Sunil Jaiswal vs State Of Madhya Pradesh @RESPONDEN

This petition has been filed under Section 482 of the Cr.P.C. against the order dated 19.05.2020 passed by the learned First Additional Sessions Judge, Rewa, Distt. Rewa (MP) in Criminal Revision No.52/2020, whereby learned Additional Sessions Judge rejected the applicant's revision and affirmed the order dated 11.05.2020 passed by the learned Judicial Magistrate First Class, Rewa in Cr.Case No.3720/2019, whereby learned JMFC rejected the applicant's application filed under Section 437(6) of the Cr.P.C. for releasing him on bail.

It appears from the record that the applicant is facing trial in Cr.Case No.3720/2019 pending before the Judicial Magistrate First Class, Rewa (MP) for the offence punishable under Sections 34 (2) of M.P. Excise Act. In that case, learned Judicial Magistrate First Class vide order dated 23.01.2020 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 the first time for prosecution evidence on 05.02.2020 and thereafter, learned trial Court again gave various dates viz 07.03.2020, 12.03.2020, 19.03.2020, 26.03.2020, 28.03.2020 and 11.05.2020 for the same purpose, but somehow trial could not be concluded till 11/05/2020, 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, Rewa rejected the applicant's application vide order dated 11.05.2020. Against that order, applicant preferred Criminal Revision No.52/2020 which was also dismissed vide order dated 19/05/2020. Being aggrieved from that order, the applicant preferred this petition.

Learned counsel for the applicant submitted that the applicant has been in custody since 06.11.2019 and learned trial Court framed the charge against the applicant on 23.01.2020 and thereafter, fixed the case for the first time for prosecution evidence on 05.02.2020 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.

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

I t appears from the record that the learned trial Court rejected the applicant's application on the basis that 270 bulk litres of country made liquor has been seized from the possession of the applicant and the alleged offence was grievous in nature. Due to COVID-19, trial could not be concluded and learned ASJ also rejected the applicant's application on the same ground. 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, 2018 (2) MPLJ (Cri.) 386 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."

The Division Bench further held:-

"19. 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."

From the above-mentioned judgment of the Division Bench of this Court it appears that if a trial for a non-bailable offence which is triable by the Magistrate, is not concluded within a period of sixty days from the date fixed for evidence, ordinarily accused person should not be kept in jail. Although at the time of considering the bail under Section 437 (6) of CrPC the Court has the power to take into consideration the criminal antecedent of the applicant, the nature of allegations or any other justifiable reason while refusing to grant bail only as a ground and not a sole ground.

I n 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 the applicant caused delay in trial. No other justifiable reason is mentioned by the learned Additional Sessions Judge in his impugned order for rejecting the applicant's application. Both the Courts below rejected the applicant's application only on the basis that 270 bulk litres of country made liquor has been seized from the possession of the applicant and the alleged offence was grievous in nature, but the said ground cannot be said to be correct for rejecting the applicants' application filed under Section 437(6) of  the Cr.P.C.

It is clear from the record that the said criminal case was first fixed for recording of prosecution evidence on 05.02.2020 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 of evidence and in case the accused is in custody and trial Court fails to conclude the trial within the aforesaid period, it is the trial  Court's duty  to release the accused. The case was  first fixed for recording of prosecution evidence on 05.02.2020 and the trial is pending as yet and trial Court has failed to conclude the trial within the stipulated period.

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 Sunil 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.

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