Madhya Pradesh High Court
Sunil Gupta vs The State Of Madhya Pradesh on 13 August, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH M.Cr.C.40317/2021 Sunil Gupta v. State of M.P and Anr.
Gwalior, Dated :13.08.2021 Shri Arjun Parihar, Counsel for the applicant. Shri Nitin Goyal, Counsel for the State.
Case diary is available.
This is third application filed under Section 439 of Cr.P.C. for grant of bail. First bail application was dismissed on merits by order dated 29.04.2021 passed in M.Cr.C. No.20833/2021.
The applicant has been arrested on 01.03.2021 in connection with Crime No. 107/2021 registered by Police Station Maharajpura Distt. Gwalior for offence punishable under Sections 354, 376, 506 of IPC and under Sections 3, 4, 5, 6, 7 and 8 of Protection of Children from Sexual Offence Act, 2012.
Heard on I.A. No. 24337/2021 an application for grant of temporary bail for a period of three months. It is submitted by the Counsel for the applicant that since the applicant is in jail for the last five months, therefore wife of the applicant is residing in the house of the sister of the applicant and now the sister of the applicant has also refused to keep the wife of the applicant in her house, therefore he should be granted temporary bail for a period of three months so that he can make necessary arrangements for the residence of his wife. However, during the course of arguments, it was accepted by the Counsel for the applicant that the mother of the applicant as well as the parents and sibling of his wife are alive. In response to the query 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C.40317/2021 Sunil Gupta v. State of M.P and Anr.
raised by this Court, a self innovative answer was given that since the applicant had performed love marriage without the consent and permission of his in-laws, therefore the parents of his wife would not keep her with them. However, there is nothing on record to show that the applicant had performed love marriage without the knowledge and consent of his in-laws.
Be that whatever it may be.
The mother of the applicant is still alive, therefore it cannot be said that there is no nobody to look after his wife. Accordingly, I.A. No. 24337/2021 is rejected.
So far as the merits of the case are concerned, it is submitted by Shri Parihar that the changed circumstance is that charges have been framed.
Whether framing of charges would amount to changed circumstance or not does not require any discussion for the simple reason that once the trial Court has found that there is prima facie material warranting his trial, then it can be said that it is a circumstance against the applicant. The Supreme Court in the case of Virupakshappa Gouda and another Vs. State of Karnataka reported in (2017) 5 SCC 406 has held that filing of charge-sheet cannot be said to be a change in circumstance because filing of the charge-sheet indicates that even the police had found that there is prima facie material against the applicant for sending the accused for 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C.40317/2021 Sunil Gupta v. State of M.P and Anr.
trial. When filing of charge-sheet cannot be said to be a change in circumstance, then framing of charge can certainly be not said as change in circumstance.
At this stage, it is submitted by learned Counsel for the applicant that the Supreme Court in the case of Sanjay Chandra v. Central Bureau of Investigation reported in 2012 (1) SCC 40 has held that pre-trial detention cannot be treated as a punishment and life and liberty of an accused should be respected as he is always presumed to be innocent until and unless he is convicted. It is further submitted that the Supreme Court in the case of Azhar Sah v. State of Bihar and Ors. reported in (2008) 5 SCC 82 has held that it is for the Court to decide as to whether the release of the accused is justified in the given facts and circumstances of the case or not. It is further submitted that the Supreme Court in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan reported in AIR 2005 SC 921 has held that the successive bail applications on the changed circumstances are maintainable. It is further submitted that the Supreme Court in the case of Dipak Shubhashchandra Mehta v. Central Bureau of Investigation and Anr. reported in (2012) 2 SCC (Cri) 350, has held that when there is a delay in trial, then accused is entitled for bail.
Considered the submissions made by the Counsel for the 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C.40317/2021 Sunil Gupta v. State of M.P and Anr.
applicant.
So far as the question of curtailment of liberty of an under trial by keeping him in jail is concerned, the said curtailment has already been upheld by the Supreme Court in the case of Kalyan Chandra Sarkar (supra), in which it is held that once the detention of an accused has been authorized under the law, then it cannot be said that the detention of an accused in a non-bailable offence is violative of Article 21 of the Constitution of India. It is true that the pre-trial detention is not a punishment but Section 436A of Cr.P.C gives a guiding factor to deal with such a situation. Section 436A of Cr.P.C reads as under:-
"S.436A. Maximum period for which an under trial 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 shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C.40317/2021 Sunil Gupta v. State of M.P and Anr.
the said offence under that law.
Explanation- In computing the period of detention under this Section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded".
From plain reading of Section 436A of Cr.P.C, it is clear that an under trial cannot be kept in jail beyond half of the maximum jail sentence provided for the offence for which he is being tried. Thus, it is clear that in view of Section 436A of Cr.P.C, the detention of an under-trial prisoner would become unauthorized if it violates the outer limit provided under Section 436A of Cr.P.C.
It is not the case of the applicant that he has already completed half of the maximum jail sentence which has been provided for offence for which he is facing trial.
So far as the reliance of the applicant on the judgment passed by the Supreme Court in the case of Deepak Shubhashchandra Mehta (supra) is concerned, the same is misconceived. The applicant has not filed the copy of order sheets to show that there is any delay in trial and he is not responsible for the same. On the contrary, it is the case of the applicant himself that the charges have been framed on 31.07.2021. The applicant has not filed any order sheet to show that he had never prayed for any adjournment for argument on the question of framing of charges. The previous bail applications have already been dismissed after considering the merits 6 THE HIGH COURT OF MADHYA PRADESH M.Cr.C.40317/2021 Sunil Gupta v. State of M.P and Anr.
in detail. Further, during the course of arguments the applicant did not disclose that the application filed by the applicant under Section 482 of Cr.P.C for quashment of charge-sheet has also been dismissed. Unfortunately that fact has not been disclosed by the applicant in the bail application also, specifically when the application filed under Section 482 of Cr.P.C was also argued by the same Counsel.
Be that whatever it may be.
As no change in circumstance could be pointed out by the Counsel for the applicant, the application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge ar ABDUR RAHMAN 2021.08.13 17:50:01 +05'30'