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Madhya Pradesh High Court · body

2009 DIGILAW 378 (MP)

Aman Khan v. State of M. P.

2009-03-24

N.K.MODY

body2009
ORDER 1. Being aggrieved by the order dated 4.3.2009 passed by X ASJ, Indore in Cr.Rev. No. 163/2009 which is arising out of order dated 24.2.2009 passed by JMFC, Indore in Cr. Case No. 25927/05 whereby the application filed by the petitioner under section 437 (6) CrPC was dismissed, was maintained the present petition has been filed. 2. Short facts of the case are that petitioner was prosecuted for an offence punishable under section 3, 10 and 13 of Unlawful Activities (Prevention) Act 1967 and the petitioner was arrested on 19.8.2008. The application was filed by the petitioner under section 437 (6) CrPC on 19.2.2009 wherein it was alleged that since more than 2 months have lapsed and no evidence has been adduced by the prosecution therefore petitioner be released forthwith. The application was contested by the State. After hearing the parties the application was dismissed against which a revision petition was filed which was also dismissed hence this petition. 3. Learned counsel for petitioner submits that after arrest of the petitioner on 19.8.2008 charges were framed against the petitioner on 30.11.2008 and for the first time case was fixed for recording of evidence on 15.12.2008. It is submitted that till 19.8.2009 no evidence was adduced by the prosecution, therefore application was filed by the petitioner on 19.2.2009. It is submitted that it is the statutory right of the petitioner to get himself released as no evidence was adduced by the petitioner within two months from the first day fixed for the evidence. Learned counsel further submits that thereafter also the case was listed for evidence on 18.3.2009. On that date also no witness of the prosecution was present and case was adjourned for 30.7.2009. 4. Learned counsel further submits that thereafter also the case was listed for evidence on 18.3.2009. On that date also no witness of the prosecution was present and case was adjourned for 30.7.2009. 4. Learned counsel for petitioner placed reliance on a decision in the matter of Rajendra v. State of M.P., 2003 (1) MPWN 16 wherein this Court has held that "trial should be completed within a period of sixty days and since there is no special reason to hold the accused in custody after sixty days, therefore the accused be released on bail on furnishing personal bond with surety." Reliance was also placed on a decision in the matter of Haricharan Ramteka v. State of Chhattisgarh, 2001 (1) CWN 104 = 2002 CrLR (MP) 46 wherein the bail application was filed by the accused under section 437 (6) CrPC, it was held that such bail application cannot be rejected on ground that Courts are loaded with work and as the summons have been issued and witnesses present in Court could not be examined because of non-availability of expert's report. On the strength of aforesaid decisions, learned counsel for petitioner submits that the petition' filed by the petitioner be allowed and impugned orders passed by learned Courts below be quashed and application filed under section 437 (6) be allowed and petitioner be released forthwith. 5. Learned counsel for State submits that petition filed by the petitioner is not maintainable as it is a second revision petition under the garb of section 482 CrPC. It is submitted that it is not a case where witnesses were not present before the Court below, on the contrary witness Rajmani was present on 29.12.2008 but the same could not be examined as the petitioner was not brought to the Court from the custody and since the question of identification was involved, therefore the witness Rajmani who was present on that day could not be examined. It is also submitted that other two witnesses Pannalal and Bablu were also present on that day. It is submitted that in the facts and circumstances of the case the petition filed by the petitioner deserves to be dismissed. 6. From perusal of record it is evident that petitioner was prosecuted for the offence punishable under section 3, 10 and 13 of the Unlawful Activities (Prevention) Act, 1967. It is submitted that in the facts and circumstances of the case the petition filed by the petitioner deserves to be dismissed. 6. From perusal of record it is evident that petitioner was prosecuted for the offence punishable under section 3, 10 and 13 of the Unlawful Activities (Prevention) Act, 1967. Section 3 of the Act deals with declaration of an association as unlawful. Section 10 deals with penalty for being members of an unlawful association, according to which a person who is and continues to be a member of an association declared unlawful by a notification, or takes part in meeting of any such unlawful association or contributes to, or receives or solicits any contribution for the purpose of, any such unlawful association, or in any way assists the operations of any such unlawful association, shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine. Section 13 deals with punishment for unlawful activities. 7. Sub section (6) of section 437 CrPC lays down that "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." 8. From perusal of record it appears that only reason has been assigned by the learned Courts below while rejecting the application filed by the petitioner was that petitioner was not produced on the fixed date by the jail authority. This can hardly be a reason for rejecting the application filed by the petitioner under section 437 (6) CrPC. It also appears that in the earlier petition filed by the petitioner which was disposed of by this Court vide order dated 12.12.2008 in M.Cr.C. No. 6609/08 it was specifically directed to expedite the trial and complete the same as early as possible. It also appears that in the earlier petition filed by the petitioner which was disposed of by this Court vide order dated 12.12.2008 in M.Cr.C. No. 6609/08 it was specifically directed to expedite the trial and complete the same as early as possible. In spite of direction of this Court nothing was done by the prosecution to expedite the case, on the contrary case was fixed for recording of evidence on 12.1.2009, 23.1.2009, 6.2.2009, 19.2.2009 and 4.3.2009 but on any of the date, none of the witness was examined by the respondent. From perusal of certified copy of the order which has been produced by the petitioner it is evident that on 18.3.2009 also no witness of the prosecution was present. In the facts and circumstances of the case, there was no justification on the part of learned Courts below in dismissing the application filed by the petitioner. 9. In view of this the petition filed by the petitioner is allowed and impugned order passed by the learned Courts below is set aside with a further direction to release the petitioner forthwith on furnishing bail bond of Rs. 50,000/- (Rs. Fifty thousand) with a surety of the like amount and cash security of Rs. 10,000/- and subject to the condition that petitioner shall remain present on each and every date before the learned Court below and shall also mark his presence after every fortnight before the concerned P.S. till the case is concluded.