BAIL APPLICATION 201 of 2016

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*IN THE HIGH COURT OF DELHI AT NEW DELHI%Judgment delivered on: 01.09.2023

+BAIL APPLN. 2088/2021 & CRL.M.A. 4610/2022, CRL.M.A.2976/2023, CRL.M.A. 2977/2023ANIL KUMAR SHARMA..... Petitioner2976/2023, CRL.M.A. 2977/2023ANIL KUMAR SHARMA..... Petitioner

Through:Mr. Pramod Kumar Dubey, Sr.Adv. with Mr. Amit Sinha, Mr.Manoj Kumar Singh, Ms. Aditi,Mr. Satyam Sharma and Mr.Saurav Kumar Sohi, Advs.Adv. with Mr. Amit Sinha, Mr.Manoj Kumar Singh, Ms. Aditi,Mr. Satyam Sharma and Mr.Saurav Kumar Sohi, Advs.

Versus

STATE (NCT OF DELHI)

..... Respondent

Through:Ms. Richa Dhawan, APP forState.

CORAM:HON'BLE MR. JUSTICE VIKAS MAHAJAN

JUDGMENT

VIKAS MAHAJAN, J. (ORAL)

1.The present application has been filed under Section 439 CrPCread with Section 482 CrPC seeking regular bail in FIR No.201/2016registered at Police Station EOW under Sections 409/406/420/120BIPC.

2.It is not in dispute that the charge sheet in this case was filedunder Sections 406/409/420/120B IPC, but the charges have beenframed only under Sections 420/120B IPC.

3.The aforesaid FIR was registered on the complaint of Sh.

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Anubhav Jain who bought 26 flats in Tower G-1 of petitioner’scompanies project “Amrapali Silicon City” proposed to be developedat Plot No. GH-1A, Sector-76, Noida. During the course ofinvestigation, it has been found that Tower G-1 in the aforesaid projectwas never sanctioned by the Noida Authority and in furtherance ofcriminal conspiracy, the petitioner sold/allotted 26 flats to thecomplainant in the said tower and being induced by the accusedpersons, the complainant agreed to invest in the said project and madefull and final payment of Rs. 6.60 crores against the said flats inNovember, 2011.

4.Subsequently, on 28.02.2019, the petitioner along with twoother co-accused namely Shiv Priya and Ajay Kumar were arrested inthe present case.

5.The learned Senior Counsel for the petitioner submits that themaximum sentence for the offence under Section 420 IPC with whichthe petitioner has been charged is 7 years whereas the petitioner is incustody for more than 3 years and 6 months.

6.He submits that in view of the mandatory provisions of Section436A CrPC, the petitioner is entitled to statutory bail after havingundergone detention for more than one-half of the maximum period ofimprisonment specified for the offence under Section 420 IPC.

7.He further submits that the prosecution has cited as many as 50witnesses and the conclusion of trial is likely to take long time. He,therefore, urges the court to grant regular bail to the petitioner.

8.Per contra, the learned APP has argued on the lines of the StatusReport, she submits that it is multi-victim scam, therefore, the

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benefit of Section 436A should not be extended to the petitioner inview of the first proviso to Section 436A CrPC. She urges for thedismissal of the petitioner’s bail application.

9.I have heard the learned Senior Counsel for the petitioner, aswell as, the learned APP for the State and have perused the record.

10.The learned Trial Court vide order dated 17.11.2022 hasconcluded that the present petitioner and other co-accused are liable tobe prosecuted for the offence punishable under Section 420 IPC readwith Section 120B IPC. The maximum punishment for the offenceunder Section 420 IPC is imprisonment of either description for termwhich extends to 7 years and fine.

11.Undisputedly, the petitioner in the present case has undergonedetention for period in excess of one-half of the maximum period ofimprisonment specified for the offence under Section 420 IPC.

