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2017 DIGILAW 508 (ORI)

Nabin Kumar Sahu @ Sahoo v. State of Orissa

2017-05-02

S.PUJAHARI

body2017
ORDER 02.05.2017. Heard the learned Counsel for the petitioner and the learned Counsel for the State. The petitioner being in custody in G.R. Case No.122 of 2015 arising out of Dunguripali P.S. Case No.87 of 2015 pending in Court of learned J.M.F.C., S. Rampur, has filed this petition for his release on bail. The offence alleged against the petitioner is punishable under Section 409 of the I.P.C. It appears that the petitioner being in custody in the aforesaid case which is being tried by the Magistrate had made a prayer under Section 437 (6) of the Cr.P.C. seeking his release on bail, inasmuch as trial was not completed within the period stipulated and as such he has invoked jurisdiction of the Magistrate to grant him bail, though there is no dispute that the trial Court could not be concluded the case within the time stipulated and also Section 437 (6) mandates to release him on bail, but the learned J.M.F.C., S. Rampur exercising his discretionary jurisdiction in this regard, refused him to be released on bail taking note of the fact that the offence alleged prescribed imprisonment for life, the petitioner has contributed to the delay in disposal of the case and as the informant is yet to be examined, there is possibility of tampering of the evidence, if the petitioner released on bail. However, challenging the same, a prayer for bail was made before the learned Sessions Judge and the learned Sessions Judge has also rejected the same. Learned Counsel for the petitioner submits that when a valuable right has been accrued in favour of the petitioner under Section 437 (6) of Cr.P.C. though the right is not indefeasible, inasmuch as the Court can refuse to release a person invoking such jurisdiction to be released on bail for the reasons to be recorded in writing, but the learned Magistrate should not have refused to release him on bail assigning the reasons which are not germane, for consideration of the prayer made by the petitioner. According to him, the petitioner being in custody in a Magistrate triable offence for more than a year and the case is triable by the Magistrate, the learned Magistrate ought to have taken into consideration of such prolonged custody and nothing being there indicating the fact that the petitioner shall abscond or shall not make himself available if released on bail, refused to release him on bail. Hence, he made a prayer to this Court to allow him to be released on bail extending the benefit under Section 437 (6) of Cr.P.C. to the petitioner. Learned Counsel for the State, however, oppose the prayer for bail advancing the submission that the Court having given a jurisdiction to scuttle such right of the petitioner for adequate reasons and the learned Trial Court taking note of the same having refused to extend such right to the petitioner and the petitioner’s prayer for bail having been rejected on merit by this Court earlier, he has no case for his release on bail. To appreciate the contentions raised by the parties, it would be apposite to have a look to the mandate of Section 437 (6) of Cr.P.C., which reads as thus :- “ xx xx xx xx xx xx If, at 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. xx xx xx xx xx xx A bare perusal of the aforesaid Section would go to show that if an Under Trial Prisoner is in custody in a case triable by the Magistrate and the trial is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, he has a right to be released on bail. However, the Magistrate has jurisdiction to refuse the benefit of such right, but the same must be for reasons to be recorded in writing by a Magistrate. However, the Magistrate has jurisdiction to refuse the benefit of such right, but the same must be for reasons to be recorded in writing by a Magistrate. From the wording of the aforesaid Section, it would go to show that an Under Trial Prisoner in a Magistrate triable offence generally has a right to be released on bail if the trial is not concluded within the time stipulated, but in exceptional circumstances the Magistrate can refuse him to be released on bail assigning good reasons. Right to speedy trial has been traced in Article 21 of the Constitution of India as a fundamental right of a person incarcerated in jail. Since the aforesaid is a fundamental right, the Court while trying the cases of UTP must remain in guard to protect such fundamental right of an UTP and to see that the case is disposed of within a reasonable period. Learned J.M.F.C., S. Rampur no doubt has noticed the law with regard to grant of bail under Section 437 (6) of the Cr.P.C. and also taken into consideration the decisions rendered by this Court as well as different High Courts, but appears to have applied the same wrongly, inasmuch as the learned J.M.F.C., S. Rampur has taken note of the fact that is germane for consideration of bail in a petition under Section 437 (1) of the Cr.P.C. except the factum of the contribution to delay in disposal, if any, made by the petitioner. Since most of the reasons assigned by the learned J.M.F.C., S. Rampur, appears to this Court to have no bearing to refuse such prayer for bail under Section 437 (6) of the Cr.P.C. and learned J.M.F.C., S. Rampur while considering the aforesaid prayer has also forgotten the fact that a person incarcerated in jail has a fundamental right to speedy trial and the Cr.P.C. mandates the same in Section 437 (6) statutory by fixing a limit to conclude the trial within the period stipulated, otherwise to release the accused incarcerated to go on bail, but the Legislature being unable to comprehend and take care of the unforeseen situation to prevent any abuse of the power, simultaneously gave a judicial discretion to refuse the same in appropriate facts and situation, the jurisdiction to refuse bail is required to be exercised with much care and caution and not in a mechanical manner. Needless to say that though prayer was made by the petitioner under Section 319 of the Cr.P.C., if the trial was not stayed, it cannot be said to be a ground to come to a conclusion that the petitioner has contributed to delay in disposal of the case. Procuring of the witnesses being the responsibility of the prosecution as well as the Court, the petitioner should not have been penalized for the same. I would, therefore, allow this BLAPL and set aside the impugned order with a direction to the learned J.M.F.C,., S. Rampur to readdress such prayer of the petitioner keeping in mind the law in this regard, so also the fact that a person under Section 437 (6) of the Cr.P.C. is entitled to be released on bail, if the trial is not concluded within the time stipulated, notwithstanding the fact that the learned J.M.F.C. could not have released the petitioner on bail in exercise of jurisdiction under Section 437 (1) of Cr.P.C. and the same can only be refused by recording reasons germane to refuse the right to be released. An order in this regard be passed within fifteen days of receipt of the certified copy of this order. With the aforesaid order, this BLAPL stands disposed of. Urgent certified copy of this order be granted on proper application. BLAPL disposed of.