Mahipal Maderna vs Union Of India

Dinesh Mehta, J

This application for bail has been filed by the petitioner under Section 439 of the Cr.P.C. in connection with FIR No.RC7(S)/2011/SC1/CBI, New Delhi, for the offences under Sections 364, 302, 201 and 120B IPC.

Mr. Choudhary, learned counsel for the petitioner, submits that the petitioner is behind the bars for more than 10 years and being tried for the same offence as Mr. Parasram Bishnoi, who is a co-accused in the aforesaid FIR. It is also argued that petitioner is suffering from Cancer and is seriously ill taking treatment in police custody.

Informing that Parasram Bishnoi has been enlarged on bail by Hon'ble the Supreme Court vide order dated 27.07.2021, passed in Criminal Appeal No.693/2021, learned counsel claims parity and submits that the petitioner be also enlarged on bail.

Mr. Choudhary submits that the petitioner wants to lead defence evidence.

Mr. Ejaz Khan, learned Spl. PP, appearing for the CBI, opposing the bail application, submits that the petitioner herein has clearly asserted that he wants to lead evidence in defence and, therefore, his case cannot be equated with that of Parasram. He argues that in the case of Parasram Bishnoi, the fact that said petitioner (Parasram Bishnoi) did not want to lead evidence in defence was a major consideration, for which Hon'ble the Supreme Court granted him bail, whereas, such is not the position in the present case.

It is also submitted that the case of the petitioner is further distinguishable from that of Parasram Bishnoi inasmuch as, Parasram Bishnoi was initially discharged, whereafter by order dated 30.01.2014, charges were framed against him also and he was sent behind the bars.

In Parasram's case, Hon'ble the Supreme Court observed as under:-

"We have no doubt that the matter in issue is a serious one and the offence is also heinous. However, we are faced with a position where the appellant, amongst other accused, has been in custody for eight and a half years. The prosecution evidence is over and so as also the statement to be recorded of all the accused under Section 313 Cr.P.C. The appellant before under Section has already made a statement through the counsel that he does not propose to lead any defence evidence. Thus, insofar as the appellant before under Section is concerned, the case is ready for hearing. However, in view of the large number of accused in the case, that is not the position for all the accused as some of the accused seek to lead defence evidence.

On consideration of the matter, we are of the view that pending the trial we cannot keep a person in custody for an indefinite period of time and taking into consideration the period of custody and that the other accused are yet to lead defence evidence while the appellant has already stated he does not propose to lead any evidence, we are inclined to grant bail to the appellant on terms and conditions to the satisfaction of the trial court.

The appeal according stands disposed of."

In the opinion of this Court, the fact that an accused wants to lead evidence in defence, hardly has any bearing on his right of getting enlargement on bail. He cannot be kept behind the bars, when similarly situated persons have already been enlarged on bail by Hon'ble the Supreme Court or have been enlarged on bail by this Court. If the argument of Mr. Ejaz Khan is accepted, it would strike at the very right of an accused to have fair trial. Such stand of the State is violative of right to life and liberty.

Having regard to the facts and circumstances of the case and considering that nature of offence alleged against the petitioner is more or less akin to the accusation against Parasram Bishnoi and because that present petitioner is behind the bars for more than

10 years and trial is yet to complete and more particularly because the petitioner is suffering from advanced stage of Cancer, I am inclined to grant bail to the petitioner in light of the observations made by Hon'ble the Supreme Court in the above referred order dated 27.07.2021.

Consequently, the bail application filed under Section 439 Cr.P.C. is allowed. The petitioner Mahipal Maderna S/o Late Shri Paras Ram Maderna, arrested in FIR No.RC7(S)/2011/SC1/CBI, New Delhi shall be released on bail on his furnishing personal bond in the sum of Rs.50,000/- and two sureties of Rs.25,000/- each to the satisfaction of the learned trial court. Petitioner shall be required to appear before that Court on all dates of hearing and as and when called upon to do so.