Purshottam vs State Of Madhya Pradesh

This petition has been filed under Section 482 of the Cr.P.C. against the order dated 05.03.2019 passed by the learned Second Additional Sessions Judge, Tikamgarh in Criminal Revision No.30/2019, whereby learned Additional Sessions Judge rejected the applicant's revision and affirmed the order dated 26.02.2019 passed by the learned Chief Judicial Magistrate, Tikamgarh in Cri. Case No.1499/2018, whereby learned CJM rejected the applicant's application filed under Section 437 (6) of the Criminal Procedure Code for releasing him on bail.

Brief facts of the case which are relevant for the disposal of this petition are that on 01.08.2018 on the information of informant, Excise Sub Inspector Circle Tikamgarh, raided Dayaram's house situated at village Purani Tehli Tikamgarh and seized 143.82 bulk litres of country-made liquor from applicant's possession who was present in the house at the time of raid and also arrested the applicant on the spot. Excise Sub Inspector also registered Crime No.136/2018 for the offence punishable under Section 34 (2) of M.P. Excise Act and filed the complaint before Chief Judicial Magistrate Tikamgarh, against the applicant. On that complaint, Criminal Case No.1499/2018 was registered against the applicant which is pending before Chief Judicial Magistrate, Tikamgarh. In that case, learned Chief Judicial Magistrate vide order dated 20.12.2018 framed the charge against the applicant for the offence punishable under Section 34 (2) of the M.P. Excise Act and fixed the case for prosecution evidence for the first time on 26.12.2018 and thereafter learned trial Court again gave various dates viz 08.01.2019 for the same purpose, but somehow trial could not be concluded till 26.02.2019, so applicant filed an application under Section 437 (6) of Cr.P.C. on 26.02.2019 before the trial Court praying therein that since he has been in custody during all this period and the trial could still not be concluded, he be released on bail.

Learned Chief Judicial Magistrate rejected the applicant's application vide order dated 26.02.2019 against which applicant filed Criminal Revision and the same was dismissed by Second Additional Sessions Judge, Tikamgarh vide order dated 05.03.2019. Being aggrieved from that order applicant has preferred this petition.

Learned counsel for the applicant submitted that the applicant is in custody since 02.08.2018 and learned trial Court framed the charge against the applicant on 20.12.2018 and thereafter fixed the case for prosecution evidence for the first time on 26.12.2018 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 four other cases are also registered against the applicant out of which three relate to M.P. Excise Act which shows that applicant repeatedly committed a crime punishable under M.P. Excise Act. So, learned CJM did not commit any mistake in rejecting the 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 the alleged offence was grievous and there was no sufficient ground to acquit the accused and learned ASJ rejected the applicant's application merely on the ground that four other offences were 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 four other offences were 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. Likewise, the strength of the evidence produced by the prosecution during the trial of the case ought not to be a consideration while deciding the application u/s. 437(6) of the Code.

It is alleged that four other offences are also registered against the applicant but out of these four offences, two are of the year 2014 and out of them one of the crime relate to Section 13 of public Gambling Act. Only one offence is registered under Section 34 (2) of M.P. Excise Act. Prosecution did not even file a copy of the charge-sheets of that offences to show whether prosecution had filed charge-sheet against the applicant in those offences and on what basis did the police implicate applicant in these crimes. Learned trial court as well as the revisional court without considering all these facts, rejected the applicant's application.

It is clear from the record that the said criminal case was first fixed for recording prosecution evidence on 26.12.2018 and till date the prosecution has not examined all prosecution witnesses and trial is pending. Provisions of Section 437 (6) 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 26.12.2018 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 Purshottam 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.

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