HIGH COURT OF CHHATTiSGARH. BILASPUR CrimialM.P.No.86of2008 Slngle Bench: Hon'ble MT. T.P. Sharma, Judge APPUCANT ^--y NON APPLICANT Janardan Singh Thakur Versus The State of Chhattisgarh. ORDER POST FOR^^-2008 Sd/- T.P. Sharma Judge ^- ^ ^- Crsmial M.P. No. 86 of Single Bench: Hon'bie iVSr. T.P. Sharma,Judge APPLICANT NQNAPPUCANT Janardan Slngh Thakur S/o Bhagwan Singh Thakur, Agc-d about 52 years, R/o viiiage Atarmuda, Raigarh, Tehsii and District, Raigarh, Versys The State of Chhattisgarh through SHO P.S. SIhawa, District Dhamtari (CG) PETiTION SECTSON 482 OF THE OF CRSMINAL PROCEDURE Present: Shri Santosh K. Tiwari counsei forthe appiicant.' Shri Sanjeev Agrawai PL for the State. 0_R,DE_R (Passed on^- Februapy, 2008 ) Thls petition js'directed against the order 28.1.2008 passed by Additlona! Sessions Judge, Dhamtari In Criminai Revlsion No. 8/2008 affirming the order dated 24.1.2008 passed by learned Judiciai First In Crirnina! Case No. 630/2007. 2. The appiicant is facing trial before the Judjcial Magistrate Flrst Class in Criminal Case No. 630/2007 for the offence punishable under sectlon 377 of th©!PC. Appiication filed by the appllcant under section 437 (6) of the Code of Crimlnai Procedure (for short the Code) for his rejease was rejected by Jearned dudiclal IViaglstrate-Flrst Class vide order 24.1.2008. t- 3, The short point argued on behaif of the petltioner Is that the provision under section 437 (6) of the Code is mandatory In nature which envlsaaes that.if the triai is not conciuded wjthin a period of 60 days from the first fixed for taking. the evidence then the right for his accrues In favour of the appilcant. 4. Heard counsel for the and order Impugned, 5. !t is araued on of trte that the had the for evldence on 12.11 .2007 for the first time and the triai was not conduded wlthin a of 60 davs. Appiication under section 437 (6) of the Code was flied on 24J .2008 which was.dlsmissed cn the ground that the flrst fixed for, evidence the prosecution has examlned slx witnesses and there Is every likeiihood of examjnation of a)l the wltnesses at the eariiest and there wiil be no delay in. concluslon of the the triai. The revlslon -against the order of the tearned Maglstrate was also dlsmlssed by the order under chailenge. It is further argued that the provlsions of section 437 .(6) of the Code belng mandatory in nature, there is no option left to the Court except to release the applicant on bai! after the stipulated period of 60 days is over and thus the has committed a gross iilegaiity In ignoring the mandatory provlsions under Sectlon 437 (6) of the Code in not enlarging the appiicant on baii. Reliance i^iaced on the declsion of the High Court of Chhattisgarh in the matter of Smt. Godawari Bai and others Vs. of C .G. reportsd In (2) C.G.LJ. 135 in whlch it Is held that in the flrst instance sub sectlon 6 of Section 437 of the Code provides that for any non-bailable offence triabie by a M-agistrate ifthe evJdence < js not conduded within a period of sixty days, then the accused becomes entitied for baii. Of course, the is entltied to reject the appiication for to be mentioned by him for example if the accused persons are responsibie for delay. !t.is aiso heid that the inherent po'wers as envisaged under Sectlon 482 of the Code need to be exercised. Reievant portion of the said order is reproduced as hereunder: !n the drcumstances, if fhj's to •sarne will be ofjustice, m to ofju^tice tooking to the provision of Section 437 (6) of iha Cr.P.C. ! am of the opinion powera as envssaged under Section 482 of the CrRC. to be exercteed ft is true that inherent powers are in rara and very sparingty, but where the Coun to the conciusion if the power is not exerclsed then that wlil aniount to of the af the Court and fajiure to the justice, Coyrf should this power. Further reliance is placed on the declsion of tVladhya Pradesh High Court in the matter of Ram Kumar Raj Kymar Vs. of Madhya Pradesh reported in 2000 Cr.L.J. 2644 in which it is held that the provlsions of sectlon 437 (S) of the Code, are of mandatory character and the statutory right given to the accused by such provision cannot be taken away. 6. in the instant case after the first date of evidence i.e. 12.11.2007, the triai Court has examined six witnesses produced on of the prosecution and It js speclficaliy recorded in the order impugned that 'is eveiy ii'keJihood of examinatlon of the rest of the v^ltnesses and the deiav is not likelv to occur in conclusjon of the trial. 