Rajiv Bhosle vs State Of Chhattisgarh

Heard.

Petitioner has preferred this petition against the impugned order passed by learned 10th Additional Sessions Judge, Raipur, District-Raipur (C.G.)

dated 05.10.2019, in Criminal Revision No. 611/2019 affirming the order of Judicial Magistrate First Class, Raipur, passed in Criminal Case No.

2110/2018 dated 19.09.2019 rejecting an application under Section 437(6) of the Code of Criminal Procedure filed by the petitioner.

Brief facts of the case are that, FIR No. 42/2018 is registered against the petitioners under Section 420 r/w Section 34 of IPC and petitioners are in

custody since 08.02.2018. After completion of investigation charge-sheet was filed and charges were framed against the petitioners on 27.02.2019 and

case was fixed for prosecution evidence on 13.03.2019. On 17.09.2019 the petitioners filed an application under Section 437(6) Cr.P C. which was

dismissed by the learned Judicial Magistrate First Class on 19.09.2019, against this order petitioners filed revision petition before Additional Sessions

Judge, Raipur which was also dismissed by the learned Additional Sessions Judge, Raipur order dated 05.10.2019 passed in Criminal Revision No.

611/2019. Hence, this petition under Section 482 of Cr.P.C. filed by the petitioners.

Learned counsel for the petitioners submits that both the orders of the Court below are illegal, unsustainable and liable to be set aside. The

complaint clearly indicate that matter was purely of civil nature and do not attract inference of Section 420 or any other offences under IPC. He

further submits that the learned Sessions Judge could not justify as to how and in what manner the delay in the trial can be attributed to the petitioner.

The reasons given by the learned Sessions Judge are improbable and in no way connect the petitioner for the delay in the trial. He next submits that

the learned Judge failed to observe that presumption of innocence is the privilege of every accused. He also submits that both the Courts below have

committed legal error in not giving the benefit of Section 437(6) of the Code of Criminal Procedure, to the petitioner as charge under Section 420 of

IPC was framed against the petitioner on 27.02.2019 and the date was fixed on 13.03.2019 for recording of the prosecution evidence and the sixty

days' period has already expired on 17.09.2019. He has placed reliance upon the decisions of this Court in the matters of Suneshwar Singh Thakur Vs.

State of Chhattisgarh passed in CRMP No. 1447/2016 on 10.03.2017, Manohar Lal Vs. State of Chhattisgarh passed in CRMP No. 937/2018 on

19.11.2018 and Ghasiram Yadu and Another Vs. State of Chhattisgarh reported in 2019 LawSuit(Chh) 178.

Learned State counsel supported the impugned orders and submitted that the petitioners regular bail application has already been rejected on merits.

Relief under this Section is purely discretionary and petitioners are not entitled for any relief. He has placed reliance upon the decision of this Court in

the matter of Atul Kumar Shrivastava Vs. State of Chhattisgarh passed in CRMP No. 2638/2019 on 20.05.2020.

Heard counsel for both the parties and perused the material available on record.

It is not in dispute that the petitioners are languishing in jail since 08.02.2018 and it is clear from order-sheets that except framing of charges no

other material of progress has taken place during trial. The prosecution has cited as many as 44 witnesses against the petitioners, it is also clear from

order-sheets that till date, not a single witness has been examined.

Looking to the order-sheets of Criminal Case No. 2110/2018, it is clear that charge-sheet was filed on 06.04.2018 and one accused person was

absconded therefore on 03.12.2018 the case was fixed for presence of absconded accused after that on 03.12.2018, 17.12.2018, 19.12.2018,

06.01.2019, 25.01.2019, 08.02.2019 and 14.02.2019 time was granted for argument before charge. On 27.02.2019 charges were framed and on

13.03.2019 the case was fixed for prosecution witness. Thereafter, till 17.09.2019, fifteen times the case was fixed for prosecution evidence but not a

single witness has been examined.

It would, thus, be seen that for delay in trial, the petitioners are not responsible at all. The petitioners were arrested on 08.02.2018 and when this

petition is filed on 31.01.2020 till date, not a single witness has been examined by the prosecution.

In the matter of Suneshwar Singh Thakur vs. State of Chhattisgarh passed in CRMP No. 1447/2016, this Court observed in para 10 which reads as

under :-

“10. In a series of decisions including decision of this Court in the case of Lal Sahu Vs. State of Chhattisgarh 2012(1) MPHT 67, Haricharan

Ramteke v. State of Chhattisgarh 2001(2) MPHT 51 (CG) : 2002 Cri. LR 46 (MP), Smt. Godawari Bai and Others vs. State of Chhattisgarh 2004(4)

MPHT 5 (CG) : 2004(2) CGLJ 135 and decision of other High Courts cited before this Court, the scope and ambit of provision contained under

Section 437(6) of Cr.P C. has been considered. Broadly speaking while considering application for grant of bail under Section 437(6) of Cr.P C., the

considerations are those which have been laid down by this Court in the case of Lal Sahu (supra) in para 11 which is reproduced herein below :

“11. 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.â€​

In the matter of Manohar Lal & others vs. State of Chhattisgarh 2018 LawSuit(Chh) 1358, this Court observed in para 11 which reads as under :-

“11. In the present case, the reasons assigned by the trial Court vide order dated 04.01.2018 rejecting the application filed under Section 437(6) of

Cr.P.C., affirmed further by the Revisional Court vide order impugned are wholly improper and cannot be held to be sustainable as in all the earlier

occasions, as observed herein above while examining the order sheets of the trial Court, the matter was just adjourned from time to time becasue of

non-appearance of the prosecution and its witnesses. Besides, the prosecution has submitted that list of witnesses for examination of as many as 51

witnesses in order to bring home the guilt of the Petitioners, however, till 11.08.2018, the prosecution has succeeded to examine 8 witnesses only.â€​

In the present case also till date, not a single witness has been examined by the prosecution. Thus, in the facts and circumstances of the case and

that by keeping in mind the object of sub-section (6) of Section 437 of Cr.P C., I am of the view that present is a fit case where the Petitioners are

entitled to be released on bail. Accordingly, the orders passed by the trial Court and the Revisional Court are hereby set aside. The Petitioners are

directed to be released on bail on their furnishing personal bond in the sum of Rs. 2 lac with two solvent sureties each of the like amount to the

satisfaction of the concerned trial Court. On the following conditions:-

(i) that the Petitioners shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the

accusation against them so as to dissuade him/her from disclosing such facts to the Court or to any police officer.

(ii) that the Petitioners shall appear before the concerned trial Court on each and every date given to them; and

(iii) that the Petitioners shall not leave the State without previous permission of the trial Court.

The petition is allowed with the aforesiad conditions. No order as to costs.