Sujay Chatterjee @ Nigam Panda vs State Of Chhattisgarh

This Cr.M.P. is directed against the impugned order passed by the learned Sessions Judge, Raigarh (C.G.) dated 02.09.2021 affirming the order passed by the Judicial Magistrate First Class, Raigarh (C.G.) rejecting the application under Section 437(6) of the Code of Criminal Procedure, 1973 preferred by the petitioner finding no merit.

Petitioner is facing trial before the trial court under Sections 467, 468 & 471 of the Indian Penal Code. The charge-sheet was filed against the petitioner before Judicial Magistrate First Class on 22.02.2021, learned trial court framed charges against the petitioner on 10.03.2021 and trial was fixed for prosecution evidence and on 13.08.2021, petitioner filed application under Section 437(6) of Cr.P.C. before the learned Judicial Magistrate First Class, Raigarh stating inter alia that though charge was framed against him on 10.03.2021 and case was fixed for prosecution evidence on 24.03.2021, 03.04.2021, 15.06.2021, 25.06.2021, 09.07.2021, 22.07.2021, 29.07.2021 and 12.08.2021, but there is no substantive progress in the trial and it could not be concluded within the period of sixty days as prescribed under Section 437(6) of the Code of Criminal Procedure, 1973. The said application was rejected on 13.08.2021 by the learned Judicial Magistrate First Class. Thereafter, the petitioner preferred revision against that order before the Revisional Court and the Revisional court by the impugned order has dismissed the revision against which the petition has been preferred stating that though sixty days has already been expired from 10.03.2021 the first date i.e. 24.03.2021, the case was fixed for recording of evidence of prosecution therefore, both the courts below has committed error in not granting bail under Section 437(6) of the Code of Criminal Procedure, 1973, the impugned order deserves to be set aside and he be released on bail extending the benefit of Section 437(6) of the Code of Criminal Procedure, 1973.

Mr. Krishna Tandon, learned counsel for the petitioner, submits that the impugned order passed by learned Sessions Judge is against the well-settled principle of law prescribed under Section 437(6) of Code of Criminal Procedure. Learned courts below failed to appreciate the fact that petitioner is in jail since 29.11.2020 till then not even a single witness has been examined by the court below, the learned court below contended in the order sheets that due to COVID-19 pandemic, the trial has been delayed, but even taking the reason of delay due to COVID-19 pandemic consideration, then also the trial has not been started yet, and as per Section 437(6) of Cr.P.C. the petitioner is liable to be granted bail, which is his Constitutional Right. Learned court below mentioned in its order sheets that there are overall 1228 cases pending before the Judicial Magistrate First Class, Raigarh (C.G.), due to that petitioner's trial process is taking time & except framing of charge, no material progress has taken place before the court below, till date, not a single witness has been examined, whereby the prosecution has cited as many as 11 witnesses. Petitioner has filed order-sheet of the criminal case which shows that the case was fixed for recording of evidence on 24.03.2021 & till date, no prosecution witnesses have been examined. Order-sheets reflect that the evidence could not be recorded because of adjournment sought by the prosecution and non-availability of witnesses, therefore, the petitioner may be granted bail for delay in trial. He further submits that the offence registered against the petitioner is triable by the Judicial Magistrate First Class and as per Section 437(6), he is entitled for bail. Reliance has been placed in the case of Suneshwar Singh Thakur Vs State of Chhattisgarh in CRMP No. 1447/2016 vide order dated 10.03.2017.

On the other hand, learned State counsel would oppose the application filed by the petitioner and submits that petitioner's bail application has already been rejected on merits. His application under Section 437(6) of the Code of Criminal Procedure, 1973 has rightly been rejected by the two courts below. He has placed reliance in the case of Atul Bagga v. State of Chhattisgarh reported in 2010(1) MPHT 65 (CG):2010 Cri. L.J. 508.

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

In the case of Atul Bagga v. State of Chhattisgarh reported in 2010(1) MPHT 65 (CG):2010 Cri. L.J. 508, this Court has held in para 11 as under:-

“11. xxx xxx xxx

(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 the 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, the seriousness of the offence for which the accused has been charged, the overall impact of the offence and the release of the person accused of such offence on the society, the possibility that the accused, if released on bail is likely to influence the witnesses or tamper with the prosecution evidence, the fact that other co-accused are absconding would be relevant factors for refusing bail under sub-section (6) of Section 437 of the Code.

The Madhya Pradesh High Court in the matter of Devraj Maratha @ Dillu v. State of M.P. reported in 2018 (2) MPLJ (Cri) 386 has held in para 21 as under:-

“21. In view of preceding analysis and enunciation of law governing the field, the reference is answered as under:

(a) Provision envisaged in sub-section (6) of Section 437 of the Code is mandatory in the sense that the Magistrate is required to exercise his power of granting bail after the statutory period, if the trial is not concluded within that, however, passing of an order under Section 437(6) of the Code is mandatory, but not grant of bail.

(b) 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.”

It is clear from facts of this case that on 24.03.2021 witnesses Ved Prakash Patel and his daughter Komalika Patel were present before the Court but counsel for the petitioner prays for time to cross-examine and the case was adjourned for next date, therefore, it is not the case where only prosecution is responsible for delay in evidence. The two courts below have concurrently found that the petitioner is not entitled for the benefit of Section 437(6) of the Code of Criminal Procedure, 1973. Such a finding recorded by two courts below is purely discretionary order after considering the nature of allegations and attending facts and circumstances of the case which is neither perverse nor contrary to the record warranting interference in exercise of jurisdiction under Section 482 of the Code of Criminal Procedure, 1973. Thus, this petition under Section 482 of Cr.P.C. deserves to be and is accordingly dismissed. However, the learned Magistrate is directed to conclude the trial expeditiously preferably within six months from the date of receipt of a copy of this order.