Munna Mistri v. State Of Bihar — 1992 DIGILAW 417 (PAT)

Judgment S.K.Singh, J. 1. The present application has been filed for a direction to release the petitioner on bail under the provisions of sec. 437(6) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). 2. The petitioner has earlier moved this Court for bail but the same was dismissed vide Cr. Misc. No. 6238192 on 3.6.1992 by Chowdhary S.N. Mishra, J. with an observation that the petitioner may renew his prayer for bail after sixmonths if so advised. However, before expiry of the said period, the petitioner has again moved this Court, as According to the learned counsel the Judicial Magistrate was duty bound to release him u/s. 437 (6) of the Code. This application was placed before Choudhary S.N. Mishra, J. but as he declined to hear the same it has been placed before me. The petitioner is facing trial for charges u/s. 392 of the Code. 3. Learned counsel appearing on behalf of the petitioner states that 15-7-1992 was the first date fixed by the trial Court for taking evidence but no witness for the prosecution turned up on that date. According to him the statutory period as prescribed u/s. 437 (6) of the code for keeping the petitioner in custody during the trial expired on 14-9-1992 and as such the petitioner is entitled to be released on bail. According to the learned counsel for the petitioner, the provision u/s. 437(6) of the Code is similar to that u/s. 167(2) of the Code and as such, if the petitioner prayed for bail and was prepared to furnish the bail bond, the trial Court had no option but to release him on bail. It is further stated that the bail petition was filed on behalf of the petitioner in the Court of Sri R.P. Singh, Judicial Magistrate, 1st Class. Arrah on 16-9-1992 but the same was rejected. Being aggrieved by the said order; the petitioner moved the Sessions Judge, Arrah but by order dated 219-1992 he also refused his prayer for bail. It is further stated that the bail petition was filed on behalf of the petitioner in the Court of Sri R.P. Singh, Judicial Magistrate, 1st Class. Arrah on 16-9-1992 but the same was rejected. Being aggrieved by the said order; the petitioner moved the Sessions Judge, Arrah but by order dated 219-1992 he also refused his prayer for bail. Learned counsel for the petitioner further stated that the learned trial Court as well as the learned Sessions Judge have erred in law in rejecting the prayer for bail of the petitioner, as u/s. 437 (6) of the Code they had no option but to release the petitioner on bail provided the petitioner had prayed for the same and was prepared to furnish the bail bond. 4. In support of his contention, he has relied upon two decisions of the Apex Court in the case of Talab Haji Hussian V/s. Madhukar Purshot tom Mondkilr and another.1 and in the case of Gurcharan Singh and others V/s. State (Delhi Administration).2. 5. Learned Additional Public Prosecutor appearing on behalf of the State, on the other hand, has contested the claim of the petitioner and has stated that u/s. 437(6) of the Code, if the Court is not inclined to enlarge the petitioner on bail it can accordingly, reject the prayer for bail even under section 437(6) of the Code provided it assigns reasons there for, and according to him the order-sheet of the learned Magistrate as well as the learned Sessions Judge refusing to grant bail to the Petitioner goes to show that sufficient reasons have been assigned as to why the Court below was not inclined to enlarge the petitioner on bail. It was further been submitted on behalf of the State that the records of the case goes to show that the petitioner had absconded for nearly one year before he was apprehended. As such, according to the learned counsel for the State sufficient reasons have been assigned in the orders of the trial Court as well as the learned Sessions Judge to show as to why the petitioner is not entitled to bail. According to him, in this view of the matter, no interference is required by this Court 6. As such, according to the learned counsel for the State sufficient reasons have been assigned in the orders of the trial Court as well as the learned Sessions Judge to show as to why the petitioner is not entitled to bail. According to him, in this view of the matter, no interference is required by this Court 6. Sec. 437 (6) of the Code reads as follows: "If, in any case triable by a Magistrate the trial of a person accused of any nonbailable offence is not concluded within a period of 60 days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate unless for reasons to be recorded in writing, the magistrate otherwise directs." 7. A plain recording of aforesaid section itself goes to show that for the reasons to be recorded in writing the Magistrate, can direct otherwise also. 8. I have also examined the two decisions of the Apex Court relied upon the learned Counsel for the petitioner. To my mind non of the decisions supports the contention of the learned counsel for the petitioner. In AIR 1958 SC 376 , it has been held as follows: "Though the recent amendments made in the provisions of sec. 497 have made definite improvement in favour of persons accused of non-bailable offences, it would nevertheless be correct to say that the grant of bail in such cases is generally a matter in the discretion of the authorities in question. As such grant of bail is the discretion of the concerned Magistrate and if he is not inclined to enlarge the petitioner on bail for the reasons to be recorded in writing he can refuse to grant bail to the petitioner. Similarly, in the other judgment relied upon by the learned counsel for the petitioner reported in AIR 1978, SC 179, it has been held as follows: "Principle underlying sec. Similarly, in the other judgment relied upon by the learned counsel for the petitioner reported in AIR 1978, SC 179, it has been held as follows: "Principle underlying sec. 437 is, therefore, towards granting of bail except in cases where there appear to be reasonable grounds for believing that the accused has been guilty of offence punishable with death or imprisonment for life and also when there are other valid reasons to justify the refusal of bail." Therefore, in this judgment also it has been held that for other valid reasons bail can be refused to accused persons. (The italics have been made in the quotation of the relevant portion of the judgment as well on other places by me for emphasis). 9. I have perused the orders of the learned Judicial Magistrate as well as the District and Sessions Judge, Arrah. The order-sheet goes to show that the offence alleged to have been committed by the petitioner is serious in nature. From the records of the Courts below, as stated in the order-sheet itself, it appears that the co-accused did not appear on certain dates and on some dates the petitioner was also not produced from custody. As such, laches resulting in delay in conclusion of the trial were not solely in the control of the prosecution. The petitioner had absconded also for nearly one year. Therefore to my mind the Courts below have given reasons as to why they were not satisfied to release the petitioner on bail. A plain reading of the section as well as the law laid down by the Apex Court clearly goes to show that the discretion lay entirely with the concerned Court either to release or not to release the accused person on bail for the reasons to be recorded in writing. The learned Courts below had given sufficient reasons for not enlarging the petitioner on bail under section 437 (6) of the Code and as such, the orders of the Courts below do not need any interference by this Court. However, the trial Court is directed to conclude the trial expeditiously. 10. This application is, accordingly, dismissed. In view of the order of this Court dated 3-6-1992 passed in Cr. Misc. However, the trial Court is directed to conclude the trial expeditiously. 10. This application is, accordingly, dismissed. In view of the order of this Court dated 3-6-1992 passed in Cr. Misc. Case No. 6238/92, while dismissing the earlier application of the petitioner forbad, the petitioner, if so advised may renew his prayer for bail as per the observation made in the said order.