Madhya Pradesh High Court
Raman Lodhi vs The State Of Madhya Pradesh on 11 September, 2019
Author: B. K. Shrivastava
Bench: B. K. Shrivastava
1 M.Cr.C.No.6480/2019
AFR
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. Criminal Revision No.6480/2019
Parties Name Raman Lodhi, S/o Shri Narayan Das
Lodhi, aged about 45 years, Occupation-
Labour, R/o Village Bharatpura,
P.S.Bijawar, District Chhatarpur (M.P.)
Vs.
State of M.P.Police Station Bijawar,
District Chhatarpur (M.P.)
Date of Order 11/09/2019
Bench Constituted Justice B.K. Shrivastava
Order passed by Justice B.K. Shrivastava
Whether approved for YES
reporting
Name of counsel for For Petitioner: Shri B.J.Chourasiya,
parties Advocate
For Respondent/State : Shri Brindavan
Tiwari, Panel Lawyer
Law laid down -
Significant paragraph Para 8 to 18 -
numbers
ORDER
(11.09.2019) This petition has been filed on 7.2.2019 under section 482 of the Code of Criminal Procedure on behalf of accused/petitioner Raman Lodhi.
2. It is an admitted fact that the petitioner was arrested on 1.5.2018 by Police Station, Bijawar, District Chhatarpur in connection with Crime No.97/2018 under section 25(1-B)(A) of Arms Act, 1959. The accused was produced before the Court on 2.5.2018. On 25.6.2018 the challan was filed before the Judicial Magistrate First Class, Bijawar, District Chhatarpur, who registered the Case No.RCT 234/18. On 14.9.2018 the trial court framed the charge under section 25(1-B)(A) of Arms Act and fixed the date for evidence of prosecution on 27.9.2018. During this period the accused filed the bail application under section 437 of CrPC, 2 M.Cr.C.No.6480/2019 which was dismissed on 9.5.2018.
3. On 22.12.2018 an application was filed by the accused/petitioner under section 437(6) of CrPC. The Presiding Officer was on leave, therefore, In-Charge Judicial Officer (JMFC) decided the aforesaid application on the same date and dismissed the application. It was prayed in the application that from the date of 14.9.2018, 60 days have been passed, therefore, the petitioner is entitled to get the bail under section 437(6) of CrPC. The learned JMFC dismissed the aforesaid application and said that the registered offence is a serious and non-bailable offence and it is also appeared from the record that 17 other criminal cases are also registered against the petitioner, out of them 4 cases are under Arms Act. The petitioner also concealed the fact that his application for regular bail was earlier dismissed. The Court also mentioned that the accused is having criminal background, therefore, if the bail is granted then the possibility of his absconding cannot be denied. In other words, if the bail is granted to the accused, he will not appear before the Court.
4. The petitioner filed the Criminal Revision No.5/2019 against the aforesaid order, before the First Additional Sessions Judge, Bijawar, District Chhatarpur, who also dismissed the aforesaid revision on 25.1.2019 by holding that the trial Magistrate did not commit any mistake by dismissing the aforesaid application filed under section 437(6) of CrPC.
5. The petitioner assailed the aforesaid both orders by filing this petition. It is submitted by the petitioner that charges were framed on 14.9.2018 and the trial court fixed the case for the evidence on 27.9.2018, but the witness did not present before the Court. Thereafter, the learned trial court had fixed many dates for the purpose of evidence, but the prosecution witnesses did not present and the trial court did not close the opportunity to lead the evidence. Both Courts grossly erred in exercising the jurisdiction vested in the Court and exercised the jurisdiction with 3 M.Cr.C.No.6480/2019 AFR material illegality and irregularity. As per provision of section 437(6) of CrPC, the petitioner is having right to get bail, which is mandatory as per the aforesaid section, but the trial court has not followed the aforesaid provision. Both Courts below have prepared ground for dismissing the application, which is not covered in the present case. The petitioner is in jail since 2.5.2018 and it will take long time to conclude the trial. Therefore, it is prayed that the order dated 25.1.2019 passed in Criminal Revision No.14/2019 by the First Additional Sessions Judge, Bijawar, District Chhatarpur, affirming the order dated 22.12.2018 passed by the JMFC, Bijawar in RCT No.234/2018 be set aside in the interest of justice. The counsel for petitioner placed the reliance upon Ram Kumar Rathore Vs. State of M.P. 2000 (1) JLJ 404. Upon the basis of aforesaid ruling, the learned counsel argued that the provision of section 437(6) of CrPC is mandatory in nature and if the trial is not concluded within 60 days from the date of evidence, the accused becomes entitled to be released on bail. The apprehension of not attending the Court is not judicious. Refusing the bail to the accused, who is legally entitled, is also the abuse of process of the Court.
