—T 4 ^n w 88 IN THE HON'BLE HIGH COURT OF CHHATTISGARHL^ / ATBILASPUR CR.M.P. NQ, 2-11 /2011 PETITIONER APPLICANT ^^i^r $$*%^ RESPONDENT : Anil Mishra, S/o. Late Bramhadev Mishra, aged about 45 years, R/o. Nagar Namnakala, Ambikapur, Police Station Gandhinagar, Ambikapur, District Surguja (C.G.) VERSUS State of Chhattisgarh, through: Police Station, Rajpur, District Surguja (C.G.) PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PRQCEDURE CODE ^ Petitioner Aeplicant Respondent HIGH COURT OF CHHATTISGARH : BILASPUR Cr.M.P.NO.211 of 2011 Anil Mishra Versus State of Chhattisgarh (Petition under Section 482 ofthe Criminal Procedure Code) Single Bench: Hon'ble Shri Manindra Mohan Shrivastava, J. Present: - Shri V. A. Goverdhan, Advocate for the petitioner. Ms. Sunita Jain, Panel Lawyer for the State. ORDER (ORAU (Passed on this 04"' day ofAugust, 2011) Heard. 2. By this petition, the petitioner has assailed the correctness and validity of order dated 26-03-2011 passed by the Revisional Court, whereby the order passed by the trial Court on 10-03-2011 rejecting petitioner's application under Section 437(6) ofthe Cr.P.C. has been affirmed. 3. Learned counsel for the petifioner argued that the petitioner had moved an application for release under Section 437(6) of the Cr.P.C. specifically stated in the application that the prosecution witnesses are not turning up, on account of which, there is no material progress in the trial. However, the circumstances and the fact that there has been delay in trial on account of the prosecution witnesses are not turning up, were not considered by the learned trial Court and without considering all these circumstances i.e. delay in trial and that the prosecution witnesses are not turning up and further that the accused, who has been granted bail, is also not appearing, the trial Court has rejected the application. It is submitted that when the matter was taken up in revision, the learned Revisional Court dismissed the revision. --2- 4. On the other hand, learned State counsel submitted that even if the learned trial Court did not consider various aspects, when the matter was taken up in revision, the learned Revisional Court has examined the correctness and validity of the order passed by the trial Court in the light of law laid down by this Court in the case of Atul Bagga Vs. State of C.G., 2009(3) C.G.L.J. 448 and having found that the allegations are serious and the petitioner is a person of criminal background and some other case are registered against him, therefore the rejection of the application warrants no interference. 5. From a perusal of order passed by the learned trial Court, it appears that the learned trial Court in its order passed on 10-03-201 1 did not consider various aspects of the matter, but only stating that offence under Section 394 and 392 of the I.P.C. have been registered and considering the law laid down by this Court in the case of Atul Bagga (supra), the application has been rejected. The order does not consider other circumstances as have been laid down by this Court in the case ofAtul Bagga (supra). This Court recorded;- "11. The question that arises for determination is as to what factors should weigh with the Magistrate while refusing grant of bail under subsection (6) of Section 437 of the Code. In my considered opinion, apart from the gravity of offence and the quantum of punishment, one or more of the following factors, among others may weigh with the Magistrate while refusing bail: (a) the overall impact of the offence and the release of the person accused of such offence on the society, (b) the possibility of tampering of evidence by the accused, (c) the possibility of the accused absconding if released on bail, and lastly, (d) the delay in conclusion of the trial within a period of 60 days if attributable to the accused." Therefore, while considering the application under Section 437(6) of the Cr.P.C., all the relevant consideration have to be kept in mind, consider and then -^ the Court is required to come to a conclusion by weighing various circumstances as to whether the application is to be allowed or not. However, the learned trial Court did not record reasons; the learned Revisional Court itself has gone into the various aspects of the matter. That would not validate the illegality committed by the learned trial Court, because it is for the Court of first instance to consider various relevant circumstances as examined in the case of Atul Bagga (supra) and exercise its discretion in judicious manner, and therefore, in these circumstances, 1 am of the view that the matter requires re-consideration by the concerned trial Court. 6. The petition is accordingly allowed and the impugned orders are therefore set aside. The matter is remanded to the trial Court for consideration afresh in accordance with the law laid down by this Court in the case of Atul Bagga (supra), particularly relevant consideration in para 11 ofthe order. Sd/- Manindra Mohan Shrivastava Judge Tumane