Madhya Pradesh High Court
Arjun Sahu vs State Of Madhya Pradesh on 5 February, 2008
Author: U.C. Maheshwari
Bench: U.C. Maheshwari
ORDER U.C. Maheshwari, J.
1. The petition of the applicant filed under Section 439 of Cr.P.C. is being decided by this order.
2. The applicant has been arrested on 30.3.2007 in connection of Crime No. 783/06 registered at Police Station Garha for the offence under Section 420, 467, 468, 471 and 120B r/w 34 of IPC.
3. As per case of the prosecution the applicant being an advocate of Jabalpur practicing mainly in Motor Accident Claim cases with intention to have earn easy money advised the poor illiterate persons suffering from Gangrene or like other disease for preparation of their false claim cases under the Motor Vehicle Act while those persons were not the sufferers of vehicular accident. They have not only been advised by him but he also managed all affairs in this regard. In such connection, under conspiracy with the Doctor such poor persons were admitted in the Suvidha Hospital, Jabalpur where by carrying out surgery their concerning limbs were amputated and their medico legal reports stating that they sustained the injuries in vehicular accidents were prepared and by managing police officials of the P. S. Garha, Jabalpur the offences of vehicular accidents got registered at such police station. The number of alleged insured vehicle were also arranged and provided to the concerned complainant and also to police. He being planer of aforesaid scheme managed all the affairs through his junior advocates, police officials and doctors along with others. In implementation of such plan various forged medical reports and papers were prepared with intention to file the false claims under the Motor Vehicle Act and in this manner various claims on behalf of the concerned victims whose limbs were amputated, were filed by the applicant before the different Tribunals. On receiving the information regarding such offence in writing from unknown source the same was inquired by the police and later it being a cognizable offence the crime was registered. During investigation on collecting the evidence prima-facie alleged offence is revealed against the applicant and other persons through whom he implemented his aforesaid scheme. Initially charge sheet was submitted for some other accused but after arrest of the applicant by holding some supplementary investigation the charge sheet is also filed against the applicant. Now he is facing such trial.
4. On behalf of the applicant his counsel Shri Anil Khare firstly by referring the provision of Section 437 of Cr. P. C. said that according to its mandate after framing the charge against him on 26.7.2007 within two months from such date the trial has not been concluded. Hence, in view of the mandatory provision of the aforesaid section the applicant deserves to be released on bail. Secondly he prayed for bail on the ground of parity saying that some of the accused, against whom the same allegations are made as alleged against the applicant, have been released on bail and there is no distinguishable case against him, specially he said that Shishir Kewat, Advocate against whom same allegations are made has also been released on bail. Thirdly, he prayed for bail saying that aforesaid all sections of IPC for which the applicant is facing the prosecution are tri-able by the Judicial Magistrate and in last eight months only one prosecution witness has been examined. It shows the trial may not be concluded in near future. Therefore the applicant should not be kept in jail by way of punishment unless the offence is proved against him. Lastly on merits, he said that the evidence collected by the investigating agency is not sufficient to draw the inference at this stage that he has committed the alleged offence. He also referred various interrogatory statements recorded by the police either at the stage of enquiry or after registration of the offence or subsequent to it recorded in the supplementary investigation under Section 173(8) of Cr. P. C. and prayed to enlarge him on bail till disposal of the trial. In support of his contention he also placed his reliance on some reported cases.