6. On the other side, the State strongly opposed the aforesaid petition. It is submitted by the learned counsel for State that the aforesaid provision is not mandatory. The trial court is not bound to release the accused only upon the basis of period of 60 days from the date of evidence. Looking to all circumstances and the criminal record of the accused, both the Courts below are justified in rejecting the application filed for releasing on bail. The counsel placed reliance upon Arjun Sahu Vs. State of M.P. 2008 Cri.L.J.2771 and Rajendra Vs. State of M.P. 2002 (5) MPLJ 301. It is argued that the Madhya Pradesh High Court held in the aforesaid case that the aforesaid provision is not mandatory and the Court is having jurisdiction to refuse the bail.
7. The petitioner did not file the copy of application filed under section 437(6) of CrPC, which was filed before the JMFC, but it appears 4 M.Cr.C.No.6480/2019 from the impugned order dated 22.12.2018 passed by JMFC that in the aforesaid application, it was mentioned that the charge was framed on 14.9.2018 and "from the date of framing the charge" 60 days have been passed. This contention is not supported by provision of section 437(6) of CrPC because the aforesaid provision did not provide the counting of period from the "date of framing the charge". The provision says that the counting will be start from the "first date fixed for taking the evidence" in the case. Therefore, the period will be count from 27.9.2018, which was the first date fixed for recording of the evidence. It will be useful to refer the provision of section 437 (6) of CrPC:-
"(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."
8. In "Ram Kumar alias Raj Kumar Rathore v. State of M.P."2000 CRI. L. J. 2644 = 2000 (1) JLJ 404 = 2000 (2) MPLJ 42 = 2000 (3) Crimes 388 [M.P.] = LAWS(MPH)-2000[2]42. [08.02.2000] Accused was arrested on 09.03.1998 in connection with the offence u/S420, 120- B, 467 and 468 of IPC. First date of recording the evidence was 27.02.1999. After completion of period of 60 days from 27.02.1999, application u/S 437(6) Cr.P.C. was filed. Single bench of this court said that Proviso of S. 437(6) is mandatory. Petitioner remaining in custody for period more than 60 days from first date fixed for recording evidence therefore he acquires statutory right of being released on bail under S. 437(6)Cr.P.C. and denial of bail to him on ground that he may not attend Court on each and every date fixed by Magistrate is Improper. Court said in para 5 :-
"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 5 M.Cr.C.No.6480/2019 AFR 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......"
9. It appears from the aforesaid case that later part of the aforesaid sub-section the proviso has not been interpreted in the aforesaid case.
10. In Rajendra V/s State of M.P., 2002(4) MPHT 186 = 2002 (5) MPLJ 301 [27.07.2002] More than 50 liters liquor was seized from the accused. Question was raised whether the provision of 437(6) will be applicable or not? Another Single bench of this High Court held that inspite of section 59-A the provision of 437(6) will be applicable. If the trial is not concluded within 6 months, the accused will be entitled for bail and reason should be mentioned for rejecting the bail. In reference to the nature of the provision, after quoting S.437(6) of Cr.P.C. the court said in para 9 :-
" 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. If the court is of the opinion that the accused is not entitled for bail than it is obligatory on the part of the court to assigned reason for refusing the 6 M.Cr.C.No.6480/2019 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 Vs. State of Himanchal Pradesh, 2000(2) Crimes 543 and in the case of Mohd. Abdul Vs. State of West Bangal, 1991 (II) Crimes
741."
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. Again this provision was considered in the case of Damodar Singh Chouhan vs. State of M.P., 2005 (II) MPWN 138, in which it was held :-
"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 trial 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 therefor."
