1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPEALLATE SIDE, BENCH AT AURANGABAD Criminal Application No. 3759 of 2009 Anil s/o Bhimrao Payal ... Applicant V E R S U S The State of Maharashtra ... Respondent WITH Criminal Application No. 4274 of 2009 Hari Kathalu Randive ... Applicant V E R S U S The State of Maharashtra and another ... Respondents ... Mr. M. A. Tandale, Advocate for applicant in CA No. 3759 of 2009 Mr. M.W. Meshram holding for Mr. M.A. Manjramkar, Advocate for applicant in CA No.4274 of 2009 Smt. A.V. Ghondhalekar, A.P.P. for respondent ... CORAM: K.U. CHANDIWAL, J. DATE: 9th December, 2009 PER COURT : 1. Heard Mr. M.A. Tandale, learned counsel for the applicant Anil s/o Bhimrao Payal extensively. He has dealt with merits of the matter, stating that there is delay caused in lodging First Information Report dated 18th July, 2009. Mandakini, wife of 2 applicant, allegedly inhaled poisonous pills and succumbed to death. She was carried by her relatives to the hospital, and the husband/applicant herein could not be said to be responsible for her death. He says that considering the position of Law, the discretion under Section 438 of Code of Criminal Procedure, needs to be extended to the applicant, who is in service. There is least chances of his absconding from the concession if granted to him. The learned counsel states that since the investigation is complete, custodial interrogation is not warranted. The learned counsel lastly submits, the First Information Report is lodged on 18th July, 2009 and yet the charge-sheet is not filed, the statutory period has lapsed, hence, even otherwise the applicant/accused is entitled for bail in the event of his arrest. 2. The learned A.P.P. points, this is the second exercise moved by the accused. He has absconded since 18th July, 2009 and the prosecution is crippled from getting post-mortem notes and investigation is stalled. 3. The earlier exercise, by way of Criminal Application No. 3006 of 2009, moved by the applicant Anil, is turned down by order dated 10th September, 2009. 4. Though the learned counsel extensively urged and argued the matter, referring reported Judgments in the matters of 3 Parvinderjit Singh and another Vs State (U.T.Chandigarh) and another (2009 All MR (Cri) 274 (S.C.) and State of A.P. Vs M. Madhusudhan Rao (2009 All MR (Cri) 547 (S.C.), this Court cannot travel beyond the situation, which emerged while passing the order dated 10th September, 2009, except applicant demonstrating change of circumstances. 5. The delay in filing the charge sheet by itself cannot be a ground to exercise the powers under Section 438 of Code of Criminal Procedure. The situation embodied in Section 167 of Code of Criminal Procedure of indefeasible right to accused in custody for belated final report has not emerged. 6. Prima facie it is apparent that the victim Mandakini could not enjoy aroma of life as she was humiliated as barren and she virtually had seen the extra marital relations of the applicant/accused with another lady Vandana. These aspects, at this stage, cannot be ignored. The brother of victim Mandakini is prosecuting the matter against the present applicant by taking responsibility at his shoulders. The report of the concerned police castigates the conduct of the accused. 7. The contention that the learned Sessions Judge be directed to release the accused on bail, in the light of Judgment in the matter of Salauddin Abdulsamad Shaikh Vs State of 4 Maharashtra (AIR 1996 S.C. 1042) cannot be accepted. The situation is altogether different. Such directions come into play only in the situation when the Court entertains the application under Section 438 of Code of Criminal Procedure and such discretion of protection needs to be projected for the specified period. 8. Non-filing of charge-sheet will not steer a ground for Section 438 of Code of Criminal Procedure. I do not find any change in the circumstances. The application is rejected. Intervenor application bearing C.A. No. 4274 of 2009 is disposed of accordingly. ( K.U. CHANDIWAL, J.) srm/cra3759.09 5