Madhya Pradesh High Court
Hyat Mohd. Shoukat vs The State Of Madhya Pradesh on 7 August, 2020
Author: Atul Sreedharan
Bench: Atul Sreedharan
1
HIGH COURT OF MADHYA PRADESH, JABALPUR
M.Cr.C. No.13123/2020
Jabalpur, Dated: 07/08/2020
(Through Video Conferencing)
Mr. Sameer Seth learned counsel for the applicant.
Mr. Utkarsh Agrawal learned Panel Lawyer for the
respondent/State.
This application has been filed on behalf of the applicant under section 439 of the Cr.P.C. for an offence under section 380 of the IPC, registered vide Crime No.405/2016, at P.S. G.R.P, Bhopal.
2. The applicant is in judicial custody since 18 /07/16 in the aforesaid case. The offence he is charged of is Section 380 IPC for which there is no minimum sentence and maximum sentence can extend up to 7 years rigorous imprisonment. It is an offence triable by th e Court of the Judicial Magistrate First Class. It is relevant to state here that this is the first application for grant of bail that has been filed before this Court
3. This Court carefully went through the rejection order dismissing the bail application o f the applicant by the Court of the learned 15 t h ASJ, Bhopal. It is relevant to mention here that the first application for grant of bail was moved before the learned Court below in March 2020, which is a little more than 3½ years after the 2 arrest of the applicant in the aforementioned case, which shows that the applicant may not have had the financial and legal wherewith al of approaching even the District Court on an earlier date. While dismissing the said application vide order dated 6.3.2020, the learned 15 t h ASJ Bhopal observes " वर्त मान प्रकरण में आरोपी पर रे लवे स्टे शन भोपाल में डोरमे ट्री में ठहरे हु ए यात्री का सामान चोरी करने का आक्षे प है . प्रकरण अभी अनु स न्धान की अवस्था में है . " This clearly reveals that the investigation is still in progress against the applicant despite the passage of 3½ years. The other reason which appears to have weighed in the mind of the learned court below is that the applicant is a native of the State of Jammu and Kashmir and that there is another case registered at P.S Pulwama, in Jammu and Kashmir under section 420, 467,468 and 471 IPC. No details of the said case have been reproduced in the order of the learned court below. Further, the learned Court b elow believed the applicant may abscond if enlarged on bail. Thereafter, the present application , being the first application before this Court , has been filed on 20/07/2020.
4. This case was listed on 23 /07/2020 before this Court and the matter was adjourned as the case diary was not available and the same was called for. Thereafter it was 3 listed again on 31/07/2020 when again , the case was adjourned as the case diary was not made available. Today again, the learned counsel for the State has submitted that the case diary is not available. This application is being heard and decided today notwithstanding the absence of the case diary.
5. This case shocks the conscience of this Court and severely indicts the criminal justice administration in our state. Undisputedly, the offence that the applicant was booked for does not have a minimum jail sentence and the maximum sentence does not exceed seven years rigorous imprisonment. The offence is triable by the Court of the Judicial Magistrate First Class (hereinafter referred to as the 'JMFC') and as on date, the applicant has served more than the maximum sentence that the Court of the JMFC can im pose upon him .
6. The first occasion on which the justice administration system of this State failed the applicant was that it did not take into consideration the fact that the investigation against the applicant was not concluded even after a passage of over 3½ years as clearly recorded in the rejection order of the Ld. Court below . This Court , on date does not have the record relating to the remand proceedings of the applicant before the Ld. JMFC's and therefore cannot be critical of the order of remand passed by them or, pass any observation against the Magistrates for mechanically remanding the applicant to 4 judicial custody without applying their mind with the utmost insensitivity , unless this Court goes through the record of the remand proceedings and satisfies itself of lapses on the part of the Magistrates . Calling for the record of the remand proceedings now would be prolonging the incarceration and agony of the applicant. Undoubtedly, Proviso (a)(ii) of Sub-Section (2) of Section 167 Cr.P.C provides for the release of the person where investigation does not conclude within a period of 90 days or 60 days depending upon the nature of the offence, can only be held in further custody where he is unable to furnish bail or does not furnish bail.