12.Since the submission of the learned Senior Counsel for thepetitioner is premised on Section 436A CrPC, apt would it be toreproduce the said provision, which reads thus:-

“[436A. Maximum period for which an undertrial prisoner canbe detained.—Where person has, during the period ofinvestigation, inquiry or trial under this Code of an offence underany law (not being an offence for which the punishment of deathhas been specified as one of the punishments under that law)undergone detention for period extending up to one-half of themaximum period of imprisonment specified for that offence underthat law, he shall be released by the Court on his personal bondwith or without sureties:

Provided that the Court may, after hearing the Public Prosecutorand for reasons to be recorded by it in writing, order thecontinued detention of such person for period longer than one-

half of the said period or release him on bail instead of thepersonal bond with or without sureties:

Provided further that no such person shall in any case bedetained during the period of investigation, inquiry or trial formore than the maximum period of imprisonment provided for thesaid offence under that law.

Explanation.—In computing the period of detention under thissection for granting bail, the period of detention passed due todelay in proceeding caused by the accused shall be excluded.]”

13.In the backdrop of above factual matrix, short question whicharises in the present case is that whether the petitioner after havingundergone detention for period extending upto one-half of themaximum period of imprisonment specified for the offence alleged, isentitled to be released on bail.

14.The answer to the above question is not far to seek. TheHon’ble Supreme Court in “Satender Kumar Antil vs. CBI”(2022) 10SCC 51, while construing the provision of Section 436A CrPC hasobserved that it is mandatory to comply with the said provision andthere is not even need for bail application. With reference to thefirst proviso, the Hon’ble Supreme Court observed that the Court canorder continuation of detention of the accused for period longer thanone-half of the maximum period of imprisonment specified for theoffence invoked after hearing the learned APP for the State and forreasons to be recorded by it in writing. However, such an exercise ofpower is expected to be undertaken sparingly being an exception tothe general rule. The Supreme Court also reiterated the principle that“Bail is the rule and jail is an exception”. The relevant part of the

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decision reads as under:-

“...64. Under this provision, when person has undergonedetention for period extending to one-half of the maximumperiod of imprisonment specified for that offence, he shall bereleased by the court on his personal bond with or withoutsureties.Theword “shall”clearlydenotesthemandatorycompliance of this provision. We do feel that there is not even aneed for bail application in case of this nature particularlywhen the reasons for delay are not attributable against theaccused. We are also conscious of the fact that while taking adecision the Public Prosecutor is to be heard, and the court, if it isof the view that there is need for continued detention longerthan one-half of the said period, has to do so. However, such anexercise of power is expected to be undertaken sparingly being anexception to the general rule. Once again, we have to reiteratethat “bail is the rule and jail is an exception” coupled with theprinciple governing the presumption of innocence. We have nodoubt in our mind that this provision is substantive one,facilitating liberty, being the core intendment of Article 21. Theonly caveat as furnished under the Explanation being the delay inthe proceeding caused on account of the accused to be excluded.ThisCourtin BhimSingh v. UnionofIndia [BhimSingh v. Union of India, (2015) 13 SCC 605 : (2016) 1 SCC (Cri)663] , while dealing with the aforesaid provision, has directed that: (SCC pp. 606-07, paras 5-6)

“5. Having given our thoughtful consideration to the legislativepolicy engrafted in Section 436-A and large number ofundertrial prisoners housed in the prisons, we are of theconsidered view that some order deserves to be passed by us sothat the undertrial prisoners do not continue to be detained inprison beyond the maximum period provided under Section436-A.

6. We, accordingly, direct that jurisdictional Magistrate/ChiefJudicial Magistrate/Sessions Judge shall hold one sitting in aweek in each jail/prison for two months commencing from 1-10-2014 for the purposes of effective implementation of Section

436-A of the Code of Criminal Procedure. In its sittings in jail,the above judicial officers shall identify the undertrialprisoners who have completed half period of the maximumperiod or maximum period of imprisonment provided for thesaid offence under the law and after complying with theprocedure prescribed under Section 436-A pass an appropriateorder in jail itself for release of such undertrial prisoners whofulfil the requirement of Section 436-A for their releaseimmediately.Such jurisdictional Magistrate/Chief JudicialMagistrate/Sessions Judge shall submit the report of each ofsuch sittings to the Registrar General of the High Court and atthe end of two months, the Registrar General of each HighCourt shall submit the report to the Secretary General of thisCourt without any delay. To facilitate compliance with theabove order, we direct the Jail Superintendent of eachjail/prison to provide all necessary facilities for holding thecourt sitting by the above judicial officers. copy of this ordershall be sent to the Registrar General of each High Court, whoin turn will communicate the copy of the order to all SessionsJudges within his State for necessary compliance.”