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 the Case of Arjun Sahu v. State of M.P, 2008 CRI. L. J. 2771 [05.02.2008], the single bench considered the aforesaid cases Ram Kumar alias Raj Kumar Rathore (Supra), Rajendra V/s State of M.P. (Supra), & Damodar Singh Chauhan v. State of M. P.(Supra), and said that In all the aforesaid cases, considering the reasons assigned by the Magistrate were not found sufficient to reject the bail and in such 7 M.Cr.C.No.6480/2019 AFR 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 subsection. In para 16 the court said that 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. Court examine the facts of the case and refused to grant the bail u/S437(6) of Cr.P.C. by saying :-
"16...........In the case at hand there are sufficient prima facie circumstance showing that the applicant being planner 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."
14. In Aasif @ Nakta Vs. State of M.P., I.L.R. 2016 M.P. 2391 [30.09.2015] applicant was facing trial before the learned Judicial Magistrate First Class under Sections 457, 380, 411 of IPC, filed application u/S437(6) of Cr.P.C. for granting of bail on the ground that after lapse of 60 days as prescribed, the trial by the Magistrate could not be concluded. The learned Magistrate dismissed the application on the ground that there are as many as 17 criminal cases pending against the present applicant and therefore, it is not proper to release the applicant on bail. Trial Magistrate dismissed the application and ordered that benefit of provision may not be extended to the accused. The revision filed against the aforesaid order was dismissed by learned Additional Sessions Judge found that the reasons stated by the Magistrate were just 8 M.Cr.C.No.6480/2019 and proper and therefore, no interference was called for. Thereafter accused filed the application under Section 482 Cr.P.C. before the High Court. The Single Bench at Indore dismissed the application under Section 482 Cr.P.C. and held that accused not shown any abuse of the process of the Court, therefore order passed by him is just and proper. Provisions are not mandatory but directory and the Magistrate has full power to take into consideration -
(1) The nature of allegations, (2) Whether delay is attributable to the accused or to the prosecution and, (3) The criminal antecedents of the accused.
15. In Pramod Kumar Vishwakarma Vs. State Of M.P., I.L.R. 2018 M.P. 1329 = 2018 Law Suit (MP) 718 [19 April 2018] applicant filed bail application u/S 437(6) Cr.P.C. before Magistrate on the ground that trial has not concluded within 60 days from the first day fixed for evidence, which was dismissed on the sole ground based on the gravity of offence. Another single bench said that Applicant is in judicial custody since 26.09.2017 and stipulated period of 60 days has expired. Relief u/S 437(6) Cr.P.C. can only be availed of in trials by a Magistrate and not in Sessions Trials. Offences triable by Magistrate are not grave offence which shock the human conscience and thus Section 29 Cr.P.C. also clarifies that Court of Magistrate are meant for the trial of minor offences. Provision of Section 437(6) Cr.P.C. is unambiguous in its intent to protect the fundamental right of the accused under Article 21 of the Constitution by taking cognizance of his right to a speedy trial. Section 437(6) Cr.P.C. unequivocally mandates the release of such a person after the end of sixty days from the date fixed for recording evidence. His continued incarceration is an exception to be exercised for reasons to be recorded by Magistrate. Right of accused to a speedy trial is an inviolable right directly linked with his right to life and personal liberty. There is no finding that applicant caused the delay in recording of evidence. Provisions of Section 437(6) Cr.P.C. are mandatory in nature and is salutary, engrafted into Cr.P.C. looking to the right of 9 M.Cr.C.No.6480/2019 AFR accused to a speedy trial.
16. In the case of Devraj Maratha @ Dillu Vs. State of M.P. , 2018 (2) MPLJ (Cri) 386 = 2018 SCC OnLine MP 151 {DB} (M.Cr.C. No.2668/2018 dated 16.03.2018) in view of cleavage of opinion regarding interpretation of sub-section (6) of Section 437 of the Code of Criminal Procedure, the Single Bench by order dated 18-01-2018 has referred the following question for consideration before Double Bench:-
"Whether under the provision of sub-section (6) of Section 437 of the Cr.P.C., it is mandatory for the Magistrate to release the accused on bail, when the trial is not concluded within the period of sixty days, from the first date fixed for taking evidence in the case ?"
