Lal Sahu vs State of Chhattisgarh

Hon''ble Mr. M.M. Shrivastava, J.—Heard on admission.

This petition u/s 482 of Cr.PC has been filed by the petitioner aggrieved by order dated 30-9-2011 in Criminal Revision No. 15/11 affirming order dated 20-9-2011 passed by the Trial Court rejecting the application for grant of bail u/s 437 (6) of the Cr.PC.

Learned Counsel for the petitioner submitted that the case was first fixed for recording prosecution evidence on 28-6-2011. However, the trial has not been concluded within a period of 60 days. Therefore, the petitioner is entitled to be released on bail. Learned Counsel for the petitioner submits that the learned Trial Court has rejected the application illegally without considering that the trial could not be concluded for various reasons which are not attributable to lapses on the part of the petitioner/accused and the case was adjourned on various dates fixed for recording evidence of the prosecution, because of failure of the prosecution in many ways. He submits that in these factual premises, the rejection of the application only on the ground of gravity of offence is illegal and unsustainable in law. In support of his submission, learned Counsel placed reliance on the decisions in the case of Haricharan Ramteke Vs. State of Chhattisgarh, 2001(2) M.P.H.T. 51 (CG) = 2002 Cri. LR 46 (MP), Smt. Godawari Bai and Others Vs. State of Chhattisgarh, and Ram Kumar @ Raj Kumar Rathore Vs. State of M.P., Weekly Notes 160.

On other hand, learned Counsel for the State submitted that the petitioner is not entitled to release as a matter of right only on the ground that the trial could not be concluded within a period of 60 days from the first date fixed for taking evidence. He submits that the Magistrate is competent to reject the claim, if for reasons to be recorded in writing, it directs, otherwise. Therefore, the power is discretionary in nature. Learned Counsel for the State further submits that the application of the petitioner has been rejected by the Magistrate by recording reasons which cannot be said to be irrelevant or perverse or against the spirit of the provisions contained u/s 437 (6) of Cr.PC. He further submitted that the petitioner is facing prosecution of grave offences and the learned Magistrate while rejecting the application has taken into consideration that on the first date fixed for recording evidence, the case was adjourned and the prosecution witnesses could not be examined on account of application filed by co-accused and again on 29-6-2011, the prosecution witnesses could not be examined because again application was filed by one co-accused. Thereafter, the summons was not issued to the prosecution witnesses due to the aforesaid application pending, which was finally decided on 21-7-2011 where after, the case was fixed for recording evidence of the prosecution but prosecution witnesses could not be examined as the co-accused was not produced from jail.

The petitioner is facing trial for alleged commission of offence u/s 409 read with Section 34 of IPC in Criminal Case No. 178/11 pending before the Judicial Magistrate First Class, Rajim. The petitioner applied for grant of bail by moving the application u/s 437 (6) of the Cr.PC on the ground that the trial has not been concluded within a period of 60 days from the first date, fixed for taking evidence.

Mandate of sub-section (6) of Section 437 of the Code requires the Magistrate to release the person accused of any non-bailable offence triable by a Magistrate, on bail where the trial of such person is not concluded within a period of 60 days from the first date fixed for taking evidence in the case unless for reasons to be recorded in writing or the Magistrate otherwise directs. Thus, the provision of law referred to hereinabove, empowers the Magistrate to direct otherwise, meaning thereby that even if the trial is not concluded within a period of sixty days as stipulated, the accused person, if he is in custody, may not be released if the Magistrate otherwise directs. However, the statute imposes an important rider on such power of the Magistrate, i.e., that the Magistrate is required to record reasons in writing in respect of such direction otherwise.

In the case of Atul Bagga Vs. State of Chhattisgarh, , this Court considered the scope, extent and object of provisions contained in Section 437 (6) of the Code and held:--

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Sub-section (6) of Section 437 of the code carves out an exception to the provision contained in clause (i) of sub-section (1) of Section 437 of the Code and reads as follows:--

When bail may be taken in case of non-bailable offence.-

(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.

