Research › Search › Judgment

Madhya Pradesh High Court · body

2021 DIGILAW 104 (MP)

Dilip Yadav v. State of Madhya Pradesh

2021-02-04

RAJENDRA KUMAR SRIVASTAVA

body2021
JUDGMENT : Rajendra Kumar Srivastava, J. Heard through Video Conferencing. 1. This petition has been filed under Section 482 of the Cr.P.C. against the order dated 29/07/2020 passed by the learned Sessions Judge, Umariya, in Criminal Revision No. 09/2020, whereby the learned Sessions Judge rejected the applicant's revision petition and affirmed the order dated 29/06/2020 passed by the learned Chief Judicial Magistrate Umariya in Criminal Case No. 656/2019, whereby the learned CJM rejected the applicant's application filed under Section 437(6) of the Cr.P.C. for grant of bail. 2. It appears from the record that applicant is facing trial in Criminal Case No. 656/2019 which is pending before the CJM, Umariya for the offence punishable under Sections 34 (2) of M.P. Excise Act. 3. Prosecution case, in short, is that, on 17.10.2019 Sub-Inspector Nowrozabad, received an information that some persons are transporting liquor without valid permit, thereafter, police officials reached the spot. Present applicant-accused was coming on a motor cycle. He was stopped and the motor cycle was checked and 54 bulk litres of country made liquor was seized from his possession. Pursuant to that, FIR was registered under Section 34(2) of M.P. Excise Act. Thereafter, charge-sheet has been filed on 10.12.2019 and charge was framed on 07.03.2020 under Section 34(2) of M.P. Excise Act. Case was fixed for prosecution evidence on 03.04.2020. Prosecution did not close the prosecution evidence within 60 days, thereafter on 29.06.2020 applicant accused filed an application under Section 437 (6) of Cr.P.C. Learned trial court dismissed the application on the ground that applicant-accused has previous criminal antecedents, so he is not entitled to get benefit under Section 437(6) of Cr.P.C. Thereafter, applicant accused filed a revision against this order but learned Additional Sessions Judge also dismissed his revision. 4. Learned counsel for the applicant submits that learned trial court and revisional court did not consider the legal position in perspective way. Section 437 (6) of Cr.P.C. make it obligatory on the part of the trial court to conclude the trial within a period of 60 days from the first date fixed for recording evidence and if the Court fails in that, then accused is entitled for bail. This statutory right cannot be taken away in such fashion. Section 437 (6) of Cr.P.C. make it obligatory on the part of the trial court to conclude the trial within a period of 60 days from the first date fixed for recording evidence and if the Court fails in that, then accused is entitled for bail. This statutory right cannot be taken away in such fashion. So it appears that the order of trial court or revisional court is not according to law, so he prays to set-aside the orders and also the applicant-accused be released on bail. In support of his contention learned counsel for the applicant relied upon the judgments passed in Rajendra Pralhadrao Wasnik Vs. state of Maharashtra (2019) 12 SCC 460 and Maulana Mohd. Amir Rashadi vs State of U.P. & Anr. 2012 (2) SCC 382 . 5. Learned counsel for the State opposed the prayer. 6. A Division Bench of this in the case of Devraj Maratha @ Dillu Vs. State of M.P. in M.Cr.C. No. 2668/2018 vide order dated 16.03.2018 has held as under:- 11. Regard being had to the submissions advanced on behalf of the parties, it is apposite to refer the provision of sub-section (6) of Section 437 of the Code. The same is reproduced hereunder :- "S. 437. When bail may be taken in case of non-bailable offence.- (1) xx xx xx (2) xx xx xx (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. 12. Upon a bare perusal of the aforesaid provision and a close scrutiny thereof, it is noted that sub-section (6) of Section 437 of the Code is in two parts. First - 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. Thus, in the first part if in any case triable by a Magistrate, the alleged offence is non-bailable and the trial is not concluded within a period of sixty days from the first date fixed for taking evidence, in case, such person shall be released on bail to the satisfaction of the Magistrate. Still the discretion has been conferred to the Magistrate to record his satisfaction and after recording reasons in writing, the Magistrate can refuse the bail. The issue cropped up for consideration is that whether under the aforesaid provision, it is mandatory to release the accused on bail after expiration of statutory period and whether the Magistrate has no discretion to refuse bail. 19. On a plain reading of the provision of Section 437(6) of the Code it is graphically clear that it is mandatory in the sense that a person should not be kept in jail ordinarily if a trial for non-bailable offence which is triable by the Magistrate, is not concluded within a period of sixty days from the date fixed for evidence. Provided, it is proved that the concerned person was in jail for a period of sixty or ninety days, as the case may be. However, passing of an order under Section 437(6) of the Code appears to be mandatory, but not grant of bail. Sub-section (6) of Section 437 of the Code per se show that if there be any reason for refusing the bail, the Magistrate has to record reasons in writing. Thus, recording of reasons in writing is also mandatory and the reasons would be justiciable in an appropriate criminal or extraordinary jurisdiction under Section 482 of the Code. No fetters have been put on the Magistrate to exercise jurisdiction under Section 437(6) of the Code and bail can be refused for the reasons to be recorded in writing. Magistrate has full power to take into consideration - (i) the nature of allegations; (ii) whether the delay is attributable to the accused or to the criminal prosecution; and (iii) criminal antecedents of the accused or any other justifiable reason. 