5. On the other hand responding the aforesaid argument, learned Additional Advocate General said that the provision of Section 437(6) of Cr. P. C. is not mandatory according to its language, after recording the reasons in writing the Magistrate has authority to refuse the bail even if the trial is not concluded within sixty days from the date of framing the charges. He further stated that all the citations on which the applicants counsel has placed his reliance in this regard, such question is left open, as such later part of such sub-section cannot be said to be mandatory for granting the bail. So far parity is concerned he said that in comparison of other accused of the case looking to the nature of the evidence collected by the prosecution agency, the applicant being planner of the scheme is the man accused of the case and in this way he is more responsible for the alleged offence. In support of this contention he referred the interrogatory statement of Smt. Sharda Barman, the wife of one of the victim whose limb was amputated, recorded in enquiry and interrogatory statements of Ku. Varsha Tiwari and Rahul Shrivastava Advocates, which were recorded during supplementary investigation under Section 173(8) of Cr. P. C. in the month of January 2008. He also said that statement of Varsha Tiwari was also recorded earlier as the same is available in the case diary. In this background he said that all other accused, the junior advocates, doctor, concerned police officials the alleged accused of the case were working under the command and advise of the applicant. It was also said that interrogatory statement of Varsha Tiwari and Rahul Shrivastava are giving sufficient circumstance to draw the inference that the applicant is only person in whose guidance the Insurance Company has been defrauded through false claims cases of sufferers of Gangrene and like other disease who were not the victims of the vehicular accidents. On his advice the limbs of aforesaid poor persons have been amputated, by admitting them in private hospital under conspiracy with the doctor to have earn the easy money. In such manner the applicant has given the wrong message to the society against ethics of his profession and also the system. A person who is in a position to manage various things to satisfy his temptation of money, if he is released on bail it will give the wrong message to the society at large and may prejudice the prosecution case by winning over the material witnesses of the case. In this background firstly he said that in such circumstance the applicant should not be released on bail. In any case he should not be released on bail till recording the evidence of aforesaid material witnesses of the prosecution. So far delay in concluding the trial is concerned, he said that the delay cannot be a ground for allowing the bail petition when the prima- facie evidence is available on the record against the applicant regarding such serious offence and prayed for dismissal of this petition
6. Having heard before considering the merits of this petition, I would like to reproduce Sub-section (6) of Section 437 of Cr. P. C. for ready reference, which reads as under:
(6) If in any case triable by Magistrate the trial of the 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.
7. Considering the aforesaid provision on earlier occasion in the matter of Ram Kumar @ Raj Kumar Rathore v. State of M. P. reported in 2000 (2) MPLJ 42 : 2000 (3) Crime 388, this court has laid down as under:
5. Looking to the provision referred to above it is but clear that it is mandatory in nature, and the mandate is that if the Magistrate is trying a case in which the accused has been charged for a non- bailable offence and the trial has not concluded within a period of sixty days from the first date of recording the evidence in the case and that the accused had remained in custody during the whole of such period of sixty days, then he becomes entitled to be released on bail, provided of course, the Magistrate does not reject the same recording in writing his reason, therefore, circumscribing the undisputed factual circumstances in the ambit of provisions of Section 437(6) of the Code of Criminal Procedure it is apparent that they hold the field and apply here from all four corners. In rejecting the bail application of the petitioner the learned trial Magistrate and the learned Fourth Additional Sessions Judge, Gwalior, have no doubt given their reasonings as required under the above provisions of the Code of Criminal Procedure but they are simply to the effect that if the petitioner were to be released then it is doubtful that he would be attending the Court on each and every date fixed by the Magistrate. The reasonings indicating the apprehension of the learned Court below, by no stretch of imagination, could be termed as judicious, and therefore, they are not of such a nature as to thwart and wash off the mandatory character of the provisions of Section 437(6) of the code of Criminal Procedure....
8. It appears from the aforesaid case that later part of the aforesaid sub section the proviso has not been interpreted in the aforesaid case. In fact it was held that the given case was not covered by the proviso.
9. In another occasion in the matter of RajendraS/o Rajarama Pal v. State of M.P. reported in 2002(5) MPLJ302, this court has held as under:
9. This Provision is showing that if the trial is not completed within a period of 60 days from the date fixed for recording evidence then the accused, who is in custody, is entitled to be released on bail. L If the Court is of the opinion that the accused is not entitled for bail then it is obligatory on the part of the Court to assign reason for refusing the bail. In view of mandatory Provision of Section 437 Sub section (6) Criminal Procedure Code, the applicant is entitled to be released on bail. There is no special reason on the basis of which his prayer may be refused. Similar view has been taken in the case of Saritadevi v. State of Himachal Pradesh 2000 (2) Crimes 543 and in the case of Mohd Abdul v. State of West Bengal 1991 Crimes (II) 741.
10. In the aforesaid decision it is held that if the court is of the opinion that the accused is not entitled for bail, it is obligatory on its part to assign the reasons for refusing the bail. In such situation on availability of sufficient reason for dismissing the application then as per said proviso after recording the reasons in writing the bail application may be dismissed.
