JUDGMENT
Narendra Kumar Jain, J.
1. Heard learned counsel for the complainant- petitioner, learned counsel for the accused and learned Public Prosecutor.
2. The complainant-petitioner has filed this application under Section 439(2) of the Code of Criminal Procedure for cancellation of bail granted to the accused non-petitioner No. 2 Hitesh by Shri Kailash Prashad Meena, Civil Judge (J.D.) & Judicial Magistrate (First Class), Tijara, District Alwar in case No. 23/794/04, FIR No. 171/2004.
3. The petitioner lodged a FIR on 17th July, 2004 at Police Station Tapukda, District Alwar for the offence under Section 377 IPC against the accused non-petitioner No. 2 wherein it was alleged that on 14th July, 2004 the accused committed the above offence with his younger son Arun aged about 6 years.
4. The accused non-petitioner No. 2 was arrested on 2nd Sept., 2004. He moved an application under Section 437 Cr.P.C. for grant of bail before the Civil Judge (J.D.) & Judicial Magistrate (First Class), Tejara, Alwar, which was dismissed by him on the same day i.e., 2nd Sept., 2004. The accused non-petitioner No. 2 thereafter, moved an application under Section 439 Cr.P.C. before the Additional Sessions Judge No. 2, Kishangarh Bas, Alwar, which was dismissed vide order dated 10th Sept., 2004 with a direction that the accused non-petitioner No. 2 will be entitled to file another bail application after receipt of the F.S.L. Report. The accused non-petitioner thereafter moved an application under Section 439 Cr.P.C. before this Court and this Court vide order dated 20th Sept., 2005 rejected the bail application of the accused non-petitioner No. 2 under Section 439 Cr.P.C. in S.B. Cr. Misc. Bail Application No. 4400/2004, a certified copy of which has been placed on record.
5. The accused non-petitioner No. 2 further moved an application under Section 439 Cr.P.C. before the Additional District Judge No. 2, Kishangarh Bas, Alwar but the same was also rejected vide order dated 5th Oct., 2004.
6. The Trial Court framed charge against the accused for the offence under Section 377 I.P.C. on 10.11.2004 and fixed the case for prosecution evidence on 24.11.2004.
7. Thereafter, the accused non-petitioner moved an application under Section 437(6) Cr.P.C. on 10th Jan., 2005 before the Civil Judge (J.D.) & J.M. (First Class), Tijara, Alwar on the ground that trial has not been concluded within 60 days from the date of framing of the charge, therefore, he should be released on bail. Shri Kailash Meena, Judicial Magistrate (First Class), Tijara vide its order dated 10th Jan., 2005 allowed the bail application of the accused non-petitioner No. 2. The bail order dated 10th Jan., 2005 is reproduced as under:-
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nj is'k gqbZ@ftl ij lquk x;kA ckn xkSj vkns'k gS
fd ;fn ewy 5000@& dh ,d tekur ,oa blh jkf'k dk Lo;a dk ca/ki= is'k dj rLnhd
djkos rks tekur ij fjgk fd;k tkosA vU;Fkk ys@lh esa
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8. Being aggrieved with the above bail order dated 10.01.2005, the complainant petitioner preferred this application on 24.01.2005 under Section 439(2) Cr.P.C. for cancellation of the bail granted to the accused. This Court passed the following order on 29th Jan., 2005, which reads as under:-
“Heard. Perused the impugned order and other relevant documents. Admit.
Issue notice to non-petitioner No. 2 returnable on 15.2.2005 as to why the bail granted to him should not be cancelled. A show cause notice be also issued to the concerned officer as to why and in what circumstances, bail has been granted to non-petitioner No. 2 without material or substantial change in the facts and circumstances of the case after the rejection of his bail by the same court vide order dated 2.9.2004 and by the learned Addl. Sessions Judge, Kishangarhbas Under Sections 438 and 439 Cr.P.C. vide orders dated 29.7.2004, 10.9.2004 and 5.10.2004 respectively, which is against judicial propriety and discipline.
Sd/-
(Harbanslal) J.”
9. The Judicial Magistrate sent his reply dated 03.02.2005. The Judicial Magistrate in paras 8 & 9 of his reply has admitted that bail application of accused under Section 439 Cr.P.C. was rejected by the Additional Sessions Judge No. 2, Kishangarh Bas twice vide orders dated 10.09.2004 and 05.10.2004. The accused non-petitioner No. 2 filed its written reply dated 03.03.2005 to this application under Section 439(2) Cr.P.C. This Court vide order dated 3rd March, 2005 called the file of the Trial Court.
