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2014 DIGILAW 446 (CHH)

Ratan Kumar Jain v. State of Chhattisgarh

2014-12-05

SANJAY K.AGRAWAL

body2014
ORDER : Sanjay K. Agrawal, J. 1. The applicant is facing trial and is in judicial custody in connection with crime No. 217/13 for commission of offence punishable under Sections 420, 467, 468 and 471/34 of IPC registered at Police Station Kotwali, Rajnandgaon, Dist. Rajnandgaon. The trial magistrate framed charges against the applicant on 25.09.2013 and case was fixed for taking evidence for the first time on 08.10.2013 and six witnesses were examined, but when trial could not be completed within 60 days from the date of commencement of evidence i.e. 08.10.2013, the applicant herein filed an application claiming privilege of bail under Section 437(6) of Cr. P.C. The trial magistrate by order dated 01.09.2014 rejected the application holding that prima-facie case is made out against the applicant as he has misappropriated huge government money by illegally transporting Tendu Patta and if he is released on bail, he is likely to temper prosecution witnesses and as such he is not entitled to claim benefit of Section 437(6) of Cr. P.C. and rejected the application. 2. In revision filed by the applicant, against the order of trial magistrate, the revisional court agreed with the findings recorded by the trial magistrate and rejected the revision affirming the order of trial magistrate. 3. Calling in question the legality, validity and correctness of order passed by the revisional court affirming the order of trial magistrate, the applicant has preferred this application under Section 482 of Cr. P.C. stating inter alia that Section437(6) Cr. P.C. is imperative in nature and once the period of 60 days from the first date of taking evidence is expired and trial is not completed, then necessarily as a rule, the applicant/accused is entitled to be released on bail and discretion conferred on trial magistrate would not come in way of releasing the applicant on bail, and therefore, orders of both the courts below be set aside. 4. Shri Devershi Thakur, learned counsel appearing for the applicant would submit that Section 437(6) of Cr. P.C. is mandatory in nature and as the same is in exception to Section 437-A of Cr. 4. Shri Devershi Thakur, learned counsel appearing for the applicant would submit that Section 437(6) of Cr. P.C. is mandatory in nature and as the same is in exception to Section 437-A of Cr. P.C. which confer the power to the magistrate to enlarge the applicant on bail if trial could not be concluded within 60 days from the first date fixed for taking evidence, and therefore, orders of both the courts below be set aside and the applicant is entitled to be released on bail. 5. On the other hand, learned counsel appearing for the State would oppose the application and submit that prosecution is taking prompt steps to get his witnesses examined and five to six witnesses have already been examined and looking to the nature and gravity of offence of high magnitude, the trial magistrate has rightly exercised the discretion in not granting bail to the applicant, and as such, the applicant is not entitled to be released on bail. 6. I have heard the counsel appearing for the parties and carefully perused the orders impugned carefully. 7. At this stage, it would be proper to notice Section 437(1) of Cr. P.C. which reads as under: "437. When bail may be taken in case of non-bailable offence.--(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-- (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable With death or imprisonment for life (ii) ...." 8. Offence under Sections 467 of IPC is punishable with imprisonment for life and the offence under Sections 420, 468 and471 of IPC are punishable with imprisonment for 7 years with fine. Thus, the trial magistrate has no jurisdiction under Section 437(1) of Cr. P.C. to grant bail to the applicant under Section 467 of IPC which is punishable with imprisonment for life. Section 437(6) of Cr. P.C. carves out an exception to the provisions contained in clause (1) of sub-section (1) of Section437 of Cr. P.C. which reads as under: "437. Thus, the trial magistrate has no jurisdiction under Section 437(1) of Cr. P.C. to grant bail to the applicant under Section 467 of IPC which is punishable with imprisonment for life. Section 437(6) of Cr. P.C. carves out an exception to the provisions contained in clause (1) of sub-section (1) of Section437 of Cr. P.C. which reads as under: "437. When bail may be taken in case of non-bailable offence.-- XXX XXX XXX (6) 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." 9. A plain and careful perusal of sub-section (6) of Section 437 of Cr. P.C. would show that it is imperative in nature, but gives a discretion to the trial court magistrate that for the reasons to be recorded in writing, magistrate can direct that accused persons may not be released on bail even if the trial is not concluded within 60 days from the date of fixing the case for taking evidence in the case. 10. The focal question that falls for consideration is whether learned magistrate was justified in rejecting the application under Section 437(6) of Cr. P.C. even though the trial could not be concluded within 60 days from the first date of fixing the case for evidence? 