Rajasthan High Court - Jaipur
Jitendra Alias Jeetu vs State Of Raj Asthan Through Pp on 5 May, 2011
Author: R.S. Chauhan
Bench: R.S. Chauhan
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH AT JAIPUR JUDGMENT Jitendra @ Jeetu Vs. State of Rajasthan. (S.B. Criminal Revision Petition No.274/2011) S.B. Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. Date of Order :- May 5, 2011 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Jai Prakash Gupta, for the petitioner. Mrs.Alka Bhatnagar, Public Prosecutor. REPORTABLE BY THE COURT:
Aggrieved by the order dated 05.05.2010, passed by the learned Additional Civil Judge (Jr. Division) and Judicial Magistrate No.1, Ajmer, whereby the learned Magistrate has dismissed the petitioner's application under Section 437(6) Cr.P.C. and has declined to release the petitioner on bail, the petitioner has approached this Court.
The brief facts of the case are that on 01.06.2009, the complainant, Amrit Lal, had lodged a FIR, FIR No.116/2009, at Police Station Ramganj, Ajmer for offences under Sections 420 and 120B IPC wherein he has claimed that the petitioner, in conspiracy with one Ashok Jadeja, has cheated him and has committed breach of trust. After a thorough investigation, the police had filed a charge-sheet for offence under Section 406, 420 and 120B IPC. Vide order dated 21.08.2009, the learned trial court had framed the charges against the petitioner for the above mentioned offences. However, as the petitioner was aggrieved by the said order, he had challenged the same before the Sessions Judge. Vide order dated 08.12.2009, the learned Judge remanded the case back to the learned trial court and directed it to re-hear the entire case for framing of charge. After re-hearing, vide order dated 14.01.2010, the learned trial court framed the charges only for offences under Sections 420 and 120B IPC and discharged the petitioner from the offence under Section 406 IPC. Subsequently, the testimony of Chand Mal (PW-1) was recorded. The learned counsel for the accused wanted to confront this witness with his previous statement. However, this opportunity was denied. Therefore, the order denying such an opportunity was again challenged before the Sessions Court. The Session Court set aside the order denying such an opportunity. According to the petitioner, despite the fact that six months have lapsed from the first date of recording of the evidence, the trial is yet to be completed. Therefore, the benefit of Section 437(6) Cr.P.C. should be given to him and he is entitled to be released on bail. With this view in mind, the petitioner had filed a bail application before the learned Sessions Judge, Ajmer. However, vide order dated 29.05.2010, the learned Sessions Judge had declined to grant the benefit of Section 437(6) Cr.P.C. Therefore, the petitioner had filed a third bail application before this Court, registered as S.B. Criminal Misc. Third Bail Application No.1158/2011. However, vide order dated 11.02.2011, this Court had opined that a bail application does not lie, instead the petitioner should avail of the alternate remedy provided by law. Hence, the said application was withdrawn. Thus, this petition before this Court.
Mr. Jai Prakash Gupta, the learned counsel for the petitioner, has vehemently contended that Section 437(6) Cr.P.C. uses the word shall. Therefore, it is a mandatory provision. In order to buttress this contention, he has relied upon the cases of Anil Kumar Vs. State of Rajasthan [2005 (1) RCC 284] and Gautam Kandiya Bhonsle Vs. State of Rajasthan [2004 (2) RCC 944]. Secondly, according to him, the learned Magistrate has not given any cogent reasons whatsoever for declining the benefit of Section 437(6) Cr.P.C. Thirdly, the petitioner has the right to challenge any order which is prejudicial to his interest. Therefore, in case he avails of the said remedy, he cannot be faulted. Lastly, from 14.01.2010 and from the first date of recording of the testimony of Chand Mal (PW-1), sixty days have already expired. Therefore, the petitioner is entitled to the benefit of Section 437(6) Cr.P.C.