7. A Bench of this Court in the case of Hardeep Gandhi Vs. Magistrate has full power to take into consideration - (i) the nature of allegations; (ii) whether the delay is attributable to the accused or to the criminal prosecution; and (iii) criminal antecedents of the accused or any other justifiable reason. 7. A Bench of this Court in the case of Hardeep Gandhi Vs. The State of Madhya Pradesh in M.Cr.C. No. 43464/2019 vide order dated 13.11.2019 has held as under:- "It is clear from the record that the said criminal case was first fixed for recording of prosecution evidence on 03.04.2020 and till date the prosecution has not examined all prosecution witnesses and trial is still pending. Provisions of Section 437 (6) of the Cr.P.C. make it obligatory on the part of the trial Court to conclude the trial within a period of 60 days from the first date fixed for recording of evidence and in case the accused is in custody and trial Court fails to conclude the trial within the aforesaid period, it is the trial Court's duty to release the accused. The case was first fixed for recording of prosecution evidence on 03.04.2020 and the trial is pending as yet and trial Court has failed to conclude the trial within the stipulated period". 8. Considering the contention of both the parties and the fact that charge was framed on 07.03.2020 under Section 34(2) of M.P. Excise Act. Case was fixed for prosecution evidence on 03.04.2020. Prosecution did not close the prosecution evidence within 60 days, thereafter on 29.06.2020 applicant accused filed an application under Section 437 (6) of Cr.P.C. Learned trial court dismissed the application on the ground that applicant-accused has previous criminal antecedents, so he is not entitled to get benefit under Section 437(6) of Cr.P.C. Thereafter, applicant accused filed a revision against this order, learned Additional Sessions Judge also dismissed his revision petition. 9. In this case, the applicant is facing trial for the offence punishable under Section 34(2) of the M.P. Excise Act since 17.11.2019 in which the maximum sentence is prescribed three years. There is no evidence on record that the applicant had earlier been convicted by the Court for the offence punishable under Section 34(2) of the M.P. Excise Act. There is no evidence on record to show that applicant caused delay in trial. There is no evidence on record that the applicant had earlier been convicted by the Court for the offence punishable under Section 34(2) of the M.P. Excise Act. There is no evidence on record to show that applicant caused delay in trial. No other justifiable reason is mentioned by the learned Sessions Judge in his impugned order for rejecting the applicant's application. Learned trial Court rejected the applicant's application taking into consideration the previous criminal antecedents and the learned Sessions Judge also rejected the applicant's application only on the basis that applicant has criminal past. Only on this ground bail must not be rejected as held earlier by this Court in the case of Devraj Maratha @ Dillu Vs. State of M.P. (supra) & Hardeep Gandhi Vs. The State of Madhya Pradesh (supra). 10. This Court is of the considered view that the statutory right given to the accused by the above provisions cannot be taken away in such a fashion. Since the applicant had remained in custody during the said period for more than 60 days from the first date fixed for recording evidence, he would be entitled to be released on bail under the provision of Section 437 (6) of Cr.P.C. 11. Consequently, in view of the aforesaid discussion this petition is allowed and the order passed by both the Courts below are set aside and it is directed that applicant Dilip Yadav @ Pappu Yadav be released on bail in aforesaid crime subject to his furnishing a personal bond in the sum of Rs. 50,000/- (Rs. Fifty Thousand only) with one surety of the like amount to the satisfaction of the trial Court for his appearance before the trial Court on the date fixed by the said Court and on subsequent dates as may be fixed during pendency of this case. 12. In view of the outbreak of 'Corona Virus disease (COVID-19)' the applicant shall also comply with the rules and norms of social distancing. Further, in view of the order passed by the Hon'ble Supreme Court in suo moto W.P. No. 1/2020, it would be appropriate to issue the following direction to the jail authority :- 1. The Jail Authority shall ensure the medical examination of the applicant by the jail doctor before his release. 2. The applicant shall not be released if he is suffering from 'Corona Virus disease'. The Jail Authority shall ensure the medical examination of the applicant by the jail doctor before his release. 2. The applicant shall not be released if he is suffering from 'Corona Virus disease'. For this purpose appropriate tests will be carried out. 3. If it is found that the applicant is suffering from 'Corona Virus disease', necessary steps will be taken by the concerned authority by placing him in appropriate quarantine facility. 13. Certified copy as per rules.