Singte Bench IN THE mGH COURT OF JUDICATURE AT BILASPUR.CHHATTISGARH Cr.M.P.NO.- "^l?— OF 2011 APPLICANT (In Jail) ^^0.^.......-- ? -R- Ro":':"-"^ri'.^..p-^^"'" ?^"*Ssd^^\-^^4-—' ^^..--•'""'A NON-APPLICANT Shatrughan Lal Sahu S/o Ramlal Sahu aged about 27 years, R/o - Village - Khairjhiti, Police Station - fingeshwar, District - Raipur (C.G.) VERSUS State of Chhattisgarh through the Station House Officer , Police Station - Fingeshwar, District - Raipur (C.G.) PETmON UNDER SECTION 482 OF CRIMINAL PROCEDURE CODE ^p-•I-/IMI1 ^^ HIGH COURT OF CHHATTiSQARH : BlLASpuR Sinsfe Bench: Hon'ble Sryi fvianjndra Mohan Shrjvastava, J, Laisanu versus T State of Chhattisgarh PETITiON UNDER SECTiON 482 OF THE CQDE OF CRimiNAL PROCEDuRE. I 973 Present: - Shn Shiveno'u Pandya, counsel for the petitionei". Shri Ashish Gupta, Pane! Lawyer for the State. URAl. URDtK (Passed on 1" of November, 2011 j hieara on aamission. 2. This petition under Section 482 of CrPC has been fiied by the petitioner aggrieved by order dated 30/09/201 1 in criminal revision No.15/1 1 affirmina order dated 20/09/2011 passed by the triai Court rejecting the appiication for grant of baii under Section 437 (6) of the CrPC. 3. Learned counsel for the petinoner submitted that the case was first fixed for recording prosecution evidence on 28/672011. However. the triai has not been concluded within a period of 60 days. Therefore, the petitioner is entitied to be released on baii. Learned counsei for the Detitioner submits that the iearned triat Court has rejected the application iliegaiiy without considering that the triai couid not be conciuded for various reasons which are not attributabie to iapses on me part or tne petinoner / accusea ana tns case was adjourned on various dates fixed for recording evidence of the prosecution, because of failure of the ^ R^:^''s?"{':''<'^'* '€SK]8%\ S 'v'eg£}&*ai:*^BH '%JC:^' "-'•^SK.SS^"" 2 prosecution in many ways. He submits that in these factuai premises, the rejecilon of the appiication oniy on the ground of gravity of offence is iliegai and unsustainabie in law. in support of his submission, tearned counsel piaced rellance on the decisions in the case or Mancnaran KamteKe v. State of ChhattisHarh, 2002 Cr.L.R. i'M.P.) 41. Smt, Oodavari Bai and others, 2004 (2) CGL>lJ_35_and Ram Kumar @. Rai Kumar v. State o{_M.£...20uu_i1j M.P. "^' ^: 4. On other hand, learned counsei for the Siate submitted that the petitioner is not entitled to release as a matter of right oniy on the ground that the trial couid not be concluded within a period of 60 days from the first date fixed for taking evidence. He submits that the Magistrate is competent to reject the ciaim, ir for reasonstO De recoraed in writing, it airects, otnerwise. inererore, tne power is discretionar/ in nature. Learned counsel for the State further submits that the appiication of the petitioner has been rejected by the Magistrate by recording reasons which cannot be said to be irreievant or perverse or aaainst the spirit of the provisions contained under Section 437 (6) of CrPC. He further submitted that the 'petitioner is facing prosecution for grave offences and the iearned Magistrate whiie rejecting the application has taken into consideration that on the first date fixed for recording evidence, the case was adjoumed and the prosecution witnesses couia not De examinea on accoum or appiication niea Dy co-accused and again on 29/06/2011, the prosecution witnesses coutd not be examinea Decause agaln appiication was tiiea m one co-accused. Thereafter, t'ne summons was not issued to the prosecution witnesses due to the aforesaid application pending, which was finaily decided on 21/07/2011 whereafter, the J/ ^' ./" case was fixed for recording evidence of the prosecutlon but prosecution v/itnesses could not be examined as the co-accused was not Droduced from iaii. 5. The petitioner is facing trail for aileged commission of offence under Section 409 read with Section 34 of iPC in criminal case No.178/11 Dendino before the Judiciai Maalstrate First Ciass. Rajim. The Detitioner apDiied for arant of bait by moving the appiication under Section 437 (6) of the CrPC on the ground that the tria! has not been conciuded within a period of 60 days from the first date, fixed for taking evidence. l<.<-' 6. Mandate of sub section (6) of Section 437 of the Code requlres the Magistrate to release the person accused of any non-baiiabie ofrence triable by a Magistrate, on baii where the triai of such person is not concluded within a period of 60 davs from the first date fixed for takinci evidence in the case uniess for reasons fo be reeorded in writing or the Magistrate otherwise directs: Thus, the provision of taw referred to hereinabove, empowers the Magistrate to direct otherwise, meaning therebv that even ffthe triai is not conciuded within a Deriod OT sixiy pays as stipulatea, tne accusea person, if he is in custody, may not be reieased if the Magistrate otherwise directs. However, the statute imDoses an important rider on such power of the Magistrate i.e. that the Magistrate is required to record reasons in writing in respect of such direction otherwise. 