Madhya Pradesh High Court
Golu vs The State Of Madhya Pradesh on 8 January, 2020
Author: Sunil Kumar Awasthi
Bench: Sunil Kumar Awasthi
1
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C.No.47644/2019
(Golu Vs. The State of M.P.)
Indore: dated 08/01/2020
Shri Nilesh Agrawal, learned counsel for the applicant.
Shri V.J. Hardia, learned Public Prosecutor for the
respondent/State.
The applicant has preferred this petition under Section 482 of Cr.p.C. being aggrieved by the order dated 02.11.2019 passed by Additional Sessions, Judge, Special Court, Vidhyut Adhiniyam No.7, Indore, in Criminal Revision No.575/2019 whereby the learned Session Judge affirmed the order dated 22.10.2019 passed by Judicial Magistrate First Class, Indore, in Criminal Case No.4439/2019 wherein the trial court has dismissed the application filed by the applicant under Section 437 (6) of Cr.P.C.
(2) Brief Facts of the case are that on 13.05.2019 on the basis of secret information that one Swift Desire car bearing registration No. MP-09-WB-1181 is illegally transporting the liquor, police intercepted the aforesaid vehicle and seized 72 illicit liquor from the possession of the applicant. During the proceeding applicant assaulted the police constable Neeraj Tomar and fled away. After that police registered the FIR against the applicant under Section 34(2) of M.P.Excise Act and 353, 332, 324 of I.P.C. bearing crime No.552/2019 at police Station Lasudia, District Indore. Applicant was arrested. After completion of the investigation, charge-sheet was filed before the Judicial Magistrate First, Class, Indore.
(3). From perusal of the proceedings of the trial court, it reveals that on 08.08.2019 charges were framed against the applicant. He abjured his guilt and pleaded for trial. The case was fixed for prosecution evidence on 18.09.2019, 01.10.2019 and 22.10.2019 but no witnesses 2 have appeared before the trial court. Meanwhile on 20.10.2019, the applicant moved an application under Section 437(6) for grant of bail on the ground that prosecution evidence has not been concluded within a period of 60 days from the first date fixed for taking evidence, however, the trial court dismissed the said application observing that the offence registered against the applicant is in serious nature and prosecution is making efforts for producing evidence. (4). Being aggrieved with the aforesaid order, applicant has preferred criminal revision No. 575/2019 before the Sessions Court, which was also dismissed by the impugned order dated 02.11.2019. Hence, the present petition before this Court.
(5). Learned counsel for the applicant has submitted that more than 60 days have passed since 18.09.2019 i.e. first date fixed for recording of evidence but trial has not been concluded within 60 days. The prosecution witnesses did not turn up for evidence and the case was being adjourned on every date due to non-appearance of prosecution witnesses and the trial is being prolonged without any fault of the accused. He further submits that as per provisions of Section 437(6) of the Cr.P.C., the court is bound to release the accused on bail, in case, if the trial has not completed within 60 days from the first date of recording evidence. In the present case, applicant is in custody near about 8 months and prosecution is not taking any interest in producing their evidence. In these circumstances, the courts below have committed error in rejecting the application filed by the applicant under Section 437(6), thus he prayed for setting aside the impugned order. To bolster her submissions, he relied upon the judgment passed by this Court in the case of Rajendra S/o Rajaram Pal Vs. State of M.P. (2002(5) M.P.L.J. 301 and order dated 16.11.2017 passed in M.Cr.C.No.17474/2017 ( Pradeep Vs. State of M.P.) 3 (6). On the other hand learned counsel for the respondent/State opposes the application by contending that sub section 6 of Section 437 of Cr.P.C. confers discretionary power on the Magistrate to grant or refuse the bail after recording the reasons and therefore release of the accused on bail under the aforesaid provision cannot be held to be mandatory, hence, the courts below rightly rejected the prayer made by the applicant for grant of bail.
(7) I have heard learned counsel for the parties and perused the records.
(8) Before adverting to the contentions raised by the learned counsel for the parties, it would be appropriate to refer sub section 6 of Section 437 of Cr.P.C. the same is reproduced herein under:
"437. When bail may be taken in case of non- bailable offence.
(1) ......................... (2) ......................... (3) ......................... (4) ......................... (5) .......................... (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.
(7) ........................."
(8) In the case of Aasif @ Nakta vs. State of M.P. (M.Cr.C.No.7059/2015 decided on 30.09.2015) and in the case of Manoj Agrawal vs. State of M.P. 2001 (1) M.P.H.T.17 . It is held by this Court that provisions of Section 437(6) Cr.P.C. is not mandatory but directory. The Magistrate has full power to refuse or 4 grant bail taking 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 or any other justifiable reasons.
(9) From perusal of the proceedings of the trial court it reflects that the case was fixed first on 18.09.2019 and thereafter on 01.10.2019 and 22.10.2019 for recording the prosecution evidence but no prosecution witnesses have appeared before the trial court within a period of 60 days from the aforesaid date, which indicates that prosecution has failed in its duty in taking expeditious steps for conclusion of trial. Although the applicant is having four criminal records however, it is first offence under M.P. Excise Act. The applicant is in custody since 13.05.2019 and there is no possibility of conclusion of trial in near future. The application of the applicant under Section 437(6) has been dismissed looking to the seriousness and anti social offence but in the considered opinion of this Court, it should maintain a compliance between seriousness of the offence and period of custody. This should not be disproportionate to the offence committed by the offender.
(10).Taking into consideration all the relevant facts and total period of custody, this court is of the opinion that that this application filed under Section 482 of Cr.P.C. is deserves to be allowed. (11). Accordingly, this application is allowed. Impugned order passed by learned Sessions Judge in Criminal Revision 575/2019 dated 02.11.2019 and Judicial Magistrate First Class in Criminal Case No.4439/2019 dated 22.10.2019 are hereby set aside. (12). It is directed that accused be released on bail on his furnishing a personal bond in the sum of Rs. 50,000/- (Rupees Fifty Thousand Only) with one solvent surety of the like amount to the satisfaction of the trial court for his regular appearance before the trial Court during 5 trial with a condition that he shall remain present before the Court concerned during trial and shall also abide by the conditions enumerated under Section 437 (3) of Cr.P.C.
This order shall be effective till the end of the trial, however, in case of bail jump, it shall become ineffective.
(S. K. Awasthi) Judge Praveen PRAVEEN Digitally signed by PRAVEEN KUMAR NAYAK KUMAR DN: c=IN, o=DISTRICT AND SESSION COURT INDOR, postalCode=452005, st=Madhya Pradesh, 2.5.4.20=e98f729464903facdd39c454715d6eccc5 a350c9111fb019b34dace6d05b8fd5, cn=PRAVEEN KUMAR NAYAK NAYAK Date: 2020.01.14 12:49:57 -12'00'