Prashant Kumar Agarwal, J. - (1.) THE accused -petitioner has moved this fourth application for grant of bail under Section 439 read with Section 437(6) Cr.P.C. in respect of FIR No. 583/2011 registered at Police Station JDA, Jaipur for the offences under Sections 420, 467, 468, 471 read with Section 120 -B IPC. The allegation against the petitioner and the co -accused is that they entered into criminal conspiracy and in pursuance to the same prepared a forged and fabricated agreement to sell dated 14.7.2008 regarding agriculture land standing in the name of the complainant and on that basis by filing a suit claimed that the complainant agreed to sell the land in dispute to the petitioner in lieu of sale consideration and also received part payment of the same as advance. It is to be noted that after investigation charge -sheet has already been filed against the petitioner and co -accused for the aforesaid offences and after framing of charges statements of as many as eight prosecution witnesses have already been recorded. The first application filed by the petitioner for grant of bail was dismissed by this Court on merit vide a reasoned order dated 26.6.2012 whereas the second application was dismissed vide order dated 4.4.2013. Vide order dated 17.9.2013, the third application filed by the petitioner was allowed and he was ordered to be released on interim bail for a period of 15 days. It is also to be noted that as per FSL report the disputed agreement to sell does not bear the signatures of the complainant. The application for grant of bail filed by the petitioner under Section 437 Cr.P.C. has been dismissed by the trial Court vide order dated 20.1.2015. It appears that the petitioner has directly come to this Court without pursuing the remedy of bail under Section 439 Cr.P.C. before the concerned Sessions Judge.
(2.) IN support of the application, learned counsel for the petitioner submitted as below: - (1) The petitioner is in custody since 29.12.2011 and till date out of total 26 prosecution witnesses statements of only eight witnesses have been recorded by the trial Court and it is unlikely that statements of remaining witnesses would be recorded in near future within a reasonable period and, therefore, the petitioner is entitled to be released on bail more particularly in view of Section 437(6) Cr.P.C. which prescribes a period of sixty days only within which the prosecution is bound to produce its entire evidence and also looking to the fact that the maximum sentence of imprisonment which can be awarded to the petitioner if he is found guilty is seven years. (2) Statements of most of the material prosecution witnesses, including the complainant and investigating officer, have already been recorded and, therefore, there is no likelihood that the petitioner would be able to interfere with the trial or temper the evidence if released on bail. (3) From the evidence collected during investigation which has been placed on record by way of charge -sheet even prima facie it does not appear that any loss was caused to the complainant or petitioner obtained some gain by executing the disputed agreement to sell and, therefore, the basic ingredients of the offence for which the petitioner has been charged are entirely missing. (4) The main evidence against the petitioner is FSL report but from the admissions made and reply given by the complainant -Shri Satyanarain during his cross -examination, it clearly transpires that the specimen handwriting and signatures were not taken during investigation and, therefore, the FSL report is of no value. (5) It is an admitted fact that the alleged specimen handwriting and the signatures of the complainant are not part of the charge -sheet and in absence of thereof also it is doubtful whether such specimen were taken during investigation for the purpose of comparison with the disputed signatures of the complainant on the agreement to sell. (6) The complainant is a most unreliable witness as he even denied his signatures on the order sheets of the file of the trial Court. (7) Almost similarly situated co -accused have already been released on bail by this Court and on the ground of parity, the petitioner is also to be treated in the same manner. In support of the submissions, learned counsel for the petitioner relied upon the cases of Sanjay Chandra Vs. Central Bureau of Investigation reported in : (2012) 1 SCC 40 and Sanjay Jha Vs. State of Chhatisgarh reported in, (2014) 3 SCC 202.
(3.) ON the other hand, learned Public Prosecutor controverting the submissions made on behalf of the petitioner submitted as below: - (1) As per prosecution case, the specimen signatures and handwriting of the complainant were taken by the Tehsildar during investigation and he is yet to be examined as a witness during trial. The petitioner no where in his cross -examination has admitted that his specimen signatures and handwriting were not taken during investigation. (2) As per FSL report, signatures of the complainant were not found on the disputed agreement to sell indicating that it is a forged and fabricated document. (3) The case of the petitioner is quite different from that of the co -accused to whom benefit of bail has been granted as their role is of attesting witnesses to the disputed agreement to sell whereas the petitioner is beneficiary under the agreement and he also filed a suit in Court against the complainant on that basis. (4) After taking into consideration all the facts and circumstances of the case including the FSL report, bail has been denied to the petitioner on merit twice and thereafter there is no substantial change in the facts and circumstances of the case. Merely because statements of some of the material prosecution witnesses have been recorded during trial and some more time has elapsed thereafter, it cannot be said there is substantial change on the facts and circumstances of the case. (5) Merely because the specimen signatures and handwriting of the complainant are not part of the charge -sheet, it cannot be said that no such signatures and handwriting were taken during investigation. It appears that after their return from the FSL, they were not submitted before the trial Court alongwith the FSL report. They can now be placed on record with the permission of the trial Court at any time before trial is concluded. Undue advantage can not be granted to the petitioner for lapse on the part of the prosecution. The investigating officer in his examination -in -chief has clearly stated that specimen signatures of the complainant were sent to FSL for comparison with the signatures on the disputed agreement to sell. (6) The petitioner is facing trial for offences under Sections 467 and 471 IPC also for which sentence of imprisonment for life is also prescribed and, therefore, petitioner is not entitled to be released on bail merely because the trial has not been concluded even after lapse of more than three years from the date on which he was arrested. It is well settled legal position that Section 437(6) Cr.P.C. is not mandatory and accused is not entitled to be released on bail as a right merely because the prosecution has failed to produce its entire evidence within the prescribed period of sixty days.;