65. The aforesaid directions issued by this Court if not compliedfully, are expected to be complied with in order to prevent theunnecessary incarceration of undertrials, and to uphold theinviolable principle of presumption of innocence until proven guilty.

(emphasis supplied)

15.Likewise, in Vijay Madanlal Choudhary and Ors. Vs. Unionof India and Ors., (2022) SCC OnLine SC 929, the Supreme Courtwhile considering the application of Section 436A, CrPC to caseunder PMLA where the rigors of Section 45 of Prevention of MoneyLaundering Act (PMLA) will apply, observed that Section 436A is anexception carved out to the strict compliance of twin conditions underSection 45 of the PMLA Act. It was also observed that Section 436Aneeds to be construed as statutory bail provision and akin to Section

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167 of 1973 Code. The relevant part of the decision reads as under:-

413. There is, however, an exception carved out to the strictcompliance of the twin conditions in the form of Section 436A ofthe 1973 Code, which has come into being on 23.6.2006 vide Act25 of 2005. This, being the subsequent law enacted by theParliament, must prevail. Section 436A of the 1973 Code reads asunder:.............

414. In the Statement of Objects and Reasons, it was stated thus:

“There had been instances, where under-trial prisoners weredetained in jail for periods beyond the maximum period ofimprisonment provided for the alleged offence. As remedialmeasure section 436A has been inserted to provide that where anunder-trial prisoner other than the one accused of an offence forwhich death has been prescribed as one of the punishments, hasbeen under detention for period extending to one-half of themaximum period of imprisonment provided for the allegedoffence, he should be released on his personal bond, with orwithout sureties. It has also been provided that in no case will anunder-trial prisoner be detained beyond the maximum period ofimprisonment for which he can be convicted for the allegedoffence.”

415. In Hussainara Khatoon v. Home Secretary, State of Bihar,Patna (1980) (1) SCC 108, this Court stated that the right tospeedy trial is one of the facets of Article 21 and recognized theright to speedy trial as fundamental right. This dictum has beenconsistently followed by this Court in several cases. TheParliament in its wisdom inserted Section 436A under the 1973Code recognizing the deteriorating state of undertrial prisonersso as to provide them with remedy in case of unjustifieddetention. In Supreme Court Legal Aid Committee RepresentingUndertrial Prisoners v. Union of India (1994) 6 SCC 731, theCourt, relying on Hussainara Khatoon (supra), directed therelease of prisoners charged under the Narcotic Drugs and

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Psychotropic Act after completion of one-half of the maximumterm prescribed under the Act. The Court issued such directionafter taking into account the non obstante provision of Section 37of the NDPS Act, which imposed the rigors of twin conditions forrelease on bail. It was observed:

“15. ….We are conscious of the statutory provision finding placein Section 37 of the Act prescribing the conditions which have tobe satisfied before person accused of an offence under the Actcan be released. Indeed we have adverted to this section in theearlier part of the judgment. We have also kept in mind theinterpretation placed on similar provision in Section 20 of theTADA Act by the Constitution Bench in Kartar Singh v. State ofPunjab(1994) 3 SCC 569. Despite this provision, we havedirected as above mainly at the call of Article 21 as the right tospeedy trial may even require in some cases quashing of acriminal proceeding altogether, as held by Constitution Benchof this Court in A.R. Antulay v. R.S. Nayak (1992) 1 SCC 225,release on bail, which can be taken to be embedded in the rightof speedy trial, may, in some cases be the demand of Article 21.As we have not felt inclined to accept the extreme submission ofquashing the proceedings and setting free the accused whosetrials have been delayed beyond reasonable time for reasonsalready alluded to, we have felt that deprivation of the personalliberty without ensuring speedy trial would also not be inconsonance with the right guaranteed by Article 21. Of course,some amount of deprivation of personal liberty cannot beavoided in such cases; but if the period of deprivation pendingtrial becomes unduly long, the fairness assured by Article 21would receive jolt. It is because of this that we have felt thatafter the accused persons have suffered imprisonment which ishalf of the maximum punishment provided for the offence, anyfurther deprivation of personal liberty would be violative of thefundamental rightecognizes by Article 21, which has to betelescoped with the right guaranteed by Article 14 which alsopromises justness, fairness and reasonableness in proceduralmatters. …”

