement of this Court in the matter of Roopa @ Ramroop Vs. State of MP reported in (2012) 2 MPHT 46, judgement of Himachal Pradesh High court dated 30.12.2020 in the matter of Sanjay Kumar of State of Himachal Pradesh (Cr.MP(M) No. 2173/2020. He further submits that as per provisions of Section 436A of Cr.P.C., the applicant should be released on bail on such terms and condition as the Court deems fit and proper. He also submits that looking to the conduct of the complainant and coupled with the fact that applicant has already served more than half sentence out of total prescribed sentenced for the offence, he may be enlarged on bail under Section 436A of Cr.P.C.
Per contra, learned P.L. for respondent - State opposes the bail application and supports the order impugned by submitting that most of the earlier bail applications have been dismissed on merits and at present there is no change in the circumstances to enlarge the applicant on bail under Section 436A of Cr.P.C.
Perused the impugned order of the trial Court as well as the case diary.
It is noteworthy that the most of the earlier bail applications 3 have been dismissed on merit. After passing the earlier orders by this court, there is no material change in the circumstances of the case for releasing the applicant on bail. It is undoubted that applicant is in custody for more than 3 and half years and he is facing trial under section 102-B, 406, 420 of IPC. In those offences maximum 7 years rigorous imprisonment is prescribed and now applicant seeks benefit of bail under the provision of Section 436A of Cr.P.C. Section 436A Cr.P.C. reads as under:-
"436-A. Maximum period for which an undertrial prisoner can be detained.-Where a person has, during the period of investigation, inquiry or trial under the Cr.P.C. 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 no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law."
On perusal of this provision, it is crystal clear that this provision is not mandatory and it is only discretionary. Looking to the nature and gravity of offence in which applicant is facing trial, the applicant does not deserve for benefit of bail under Section 4 436A of Cr.P.C.
Hence this eighth bail application filed under Section 439 Cr.P.C. is hereby dismissed.
Certified copy as per Rules.
(Anil Verma) Judge BDJ Digitally signed by BHUVNESHWAR DATT JOSHI Date: 2021.07.29 18:09:43 +05'30'