Madhya Pradesh High Court
Vikas Mittal vs The State Of Madhya Pradesh on 7 February, 2019
1
IN THE HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE.
SINGLE BENCH : HON'BLE SHRI JUSTICE S.K. AWASTHI
MISC. CRIMINAL CASE NO.52004/2018
Vikas Mittal S/o Omprakash
Vs.
State of Madhya Pradesh
Shri Ashish Tiwari, learned counsel for the applicant.
Shri Rakesh Maheshwari, learned counsel for the
respondent/State.
Shri R.K. Samdani, learned counsel for the
complainant/objector.
ORDER
(Passed on 07/02/2019) The applicant has preferred this petition under Section 482 of the Cr.P.C., against order dated 01/12/2018 passed by Additional Sessions Judge, Ujjain in Criminal Revision No. 251/2018, wherein learned Sessions Judge has dismissed the revision petition and affirmed the order dated 16/07/2018 passed by Judicial Magistrate First Class, Ujjain in Criminal Case No. 3125/2017, whereby the application filed by the applicant under Section 437(6) of the Cr.P.C., has been rejected.
2. The facts giving rise to this application are that the present applicant was facing trial before the learned Judicial Magistrate First Class under Sections 420, 406 and 120(B) of IPC in criminal case No.3125/2017. After framing of charge, the matter was first fixed for recording of evidence on 07/11/2017. However, after lapse of 60 days, no evidence could be recorded, therefore, an application was filed by the present applicant under Section 437(6) Cr.P.C. for grant of bail on 2 the ground that after lapse of 60 days, as prescribed by Section 437(6) Cr.P.C., the trial by the Magistrate could not be concluded, therefore, right for grant of bail has accrued in favour of the applicant.
3. The learned Magistrate dismissed the application on the ground that when the case was fixed for recording of the prosecution witnesses, then some interlocutory applications have been filed by the parties, therefore, the evidence of prosecution witnesses could not be recorded and prosecution evidence is delayed. The offence registered against the applicant is serious in nature, therefore, it is not proper to release the applicant on bail. Being aggrieved by this order, the applicant presented a criminal revision before the Sessions court, which was also dismissed by the Additional Sessions Judge, Ujjain by impugned order by contending that the reasons stated by the Magistrate are just and proper and therefore, no interference is called for.
4. Being dissatisfied with the aforesaid orders, the applicant has preferred this application under Section 482 of the Cr.P.C. before this Court on the ground that both the courts below did not consider the facts and law properly and they wrongly interpreted the provisions of Section 437(6) Cr.P.C.
5. Having heard learned counsel for the parties and perused the record.
6. From the proceedings of the trial Court it reveals that on 15/09/2017, the charges were framed against the applicant and the case was fixed for recording the evidence first time on 07/11/2017, however, the prosecution has not examined any witness and prosecution evidence has not been concluded after lapse of 60 days from the aforesaid date.
7. In order to examine the rival contentions of the parties, it is necessary to reproduce Section 437(6) Cr.P.C. which reads as under:-
"437(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 3 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 the bail to satisfaction of the Magistrate unless for the reasons to be recorded in writing, the Magistrate otherwise directs."
8. From plain reading of the aforesaid quoted provision, it appears that the intention of the legislature is to speed up trial without unnecessarily detaining a person as an under-trial prisoner. This provision applies only to a case triable by a Magistrate and not to a case committed to the Sessions for trial. The intention behind the provision is that the trial should be concluded within period of sixty days from the first date fixed for evidence.
9. The contention advanced on behalf of the applicant that if the trial is not concluded within a period of sixty days from first date fixed for evidence then accused who is in custody has to be released on bail cannot be accepted as from the plain 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; whereas the provision of Section 437(6) of the Cr.P.C. 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. If 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.
4is 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.
10. The High Court of Orissa in the case of Chhabi Vs. State of Orissa reported in 1995(2) CRIMES 622 observed that even the nature of allegations should be taken into account when deciding whether the accused may be given the benefit of provisions of Section 437(6) Cr.P.C. It is further observed that any observations made while dealing with the case should not be weighed when the matter is taken up in trial.
11. While exercising the provisions of Section 437(6) Cr.P.C.,. 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, therefore, the provisions of Section 437(6) is not mandatory but directory.
12. In the present case, the applicant has moved an application under Section 439 of the Cr.P.C., before this Court, which was rejected on merits. Looking to the nature of the case, conduct and involvement of the applicant in the alleged offence into consideration while passing a detailed order, the Magistrate is of the view that benefit of provisions of Section 437(6) Cr.P.C. may not be extended to the accused, no interference can be made in such order.
13. In this view of the matter, the present application filed under Section 482 Cr.P.C. do not show any abuse of the process of the Court and therefore, it is liable to be dismissed and dismissed accordingly.
( S.K. Awasthi )
skt Judge
Santosh Kumar Tiwari
2019.02.07 11:38:08 +05'30'