Jharkhand High Court
Deepak Das vs The State Of Jharkhand on 22 February, 2017
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 43 of 2017
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Deepak Das, Son of Ruplal Das, Resident of Paredeh, (Jamtara), P.O. & P.S. Jamtara, District-Jamtara, Jharkhand. .....Petitioner Versus The State of Jharkhand. ... Opposite Party
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Kaushik Sarkhel, Advocate
For the State : A.P.P.
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03/_27.02.2017 Heard the parties.
In this application, the petitioner has prayed for quashing the order dated 5.10.2016, passed by the learned Chief Judicial Magistrate, Pakur in connection with Pakur (Town) P.S. Case No. 284 of 2015, registered for the offence under sections 403, 419 and 420 of the Indian Penal Code and Sections 66, 66-C, 66D of the Information Technology Act, 2000, whereby and whereunder application preferred by the petitioner for his release on bail under section 437(6) of the Code of Criminal Procedure has been rejected.
It appears that an FIR was instituted, in which it was stated that the informant had received calls from four mobile numbers and the callers pretended to be an official of the State Bank of India and wanted information from the informant that 16 digit ATM Card number is to be given as the ATM Card of the informant has been locked. Being convinced by the phone calls, the informant had given her ATM Card number and soon thereafter she has received a message on her phone with regard to withdrawal of amount of Rs.19,997/-.
Based on the aforesaid allegation, Pakur (Town) P.S. Case No. 284 of 2015 was instituted. Involvement of the petitioner having been prima facie found, he was take into custody on 4.10.2015 and since then he is in judicial custody. The petitioner had moved this Hon'ble Court several times for grant of bail but the same was rejected. Charge was framed on 30.3.2016 and since after expiry of 60 days, the trial did not conclude, the petitioner had preferred an application under section 437(6) of the Cr.P.C. for his release on bail, which, however, was rejected by the learned C.J.M., Pakur on 5.10.2016, which is the order impugned to this application.
Learned counsel for the petitioner has submitted that the impugned order dated 5.10.2016 does not justify rejection of an -2- application under section 437(6) of the Code of Criminal Procedure since no appropriate reasonings have been mentioned in the said order. Learned counsel submits that the petitioner has remained in custody for a considerable length of time and by virtue of vague reasonings, indefeasible right accrued to him under section 437(6) of the Code of Criminal Procedure have been frustrated. Learned counsel in support of his contention has referred to a judgment passed in the case of Nehul Prakashbhai Shah & Others Vs. State of Gujarat in Criminal Reference No. 2 of 2011.
Learned A.P.P. has opposed the prayer made by the learned counsel for the petitioner and has stated that categoric reasons have been given by the learned trial court that if the petitioner is released on bail, there is every likelihood that he may tamper with the evidence. Learned counsel further submits that three witnesses have already been examined and efforts are being taken by the learned trial court to examine rest of the prosecution witnesses so that the trial be concluded at the earliest.
It appears that an application under section 437(6) of the Code of Criminal Procedure preferred by the petitioner was rejected by the learned Chief Judicial Magistrate, Pakur on 5.10.2016 on the ground that if the petitioner is released on bail, at this juncture, there is every likelihood that he may tamper with the evidence. It is an admitted fact that the right of the petitioner to be considered for releasing on bail accrued once 60 days has expired after the charge was framed on 30.3.2016. It is to be seen as to whether the petitioner deserves to be given benefit of Section 437(6) of Cr.P.C. or as to whether refusal of such application by the learned trial court was on justifiable and cogent reasons. Since a divergent view was in existence with respect to the question as to whether the provision of Section 437(6) of the Code of Criminal Procedure is mandatory in nature or not, such question was referred to the Hon'ble Division Bench of Gujrat High Court in Criminal Reference No. 2 of 2011.
Before deliberating on the judgment cited by the learned counsel for the petitioner, it would be necessary to have a glance at Section 437(6) of Code of Criminal Procedure, which reads as follows:-
437 (6) If, in any case triable by a Magistrate, the trial of a person ac-
cused 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 peri- od, be released on bail to the satisfaction of the Magistrate, unless -3- for reasons to be recorded in writing, the Magistrate otherwise dir- ects.