7. In the case of' Robert LenGl Vs. The CoSJector of CusSoms another reported In 1987 Cr.LJ»85 It has been held bythe Delhi High Court that the twin objects of Sectlon 437 (6) of the Code namely to eradicate delay in trial and to achieve the ends of justice are necessarily to be harmonized. White deaiing with the provisions of Section 437 (6) ofthe Code it has held as under: SThe nexf for i3 whBtherwhile baii undersub^ec. (6) tfS. 437 afthe the can oniy refuae baii on the io the of the baii can b-e on tha as forrefusal to haii Undoubtediy, the ofsub- 3ec. (6) of S. 437 ofihe is to m triBl Ta us, it it is the of justlce do not The are to the ofjustiae, The Pwn objecte to he deiay m trial to the of justice are'HBces^arily to be harmonized, ft te in context has to find out whether the discretion by the m bail sixty days, has 14/a ^ of Mr. the for the baii thls provision ba oniy which are to th@ ar There is no to such a to the provision. The in the is for to b@ m wnting, the Magistrate othemlse dsrects". A piain reading of the expressfo.r? shows fhar ?he Legislature has pvt' no on the powers of this baii can be for to the ofdelay. If :^. ^ that wereSo, the Legislature would have certasnly made it ctear To us it appears that the considerations for refusmg ba!l Lfuctef thls provision can be the whioh are generalty invoked and understood In iaw as the grounds for refusing baii Af! that is requjred of the is should he dedde to decline to grant ball, he record hls reasons in writing. There are no on the exercise of this dlscretion." 8. Provlsions of section 437 (6) of the Cod©are reproduced as under for ready reference: <7f. in any trialbfe by a the trial of a person accused or any non-baiiable js 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 whote of the said period, be released on bail to the satisfaation of the Magistrate, unfess for reasons to be recorded in writing, the Syiagistrate ofhe/wte©direct^ 9. Provision of sub section 6 of section 437 of the Code is malniy in two parts narnely (a) iftrial ofthe accuse in which person accused of a non-bailabie offence is not conciuded wlthin a period of 60 days from the first date fixed for taking evidence the such person shail if he is in custody during the whoie of the said period, be released on bail; (b) Magistrate has discretion to refuse his release cn baii on the ground of reasons to be recorded in writina. If the trial in such ofrences is not concluded within 60 days then the right of release of the accused accrues in hls favour unless the said right is denied by the Magistrate by recording reasons in writing. The reasons for such denial are not limited but they must be cogent and substantiveiy sufricient. In the ^^^ ^^-^'% ij. <--, s^ case of Smt Godawari Bai and others (supra) the case was pending for effecting compromise without any substantiai progress but the application under Section 437(6) of the Code was rejected on the ground that the offence aileged is punishable for iife imprisonment. Definitely the reason assigned by the Maglstrate was not sufficient to take away the statutory right accrued In favour of the applicant. In the case of Ram Kumar (supra) the reason recorded for rejectlon of the applicatlon was that If the applicant wouid be released on bail then hls attending the Court on each and every date mlght be doubtful. In the said case also the reasons assigned for taking away the statutory right under section 437 (6) were not reasonable. 10. The twinobject of section 437(6) of the Code is to eradicate delay in trial and to achieve the ends of justlce. tn the iight of this object if we examine the order impugned then it becomes clear that from 12.11.2007 to 10.1.2008 i.e. wlthin a period of one month and twenty eight days the Court has examined six witnesses for the offence of section 377 of the IPC and it is recorded that there is every iikelihood of concluslon of the trial at the earliest without any delay. It appears that the trial Court is veiy keen for early disposa! of the case as within one month and frwenty eight days it has examined slx witnesses which shows that the trial Court has tried to eradlcate the deiay in triai and to achieve the ends of justice at the eariiest. The reason asslgned by the Court below for taking away the statutory right accrued to the applicapst is cn substantive matenal avaiiabie on record. %\^ % ^ ^.^^ '%£^ 7 <J 11. When the accused is facing triai for the non baiiabie offence before a Magistrate and if his trial is not conciuded within a period of sixty days from the first date fixed for evidence, then the statutory right accrues in his favour for his release under section 437 (6) of the Code which cannot be taken away without any sufricient and cogent reasons. However, if there is reasonable ground for doing so, the Magistrate has the power to deny his release on bali, 12. ln view of the aforesaid discussion, l am of the considered opinjon that the order passed by Jearned Judicla! Magistrate First Ciass which has been confirmed by the Additlonal Sessions Judge, does not suffer from any iegal flaw. Thus, no interference is required In the impugned order by this Court. 13. Consequently, the petltion faiis and the same is hereby dismissed being without any substance. I Sd/- T.P. Sharma Judge y