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2006 DIGILAW 63 (CHH)

RARMESHWAR SINGH KURRE v. STATE OF CHHATTISGARH

2006-02-06

V.K.SHRIVASTAVA

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( 1 ) HEARD. ( 2 ) APPLICANT is accused in Crime No. 145/2004 registered at Police Station Bhilai bhatti, Durg, for commission of offence punishable under Sections 379, 420, 467 and 468 read with Section 34 of the IPC. ( 3 ) FIRST bail application for grant of bail under Section 439 of the Cr. P. C. has been dismissed by this Court on 14/2/2005 on the ground that there is allegation and evidence to show that the applicant obtained a stolen Motorbike, prepared fake documents and on the basis of those documents, he sold the same. There is also evidence to suggest that the applicant is continuously involved in making fake documents of Transport department. ( 4 ) AGAIN applicant filed an application for grant of bail under Section 439 of the cr. P. C. second time and vide order dated 10/5/2005 this Court rejected the bail application filed by the applicant. On 7/2/2005 judicial Magistrate First Class framed charge against the applicant for committing offence punishable under Sections 466/120, 468-120-B, 471/120-B and 473/120-B of the IPC. Applicant abjured the guilt. The case was fixed for 4-3-2005 for evidence and thereafter the case was again fixed for 27-5-2005 for evidence. ( 5 ) APPLICANT filed an application under section 437 (6) of the Cr. P. C. for releasing him on bail on the ground that the trial has not been concluded within a period of 60 days from the first date fixed for taking evidence in the case and the applicant was in custody during the whole period. Learned trial Court vide its order dated 19-5-2005 dismissed the application. The Court took shelter of the reason that earlier due to illness the applicant was not produced. 21 witnesses are listed in the witness list and in number of cases persons are in custody. Process has been issued to witnesses for their evidence. Being aggrieved by that order applicant preferred criminal revision. IXth Additional Sessions Judge, Durg, vide his order dated 8-8-2005 passed in Criminal revision No. 168/2005 dismissed the revision. Therefore, applicant filed this petition under Section 482 of the Cr. P. C. for exercising inherent power by this Court. Process has been issued to witnesses for their evidence. Being aggrieved by that order applicant preferred criminal revision. IXth Additional Sessions Judge, Durg, vide his order dated 8-8-2005 passed in Criminal revision No. 168/2005 dismissed the revision. Therefore, applicant filed this petition under Section 482 of the Cr. P. C. for exercising inherent power by this Court. ( 6 ) COUNSEL for the applicant placing his reliance in the judgments rendered in hussainara Khatoon v. Home Secretary, state of Bihar, reported in AIR 1979 SC 1360 : (1979 Cri LJ 1036), State of Rajasthan v. Balchand, reported in AIR 1977 SC 2447 : (1978 Cri LJ 195), Kailash v. State of M. P. , reported in 2002 (1) MPJR 355, Gudikanti narasimhalu v. Public Prosecutor, High court of Andhra Pradesh, reported in AIR 1978 SC 429 : (1978 Cri LJ 502), Smt. Godawari Bai v. State of Chhattisgarh, reported in 2005 (1) ANJ (CG) 31, Ram Kumar v. State of M. P. , reported in M. P. Weekly notes 2000 (1) Short Note (160), M. L. Shah v. State of M. P. , reported in M. P. Weekly notes 1995 (1) Short Note (230) and haricharan Ramteke v. State of chhattisgarh, reported in 2001 (2) CGLJ 363, contended that the applicant is behind the bar and is sick, while in custody his father also died. The trial has not been concluded in accordance with the provisions of section 437 (6) of the Cr. P. C. therefore, the applicant deserves to be released oh bail under inherent power of this Court. Per contra, learned Additional Public Prosecutor has opposed the contentions and submit? that on merit the application for grant of bail has been dismissed by this Court twice. For non-appearance of the applicant due to his illness also the trial has been delayed. Therefore, in such circumstances, inherent jurisdiction of this Court cannot be invoked. Per contra, learned Additional Public Prosecutor has opposed the contentions and submit? that on merit the application for grant of bail has been dismissed by this Court twice. For non-appearance of the applicant due to his illness also the trial has been delayed. Therefore, in such circumstances, inherent jurisdiction of this Court cannot be invoked. ( 7 ) THE cases referred to by the applicant i. e. Smt. Godawari Bai v. State of chhattisgarh, reported in 2005 (1) ANJ (CG)31, Ram Kumar v. State of M. P. , reported in M. P. Weekly Notes 2000 (1) Short Note (160), M. L. Shah v. State of M. P. , reported in M. P. Weekly Notes 1995 (1) Short Note (230) and Haricharan Ramteke v. State of chhattisgarh, reported in 2001 (2) CGLJ 363, are the cases in which Section 437 (6)of the Cr. P. C. and in rest of the cases referred to by the applicant provisions relating to bail other than Section 437 (6) of the cr. P. C. have been considered. All the case laws cited by the applicant are distinguishable on facts with the instant case. ( 8 ) SECTION 437 (6) of the Cr. P. C. reads as below :" (6) If, in any case triable by a Magistrate, the trial of a person accused by 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. " ( 9 ) A bare reading of the above provision makes it clear that the provision is mandatory in nature, but also provides discretion to the Court to refuse bail on special reasons to be recorded by it in writing. The court is busy or Court is over burdened with work are not reasons which can be accepted for refusal of the bail but refusal of the bail on merit by the High Court can certainly be considered by the trial Court as also non-production of the applicant due to his illness or for any other reasons which caused hindrance in proceeding the trial can also be taken into consideration for refusal of the bail. ( 10 ) SECTION 437 (6) of the Cr. P. C. is an enabling provision which empowers the court, other than High Court or Court of sessions to grant bail in those cases also in which it has no power to grant bail under various provisions of law though it has power to try the offence. The provision does not empower the Court to violate judicial propriety or to grant bail in those cases where bail has been refused by High Courts on merit. Here it is not out of place to mention that on delay in investigation also Courts have power under Section 167 (2) of theCr. P. C. but no discretion has been allowed under Section 167 (2) of the Cr. P. C. whereas section 437 (6) of the Cr. P. C. gives discretion to the Court" while granting bail due to delay in trial of the case, therefore, the Court has to exercise the judicial discretion and not to act mechanically. The provisions contained in Section 437 (6) of the Cr. P. C. have no application to Court of Session or High court as no such provisions have been embodied in Section 439 of the Cr. P. C. ( 11 ) RIGHT of liberty does not mean to infringe the right of others, therefore, if the provision shall be construed liberally by applying its benefit without due consideration it will amount to provide tool in the hand of hardened and habitual criminals. ( 12 ) HERE in the instant case application for grant of bail has been rejected by this court twice. The offence levelled against the applicant is not only grievous but relates to fraudulent preparation of Government's documents. That apart, this Court while deciding the ball applications on merit has observed that the applicant is continuously involved in making fake documents. Learned trial Court has also taken the ground that the applicant due to his ill-health was not produced in Court and it is well-known fact that if accused is not present and no representation on behalf of the accused is there, recording of evidence in his absence is not permissible. ( 13 ) TAKING into consideration all the facts, I am of the opinion that in this particular case, no order invoking inherent power is required to be passed. ( 13 ) TAKING into consideration all the facts, I am of the opinion that in this particular case, no order invoking inherent power is required to be passed. ( 14 ) IN the result, the petition deserves to be dismissed and is accordingly dismissed. Petition dismissed. --- *** --- .