On the other hand, Mrs. Alka Bhatnagar, the learned Public Prosecutor, has vehemently contended that Section 437(6) Cr.P.C. is not a mandatory provision, although it uses the word shall. She has drawn attention of this Court to the words unless for reasons to be recorded in writing, the Magistrate otherwise directs. According to her, these words clearly reveal the intention of the parliament that the said provision is not mandatory, but is merely directory in nature. Secondly, the learned Magistrate has given cogent reasons for denying the benefit of Section 437(6) Cr.P.C. According to the learned Magistrate, there are 298 witnesses to be examined. Moreover, repeatedly the petitioner has been filing revision petition or challenging the orders of the Magistrate. Therefore, naturally ample time is required for the completion of the trial. Even the order denying the right to confront after recording of the testimony of Chand Mal (PW-1) was challenged. The same could not be decided till 09.09.2010. Lastly, she has contended that the trial courts are flooded with large number of cases and there is also lack of judicial officers in the State. Thus, it is not unusual that the trial do continue for quite some time. Hence, she has supported the impugned order.
Heard the learned counsel for the parties and perused the impugned order, and considered the case law cited at the Bar.
Section 437(6) Cr.P.C. reads as under :
437. When bail may be taken in case of non-bailable offence:-
(1) x x x (2) x x x (3) x x x (4) x x x (5) x x x (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.
A bare perusal of the provision clearly reveals that although it uses the word shall, the word shall cannot be interpreted to make a mandatory provision. For, while the sub-clause uses the word shall, it also empowers the Magistrate to decline the benefit of the said sub-clause after recording his reasons. Once a discretion has been bestowed on the Magistrate, the provision cannot be held to be mandatory in nature. Unlike, Section 167(2) Cr.P.C. which grants a statutory bail, by operation of law, under Section 437(6) Cr.P.C. it is not mandatory that the bail has to be granted. In the case of S.B. Cr. Misc. III Bail Application No.860/2011 (Suresh Narayan Soni Vs. State of Rajasthan decided on February 15, 2011), this Bench has already observed that the provision under Section 437(6) Cr.P.C. is not mandatory. It was observed as under :
It is pertinent to note that in case of Gautam Kandiya Bhonsle (supra) this Court has not given any reason while granting bail under Section 437 (6) Cr.P.C. Thus, the said order is sub-silentio. Similarly in the case of Anil Kumar (supra) this Court had not given any reason for granting the benefit of the said provision. In the case of Rahul Sanwant @ Prince @ Karmjeet Salooja (supra), this Court granted the benefit of the said provision on the ground that not a single witness was examined by the trial court, and the court had not given any cogent reason for not examining a single witness.
A bare perusal of the case of Gautam Kandiya Bhonsle (Supra) clearly reveals that this Court has not held the provision of Section 437(6) Cr.P.C. to be mandatory. In fact, it has merely given the benefit of the said provision without discussing the nature, the ambit and the scope of the said provision. Therefore, the said case does not lay down a principle that Section 437(6) Cr.P.C. is mandatory in nature.
Similarly in the case of Anil Kumar (Supra), again, this Court has not laid down any principle of law and has not interpreted the said Section to be mandatory in nature. In fact, both the cases are Sub-silentio on the point of nature of the provision. Therefore, neither of these two cases come to the rescue of the petitioner. As mentioned above in the case of Suresh Narayan Soni (Supra), while distinguishing these to cases, this Court has already opined that provision of Section 437(6) Cr.P.C. is not mandatory in nature.
Of course, it is true that an accused has the right to challenge the orders passed by the learned trial court, such a right cannot be denied to him. However, while challenging such a order, he cannot take the benefit of the time spent in challenging the order. Therefore, in case the order declining the right to confront the witness was challenged by the accused, naturally that time cannot be taken to be in favour of the accused.
A bare perusal of the impugned order clearly reveals that the learned Magistrate has noticed the fact that there are about 298 witnesses to be examined. Obviously, the examination of 298 witnesses cannot be done over night. It will certainly require a great length of time for the trial court to record the testimonies of 298 witnesses. Therefore, according to this Court cogent reasons have been given by the learned trial court.
Lastly, it is a well known fact that presently, the State of Rajasthan has a severe shortage of Judicial Officers. Many of the courts do not have the Presiding Officers. Therefore, the judicial work in these courts has come to a grinding hault. Considering the practical constraint under which the judiciary is functioning, it is neither unusual, nor abnormal for the trial to continue for a large number of years.
Hence, this Court does not find any illegality or perversity in the impugned order. This petition, being devoid of any merit is, hereby, dismissed.
(R.S. CHAUHAN) J.
Manoj solanki