7. In the case of Atui Bagga versus State of Chhattisgarh, 2010 Cr.L.J.opB, this Court considered the scope, extent and object of provisions \ ~ contained in Section 437 (6) ofthe Code and heid:- .,f- "Sub-section(6) of Section 437 of the Code carves out an exception to the provision contained in clause(i) of sub-section (1) of Section 437 of the Code and reads as follows: "437. When bail may be taken in case of non-baiiabie xxxxxx xxxxxxx xxxxxxx (6) if, in any case triable by a Magistrate, the triai of a person accused or any non-DaiiaDie oTTence is not conciuaea wimin a period of sixty days from the first date fixed for taking evidence in the case, such person shaii, if he is in custody during the whoie of the said period, be reteased on bail to the satisfaction of the Magistrate, uniess for reasons to be recorded in writing, the Magistrate omerwiseciirects. It wouid, thus, appear that under the first iimb of sub-section (6) of Section 437 of the Code where the trial of a person accused of any non-bailabie offence is not concluded within a period of SQ-'days from the first date fixed for taking evldence in the case, the law mandates that such person shall; if he is in custody during the whoie of the said period, be reieased on baii to the satisfaction of the Magistrate. The second iimb of sub-section (6i of Section 437 of the code carves out an exception and empowers the Magistrate to refuse baii for reasons to be recorded in writing. it is, therefore, open to a Magistrate to refuse baii under sub-section (6) of Section 437 of the Code wnere the Magistrate assigns reasons in writing which are amenabie to scrutiny by a superior Court for examining whether the Magistrate was lustffied for reasons recorded bv him in writing in refusing bail under sub-sectionf'S) of Section 437 of the coae. IT tne reasons assigned Dy the Magistrate justify refusat of baii and cannot be termed arbitrarv then the order refusina baii by the Magistrate under sub-section (6) of Section 437 of the Code would be in accordance with iaw and not open to interrerence in revision. pn- "11. The question that arises for determination is as to what factors shouid weigh with the Magistrate whiie refusing grant of baii under sub-section (6) of Section 437 of the Code. !n my considered opinion, apart from the gravity of offence and the quantum of punishment, one or more of ths foiiowing factors, among others may weigh with the Magistrate whiie refusing baii: (a) the overaii impact of the offence and the retease of the person accused of such ofrence on the socretv, (b) the possibility of tampering of evidence by the accused, (c) the possibiiity of the accused absconding if reieased on Dai!, ana lastiy, (di the delav in conciusion of the triat within a period of 60 davs if attributable to the accused." 8. Thus, for proper and reievant reasons, the Magistrate has jurisdiction, not to reteasa-the accused undergoing triai only on the ground that the triai could not be conciuded witbin a Deriod of 60 davs. The relevant considerations which should weigh in th6 mind of the Court have been iaid down in the case of Atui iagga (Supra! mentionea nereinabove. 9. if<the order passed bv the Magistrate and the revisionat Court is scrutinized bv appiving the reievant provisions and aforesaid principles, it wouid be revealed that the iearned Maaistrate has rejected the aDplication for release by recording reasons in writing which cannot be said to be whotly irreievant or so outrageous as to warrant interference bv this Court in exercise of powers under Section 48? CrPC. The order passed by the Magistrate is a detaiied one. it is reflectea frpm the said order that the iearned Magistrate took into cons'deration the initiai dates of hearingi when the case was iisted for recording evidence of the prosecution witnesses and the witnesses had atso appeared, they could not '/-sy^ >c-!>» SKgWS.Sr ^SsS-t^ fc,.. be examined because some appiications were riled on behalf of fhe co-accused, because of which, the matter remained pending untii those applications were decided on 21/7/2011. it has aiso been observed that the records of the case were requisitioned by the Additionai Sessions Judge on 23/8/2011 and were returned on 8/9/2011. it has a!so been observed on 8/9/2011, the case was adjourned as the iawyers abstained from work. The iearned Magistrate has also •taken into consideration that though the case was nxed for recording evidence on 3 , 4 and 5 ofAugust, 2011 and the prosecution wtnesses had appeared. ths co-accused could not be produced before ihe Court from Jaii. 10. The trial Court, taking into consideration the aforesaid circumstances and takin.g into consideration the gravity of orfence and that the petifioner is accused of having gommined an offence in reiation to huge amount of public fund and that in the event or he b^ing reieased on bail, he being in an influential position may tamper with the prosecution witnesses, has rejected the appiication. The aforesald order has been amrmed bv the revisional Court. in fhe considered opinion of this Court, the reasons which have been assigned are reievant in the iiaht ofthe order oassed in the case of Atui Baaaa (SuDra'i. 11. In the case of Haricharan (Supra), the application under Section 437 (6) was aiiowed as fne reason assigned for rejecting fne appiication by t'ne triai Courts were that the Courts are ioaded with work and further that witnesses present in the. Court couid not be examined because of fhe non-availabiiitv of the experts report and the accused had remained in jail ror almost one year. in the case or Smt. Godavari Bai and others (Supra), the appiication under Section 437 (6) CrPC was ailowed takina into consideration that the maximum sentence ^5£j5»s-i" '^LiA; ;.} "^. '^ IS'ISS^ /^? S4 that couid be awarded was three years and the persons were in jaii for one year. In the case of Ram Kumar (Suprai, the application was ailowed as the reasonings of the Courts below were simply to the effect that if the petitioner is reieased then it wouid be doubtrui whether he wouid attend the Court on each and every date fixed by the Court. Therefore, the aforesaid decisions are aistinauishabie on racts. Deepf' 12. In the result, l do not find any iilegaiity in the orders passed by ihe Courts below. The petition is therefore dismissed. Sd/- Manindra Mohan Shrivastava Judge 1-