- (1.) Heard learned counsel for the parties.
(2.) The accused-petitioners have moved this application for grant of bail under Section 439 Cr.P.C. in respect of Complaint Case No.81/2009 pending before the Additional Chief Judicial Magistrate No.1, (Jaipur Development Authority), Jaipur for the offences under Sections 420, 467, 468, 471 read with Section 120-B IPC and Sections 31 and 72 of the Jaipur Development Authority Act. The application filed by the petitioners for grant of bail under Section 439 Cr.P.C. has been dismissed by the Additional Sessions Judge No.3, Jaipur Metropolitan vide order dated 27.07.2013.
(3.) Brief relevant facts for the disposal of this application may be stated as under:- (i) Complainant-Shri Hamendra Kumar Mehta filed criminal complaint against the petitioners and co-accused for the offences under Sections 420, 467, 468, 471, 474 read with Section 120-B IPC and Sections 31 and 72 of the Jaipur Development Authority Act before the Additional Chief Judicial Magistrate No.1, (Jaipur Development Authority) and cognizance was taken for the aforesaid offences vide order dated 13.10.2010. In support of the complaint, statement of the complainant was recorded under Section 200 Cr.P.C. and documents were also filed and vide order dated 12.2.2009, a case for the aforesaid offences was registered against the petitioners and the co-accused and it was ordered that their presence before the Court may be procured by way of warrant of arrest. (ii) Feeling aggrieved, petitioners and some of the co-accused filed revision petitions against the aforesaid order dated 13.10.2008 and 12.2.2009 and the learned revisional court after hearing the respective parties vide order dated 12.1.2012 although affirmed and upheld the orders passed by the trial Court, but at the same time converted the warrant of arrest into summons and it was ordered that the petitioners and co-accused may be called through summons. (iii) In pursuance of the aforesaid order of the revisional court, co-accused-Shri Pankaj Bhanu Singh and Shri Harkirat Singh appeared before the trial Court and moved application for grant of bail under Section 437 Cr.P.C. but the same was dismissed vide order dated 5.2.2013 and they were taken into judicial custody. (iv) Each of the aforesaid co-accused then moved separate application for grant of bail under Section 439 Cr.P.C. but the same were dismissed by the Additional Sessions Judge No.15, Jaipur Metropolitan vide common order dated 7.2.2013. Thereafter, they were granted benefit of bail by this Court vide order dated 1.3.2013 under Section 439 Cr.P.C. (v) Apprehending that if the petitioners would appear before the trial Court they may also be taken into judicial custody and their application for grant of bail under Section 437 Cr.P.C. may be dismissed despite the fact that the revisional court has already ordered to procure their presence before the trial Court by way of summons, they filed S.B.Criminal Misc.Petition No.1391/2013 before the High Court. (vi) Learned Single Judge after hearing the parties disposed of the aforesaid petition vide order dated 20.5.2013 with a direction to the trial Court to hear all concerned and take into consideration the judgments relied by the counsel for the petitioners to the effect that in complaint case wherein summons have been issued accused cannot be taken into custody and their bail bonds are to be accepted. It was further ordered that in case the concerned Magistrate pass any adverse order against the petitioners, it shall not be given effect and kept in abeyance for a period of three weeks to enable the petitioners to re-approach the High Court. (vii) In pursuance of the order dated 20.05.2013, petitioners without making physical appearance and without submitting themselves to the jurisdiction of the trial Court through their counsel moved an application with a prayer that they are ready and willing to file requisite bail bonds, therefore, they may be informed of the amount for which the bail bonds are to be submitted. The petitioners without physically appearing before the trial Court through their counsel also filed an application under Section 437 Cr.P.C. for grant of bail but the same was dismissed by the trial Court vide order dated 3.7.2013. (viii) Again petitioners moved S.B.Criminal Misc.Petition No.2322/2013 before this Court and the learned Co-ordinate Bench vide order dated 16.7.2013 extended the period of abeyanace for a further period of three weeks to enable the petitioners to apply for bail under Section 439 Cr.P.C. (ix) Again the petitioners without physically appearing and submitting before the Sessions Judge, moved an application for grant of bail under Section 439 Cr.P.C. and the same was dismissed by the Additional Sessions Judge No.3, Jaipur Metropolitan vide order dated 27.7.2013. It is in these circumstances the present application under Section 439 Cr.P.C. for grant of bail has been moved before this Court. It is an admitted fact that the petitioners have neither been arrested nor are in juridicial custody.;