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Madhya Pradesh High Court · body

2005 DIGILAW 820 (MP)

Damodar Singh Chauhan v. State of M. P.

2005-08-04

SHEELA KHANNA

body2005
JUDGMENT With the consent of both the parties, matter is finally heard. This petition under section 482 of CrPC has been preferred by the petitioner for invoking the inherent powers of this Court. Brief facts, necessary for the disposal of this petition are as follows: Crime No. 426/01 was registered against the present petitioner at Police Station Guna for committing offence under section 409 of IPC. The petitioner was arrested in this case on 23.9.2003 and after investigation the charge sheet has been filed in the Court of Chief Judicial Magistrate, Guna, where the case has been registered as Criminal Case No. 1727/03. Now the petitioner is facing trial before CJM, Guna for committing offence under section 409 of CrPC. Petitioner moved an application under section 437 (6) of the Code of Criminal Procedure in the trial Court praying therein that he is in custody since 23rd September 2003 and he remained in custody during the whole of the said period and the trial has not concluded within a period of 60 days and, therefore, he be released on bail. The learned CJM dismissed the application by order dated 23.12.2004. Petitioner then preferred Criminal Revision No. 20/05 against the dismissal of his bail application and the Second Additional Sessions Judge, Guna also dismissed his revision petition with a direction to the trial Court that attempt should be made to dispose off the case within 60 days. After dismissal of his application under section 437 (6) of CrPC, petitioner has filed this petition. The contention of learned counsel for the petitioner is that the offence for which the petitioner is being tried is triable by a Magistrate First Class and the case was fixed for the first time on 19.8.2004 for recording the evidence in the case but the trial of the petitioner was not concluded within the period of 60 days and, therefore, the petitioner is entitled for bail under section 437 (6) of CrPC but the Courts below have erred in rejecting the application which is contrary to law. Before we discuss the facts of the case in hand, it is necessary to have a look on the provision of section 437 (6) of the Code of Criminal Procedure which is as follows: "If, in any case triable by a Magistrate, the trial of a person accused 'of any non-bailable offence is not concluded within a period of sixty 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.' It is clear that the above provision is mandatory in nature and according to this provision if the Magistrate is trying a case in which the accused is charged for a non-bailable offence and the trial of the case is not concluded within a period of 60 days from the first date fixed for taking evidence in the case and if the accused is in custody during the whole of the said period then he becomes entitled to be released on bail, provided the Magistrate rejects the bail application after recording in writing the reasons therefor. In this case, the accused was arrested on 23.9.2003 and the charge against him was framed on 15.3.2004. The application under section 437 (6) was filed on 21.12.2004. The reason for dismissal of the application according to the impugned order is that on 15.3.2004 when the order of framing charge was passed, the petitioner filed a revision and the case was called by the Revisional Court and when the case was returned then on 26.7.2004 the charge was framed against the petitioner and it was fixed for evidence on 7.8.2004, but again the petitioner filed revision and the case was called by the Revisional Court and after disposal of the revision, the case was received back on 7.8.2004 and, therefore, in between this period the summons were not issued from the Court and then the case was fixed for evidence on 19.8.2004, on which date one witness was examined. It is clear that the evidence during the above period could not be recorded because the file was called by the Revisional Court. It is clear that the evidence during the above period could not be recorded because the file was called by the Revisional Court. So if we exclude the above said period then also it is clear that after framing of the charge, and after disposal of the revision the case was fixed for evidence on 19.8.2004 and on that date one witness was examined. Thereafter on 2.9.2004 a witness Dependra Saxena was present but on that date petitioner moved an application for calling of some documents and, therefore, he could not be examined. Then on 28.10.2004 the cross examination of this witness was started. Thereafter on 4.11.2004 three witnesses, then on 18.11.2004 one witness and on 2.12.2004 two witnesses were examined and the case was fixed on 31.1.2005. In between the petitioner moved application under section 437 (6) of CrPC on 21.12.2004. It is clear that if we take first date of recording of evidence on 19.8.2004 then also the trial was not completed within a period of 60 days when the application for bail was moved on 21.12.2004. Even if we exclude the date on which application for calling of the documents was moved by the petitioner then also the trial was not completed within 60 days. Further more, when the impugned order dated 9.2.2005 was passed by the learned Second Additional Sessions Judge, Guna, by that time it is very very clear that the petitioner was in custody during the whole of the said period and the trial was not concluded within a period of 60 days, excluding the period when the case was sent to Revisional Court and, therefore, the petitioner becomes entitled for bail in view of the mandatory provision of section 437 (6) of CrPC. The statutory right given to the accused by the above provision cannot be taken away on the ground that one or two dates were taken by him on the ground that the petitioner had moved the application for calling of the documents. It is pertinent to note here that the petitioner is in custody since September 2003 and now almost 23 months have passed and the trial is still pending in the trial Court. Consequently, the rejection of the application under section 437 (6) of the Code of Criminal Procedure by learned Revisional Court and trial Court is unwarranted and not sustainable in law. Consequently, the rejection of the application under section 437 (6) of the Code of Criminal Procedure by learned Revisional Court and trial Court is unwarranted and not sustainable in law. In the light of the above factual and legal position, the application of the petitioner is allowed and he is directed to be released on bail on his furnishing a personal bond in the sum of Rs. 25,000/- (Rupees Twenty Five Thousand only) with one solvent surety in the like amount to the satisfaction of the trial Court. With the aforesaid direction, this M.Cr.C. stands disposed of.