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416. The Union of India also recognized the right to speedy trialand access to justice as fundamental right in their writtensubmissions and, thus, submitted that in limited situation right ofbail can be granted in case of violation of Article 21 of theConstitution. Further, it is to be noted that the Section 436A ofthe 1973 Code was inserted after the enactment of the 2002 Act.Thus, it would not be appropriate to deny the relief of Section436A of the 1973 Code which is wholesome provisionbeneficial to person accused under the 2002 Act. However,Section 436A of the 1973 Code, does not provide for an absoluteright of bail as in the case of default bail under Section 167 ofthe 1973 Code. For, in the fact situation of case, the Court maystill deny the relief owing to ground, such as where the trial wasdelayed at the instance of accused himself.417. Be that as it may, in our opinion, this provision is comparablewith the statutory bail provision or, so to say, the default bail, tobe granted in terms of Section 167 of the 1973 Code consequent tofailure of the investigating agency to file the chargesheet withinthe statutory period and, in the context of the 2002 Act, complaintwithin the specified period after arrest of the person concerned. Inthe case of Section 167 of the 1973 Code, an indefeasible right istriggered in favour of the accused the moment the investigatingagency commits default in filing the chargesheet/complaint withinthe statutory period. The provision in the form of Section 436A ofthe 1973 Code, as has now come into being is in recognition ofthe constitutional right of the accused regarding speedy trialunder Article 21 of the Constitution. For, it is sanguine hope ofevery accused, who is in custody in particular, that he/she shouldbe tried expeditiously — so as to uphold the tenets of speedyjustice. If the trial cannot proceed even after the accused hasundergone one-half of the maximum period of imprisonmentprovided by law, there is no reason to deny him this lesser reliefof considering his prayer for release on bail or bond, as the casemay be, with appropriate conditions, including to secure his/herpresence during the trial.

418. Learned Solicitor General was at pains to persuade us that

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this view would impact the objectives of the 2002 Act and is in thenature of super imposition of Section 436A of the 1973 Code overSection 45 of the 2002 Act. He has also expressed concern that thesame logic may be invoked in respect of other serious offences,including terrorist offences which would be counterproductive. Sobe it. We are not impressed by this submission. For, it is theconstitutional obligation of the State to ensure that trials areconcluded expeditiously and at least within reasonable timewhere strict bail provisions apply. If person is detained for aperiod extending up to one-half of the maximum period ofimprisonment specified by law and is still facing trial, it isnothingshortoffailureoftheStateinupholdingtheconstitutional rights of the citizens, including person accused ofan offence.

419. Section 436A of the 1973 Code, is wholesome beneficialprovision, which is for effectuating the right of speedy trialguaranteed by Article 21 of the Constitution and which merelyspecifies the outer limits within which the trial is expected to beconcluded, failing which, the accused ought not to be detainedfurther. Indeed, Section 436A of the 1973 Code also contemplatesthatthereliefunderthisprovisioncannotbegrantedmechanically. It is still within the discretion of the Court, unlikethe default bail under Section 167 of the 1973 Code. UnderSection 436A of the 1973 Code, however, the Court is required toconsider the relief on case-to-case basis. As the proviso thereinitselfecognizes that, in given case, the detention can becontinued by the Court even longer than one-half of the period, forwhich, reasons are to be recorded by it in writing and also byimposing such terms and conditions so as to ensure that afterrelease,theaccusedmakeshimself/herselfavailableforexpeditious completion of the trial.

420. However, that does not mean that the principle enunciated bythis Court in Supreme Court Legal Aid Committee RepresentingUndertrial Prisoners (supra), to ameliorate the agony and pain ofpersons kept in jail for unreasonably long time, even without trial,can be whittled down on such specious plea of the State. If the

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Parliament/Legislature provides for stringent provision of no bail,unless the stringent conditions are fulfilled, it is the bounden dutyof the State to ensure that such trials get precedence and areconcluded within reasonable time, at least before the accusedundergoes detention for period extending up to one-half of themaximum period of imprisonment specified for the concernedoffence by law. [Be it noted, this provision (Section 436A of the1973 Code) is not available to accused who is facing trial foroffences punishable with death sentence].