11. In Gurucharan Singh and others Vs. State (Delhi Administration) 1978 (1) SCC 118 , the Supreme Court has held that object of Section 437(6) of Cr.P.C. is to speed up trial without unnecessarily detaining a person as an undertrial prisoner, and observes as under: "........There is similar provision under sub-section (6) of Section 437 of Cr. P.C. which corresponds to section 497(3A) of the old Code. This provision is again intended to speed up trial without unnecessarily detaining a person as an undertrial prisoner, unless for reasons to be recorded in writing, the Magistrate otherwise directs........." 12. This court in case of Atul Bagga Vs. P.C. which corresponds to section 497(3A) of the old Code. This provision is again intended to speed up trial without unnecessarily detaining a person as an undertrial prisoner, unless for reasons to be recorded in writing, the Magistrate otherwise directs........." 12. This court in case of Atul Bagga Vs. State of Chhattisgarh in unmistakable terms has held that apart from the gravity of offence and the quantum of punishment, the following factors, among others may weight with the magistrate while refusing dealing the application under Section 437(6) of Cr. P.C. and held as under: 11. xxx xxx xxx (a) the overall impact of the offence and the release of the person accused of such offence on the society, (b) the possibility of tampering the evidence by the accused, (c) the possibility of the accused absconding if released on bail, and lastly, (d) the delay in conclusion of the trial within, a period of 60 days if attributable to the accused. 13. Thus, the seriousness of the economic offences of high magnitude for which the petitioner was charged, the overall impact of the offence and the release of the person accused of such offence on the society, the possibility that the petitioner, if released on bail was likely to influence the witnesses or tamper with the prosecution evidence, the fact that other co-accused were absconding would be relevant factors for refusing bail under sub-section (6) of Section 437 of the Code." 13. Further, this court in case of Rameshwar Singh Kuire Vs. State of Chhattisgarh 2006 Cr. L.J. 4107, has also held that provisions of Section 437 of Cr. P.C. is not to be considered liberally and held as under: '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 the Cr. P.C. but no discretion has been allowed Under Section 167(2) of the Cr. Here it is not out of place to mention that on delay in investigation also Courts have power Under Section 167(2) of the Cr. 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." 14. If the facts of present case are examined in the light of above statutory provisions as contained in Section 437(6) of Cr. P.C. and in light of principles of law laid down in the above-stated decisions, it would appear that charges' were framed on 25.09.2013 and on 21.10.2013 prosecution witness Vishnu Dutt was examined, but for want of time, cross examination could not be completed and later on, on 2-3 May, 2014, prosecution witness Churamani was cross-examined-and on subsequent dates, the matter for one or other reasons adjourned, but the fact remains that it is not a case that prosecution is entirely to be blamed for delay in trial, if any. It is for the various reasons which cannot be attributed to state in not completing the trial within 60 days as statutorily required. Apart from this, summons were issued from time to time for appearance of the witnesses, but they could not appear, and therefore, trial could not be completed. 15. The fact remains that six witnesses have already been examined and the trial magistrate after considering the nature, of allegation and gravity of offence considered the matter and found that manner in which the applicant has caused huge loss to the government, declined to exercise discretion vested at him under Section 437(6) of Cr. 15. The fact remains that six witnesses have already been examined and the trial magistrate after considering the nature, of allegation and gravity of offence considered the matter and found that manner in which the applicant has caused huge loss to the government, declined to exercise discretion vested at him under Section 437(6) of Cr. P.C. in form of applicant, which cannot either said to be perverse or contrary to record requiring interference by this court as it is well settled law that discretion exercised by the trial court is not to be interfered by this court in exercise of inherent jurisdiction under Section 482 of Cr. P.C. unless discretion is shown to have been exercised arbitrarily, perversely or capriciously but in the present case, nothing has been shown that discretion has been exercised in the manner contrary to law. Thus, it is held that trial magistrate has not committed any error by refusing to release the applicant on bail extending benefit of Section437(6) of Cr. P.C. considering the nature and gravity of the offence, and the revisional court has not committed any illegality in affirming the said order, and I fully agree with the conclusions reached by the trial magistrate as affirmed by the revisional court. Resultantly, the application under Section 482 of Cr. P.C. deserves to be and is hereby dismissed at admission stage itself.