Sub Section 6 of Section 437 virtually consists of two parts. If first part is read in isolation, it would mean that an accused accrues an indefeasible and incorrigible right for being released on bail if in a case triable by a Magistrate, the trial of a person accused of a non bailable offence is not concluded within a period of 60 days from the first date fixed for taking evidence of the accused, such person if he is in custody during whole of the said period shall be released on bail. However, a cog in the wheel has been put in the said provision to the effect that such right cannot be by way of a mandatory right as the Magistrate for reasons to be recorded in writing may otherwise direct. Adverting to the judgment passed in Criminal Reference No. 2 of 2011 while considering the various parameters for grant of bail or for that matter refusal of bail under section 437(6) of CrP.C., it was held that the provisions are not mandatory in nature. Various factors, which must weigh in the mind of the Magistrate have been enumer- ated in the judgment under reference and the same reads as under:-
"Q-3 The Magistrate has option/discretion to refuse bail by assign- ing reasons therefor. The parameters, factors, circumstances and grounds to be considered by Magistrate vis-à-vis such application pre- ferred by the accused under Section 437(6) of the Code may be:
(1)Whether the reasons for being unable to conclude trial within sixty days from the first date fixed of taking evidence, are attributable to the accused?
(2) Whether there are any chances of the accused tampering with evidence or causing prejudice to the case of the prosecution in any other manner?
(3) whether there are any chances of abscondence of the accused on being bailed out?
Whether accused was not in custody during the whole of the said period?
If the answer to any one of the above referred fact situations or simil- ar fact situations is in affirmative than that would work as a fetter on the right that accrues to the accused under first part of sub section (6) of Section 437 of the Code".
One of the parameters, which are also to be considered, are whether there are chances of the accused tampering with the evid- ence or causing prejudice to the case of the prosecution in any other manner. In the backdrop of the judicial pronouncement, as stated above, this Court has to see as to whether the impugned order passed by the learned trial court is in consonance or is in conformity with the provisions of Section 437(6) of the Cr.P.C.
As has been stated above, refusal to grant benefit of bail under section 437(6) of the Code of Criminal Procedure seems to be on the -4- ground that if the petitioner is released on bail when the trial is mid- way, there is every likelihood that he may tamper with the evidence. Such vague ground cannot be a basis for rejection of an application under section 437(6) of Cr.P.C. In fact in the case of Nehul Prakashbhai Shah (supra), a note of caution has been added to the effect that the reasons for rejection of the application under section 437(6) of the Cr.P.C. need to be more weighty than the routine grounds of rejection. The impugned order does not justify the rejec- tion by strengthening it with any plausible grounds which is in exist- ence rather by one stroke of pain, the said application has been rejec- ted on the ground of apprehension that the petitioner may tamper with the evidence. No discussion has been made by the learned trial court as to who are the witnesses, who have been examined and who are the witnesses who are yet to be examined. Mere mention of pos- sibility of tampering with the evidence is basically to frustrate the le- gislative intent in section 437(6) of the Cr.P.C.. No doubt, it is true that the accused does not gain an indefeasible right for being re- leased on bail under section 437(6) of Cr.P.C. but at the same time learned Magistrate cannot refuse such right without giving appropri- ate reasons for such refusal. Learned Chief Judicial Magistrate, Pakur having not elaborated or justified the reasons given for refusing to re- lease the petitioner on bail under section 437(6) of Cr.P.C., has, there- fore, committed an illegality. Such facts situation, therefore, would definitely entitle the petitioner to be released on bail.
Accordingly, in view of what has been stated above, this applic- ation is allowed and the impugned order dated 5.10.2016, passed by the learned Chief Judicial Magistrate, Pakur in Pakur (Town) P.S. Case No. 284 of 2015 is hereby quashed and set aside. Learned trial court is further directed to release the petitioner on bail subject to such conditions it may impose.
This application stands allowed.
Let this order be sent through Fax at the cost of the petitioner.
(Rongon Mukhopadhyay,J) Rakesh/