Jharkhand High Court
Robin Ojha vs The State Of Jharkhand on 13 October, 2017
Equivalent citations: 2018 (3) AJR 88
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 2449 of 2017
Robin Ojha .... Petitioner
Versus
The State of Jharkhand ... Opposite Party
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CORAM: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Kaushik Sarkhel, Advocate
For the State : Mr. Shekhar Sinha, APP
Order No. 05 Dated 13th October, 2017
Heard Mr. Kaushik Sarkhel, learned counsel for the petitioner and
Mr. Shekhar Sinha, learned A.P.P. for the State.
In this application, the petitioner has prayed for quashing the
order dated 12.07.2017 passed in connection with Nirsa P.S. Case No.
299 of 2014 (G.R. No. 3281 of 2014) by learned Judicial Magistrate,
Dhanbad whereby the application preferred by the petitioner u/s 437(6)
of the Code of Criminal Procedure has been rejected.
It appears that the petitioner has been implicated for committing
an offence u/s 409 and 420 I.P.C. The petitioner was taken into custody
and in terms of Section 437(6) Cr.P.C. an application was made for his
release which however was rejected vide impugned order dated
12.07.2017.
Primary consideration which has been made by the learned court below while refusing to grant the benefit of Section 437(6) Cr.P.C. is the allegation made against the petitioner with respect to enticing away the investors with promise for a lucrative return and subsequently the petitioner and others had misappropriated the deposited amount and had fled by closing the company.
The basic tenets of Section 437(6) has not been considered by learned Judicial Magistrate.
Before deliberating on the impugned impugned order, it would be necessary to have a glance at Section 437(6) of Code of Criminal Procedure, which reads as follows:-
437 (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, 2. unless for reasons to be recorded in writing, the Magistrate otherwise directs.
Sub Section 6 of Section 437 virtually consists of two parts. If first part is read in isolation, it would mean that an accused accrues an indefeasible and incorrigible right for being released on bail if in a case triable by a Magistrate, the trial of a person accused of a non bailable offence is not concluded within a period of 60 days from the first date fixed for taking evidence of the accused, such person if he is in custody during whole of the said period shall be released on bail. However, a cog in the wheel has been put in the said provision to the effect that such right cannot be by way of a mandatory right as the Magistrate for reasons to be recorded in writing may otherwise direct. In the judgment passed in Criminal Reference No. 2 of 2011 while considering the various parameters for grant of bail or for that matter refusal of bail un- der section 437(6) of CrP.C., it was held that the provisions are not mandatory in nature. Various factors, which must weigh in the mind of the Magistrate have been enumerated in the judgment under reference and the same reads as under:-
"Q-3 The Magistrate has option/discretion to refuse bail by assigning reasons therefor. The parameters, factors, circumstances and grounds to be considered by Magistrate vis-à- vis such application preferred by the accused under Section 437(6) of the Code may be:
(1)Whether the reasons for being unable to conclude trial within sixty days from the first date fixed of taking evidence, are attributable to the accused?
(2) Whether there are any chances of the accused tampering with evidence or causing prejudice to the case of the prosecution in any other manner?
(3) whether there are any chances of abscondence of the accused on being bailed out?
Whether accused was not in custody during the whole of the said period?
If the answer to any one of the above referred fact situations or similar fact situations is in affirmative than that would work as a fetter on the right that accrues to the accused under first part of sub section (6) of Section 437 of the Code".
One of the parameters, which are also to be considered, are whether there are chances of the accused tampering with the evidence or causing prejudice to the case of the prosecution in any other manner.
3.In the backdrop of the judicial pronouncement, as stated above, this Court has to see as to whether the impugned order passed by the learned trial court is in consonance or is in conformity with the provisions of Section 437(6) of the Cr.P.C.
The ground which has been taken by learned Magistrate for refusing to grant the benefit of Section 437(6) Cr.P.C. is not germane for not considering the application under the said provision. No doubt it is true that the accused does not have an indefeasible right for being released on bail, but at the same time learned Magistrate is required to give reasons in rejecting an application u/s 437(6) Cr.P.C.
Considering such fact situation, the impugned order dated 12.07.2017 passed in connection with Nirsa P.S. Case No. 299 of 2014 (G.R. No. 3281 of 2014) by learned Judicial Magistrate, Dhanbad whereby the application preferred by the petitioner u/s 437(6) of the Code of Criminal Procedure has been rejected, being not in accordance with law, is hereby quashed and set aside.
The learned trial court is directed to release the petitioner on bail subject to such terms and conditions it may so impose.
This application stands allowed.
Let this order be sent through Fax at the cost of the petitioner.
(Rongon Mukhopadhyay, J) MK