Tarkeshwar Goraknath Pandey vs State of Maharashtra

Bhatia J.H., J.—Applicant seeks to be released on bail in Crime No. 184 of 2010 registered at Bhayander Police Station for the offences under sections 420, 467, 468, 471 read with section 34 of the I.P.C. Offence was registered on the basis of report lodged by Arun Ganeshlal Jain. As per the report, the present applicant and his wife had entered into an agreement to sell flat No. 202/A wing, Second Floor, Chadrakant Residency, 150 road, near Maxus Mall, Bhayandar for a consideration of Rs. 28 lac. Amount was paid to him by cheques and transfer of the money from the account of the complainant to the account of the accused. Accused also executed sale deed in favour of the first informant and when he went to take possession, flat was lying vacant. First informant put his lock. Two days after that when the first informant went there he found that one Parvez Siddiqui was in occupation of the flat and on enquiry he told that he had purchased the said flat from the present applicant. During the investigation it was revealed that the present applicant had sold the same flat to four different parties under registered sale deeds, therefore, applicant was taken in custody on 8.2.2010. After investigation, charge-sheet was filed. He was never granted bail.

The learned Counsel for the applicant contends that on 28.4.2010, charge was framed against the present applicant and two other accused and the matter was adjourned to 10.5.2010 for recording of evidence with the direction that summons be issued to the witnesses. It appears that on 10.5.2010 witnesses were present, however, on that date adjournment was sought by the accused persons and, therefore, matter was adjourned to 18.5.2010. On that day again accused made a request for adjournment. On 1.6.2010 applicant was not produced from jail. On 14.6.2010 witnesses were absent. After some adjournments on 5.8.2010 accused persons engaged an advocate to defend them. On 17.8.2010 witnesses were present but they were not examined. Matter was adjourned on several occasions from 17.8.2010. The first informant Arun was present on number of dates but every time matter was adjourned without recording his evidence. During the trial, the accused No. 3, who is wife of the present applicant died. According to the learned Counsel for the applicant so far the trial has not commenced. However, after taking instructions, the learned APP makes a statement that in January, 2011 examination-in-chief of the first informant was recorded and now it is fixed for cross-examination on 22nd February, 2011.

The learned Counsel for the applicant contended that in view of the provisions of section 437(6) when an accused in non bailable case triable by the Magistrate is in jail and trial is not concluded within sixty days from the first date fixed for taking evidence, accused is entitled to be released on bail. Section 437(6) reads as follows:

(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.

In view of these provisions, it is clear that if the trial of non bailable offence triable by the Magistrate is not concluded within a period of sixty days from the first date fixed for taking evidence and accused is continuously in jail for whole of the said period, he is entitled to be released on bail unless for reasons to be recorded in writing, the Magistrate otherwise directs.

In the present case, even though first date fixed for calling the witnesses was 10.5.2010, it appears that case was adjourned for one or the other reasons including applications made by the accused for adjournment possibly because the accused wanted to engage a lawyer. On 5.8.2010 they engaged advocate for the first time and then case was fixed for recording evidence on 17.8.2010. In view of the above circumstances period from 10.5.2010 to 17.8.2010 may be excluded for the purpose of calculating period of 60 days under this sub-section. Record reveals that from 17.8.2010, no adjournment was sought by the accused. Case was not adjourned because of any reason, which could be attributed to any of the accused persons. It appears that on 17.8.2010, when the matter was first called, no witness was present. However, later on witness appeared and he was asked to come on next date, i.e., on 23.8.2010. As the accused/applicant is continuously in jail since 17.8.2010, when the case was fixed for evidence but still the trial has not been concluded without any fault on his part, under the provisions of section 437(6) Cr.P.C. he is entitled to be released on bail, unless, of course, bail is refused to him for the reasons recorded by the Magistrate. No valid reasons are on record due to which bail could be refused to him particularly when period of six months has passed after the first date when the case was fixed for recording evidence, even excluding earlier period of three months when the adjournments were sought by the accused.

The learned APP contended that accused had committed serious offence of cheating four different parties. It is difficult to disagree with her on this point but still the fact remains that all the offences are non bailable and they are triable by the Magistrate and provisions of section 437(6) are applicable to them. Therefore, merely because offences are serious, bail can not be refused to him. Many a times it is found that in non-bailable offence triable by the Magistrate, accused are refused bail and the cases are fixed for trial but after fixing the matter for trial, cases are prolonged. Many a times accused are not produced from jail. Many a times prosecution fails to bring witnesses and on several occasions, Court may not be in a position to take up the matter for recording evidence due to the pendency of other cases. Due to that provisions of section 437(6), which have been put in Cr.P.C. to protect the fundamental right of the accused to life and liberty, are either forgotten or given a go bye. The importance of section 437(6) cannot be over emphasised. All the concerned, including police authorities, public prosecutors and the learned Magistrates have to bear in mind that this is very important right conferred on the accused in the jail so that the accused should not be required to remain in custody indefinitely in the cases triable by the Magistrates and, therefore, such cases should be taken up promptly and disposed off at the earliest and preferably within the period specified in law. For the aforesaid reasons, accused be released on his executing PR of Rs. 25,000/- with one or two sureties in the like amount with condition that he shall not tamper with the prosecution evidence and shall attend the Police Station on every Monday between 5 and 7 p.m. till the end of the trial.

Copy of this order be circulated among all the Chief Judicial Magistrates and the Judicial Magistrates in the State.