Delhi District Court
Rajeev Kapoor S/O Late Sh. Shiv Kumar ... vs The State on 19 April, 2010
1
IN THE COURT OF SH. ATUL KUMAR GARG, LD. ADDL.SESSIONS JUDGE
DELHI
Cr. Rev. No.22/10
Date of institution:- 6.4.2010
Date on which reserved for order:-19.4.2010
Date of delivery of order:- 19.4.2010
Rajeev Kapoor s/o Late Sh. Shiv Kumar Kapoor
presently lodged at Central Jail, No.9 Tihar, Delhi.
........Revisionist
Vs
The State
...... Respondent
ORDER
Revisional jurisdiction of this court has been invoked by the revisionist assailing the order dated 26.03.10 passed by Ld. ACMM Sh. Rakesh Pandit, Karkardooma Courts whereby his application of bail u/s 437 (6) of Cr.PC was dismissed stating that the said order is a illegal, improper and incorrect and not in accordance with law.
The case as set out in the application is that in spite of passing the sixty days from the commencement of the trial. Trial has not been concluded. It is incumbent upon the magistrate to release the revisionist on bail which is mandatory as per section 437 (6) of CrPC. According to him, he has no role in delaying the trial in any manner therefore, his right cannot be taken away by whimsical manner 2 as taken by Ld. ACMM while dismissing his application on 26.3.2010.
Revisionist who was in JC had moved an application before the Ld. ACMM with the prayer to allow him to deposit revision petition u/s 397 before the court of Ld. Chief Judge of District which was allowed. As such, the present revision petition has been filed. Revisionist has also made prayer in the revision petition that he be given an opportunity of being heard. His prayer was considered and he was called through production warrant from the Tihal Jail where he was in judicial custody in case FIR NO. 188/08 u/s 420 IPC P.S. Preet Vihar.
Revisionist has appeared and argued all the facts mentioned in the revision petition. He has relied upon the judgment titled as Raj Kumar alias Raj Kumar Rathore, petitioner v. State of Madhya Pradesh, where it was held that:-
Misc. Cri.Case no. 3320 of 1999, D/8-2-2000.
"Criminal P.C. (2 of 1974). S. 437 (6)-Bail- Entitlement to- Petitioner remaining in custody for period more than 60 days from first date fixed for recording evidence-Acquires statutory right of being released on bail under S.437 (6)-Denial of bail to him on ground that he may not attend Court on each and every date fixed by Magistrate-Improper-Proviso of S.437 (6) are mandatory.
By citing the above judgment, he had said that a statutory right has been accrued in his favour and the trial has not been concluded within sixty days. His statutory right cannot be taken in a manner as taken by Ld. ACMM vide order dated 26.3.2010 On the other hand Ld. APP for the State had supported the order 3 passed by the court below stating that considering the volumouns documents in evidence and considering the magnitude of the crime, trial court had rightly rejected the application u/s 437 (6) IPC. Ld. APP had submitted section 437 (6) of CrPC had given the discretion to the court to allow or not to allow the application.
I have gone through the section u/s 437 (6) CrPC. For better appreciation, section 437 (6) CrPC is reproduced here.
"When bail may be taken in case of non-bailable offence- (1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Sessions, he may be released on bail, but.........................
"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."
From the plain language of section 437 (6) CrPC, it is crystal clear that statutory right has been accrued in favour of the accused as the trial has not been concluded within sixty days from its commencement but still the section 437 (6) CrPC gives the discretion to the magistrate not to release the accused on bail, if otherwise directed. No doubt, the discretion should be used by the 4 magistrate judiciously and in conformity with principle as laid down by the court. Here, the magistrate has rightly had dismissed the application considering the nature of the offence and the volunous documents attached herewith. It is the case of cheating at public large.
Reason assigned by the magistrate in dismissing the application for bail is just and proper. I do not find any incorrectness, impropriety, and illegality in the order passed by the Magistrate while dismissing the application of the revisionist u/s 437 (6) CrPC. Hence, revision petition is hereby dismissed. Copy of the order be o sent to accused through Superintendent of jail. TCR be sent back along with the copy of this order. Revision file be consigned to RR. Announced in the open court Dated:-19.4.2010 ( Atul Kumar Garg) Additional Sessions Judge, KarkardoomaCourts, Delhi.