10. Learned counsel for the petitioner has argued that after rejection of the bail application of the accused by the Additional Sessions Judge twice and by this Court under Section 439 Cr.P.C. there was no justification for the learned Judicial Magistrate to grant bail to the accused non-petitioner No. 2 vide impugned order dated 10.01.2005. The said order is against judicial propriety and discipline.
11. In addition to the above submission of the petitioner, it is also borne out from the record of the Trial Court that the charge was framed against the accused on 10th Nov., 2004 and case was fixed first time for prosecution evidence on 24th Nov., 2004. As per Section 437(6) of the Cr.P.C., the period of 60 days is to be counted from the first date fixed for taking evidence in the case i.e., 24.11.2004 and as such, the period of 60 days had not been completed on the date of filing of the application under Section 437(6) of the Cr.P.C. For ready reference Sub-section (6) of the Section 437 Cr.P.C. is reproduced as under:-
“If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is 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 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.”
12. From the above, it is clear that period of 60 days was to be counted from 24th Nov., 2004 a date fixed for recording prosecution evidence. The 60 days had not been completed on 10th Jan., 2005. The accused non-petitioner No. 2 moved an application invoking jurisdiction under Section 437(6) Cr.P.C. on 10th Jan., 2005, when only 47 days had been completed. A bare perusal of the order dated 10th Jan., 2005 granting bail to the accused non-petitioner clearly shows that neither he gave reference of the earlier order rejecting bail application of the accused by the Additional Sessions Judge twice and by the High Court nor he considered the provisions of Section 437 Cr.P.C. He has not recorded any reason whatsoever for granting bail to the accused-non-petitioner No. 2 in impugned order dated 10.01.2005.
13. From the above facts and circumstances of the case, it appears that the learned Judicial Magistrate neither considered the fact of rejection of bail application by the Additional Sessions Judge, twice and also by this Court, nor, he considered the provisions of Sub-section (6) of Section 437 Cr.P.C., nor, he has assigned any reason whatsoever for granting bail vide order dated 10th Jan., 2005. It appears that the Judicial Magistrate has acted contrary to the basic principles of judicial propriety and discipline. It was not open for him to grant bail to accused in this case after rejection of bail of the accused twice by the Additional Sessions Judge and once by the High Court.
14. Learned counsel for the accused non-petitioner now submits that in the facts and circumstances of the case, the accused may be treated as in custody and this Court may now grant bail to him under Section 439 Cr.P.C. He has referred the case of Fakruddin v. Abdul Rahim and Ors. reported in 1986 RLR 315 = 1986 RLW 315. The High Court in the said case granted the bail under Section 439 on the basis of facts of that particular case. The said judgment is neither applicable on facts nor on law.
15. Learned counsel for the accused non-petitioner has further referred the case of State of Orissa v. Jagannath Patel and Anr. reported in 1991 (3) Crimes 858 and State of Karnataka v. Narayanappa reported in 1991 (3) Crimes 858. I have gone through the aforesaid judgments also wherein facts and reasons are altogether different and are not applicable in the present case.
16. In view of the aforesaid facts and circumstances of the case, it is clear there was no change of circumstance for entertaining and allowing the bail application by the Judicial Magistrate on 10th Jan., 2005 particularly after rejection of the bail application of the accused by the Additional Sessions Judge twice and also by the High Court. The conduct, action and order of the Judicial Magistrate is against the judicial propriety and discipline. It is also clear that Sub-section (6) of Section 437 Cr.P.C. was not attracted in the present case as a period of 60 days is to be counted from the date fixed for taking evidence in the case and not from the date of framing of the charge, therefore, on both counts the impugned order dated 10th Jan., 2005 granting bail to the accused non-petitioner No. 2 by the Judicial Magistrate deserves to be set aside and the accused non- petitioner is liable to be taken into custody immediately.
17. For the aforesaid reasons, I allow this application for cancellation of bail under Section 439(2) Cr.P.C. and set aside the order dated 10th Jan., 2005 passed by the Civil Judge (J.D.) & Judicial Magistrate (First Class), Tijara, Alwar in case No. 794/2004 granting bail to the accused non-petitioner No. 2 Hitesh S/o Shri Pyarelal. The accused Hitesh is directed to surrender himself before the Trial Court immediately, who shall take him into custody. If accused does not surrender himself than the Civil Judge (J.D.) & Judicial Magistrate (First Class), Tijara, Alwar is directed to take immediate step for arresting the accused non-petitioner No. 2 Hitesh S/o Shri Pyarelal and commit him to custody. After arrest and custody of the accused non- petitioner No. 2 Hitesh, it will be open for him to apply for bail under Section 439 Cr.P.C. before this Court.
18. The application under Section 439(2) for cancellation of bail is accordingly allowed as indicated above.