Babu Kha & Ors vs State Of Madhya Pradsh

Heard.

Perused the case diary.

This is third repeat bail application filed under Section 439 read with Section 437(6) of Cr.P.C., for grant of bail by the applicants No.1 and 3 and

second application filed on behalf of applicant No.2 under Section 439 read with Section 437(6) of Cr.P.C., for grant of bail. They are in jail in

connection with crime no.129/2017, registered at police station â€" Tarana, Ujjain for the offence punishable under sections 420, 506 and 504 of IPC.

They are in custody since 29.6.2017, 13.7.2017 and 29.6.2017, respectively.

As per prosecution story, on the basis of written complaint of Lincy w/o. Baiju, an FIR was registered bearing crime no.129 of 2017, against the

applicants under Section 420 and 506, IPC, alleging that the applicants have received an amount of Rs.11,70,000/from the complainant on an

assurance of returning the same by multiplying it by 125%, within a period of one month. The charge sheet was filed on 31.7.2017 and thereafter,

charges were framed against the applicants and the case was fixed for evidence on 14.12.2017 for the first time. Their first application was

dismissed on merit by order dated 30.8.2017. The petitioners filed a petition under Section 482 of Cr.P.C, 1973, against the order dated 15.2.2018

passed by the Addl. Sessions Judge, link court Tarana, Ujjain in crime report No.0/18, whereby the learned revisional court has upheld the order

passed by the JMFC, Tarana by which the application under Section 437(6) of Cr.P.C filed by the applicants has been dismissed. This court after

considering the arguments of the learned counsel for the petitioners at length dismissed the petition on 27.2.2018. Order dated 27.2.2018, passed in

M.Cr.C.No.8235 of 2018 reads as under :-

“2. This petition under Section 482 of Code of CriminalProcedure, 1973 has been filed against the order dated 15.2.2018 passed by the Additional

Sessions Judge, Link Court, Tarana,Ujjain in Criminal Revision No.0/2018 whereby the learnedSessions Judge has upheld the order passed by learned

JudicialMagistrate First Class, Tarana, Ujjain by which the applicationunder Section 437 (6) of the Code of Criminal Procedure, 1973 ofthe petitioners

was dismissed.

On the basis of written complaint of Lincy, an FIR was registered bearing Crime No.129 of 2017 against the petitioners under Sections 420 and

506 of IPC alleging that the petitioners have received an amount of Rs.11,70,000/- from the complainant on an assurance of returning the sum by

multiplying it by 125% within a period of one month.

Upon investigation in the aforementioned crime, petitioner Nos. 1 and 3 were arrested on 29.6.2017 and petitioner No.2 was arrested on 13.7.2017.

The chargesheet was filed and thereafter charges under Sections 420, 504 and 406 of IPC were framed against the petitioners and the case was

fixed for recording the evidence on 14.12.2017. Since none of the witnesses were examined, on 14.2.2018 an application under Section 437 (6) was

filed by the petitioners seeking bail as the trial was not concluded within a period of 60 days from the first date fixed for recording evidence and the

present petitioners are in custody during the whole of such period.

The application under Section 437 (6) of Cr.P.C. was dismissed by the learned Judicial Magistrate First Class on the ground that earlier bail

application of the present petitioners has been dismissed and mere filing of chargesheet does not amount to change of circumstances. The aforesaid

order was challenged by filing Criminal Revision which was also dismissed by the learned Revisional Court on 15.2.2018.

Learned Senior Counsel for the petitioners has submitted that the Courts below have ignored the provisions of Sub-sections 6 of Section 437 of

Cr.P.C. In any case triable by a Magistrate and trial of non-bailable offence is not concluded within a period of 60 days from the first date fixed for

recording the evidence, then they are entitled for released on bail.

He further submitted that admittedly none of the witnesses have been examined till date, hence, it is a fit case to grant bail. He has drawn my

attention to the decision of Gwalior Bench of this Court in the case of M. L. Shah vs. State of M.P. reported in 1995 (1) M.P. Weekly Notes Note

No.230; Ram Kumar @ Raj Kumar vs. State of M.P. reported in 2000 (1) M.P. Weekly Notes Note No.160; Rajendra vs. State of M.P. reported in

2003 (1) M.P. Weekly Notes Note No.16; and the High Court of Chhattisgarh in the case of Smt. Godawari Bai & Others vs. State of Chhattisgarh

reported in 2005 (I) MANISA 55 (C.G.); as well as Indore Bench of this Court in the case of Nanda vs. State of M.P. reported in 2006 (3)

M.P.H.T. 371; and Vijay vs. State of M.P. reported in 2006(3) M.P. H.T. 380.