11. Subsequent to the aforesaid decision again this provision was considered in the matter of Damodar Singh Chauhan v. State of M.P. reported in MPWN 138, in which it was held as under:
It is clear that the above provision is mandatory in nature and according to this provision if the Magistrate is trying a case in which the accused is charged for a non-bailable offence and the trail of the case is not concluded within a period of 60 days from the first date fixed for taking evidence in the case and if the accused is in custody during the whole of the said period then he becomes entitled to be released on bail, provided the Magistrate rejects the bail application after recording in writing the reasons therefore.
12. It is apparent that in the aforesaid cases the earlier part of the aforesaid section is held to be mandatory but proviso has not been interpreted.
13. In all the aforesaid cases, considering the reasons assigned by the Magistrate were not found sufficient to reject the bail and in such premises the bail was granted but it was not said in any of the aforesaid case that if the case is covered by aforesaid proviso even then the applicant is entitled for bail in the light of earlier part of this sub-section. Therefore, This Court has to examine the case whether the case at hand is covered by the proviso of aforesaid sub-section or not.
14. In the matter of Robert Lendi v. The Collector of Customs and Anr. reported in 1987 Cri.L.J.55, the Division Bench of Delhi High Court answered this question, in the following words:
21. The next question that arises for consideration is whether while refusing bail under Sub-section (6) of Section 437 of the Code the Magistrate can only refuse bail on the limited reasoning germane to the cause of delay and whether the bail can be refused on the general grounds recognized as good for refusal to grant bail. Undoubtedly, the object of Sub section (6) of Section 437 of the Code is to eradicate delay in trial. To us, it appears that it is equally important that the ends of justice do not suffer. The procedural laws are essentially meant to safeguard the interest of justice. The twin objections namely to eradicate the delay in trial and to achieve the ends of justice are necessarily to be harmonized. It is in that context one has to find out whether the discretion exercised by the Magistrate in withholding bail after sixty days, has been properly and judicially exercise. We find nothing in the provision to support the assertion of Mr. Mehta that the reasons for declining the bail under this provision should be only those, which are germane to the cause of delay. There is no reason to give such a restricted meaning to the provision. The expression used in the provision is unless for reasons to be recorded in writing, the Magistrate otherwise directs. A plain reading of the expression shows that the Legislature has put no fetters on the powers of the Magistrate that under this provision bail can only be refused for reasons germane to the cause of delay. If that were so, the Legislature would have certainly made it clear. To us it appears that the consideration for refusing bail under this provision can be the reasons, which are generally invoked and understood in law as the grounds for refusing bail. All that is required of the Magistrate is that should he decide to decline to grant bail, he must record his reasons in writing. There are no fetters placed on the exercise of this discretion.
15. By following the aforesaid decision of the Division Bench of Delhi High Court the Jharkhand High Court is also answered this question in the matter of Didar Singh v. State Jharkhand reported in 2006 Cri.L.J.1594, in which it was held as under:
11. The contention advanced on behalf of the petitioner that if the trial court is not concluded within a period of sixty days from fixed date for evidence then accused who is in custody has to be released on bail cannot be accepted as from the plaint reading of the aforesaid provision, it is clear that the said provision under Section 437(6) is not mandatory in nature as Section 167(2) of the Cr. P. C. which provides that if the investigation is not completed within a period of ninety days or sixty days as the case may be then the accused is entitled to be released on bail mandatorily irrespectively of the merit of the case. Under Section 167(2) Cr. P. C. the right to be released on bail is absolute under the provision of Section 437(6) of the Cr. P. C. which is not mandatory in nature, the entitlement of the accused to be released on bail is dependent upon the reasons to be recorded in writing by the Magistrate for refusal to release him on bail. The reasons may be several, therefore, it is the discretion of the trial court either to release or not to release an accused under the aforesaid provision for the reasons to be recorded in writing. There is no doubt that discretion of the trial Court has to be exercised judicially and not arbitrarily. It is found that the trial court has exercised its discretion either refusing or granting bail in exercise of power under Section 437(6) of the Cr. P. C. is justifiable in the facts and circumstances of a particular case then such exercise of discretion is not liable to be interfered with unless it is found that discretion so exercised by the trial court is wholly improper, unjustified and arbitrary. The Division Bench of Delhi High Court in the case of Robert Lendy (1987 Cri. L.J.55) (Supre) has held that the procedural law is essentially meant to safeguard the interest of justice. The twin objects, namely, to reject the delay in trial and to achieve the ends of justice are necessarily, to be harmonized. It is in that context, one has to find out whether the discretion exercised by the Magistrate in withholding bail after sixty days, has been properly and judicially exercised.