17. The D.B. considered the case of Damodar Singh Chouhan vs. State of M.P., 2005 (II) MPWN 138, Ram Kumar @ Raj Kumar Rathore vs. State of M.P., 2000(2) MPLJ 43, Rajendra son of Rajaram Pal vs. State of M.P. 2002 (5) MPLJ 301, Manoj Agrawal vs. State of M.P., 2001(1) MPHT 70 and Aasif @ Nakta Vs. State of M.P., I.L.R. 2016 M.P. 2391 decided by M.P. High Court and Didar Singh vs. State of Jharkhand, 2004 SCC Online Jhar 560 decided by Jharkhand High Court, Anwar Hussain vs. State of Rajasthan, 2006 SCC Online Raj 534 decided by Rajasthan High Court. The D.B. said in para 20 :-
"20. In view of delineation of facts and law elaborated in a greater detail herein-above, we hold that the law laid down in the cases of Ram Kumar @ Raj Kumar Rathore vs. State of M.P., 2000(2) MPLJ 43; Rajendra son of Rajaram Pal vs. State of M.P., 2002(5) MPLJ 301; and Damodar Singh Chouhan vs. State of M.P., 2005 (II) MPWN 138 wherein it has been held that the provisions of Section 437(6) of the Code are mandatory in nature and the accused is entitled for bail, if the trial is not concluded by the Magistrate within the statutory period and the Magistrate will not have any discretion to refuse bail is not a good law and the law laid down in the case of Aasif @ Nakta vs. State of M.P. (supra) and Manoj Agrawal vs. State of M.P. (supra) is approved."10 M.Cr.C.No.6480/2019
In para 21, the D.B. answered the question referred as Under :-
"21. In view of preceding analysis and enunciation of law governing the field, the reference is answered as under:
(a) Provision envisaged in sub-section (6) of Section 437 of the Code is mandatory in the sense that the Magistrate is required to exercise his power of granting bail after the statutory period, if the trial is not concluded within that, however, passing of an order under Section 437(6) of the Code is mandatory, but not grant of bail,
(b) 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 justifiable reason, while refusing to grant bail.
18. Therefore law has been settled. Accused become entitled to apply for grant of bail if the trial 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. This right is not an absolute right and the Magistrate, for reasons to be recorded in writing can reject the application even under 437(6) of Cr.P.C.
19. Now we examine the present case in the light of aforesaid settled law. It appears that the accused was arrested for the offence under Section 25(1-B)(A) of Arms Act. One 12 Bore local made Katta and one live cartridge of 12 Bore have been seized from the possession of the accused. It is also appeared from the record that there are 17 other criminal cases have been registered against the accused, out of them 4 cases are under Arms Act. In para-9 of the order dated 25.01.2019 passed by the First Additional Sessions Judge in Criminal Revision No. 5/2019, it is also mentioned that during the period of 1996 to 2017, 16 cases were registered against the petitioner, out of them 3 cases were under Arms Act. In addition to aforesaid cases, during the period of 1998 to 2010 atleast 11 complaints were registered under Sections 107, 110 and 116 of Cr.P.C.. It is sufficient to show the criminal background of the accused because he is a habitual offender.
11 M.Cr.C.No.6480/2019AFR
20. It appears from the ordersheets of the trial Court that charge was framed on 14.09.2018. Summons were issued to the witnesses for 27.09.2018. On 27.09.2018, 11.10.2018, 24.10.2018, 13.11.2018, 15.11.2018 and 29.11.2018. The case was fixed for recording of evidence of prosecution witnesses but the accused was not produced before the Court by the jail authorities, only his warrant was submitted. Therefore, it can be said that there was no any possibility of recording the evidence of witnesses. No witness knew the accused personally. Therefore, the evidence is required to be recorded in the presence of accused.
21. In the aforesaid situation, the Court cannot be blamed for non- recording of the evidence because summons were issued for every date and the note in this regard has been mentioned in the margin of every ordersheet.
22. Because several cases have been registered against the accused, therefore, it is not possible to produce the accused before more than one Court in a particular day. In the said situation, the Court is bound to adjourn the case. Therefore, looking to the aforesaid all circumstances, the lower Court and the revisional Court did not commit any mistake for not granting bail to the accused under Section 437(6) of Cr.P.C.
23. Hence, no ground is found to interfere with the impugned orders by exercising the powers under section 482 of Cr.P.C. In the interest of justice, it will be proper to request the trial Court to conclude the trial within 6 months from the date of receiving of this order.
(B.K.SHRIVASTAVA) JUDGE TG/-
Digitally signed by TRUPTI GUNJAL Date: 2019.09.11 17:24:00 +05'30'