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2017 DIGILAW 1454 (JHR)

Ashok Narayan Prasad v. State Of Jharkhand

2017-08-16

RONGON MUKHOPADHYAY

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JUDGMENT Rongon Mukhopadhyay, J. – Heard Mr. Saibal Kumar Laik, learned counsel for the petitioner and Mr. Moti Gope, learned A.P.P. for the State. 2. This application is directed against the order dated 17.07.2017 passed by the learned Chief Judicial Magistrate, Dhanbad in connection with Dhanbad (Bank More) P.S. Case No. 805 of 2014 registered for the offences punishable under Sections 406, 420, 467, 468, 471, 120(B) of the Indian Penal Code and Sections 4, 5, 6 of the Prize Chits and Money Circulation Scheme (Banning) Act as also under sections 76, 79 of the Chit Fund Act, 1982. 3. It has been stated by the learned counsel for the petitioner that since the trial was not concluded within a period of sixty days from the date which was first fixed for evidence the petitioner had preferred an application under Section 437(6) Cr.P.C., 1973 which however was rejected without assigning any reasons on 17.07.2017. It has been stated that the basic parameters which are required to be looked into while considering an application under Section 437(6) Cr.P.C., 1973 has never been considered by the learned trial court and merely on the ground that four charge-sheet witnesses have been examined and several witnesses are yet to be examined the application under Section 437(6) has been rejected. It has been stated that merely because one of the co-accused persons has misused the privilege the same cannot be a ground for rejecting the application preferred by the petitioner on an anticipation of the petitioner taking a similar step as that of the co-accused who had jumped bail. Learned counsel in support of his contention has referred to an order passed by this Court in the case of Deepak Das v. The State of Jharkhand reported in 2017 (2) JLJR 43 . 4. Learned A.P.P. has opposed the prayer made by the petitioner. 5. Before adverting to the fact of the case it would be necessary to consider the parameters which guide consideration of an application under Section 437(6) Cr.P.C., 1973 Sub-section 6 of Section 437 virtually consists of two parts. 4. Learned A.P.P. has opposed the prayer made by the petitioner. 5. Before adverting to the fact of the case it would be necessary to consider the parameters which guide consideration of an application under Section 437(6) Cr.P.C., 1973 Sub-section 6 of Section 437 virtually consists of two parts. If the first part is read in isolation it would mean that an accused accrues an indefeasible and incorrigible right for being released on bail if in a case triable by a Magistrate, the trial of a person accused of a non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence of the accused such person if he is in custody during whole of the said period shall be released on bail. However, a cog in the wheel has been put in the said provision to the effect that such right cannot be by way of a mandatory right as the Magistrate for reasons to be recorded in writing may otherwise direct. 6. Referring to the judgment passed in Criminal Reference No. 2 of 2011 while considering the various parameters for grant of bail or for that matter refusal of bail under section 437(6) of CrP.C., it was held that the provisions are not mandatory in nature. Various factors, which must weigh in the mind of the Magistrate have been enumerated in the judgment under reference and the same reads as under:- 7. Q-3 The Magistrate has option/discretion to refuse bail by assigning reasons therefor. The parameters, factors, circumstances and grounds to be considered by Magistrate vis-a-vis such application preferred by the accused under Section 437(6) of the Code may be: (1)Whether the reasons for being unable to conclude trial within sixty days from the first date fixed of taking evidence, are attributable to the accused? (2) Whether there are any chances of the accused tampering with evidence or causing prejudice to the case of the prosecution in any other manner? (3) whether there are any chances of abscondence of the accused on being bailed out? Whether accused was not in custody during the whole of the said period? (2) Whether there are any chances of the accused tampering with evidence or causing prejudice to the case of the prosecution in any other manner? (3) whether there are any chances of abscondence of the accused on being bailed out? Whether accused was not in custody during the whole of the said period? If the answer to any one of the above referred fact situations or similar fact situations is in affirmative than that would work as a fetter on the right that accrues to the accused under first part of sub section (6) of Section 437 of the Code. The parameters, therefore, which guide an application under section 437(6) of the Cr.P.C., 1973 are that whether there are chances of the accused tampering with the evidence or causing prejudice to the case of the prosecution in any other manner which may hamper the prosecution itself. In the backdrop of what has been discussed above, the impugned order dated 17.07.2017 is being considered. The petitioner was made an accused in connection with Dhanbad (Bank More) P.S. Case No. 805 of 2014. Charge was framed against the petitioner on 19.10.2015 and thereafter the dates were fixed for taking evidence. Out of twelve charge-sheet witnesses it is an admitted fact that only four witnesses have been examined and the trial is pending for examination of the rest eight witnesses. The petitioner is in custody since 09th October, 2014. It, therefore, appears that during charge the petitioner was in custody and till today the petitioner remains to be in custody. The question which was to be considered by the learned trial court while considering the application preferred by the petitioner under Section 437(6) Cr.P.C., 1973 was with respect to whether the petitioner will tamper with the evidence or will act in any manner which would prejudice the prosecution or will hamper the prosecution case. The question which was to be considered by the learned trial court while considering the application preferred by the petitioner under Section 437(6) Cr.P.C., 1973 was with respect to whether the petitioner will tamper with the evidence or will act in any manner which would prejudice the prosecution or will hamper the prosecution case. The learned trial court has merely considered the fact that one of the co-accused namely Vivek Agarwal who has been granted bail had misused the privilege of bail and, therefore, the same was taken into consideration while refusing the application preferred by the petitioner under Section 437(6) Cr.P.C., 1973 None of the factors which are required to be considered have been dealt with by the learned trial court and considering the issues which are not germane for consideration of an application under Section 437(6) Cr.P.C., 1973 the impugned order dated 17.07.2017 has been passed. In view of what has been stated above, since the impugned order dated 17.07.2017 passed by the learned Chief Judicial Magistrate, Dhanbad in connection with Dhanbad (Bank More) P.S. Case No. 805 of 2014 suffers from apparent illegality and being unsustainable in the eye of law is, hereby, quashed and set aside. 8. The petitioner is directed to be released on bail subject to the terms and conditions as may be imposed by the learned trial court. 9. This application stands allowed. 10. Let this order be communicated through FAX to the concerned court at the cost to be deposited by the petitioner.