@ MVA HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. M.P. N0. 389/2009 CRIMINAL APPLICATION 'PROCDURE. UNDER SECTION 482 READ WITH 437 §6Q OF CODE OF M (SB :Hon’ble Mr. T.P.sharma, J.) Present: Shri Parag Kotecha, Advocate for the applicant/petitioner. Shri Sanjeev Kumar Agrawai, P.L. for the State/Non—appiicant. ORAL- ORbER (Passed on 30/7/2009) 1. This petition is filed under Section 482 mad with 437 (6) of the Code of Criminal Procedure, 1973 (in short the code) petitioner has challenged the legality and property of the order dated 8/7/09 passed by Additional Sessione Judge, Uttar Bastar Kanker in criminal revision ’No. I2/O9 adirming the cider dated 4/4/09 passed by the Chief Judicial Magisuate, Uttax Bastar Kanker in criminal case NO, 1468/ 08 whexeby leamed Chief Judicial Magistrate has dismissed the application for grant of bail filed under Section 437(6) of the Code. Order is challenged on the ground that courts below have not complied the mandatory provisions of the “Code” and Without assigning any reason rejected the application supemcially‘ 3. . V ' Learned counsel for the parties are heard. Copy of the ‘ order impugned and other documents perused. 2. Agglicant In Jail Ajay Haldar, aged about 26 years, Anant Haldar, R/o RF. N0. 17 and Tahsil Pankhajur, Distt. Kanker. Non—agglicant The State of Chhattisgrh, through, 4. present applicant is in custody since 6/ 9/08. Charges were mmed on 30/ 12/08. The case was fixed for mst evidence on 15/ 1/ 09 but even after 6O days &om the commencement of the trial i.e. from the hist date of the evidence Chief Judicial Magistrate has not concluded the trial. Present applicaht tiled an application under Section 437(6) of the Code for his release which was virtually summarily dismissed by the Chief Judicial Magistrate vide order dated 4/ 4/ 09 and same has been affirmed by the order impugned. 5. Learned counsel for the applicant further submits that present applicant is in custody since 6/9/08 and after lapse of 6O days &om the nrst date of evidence the right has been accrued in favour of the applicant for his release on bail in terms of Section 437(6) of the Code but in stead of releasing the applicant on bail Court below has dismissed his application for bail Without any reason. Learned counsel for the applicant also submits that failure of producing evidence or not recording the evidence is not a fault of the applicant. 6. Learned counsel for the applicant placed reliance in the matter of Haricharan Ramteke v. state of Chhattisgarhl in which it has been held by this Court that provision of Section 437 (6) of the Code is mandatory in nature but, gives a small discretion to the Court that for the special reasons to be recorded in writing the Court before whom the application for release is made may reject the application but it cannot be rejected for some lapses either any part of the prosecution or any part of the police agency or mechanically. 1 2001 (5) M.P.H.T. 47 (CG) Leamed counsel for the applicant vehemently argued that ~;/ 7. Leaxned counsel for the applicant further placed reliance in the matter of Ram Kumax Rathore v. State of M.P.3 in which it has been held by the High Court of M.P. that the provisions of under Section 437 (6) is mandatory in nature and the apprehension of not attending the court by the applicant is not ground for rejection or judicious. 8. Learned counsel for the applicant further placed reliance in the matter of Smt. Godawari Bai & Others v. State of C.G3. in which it has been held by this Court that if evidence in non bailable offence triable by the Magistrate is not concluded Within a period of 60 days then accused is entitled for bail. 9. The provisions of Section 437 (6) of the Code reads as under: — (,A 437(6) - I}: in any case trible by a Magistrate, the trial of a person accused of any mm-bailable ojj‘enoe is not concluded within a period of sixty days from the first date fixed for taking evidenw in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. 10. On the other hand, learned counsel for the State] respondent submits that present applicant facing trial for the offence punishable under Sections 420, 467, 468 & 471 of the Indian Penal Code in which 62 witnesses have been cited for examination out of 62, 4 Witnesses have been examined by the Court. 22000 (1) .Jm 404 ’2004 (2) c.G.L.J 135 rLiy 11, Leaxned counsel for the State/respondent further submits that the wimcsses are residing in Naxali ehected area 140 Kms. away &om the court and on the ground of security and other Naxali operation prosecution has not examined all witnesses within - stipulated time of 60 days. Taking into consideration the aforementioned facts both the courts below had rejected the application for release of the accused under Section 437 (6) of the code is not mandatory and in suitable cases after recording the reason court is empowered to reject the application for grant ofbail. 12. The order sheet of the court below reveals that originally case was pending before the camp Court Bhanupratappur and subsequently, it has been Withdrawn by Chief Judicial Mag’strate, Kanker charges were named and trial has been commenced on 31/ 12/08 presently trial court has examined 4 Witnesses, process has been issued against the witnesses meanwhile regular bail application for release of the accused was med and same was also considered and decided on merits. The order of the trial Court and detail order of the revision court reveal that 62 witnesses were required to be examined in this case 4 witnesses have been examined and witnesses were residing 140 Kins. away from the court in Naxali eh‘ected area case was already posted for 2 days for evidence. It reveals that both the courts below after taking into consideration the facts and circumstances of the case have rejected the application. 13. Provisions of Section 437 (6) of the Code is mandatory in nature and normally accused should be released on bail in suitable cases. But the court is also empowered to dismiss the application -__.,,.,.VL A t