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Madhya Pradesh High Court · body

2010 DIGILAW 98 (MP)

Arjun. v. State of M. P

2010-01-22

N.K.MODY

body2010
ORDER Hon'ble Mr. N.K. Mody, J. 1. Being aggrieved by the order dated 18-12-2009 passed by IV Additional Sessions Judge in Cri. Case No. 936/09 whereby the order dated 1-12-2009 passed by JMFC, whereby the application filed by the petitioner under Section 437 (6) was dismissed. Hence, the present petition has been filed. 2. Short facts of the case are that the petitioner was prosecuted for an offence alleged to have been committed under Section 34 (2) of the Excise Act alleging that on 27-6-09 petitioner was found in possession of country made liquor which was more than 50 bulk litres. Petitioner was arrested on that very day. Since the trial could not completed within a period of 60 days, therefore an application was filed by the petitioner under Section 437 (6) of Cr.PC. wherein it was prayed that the petitioner be released as the trial was not concluded within the statutory period of 60 days. The application was dismissed against which a revision petition was filed, which was also dismissed. Hence this petition. 3. Learned Counsel for the petitioner submits that the order passed by learned Courts below is illegal and deserves to be set aside. It is submitted that the petitioner was claiming will, as the trial did not conclude within the stipulated time. It is submitted that as of right petitioner is entitled for will and the application filed by the petitioner could not have been dismissed on the ground which are mentioned in the impugned order. It is submitted that petition filed by the petitioner be allowed and the impugned orders passed by the learned Courts below be set aside. 4. Shri M.S. Dwivedi, Panel Lawyer for respondent/State submits that keeping in view that the fact that petitioner is a habitual offender and is involved in number of criminal cases, the petition be dismissed. 5. From perusal of the record which is submitted by the respondent, it is evident that in the P.S. Banganga following criminal cases have been registered against the petitioner: Sr. No. Crime No. offence under Section 1. 763/07 34, Excise Act 2. 633/08 34, Excise Act 3. 387/08 34, Excise Act 4. 464/08 34, Excise Act 5. 517/08 34, Excise Act 6. 724/08 34, Excise Act 7. 977/08 34, Excise Act 8. 1001/08 363, 366, 376, 506, IPC 9. 533/09 34, Excise Act 6. No. Crime No. offence under Section 1. 763/07 34, Excise Act 2. 633/08 34, Excise Act 3. 387/08 34, Excise Act 4. 464/08 34, Excise Act 5. 517/08 34, Excise Act 6. 724/08 34, Excise Act 7. 977/08 34, Excise Act 8. 1001/08 363, 366, 376, 506, IPC 9. 533/09 34, Excise Act 6. In the matter of Ram Kumar Rathore V. State of M.P., 2001 (1) JLJ 404, the provision under Section 437 (6), Cr.PC is mandatory in nature and in case trial is not concluded within 60 days, accused becomes entitled to be released on bail on the apprehension of not attending the Court is not judicious. 7. Section 437 (6), Cr.PC read as under: 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. In the matter of Rajendra V. State of M.P., 2002 (4) M.P.H.T. 186 , wherein the accused was involved for an offence alleged to been committed under the provisions of M.P. Excise Act, the question arose before this Court was whether provision of Section 437 (6), Cr.PC would be applicable and it was held that provisions of Section 437 (6) will apply for the offence punishable under Section 437 (6) of the Act. 9. It is true that petitioner is entitled for grant of bail under Section 437 (6), Cr.PC if the trial is not concluded within a period of 60 days. The evidence commenced in the case w.e.f. 2-9-09 and could not concluded within period of 60 days. It is also true that the Court is empowered to reject the application for grant of bail under Section 437 (6), Cr.PC for the reasons to be recorded. The ground that the petitioner is a habitual offender of committing the similar type of offences is a valid ground. It is also true that the Court is empowered to reject the application for grant of bail under Section 437 (6), Cr.PC for the reasons to be recorded. The ground that the petitioner is a habitual offender of committing the similar type of offences is a valid ground. Since petitioner is in jail w.e.f. 27-6-09, therefore, in the interest of justice and on perusal of record and also keeping in view the fact that the trial did not complete within statutory period, the application filed by the petitioner is allowed and petitioner is released on bail on furnishing bail bond of Rs. 35,000/- (Rs. Thirty five thousand) with a surety of like amount to the satisfaction of learned Trial Court with a further direction that the petitioner shall remain present before the learned Trial Court on each and every date fixed by that Court. If the conduct of petitioner is not found good the respondent shall have a liberty to move an appropriate application to get the bail cancelled. 10. With the aforesaid observations petition stands disposed of. C.c. as per rules.