Yogendra Singh vs State of M.P.

Hon. Mrs. Justice S.R. Waghmare

By this application filed u/s 439 of the Cr.P.C. the applicant Yogendrasingh has moved the application for grant of bail being implicated in Crime No. 348/12 registered by police station Khargone, Distt. Khargone for offence under Sections 498-A, 323 & 506/34 of the IPC. Counsel for the applicant has vehemently urged the fact that it was a case of false implication. Counsel submitted that the complainant was never legally married to the present applicant and consequently the offence u/s 498-A of the IPC cannot be made out against the applicant. Moreover the complainant is residing in her parental house for last few years and hence also the offence cannot be made out. The main thrust of the argument of the Counsel for the applicant was that the complainant had married the applicant on 13.05.2002 and immediately after 2 years of marriage started living with her parents and for the first time made allegations against him in the year 2009; till then she had not made any complaint whatsoever. Similarly Counsel submitted that it was the second marriage of the complainant Mohini which was evident from the advertisement in the Smarika Pranay Prayas which advertised Mohini as being already married person at Sl. No. 151 of the document. Secondly Counsel contended that the bail application was filed before the Court mainly on the ground that the proviso to Section 167(2) of the Cr.P.C. requires that the charge-sheet ought to be filed within 90 days and irrespective of the nature of the offence or the provisions of law for violation of which the accused has been arrested if the challan/charge-sheet is not filed within the prescribed i.e. 60 days or 90 days, the accused would have a right to be released on bail. Counsel submitted that in the instant case the offence has been registered on 29.02.2012 and the challan had not been put up within 60 days as required under the circumstances. The offence was registered only on 05.07.2012 and Counsel placed reliance on Akhlak and Others Vs. The State of M.P., Uday Mohanlal Acharya Vs. State of Maharashtra, to state that when the application for bail was erroneously rejected by the Magistrate and the accused approached higher forum and subsequent filing of charge-sheet in the meantime; does not extinguish accrued right of accused to be released on bail. Referring to the judgment of our own Court in the matter of Ganesh Prasad V. State of M.P. (M.Cr.C. No. 1872 of 2001), Counsel submitted that if the charge-sheet is not filed within the prescribed time and the accused filed application for bail before filing of charge-sheet, he is entitled to be released on bail. Counsel prayed that the benefit be extended to the present applicant since the challan has been put up in time. Another important point raised by the Counsel for the applicant was that although the applicant has undertaken several marriages the offence at the most fall u/s 499 of the IPC and it is a bailable offence, but bail cannot be refused to the applicant merely because he has undertaken other marriages.

Counsel for the respondent State, on the other hand, has opposed the submissions of the Counsel for the applicant and has pointed out that the investigation is still not over and the applicant himself has not available for quite sometime and could not be traced. Moreover the remedy against non-filing of charge-sheet would be to file a revision against the decision, and the present forum for grant of bail would not be the proper forum. Similarly Counsel for the State placed reliance on Pragyna Singh Thakur Vs. State of Maharashtra [2011 (10) SCC 445] to state that even if the bail application is moved u/s 167(2) after filing of the charge-sheet and it could be demonstrated that the charge-sheet had been filed on time within 90 days of arrest. Then bail application u/s 167(2) was not maintainable. The Apex Court also observed that right u/s 167(2) is not indefeasible, and once charge-sheet has been filed, bail has to be claimed on merits and in the instant case, Counsel submitted that the conduct of the applicant was not at all conducive to sympathy. The applicant had undertaken several marriages and was duping innocent ladies by pretending to marry them since the investigation could not be completed on time, the challan was delayed. Counsel prayed for dismissal of the application.

On considering the above submissions, looking to the nature of the allegations and the evidence available on record, I find that the applicant has been arrested on 05.07.2012. The offence has been registered on the same day. The first application for grant of bail has been rejected on 18.07.2012 and the second application has been rejected on 05.09.2012. Since the application has already been put up for bail and has been considered on merits by the trial Court, I find that it cannot be said that the Magistrate had refused the application erroneously. Considering the matter in the light of Pragyna Singh Thakur (supra), I find that the right would be the lost if the charge-sheet is filed and would not survive after filing of the charge-sheet. So also Counsel for the State has countered that the prompt remedy for the applicant would have been to file a revision and although the applicant has sought recourse to the same, the revision is pending before the revisional Court for consideration. In this light also the applicant is not entitled to grant of bail. 4. Moreover I find that the Counsel for the applicant had contended that the applicant may commit any crime but the law must take the proper course and release the accused if the prosecution agency did not choose to file the challan within 60 days. Moreover I find that provisions of law should not be utilised to defeat the purpose for which they are made. The applicant seems to be violating the provisions of law with impunity, since it has also been observed by the trial Court below that; this, is in fact one of the several illegal marriages undertaken by the present applicant and now has even turned around and denied that the complainant is his legally wedded wife. Under these circumstances, I find that the application is sans merit and is, therefore, dismissed as such.