It would, thus, appear that under the first limb of sub-section (6) of Section 437 of the Code where the trial of a person accused of any non-bailable offence is not concluded within a period of 60 days from the first date fixed for taking evidence in the case, the law mandates that 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. The second limb of sub-section (6) of Section 437 of the Code carves out an exception and empowers the Magistrate to refuse bail for reasons to be recorded in writing. It is, therefore, open to a Magistrate to refuse bail under sub-section (6) of Section 437 of the Code where the Magistrate assigns reasons in writing which arc amenable to scrutiny by a Superior Court for examining whether the Magistrate was justified for reasons recorded by him in writing in refusing bail under sub-section (6) of Section 437 of the Code. If the reasons assigned by (he Magistrate justify refusal of bail and cannot be termed arbitrary then the order refusing bail by the Magistrate under sub-section (6) of Section 437 of the Code would be in accordance with law and not open to interference in revision.

The question that arises for determination is as to what factors should weigh with the Magistrate while refusing grant of bail under sub-section (6) of Section 437 of the Code. In my considered opinion, apart from the gravity of offence and the quantum of punishment, one or more of the following factors, among others may weigh with the Magistrate while refusing bail:-

(a) the overall impact of the offence and the release of the person accused of such offence on the society,

(b) the possibility of tampering of evidence by the accused,

(c) the possibility of the accused absconding if released on bail, and lastly,

(d) the delay in conclusion of the trial within a period of 60 days if attributable to the accused.

Thus, for proper and relevant reasons, the Magistrate has jurisdiction, not to release the accused undergoing trial only on the ground that the trial could not be concluded within a period of 60 days. The relevant considerations which should weigh in the mind of the Court have been laid down in the case of Atul Bagga (supra), mentioned hereinabove.

If the order passed by the Magistrate and the Revisional Court is scrutinized by applying the relevant provisions and aforesaid principles, it would be revealed that the learned Magistrate has rejected the application for release by recording reasons in writing which cannot be said to be wholly irrelevant or so outrageous as to warrant interference by this Court in exercise of powers u/s 482, Cr.PC. The order passed by the Magistrate is a detailed one. It is reflected from the said order that the learned Magistrate took into consideration the initial dates of hearing, when the case was listed for recording evidence of the prosecution witnesses and the witnesses had also appeared, they could not be examined because some applications were filed on behalf of the co-accused, because of which, the matter remained pending until those applications were decided on 21-7-2011. It has also been observed that the records of the case were requisitioned by the Additional Sessions Judge on 23-8-2011 and were returned on 8-9-2011. It has also been observed on 8-9-2011, the case was adjourned as the lawyers abstained from work. The learned Magistrate has also taken into consideration that though the case was fixed for recording evidence on 3rd, 4th and 5th of August, 2011 and the prosecution witnesses had appeared, the co-accused could not be produced before the Court from Jail.

The Trial Court, taking into consideration the aforesaid circumstances and taking into consideration the gravity of offence and that the petitioner is accused of having committed an offence in relation to huge amount of public fund and that in the event of he being released on bail, he being in an influential position may tamper with the prosecution witnesses, has rejected the application. The aforesaid order has been affirmed by the Revisional Court. In the considered opinion of this Court, the reasons which have been assigned are relevant in the light of the order passed in the case of Atul Bagga (supra).

In the case of Haricharan (supra), the application u/s 437 (6) was allowed as the reason assigned for rejecting the application by the Trial Courts were that the Courts are loaded with work and further that witnesses present in the Court could not be examined because of the non-availability of the experts report and the accused had remained in jail for almost one year. In the case of Smt. Godawari Bai and others (supra), the application u/s 437 (6), Cr.PC was allowed taking into consideration that the maximum sentence that could be awarded was three years and the persons were in jail for one year. In the case of Ram Kumar (supra), the application was allowed as the reasonings of the Courts below were simply to the effect that if the petitioner is released then it would be doubtful whether he would attend the Court on each and every date fixed by the Court. Therefore, the aforesaid decisions are distinguishable on facts.

In the result, I do not find any illegality in the orders passed by the Courts below. The petition is therefore dismissed.