On the other hand, Shri R. R. Maheshwari, learned Public Prosecutor has submitted that on 30.8.2017 an application for grant of interim relief of

petitioner No.1 has been dismissed by the High Court.

In the case of Sunil Saxena versus State of M.P. Reported in I.L.R. [2011] M.P., 816, the Court has held that Sub-section (6) empowered the

Magistrate to dismiss such application after recording the reasons in the available circumstances of the case. Para 7 reads as under:-

“The case laws cited by the applicant's counsel were decided taking into consideration the available circumstances of such case in which the later

part of sub-section (6) of Section 437 of Cr.P.C. was not found to be invoked. So far the principles laid down in the aforesaid cited cases are

concerned this Court does not have any dispute but in view of the distinguishable feature of the case the same is not applicable to the case at hand.

Earlier on arising the occasion while deciding the case of Arjun Sahu Vs. State of Madhya Pradesh reported in 2008 (2) JLJ 237. After taking into

consideration the “Ram Kumar's case†(Supra) in view of the law laid down by the Division Bench of Delhi High Court in the matter of Robert

Lendi Vs. The Collector of Customs and another reported in 1987 Cr.L.J. 55 and the decision of Jharkhand High Court in the matter of Didar Singh

Vs. State of Jharkhand reported in 2006 Cr.L.J. 1594, it was held that in the available facts and circumstances of the case after recording the

reasons the bail application of the accused which is filed even after sixty days from the first date fixed for recording the evidence can be dismissed in

the later part of Section 437 (6) of Cr.P.C. and consequently, the bail application of the applicant Arjun Sahu was dismissed in the above mentioned

case.â€​

After attaining the finality on the issue of Section 437 (3) of Cr.P.C, the petitioners again filed application before the learned trial court for grant of

bail under Section 439 of Cr.P.C. The learned trial Court considering the fact that on 30.8.2017, an application for grant of bail filed under Section

439 of Cr.P.C. has been dismissed and thereafter petition filed under Section 482 of Cr.P.C., has been dismissed on 27.2.2018, no case is made

out for grant of bail and rejected the bail. It is this order, which has been challenged by filing this repeat bail application.

Learned Senior counsel for the applicants has drawn my attention to the decisions of the Apex Court in the case of Seema SinghV/s.Central

Bureau of Investigation & Anr., AIR 2018 SC 2161, Nimeon Sangma & Ors.V/s. Home Secy., Govt. Of Maghalaya & Ors, AIR 1979 SC 1518, and

the decisions of M.P. High Court in the case of Kaniram & Ors.V/s. State of M.P., 1991 JLJ 273 and Mohan RaikwarV/s. State of M.P., MPLJ

1999 (2) 663 and submitted that the personal liberty of the accused should not be interfered by unnecessarily keeping him in jail and prays for grant of

bail.

Per contra Shri A. Malhotra, learned public prosecutor appearing on behalf of the respondent â€" State submits that the issue regarding grant of

bail has been considered by this court on 27.2.2018 passed in M.Cr.C.No.8235 of 2018 and thereafter petition for releasing of the applicants under

Section 437(6) of Cr.P.C, has also been considered by this court by passing a detailed order. Order dated 27.2.2018 has attained finality. There is

no change in the circumstances to consider this repeat bail application. He submitted that in case, if the petitioners are dissatisfied with the order

passed in 482 proceedings on 27.2.2018, they have liberty to file an appropriate petition before Hon'ble the Supreme Court and prayed for dismissal.

The intention underlying under sub-section 6 of Section 437 is that the trial of a criminal case should be concluded, within 60 days from the date

fixed for taking evidence in the case. If the trial is not so concluded within this time, the under trial person should be release on bail unless Magistrate

think that he should not be so released for reasons to be recorded in writing. It is well settled that right of the accused to get bail after sixty days of

initiation of trial from the first date fixed for taking evidence is not absolute. The provision applies to non-bailable offence in the court of magistrate

only, it is nothing to do with trialn before the court of session. The provisions of Section 437(6) of Cr.P.C, are not mandatory in nature and accused

does not get absolute trial to be released on bail under Section 437(6) of the Cr.P.C., if period of 60 days expired from the first date from recording

the evidence and trial is not concluded within the said period. In the case in hand, the learned trial court after appreciating the arguments of the

learned counsel for the parties rejected the prayer on 14.2.2018 on merits. This court also decided the said prayer in 482 proceedings on 27.2.2018.

Considering the aforesaid facts and circumstances, no case for grant of relief as prayed by the applicants is made out.

However, the trial court is directed to expedite the trial, an endeavour shall be made to conclude it at the earliest, without granting unnecessary

adjournments to the parties.

With the aforesaid, M.Cr.C.No.18961/2018, is dismissed.