421. In our opinion, therefore, Section 436A needs to beconstrued as statutory bail provision and akin to Section 167 ofthe 1973 Code. Notably, learned Solicitor General has fairlyaccepted during the arguments and also restated in the writtennotes that the mandate of Section 167 of the 1973 Code wouldapply with full force even to cases falling under Section 3 of the2002 Act, regarding money-laundering offences. On the samelogic, we must hold that Section 436A of the 1973 Code could beinvoked by accused arrested for offence punishable under the2002 Act, being statutory bail.”….

(emphasis supplied)

16.Keeping the law laid down by the Supreme Court in perspectiveand considering the fact that the petitioner has already undergone one-half of the maximum period of imprisonment specified for the offenceunder Section 420 IPC, I am of the view that the petitioner is entitledto the benefit of Section 436A CrPC which has been held to be amandatory provision by the Hon’ble Supreme Court.

17.The allegation against the petitioner may be serious but they donot warrant the invocation of an exception carved in the first provisoto Section 436A CrPC, to continue the detention of the petitioner for aperiod longer than one-half of the maximum period of imprisonmentspecified for Section 420 IPC, when notably it is not case of the

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prosecution that the petitioner has in any way been responsible for thedelay of trial.

18.At this stage, it may also be apt to refer to the decision ofHon’ble Supreme Court in “Vinod Bhandari vs. State of Madhya

Pradesh” (2015) 11 SCC 502.

“...12. It is well settled that at pre-conviction stage, there ispresumption of innocence. The object of keeping person incustody is to ensure his availability to face the trial and to receivethe sentence that may be passed. The detention is not supposed tobe punitive or preventive. Seriousness of the allegation or theavailability of material in support thereof are not the onlyconsiderations for declining bail. Delay in commencement andconclusion of trial is factor to be taken into account and theaccused cannot be kept in custody for indefinite period if trial isnot likely to be concluded within reasonable time. Reference maybemadetodecisionsofthisCourtin KalyanChandraSarkar v. RajeshRanjan [KalyanChandraSarkar v. RajeshRanjan, (2005) 2 SCC 42 : 2005 SCC (Cri) 489] , State ofU.P. v. Amarmani Tripathi [State of U.P. v. Amarmani Tripathi,(2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2)] , State ofKerala v. Raneef [State of Kerala v. Raneef, (2011) 1 SCC 784 :(2011) 1 SCC (Cri) 409] and Sanjay Chandra v. CBI [SanjayChandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 :(2012) 2 SCC (L&S) 397] .”....

19.A perusal of the charge sheet reveals that as many as 50witnesses have been cited by the prosecution. Evidently, it is going tobe protracted trial. Therefore, no useful purpose will be served inkeeping the petitioner in judicial custody.

20.In view of the aforesaid discussion, the petitioner has made outa case of grant of regular bail. Accordingly, the petitioner is admittedto bail subject to his furnishing Personal Bond in the sum of Rs.1 lac

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and two Surety Bonds of the like amount subject to the satisfaction ofthe learned Trial Court/CMM/Duty Magistrate, further subject to thefollowing conditions:-

a) Appellant/applicant will not leave the city without priorpermission of the Court.permission of the Court.

b) Appellant/applicant shall appear before the Court as andwhen the matter is taken up for hearing.when the matter is taken up for hearing.

c) Appellant/applicant shall provide all mobile numbers to theIO concerned which shall be kept in working condition at alltimes and shall not switch off or change the mobile numberwithout prior intimation to the Investigating Officer concerned.The mobile location be kept on at all times.IO concerned which shall be kept in working condition at alltimes and shall not switch off or change the mobile numberwithout prior intimation to the Investigating Officer concerned.The mobile location be kept on at all times.

d) Appellant/applicant shall not indulge in any criminal activityand shall not communicate with or come in contact with thevictim/complainantoranyfamilymembersofthevictim/complainant.

21.Copy of the order be forwarded to the concerned JailSuperintendent for necessary compliance and information.Superintendent for necessary compliance and information.

22.The application stands disposed of.

23.Order dasti under signatures of the Court Master.

24.Order be uploaded on the website of this court.

VIKAS MAHAJAN, J

SEPTEMBER 1, 2023/dss