16. In view of the aforesaid legal position it is manifestly clear that under the proviso after recording the reasons in writing the Magistrate has a right to refuse the bail even after sixty days from the date of framing the charge even if the entire evidence is not recorded. In the case at hand there are sufficient prima-facie circumstance showing that the applicant being planer of the aforesaid scheme by taking advantage of the position of poor illiterate persons, who were the sufferer of Gangrene or like other disease, in order to have earn the easy money advised them to prepare their false claim cases of vehicular accident and in pursuance of that by admitting those poor persons in hospital their limbs were amputated and on such report the criminal offence regarding vehicular accident were got registered with the connivance of some police officials the number of vehicle were also given by this applicant. In such situation the case of the applicant is squarely covered by the proviso of Section 437(6) and in such premises he does not deserve for bail in the earlier mandatory part of Section 437 of Cr.P.C.
17. Coming to the question of parity, it appears from the record that other accused of the case namely Vinay Sahu, Dharmendra Kirar, Rajendra Kapoor, Banti Choudhary, Premchand @ Guddu Sahu, Brijbhushan Singh, Ramnaresh Mishra, Govind Prasad Tiwari along with Doctor Dang and junior advocate Shri Shishir Kewat have been directed to be released on bail on earlier occasion but on considering the available evidence on record the case of the applicant is apparently distinguishable from the aforesaid other accused doctors, police officials and junior advocates. As per interrogatory statements of Smt. Sharda Barman the wife of one of the victim whose limb was amputed, Ku. Varsha Tiwari and Rahul Shrivastava, Advocates the applicant being planer has implemented such scheme by taking the advantage of poor persons on account of their disease of Gangrene or like others with connivance and conspiracy of aforesaid accused. Under the aforesaid premises the applicant appears to be a main accused of the case. Besides this looking to the manner of investigation in which the same was carried out, it appears that applicant being influencing person may prejudice the prosecution case, if he is released on bail at this stage. I deem fit to mention here that aforesaid Ku. Varsha Tiwari and Rahul Shrivastava were the junior advocates in the office of the applicant for some time when the aforesaid scheme was implemented by the applicant for some of the cases. Therefore, looking to the position and on consideration of over all circumstances of the case it may be inferred that on releasing the applicant on bail before recording the evidence of aforesaid material witnesses he may prejudice the prosecution case and that may give the wrong message to the society at large. I would like to mention here that while deciding the bail petition the court has to keep the interest of the society also at large.
18. Although the applicant counsel cited the case (R. D. Upadhyay v. State of A. P. and Ors.) but the same is not helping to the applicant at this stage because in such case the direction was given only for the offences under Customs Act, Arms act or under Section 326, 324 and 354 of IPC and such persons have also been directed to be released on bail if they have completed one year in jail. It is undisputed fact on record that such duration has not been completed in the case at hand.
19. Other cited case (Ashok Dhingra v. N.C.T. of Delhi is also not beneficial for the applicant. In such case the applicant was already on temporary bail and that order was continued and such case was not the case of amputation of limbs of the poor persons like case at hand. Hence, the same is distinguishable on the facts.
20. Another case cited by the applicant counsel in the matter of Mehmood Mohammed Sayeed v. State of Maharashtra , such case is decided keeping in view the condition of the court of Maharashtra and also after completion of more than one year custody of the accused, which is not the situation here. Therefore, at this stage aforesaid all the cited cases on behalf of the applicant are not helping him, although This Court has no dispute regarding the principle laid down by the Apex Court in such cases.
21. In view of the aforesaid discussion, it is held that the order passed by the trial court on 10.9.2007 rejecting the bail application of the applicant and thereafter the orders passed by the Sessions Court are based on sufficient reasons in writing for rejection of the bail.
22. Under the aforesaid premises, at this stage applicant does not deserve to be released on bail, hence, this petition is hereby dismissed. However, applicant shall be at liberty to revive his prayer for bail after recording the statement of aforesaid prosecution witnesses namely Ku. Varsha Tiwari, Rahul Shrivastava and Smt. Sharda Barman.
23. Accordingly bail petition is dismissed.