ingle nch IN THE HIGH COUT OF CHHATTIARH AT BILASPU CRIINAL M MISCELLANEOUS PETITION NO. ES ‘ (3 OF , 2009 CRIMINAL MISCELNEOUS PETITION UNDER SECTION 4 OF THE CODE OF CIMINAL PROCEDURE 3 Be R SG R m LA 82/ R PETITIONER CINJ'NLE Deepankar Ghoshal S/o Arun Ghoshal, \ “9 - Aged about 3Q years, \Kyk“ _w Q‘V’ / R/o Kasaridih, Durg, LIG 390, Padmanabhpur, Durg wwa “w (cm . w“ \3 I VERSUS RESPONDENT State of Chhattisgarh, Through District Magistrate District Durg (CG) HIGH COURT OF OHHATTISGARH AT BILAS’UR ‘ $3 : ON’BLE MR. JUSTICE PRITI R 1W R cxmmxo. 516/2009 PETITIONER Deayankar Ghoshal RESPONDENT State of Chhnttisgarh Ms. Farah Mlnhaz, counsel for the petitioner. Shn' Pankaj Shrivastava, EL; for the State. ’ PETITION UNDER SECTION 482 OF THE CREG. ORDER (23.03.2010) The present petition med under Section 482 Cr.P.C. is directed against the impugned order dated 17.8.2009 passed by the Additional Sessions Judge (FTC) Durg in Cr. Rev. No. 90/09 whereby amnm'ng fhe order dated 24a6.2009 passed by the Judicial Magistrate First Class, Dung in Cr. Case NO. 2/09mjecting the applicatioxn of the petiu‘oner m6. under Section 437(6) ofthe Cr.P.C. 2. Brief facts of the case am that the petitioner is in custody since 5.11.2008 in respect of Crime No. 693/ 2008 for the od‘ences punishable under Sections 420 & 409 of the IPC. The allegajion against the petitioner is that at the relevant time he was working as LIC agent and had collected total sum of Rs. 1,32,565 ham did‘erent customers but had not deposited the entile amount with the lnsmame Company and on the basis of the complaint lodged by one Gayitri Bai on 4. 1 1.2008, the investigation was made and it transpired that in number of cases the petitn'ner has not deposited the full amount. 3. It has been argued by the counsel for the petitioner that the charges were framed against the petitioner on 16.1.2009 but despite of lapse of more than one year, even the evidence has not been concluded. She submits that after framing of the charges, the mst datc which was med for mconiing the evidence was 30.1.2009 and the evidence” ought to have been completed Within 60 days mm the sald date. She submits that the evidence was not comluded ' within the stipulated rime and an application was med by the applicant under Section 437 (6) of the @de of Criminal Proceduxe but the same was dismissed vide order dated 24.6.2009. While dismissing the application it has been held ‘ by the Court that as the pmsecuh‘on has failed to pmduce the original record befoxe the Court, the evidence could not be concluded. The cider of the Mag'strate was assailed by the petitioner before the revisional Court however, bythe impugned order dated 17.8.2009 the revision has also :been dismissed and therefore the present petition. 4. Contention of the counsel for the petitioner is that the provisions of Section 437 {6) of the Code of Criminal Procedure is mandatory in nature and the applicant ought to have been released on bail because the applicant is not at fault. She submits that if the prosecution has failed to produce any document before the Court below the applicant cannot be punished and cannot be held liable for the said mistake. She submits that the reason assigned by the Court below is not the sufficient reason on which basis the application of the peh‘tioner can be rejected. She further submits that the learned Magatrate as well as the revisional 1 \\ l Court both have erred inlaw in rejecting the applicau'on of ‘y the petitioner on the gound that certain documents have not been produced by the prosecution before the Court below. ,-\ 5. 0n the other hand State counsel opposes the contention as raised by the petitioner and has contended that the Courts below are fully justided in rejecting the applieah‘on hled under Section 437(6) of the Code of Criminal Procedure. 6. . I have heard counsel for the parties. First of all it is mlevant to make reference to Sectinn 437(6) of the Code, in this context As per sub~sccticn (6) of secuon 437 of the Code, In any case mablc by a maglsuate, 1f the mal of a person accused of any non-baxlable oEence 1s not concluded mthm a penod of saxty days ham the mt date fixed for taking evidence in the case, such‘person shall; 1f he 1s m custody dunng the Whole of the smd penod be released on haul to the sausfacuon of the Magistrate, unless for masons to be recorded m wntmg, the .Maglsuate otherwise directs So the normal rule is to mlease a pnsoner on ba11, who has completed such s1xty days of detentxon as speaded above unless the Court othemsc dnects. The rule 1s mandatory m nature, as unheated by the expression “shall” in the provision itself. But, if any such prisoner is to be detained any further in prison, it shall be done only as per a specidc' order passed by the Mag‘strate in writing, recording reasons for the continued detention. Thus it follows that if any prisoner is detained in any of the prisons in the $tate for more than the period stated 1n Section 437(6) of the Code, Without any reasoned order 1n writing for the continued detention, such detenuon 1s unauthonzed and illegal Such pnsoner deserves immediate release nom pnson, subject to \ what has been laid down in Section 437 (6) of the Code. 7. From the order dated 24.6.2009 of the Magistmte and the oxder dated 17,8.2009 passed by the revisional Court, it is clear that the bail application has been msed only on“ . the ground that certain orig'nal documents could not be produced by the prosecuu'on before the Magistrate. The order sheets reflects that the charge were named on 16.1.2009 and the case was dxed for recording‘evidence on 36.1;2009 and thereaner on all the dates there was no fault n‘om the side of the applicant. In most of the dates the case was adjourned on account of absence of the prosecun’on agency. Thus, for the lapse on the part of the prosecution, the applicant cannot be made to suner. @ 8. For the reasons mentioned above, the petiiion succeeds. The impugned order passed by the revisiona] Court as wen as the order of the Magisirnte 1's set aside. Accordingly, the application is allowed and the applicant is dimcted to be immediately mleased on bail on his furnishing a bond in the sum of Rs. 10,000 with one sumty for the like. sum to the satisfaction ofthe Conn concerned. t ’7 f — / Sdl— pr'mnke' D-‘wakeY ‘ Judge