Jitendra Jaiswal vs State Of Madhya Pradesh

This petition has been filed under Section 482 of the Cr.P.C. against the order dated 05.04.2019 passed by the learned Third Additional Sessions Judge, Nagod, District Satna in Criminal Revision No.11/2019, whereby learned Sessions Judge rejected the applicant's revision and affirmed the order dated 21.02.2019 passed by the learned Judicial Magistrate First Class, Nagod, District Satna in Cri. Case No.255/2018, whereby learned JMFC rejected the applicant'™s application filed under Section 437 (6) of the Cr.P.C. for releasing him on bail.

Brief facts of the case which are relevant for the disposal of this petition are that the applicant is facing trial in Criminal Case No.255/2018 which is pending before Judicial Magistrate First Class, Nagod, District Satna. In that case, learned Judicial Magistrate First Class vide order dated 25.08.2018 framed the charge against the applicant for the offence punishable under Section 34 (2) & 42 of the M.P. Excise Act and fixed the case for prosecution evidence on 07.09.2018 and thereafter learned trial Court again gave various dates viz 17.09.2018, 29.09.2018 and 12.10.2018 for the same purpose, but somehow trial could not be concluded till 14.11.2018, so applicant filed an application under Section 437 (6) of Cr.P.C. before the trial Court praying therein that since he had been in custody during all this period and the trial could still not be concluded, hence he be released on bail.

Learned Judicial Magistrate First Class rejected the applicant's application vide order dated 14.11.2018. Against which applicant filed Criminal Revision and the same was dismissed by 1st Additional Sessions Judge, Nagod, District Satna vide order dated 26.11.2018. Being aggrieved from that order, applicant filed M.Cr.C.No.50262/2018 which was allowed by this Court vide order dated 28.01.2019 and the case was remanded back to the learned Additional Sessions Judge with the direction to pass a reasoned order after hearing both the parties. Thereafter, the learned Additional Sessions Judge, Satna again remanded the case to the trial court. On that trial Court again rejected the applicant's application vide order dated 21/02/2019 against which applicant filed Criminal Revision No.11/2019 which was rejected by Third ASJ Nagod, District Satna vide order dated 05.04.2019. Being aggrieved from that order, applicant has preferred this petition.

Learned counsel for the applicant submitted that the applicant is in custody since 11.05.2018 and learned trial Court framed the charge against the applicant on 25.08.2018 and thereafter fixed the case for the first time for prosecution evidence on 07.09.2018 and till date the prosecution could not examine all prosecution witnesses and thus the trial could not be concluded. He further submitted that since the trial could not be concluded within 60 days from the first date of recording of evidence, therefore, under the mandatory provisions of Section 437 (6) of Cr.P.C. the applicant deserves to be enlarged on bail.

Learned counsel for the State opposed the prayer and submitted that 4410 bulk liters and 5580 liters of country made liquor was seized from the possession of the applicant, so looking the gravity of the offence learned Judicial Magistrate First Class did not commit any mistake in rejecting applicant's application.

This Court has gone through the record and arguments put forth by the learned counsel for both the parties.

It appears from the record that the learned trial court rejected the applicant's application on the basis that if the applicant is released on bail then he will again commit the offence and learned ASJ rejected the applicant's application on the ground that other offences are also registered against the applicant. In this regard learned ASJ also placed reliance on the judgement of Division Bench of this Court passed in the case of Devraj Maratha @ Dillu v. State of Madhya Pradesh reported in 2018 (2) MPLJ (Cri) 386. But the reasons assigned by the trial court as well as by the revisional court for rejecting the applicant's application do not appear to be correct.

Division Bench of this Court in the case of Devraj Maratha @ Dillu v. State of Madhya Pradesh (Supra) held "while considering the bail application filed under section 437(6) of Cr.P.C., the Magistrate is vested with full power to take into consideration - (i) the nature of allegations; (ii) whether the delay is attributable to the accused or to the prosecution; and (iii) criminal antecedents of the accused or any other justiciable reason, while refusing to grant bail".

From the above decision, it does not imply that the accused who has a criminal past, will not be released on bail under Section 437(6) of Cr.P.C. in any case related to the offence punishable under section 34(2) of M.P. Excise Act. it only appears from the above mentioned judgement that at the time of considering the bail application of an accused under Section 437(6) of the Code, four factors i.e., (i) the nature of allegations; (ii) whether the delay is attributable to the accused or to the prosecution (iii) criminal antecedents of the accused and (iv) any other justifiable reason, will be taken into the consideration, in which the criminal past of the accused is one of the factors and not the sole one.

In this case, the applicant is facing trial for the offence punishable under Section 34 (2) of the M.P. Excise Act in which the maximum sentence is prescribed three years. There is no evidence on record that the applicant had earlier also 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 justiciable reason is mentioned by the learned ASJ in his impugned order for rejecting the applicant's application. Learned ASJ only on the ground that other offences are also registered against the applicant, rejected the applicant's application without considering the other factors i.e., (i) the nature of allegations; (ii) whether the delay is attributable to the accused or to the prosecution or whether there is any other justiciable reason on record to reject the applicant's application.

Even in the report produced by the prosecution it is clearly mentioned that the applicant has no criminal past. Which shows that learned ASJ mentioning wrong reason that applicants had criminal past rejected the applicants applications. Which is not expected from the judge.

It is clear from the record that the said criminal case was first fixed for recording prosecution evidence on 25.08.2018 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 evidence and in case the accused is in custody and trial Court fails to conclude the trial within the aforesaid period, it is trial Court's duty to release the accused. The case was first fixed for recording prosecution evidence on 25.08.2018 and the trial is pending as yet and trial court has failed to conclude the trial within the stipulated period.

Division Bench of this Court in the case of Devraj Maratha @ Dillu v. State of Madhya Pradesh (Supra) also held " 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."

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., 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 Jitendra Jaiswal be released on bail in aforesaid crime subject to his furnishing a personal bond in the sum of Rs.10,000/- (Rs. Ten Thousand) with one surety of Rs.10,000/- (Rs. Ten Thousand) 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.

Certified copy as per rules.