7. The second occasion on which the justice administration of the State was further indicted was on account of non-compliance with the provisions of section 436A Cr.P.C where even after the completion of more than one half of the maximum period of imprisonment specified for the offence under section 380 IPC was over, it did not come to the notice of the sentinels of justice, that the applicant ought to have been released on bail mandatorily on his personal bonds with or without sureties. The proviso to section 436A Cr.P.C does give the extraordinary power to the Court to order the continued detention of the accused for a period beyond one half of the maximum jail term provided for the offence , after hearing the public prosecutor. The explanation to section 436A Cr.P.C also provides that in computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded. In the case at hand, the applicant, by 5 no stretch of imagination can be held responsible for the delay in proceedings as he has been in judicial custody continuously all this while and it is the police which has not concluded the investigation till date, as has been held by the Ld. Court below in its rejection order.
8. The learned Court below while passing the order dated 6.3.2020 does not even fleetingly refer to section 436A Cr.P.C. Merely because the applicant was a resident of Jammu & Kashmir was grossly inadequate to have kept him in custody for such a minor offence in violation of section 436A Cr.P.C.
9. The increasing insensitivity of the criminal justice administration in our State to extended the incarceration of under trials is disturbing. As far as the computation of time under section 436A is concerned, it commences from the time where accused is arrested for an offence and takes into account the period of investigation, enquiry, or trial in the Court. Thus, the period of computation of one half of the maximum sentence under section 436A commenced from 18/07/16 i.e., from the time the applicant was arrested in the said offence. Thereafter, the judicial custody/detention undergone by the applicant as an under trial is more than 3½ years. The maximum jail sentence that can be imposed for an offence under section 380 is seven years. Therefore, the applicant was entitled to be released by the Court on his personal bond with or without surety in the month of February 2020. The applicant though a resident of State of Jammu and Kashmir is still a citizen of this country and is entitled to the same protection and benefit of section 436A 6 Cr.P.C, which was never given to him and sadly was never even considered by the Ld. Court below, whether he as eligible for it. This Court feels it essential to lay down certain guidelines to be followed by the Courts below in such cases:
1) Where the investigation of an offence does not conclude within the time stipulated in section 167(2) Cr.P.C and the accused becomes eligible to statutory bail, it shall be the duty of the State to inform the Magistrate about the same and also it shall be the duty of the Magistrate to bring it to the notice of the under Trial that he has a right to statutory bail provided he can furnish the bail bonds.
2) In the event the under trial on account of his indigency or financial backwardness is unable to provide for bail bonds, it shall be the duty of the Magistrate to bring the same to the notice of the District Legal Services Authority, who shall take the assistance of Non-Governmental Organizations (NGO's) where available, in assisting the under trial to secure statutory bail. The financial backwardness or indigency of the under trial must not come in the way of him securing a statutory bail.
3) When bail applications are moved before the learned Court below, be it under section 437 or 439 Cr.P.C, it shall be the solemn duty of the Court to examine in each and every case whether the provision of section 436A Cr.P.C, even if not raised by the accused, would apply in a given case. Where it becomes evident to the Court that the right under section 436A Cr.P.C had accrued to the under trial, it shall release the under trial on his personal bond with or without sureties as provided under section 436A Cr.P.C unless, for compelling reasons to 7 be recorded by the learned Court below, the period of incarceration is to be extended beyond one half of the total sentence which could be imposed upon the under trial for the commission of the said offence.
10) Looking at the facts and circumstances of the case, as the applicant is eligible to relief under section 436A Cr.P.C, the application is allowed and it is directed that the applicant shall be released forthwith upon his furnishing a personal bond in the sum of Rs.10,000/-(Rupees Ten Thousand only) to the satisfaction of the Trial Court. The jail authorities shall have the applicant checked by the jail doctor to ensure that he is not suffering from the coronavirus and if he is, he shall be sent to the nearest hospital designated by the State for treatment. If not, he shall be transported to his place of residence by the jail authorities.
Certified copy as per rules.
(Atul Sreedharan) Judge ss SHYAMLEE Digitally signed by SHYAMLEE SINGH SOLANKI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482002, st=Madhya Pradesh, SINGH SOLANKI 2.5.4.20=ac96abb2e82eb894053ed4357d97cdbcaf87f54aa0e a21d1ef4dfb2fe607f3cd, cn=SHYAMLEE SINGH SOLANKI Date: 2020.08.13 16:20:46 +05'30'