HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Misc. Petition No.395 of 2009
1. Gulab Singh Banjare
2. Balchand Bharti
...Petitioners
Versus
State of Chhattisgarh
...Respondents
{Petition under Section 482 of the Code of Criminal
Procedure, 1973}
! Mr. P.K.C. Tiwari, Senior Advocate with Mr. Shashi
Bhushan, Advocate for the petitioners.
^ Mr. Akhil Mishra, Deputy Govt. Advocate for the State/ respondent
Honble Mr. T.P. Sharma, J
Dated:11/09/2009
: Judgment
ORDER
(Passed on 11th September, 2009)
1. This petition under Section 482 of the Code of Criminal
Procedure, 1973 (for short `the Code’), is for quashment of
the order dated 15-7-2009 passed by the 2nd Additional
Sessions Judge (F.T.C.), Janjgir in Criminal Revision
No.44/2009, affirming the order dated 19-6-2009 passed by the
Judicial Magistrate First Class, Champa in Criminal Case
No.1664/2008, whereby learned Judicial Magistrate First Class
has dismissed the application filed on behalf of the
petitioners for bail in terms of Section 437 (6) of the Code.
2. Order is challenged on the ground that without any
reasoned order both the Courts below have dismissed the
application for release of the petitioners and thereby
committed illegality.
3. Brief facts giving rise to this petition are that the
petitioners are facing trial for the offence punishable under
Sections 420, 467, 468, 471, 120B read with Section 34 of the
I.P.C. and Section 4 of the Examination Act. The petitioners
are in custody since 25-8-2008. The case is triable by the
Magistrate. The Judicial Magistrate First Class, Champa has
framed charge against the petitioners of the aforesaid
offences and fixed the case first time for evidence on 15-4-
2009, but even after completion of 60 days, trial has not
been concluded and the application for release of the
petitioners filed under Section 437 (6) of the Code was
dismissed by the Judicial Magistrate First Class on the
ground that the prosecution has cited 64 witnesses, the Court
is not the regular Court and having its Link Court at
different place, and on the ground of heavy pendency of
cases, the application for release of the petitioners on bail
filed under Section 437 (6) of the Code was dismissed. The
petitioners have preferred a revision against the said order
and the same was also dismissed by affirming the order of the
trial Court, vide the order impugned.
4. I have heard learned counsel for the parties, perused
the order impugned, order of the trial Court and copies of
order sheets of the trial Court.
5. Learned Senior Advocate appearing on behalf of the
petitioners vehemently argued that the Magistrate is under
obligation to decide the case within 60 days from the first
date fixed for taking evidence and if the case triable by the
Magistrate is not concluded within a period of sixty days,
the accused is entitled for bail in terms of Section 437 (6)
of the Code, but the Court below has illegally dismissed the
application of the petitioners. Learned Senior Advocate
further submits that provision for bail under Section 437 (6)
of the Code is mandatory in nature and the right accrued in
favour of the accused cannot be denied on trivial ground.
Learned Senior Advocate placed reliance in the matter of Smt.
Godawari Bai & Others v. State of C.G.1 in which this Court
has held that rejection of application filed under Section
437 (6) of the Code on the ground that the offence under
Section 467 of the I.P.C. is punishable with life
imprisonment is not a ground for rejection. Learned Senior
Advocate further placed reliance in the matter of Haricharan
Ramteke v. State of Chhattisgarh2 in which this Court has
held that the application filed under Section 437 (6) of the
Code cannot be rejected mechanically without recording
reasons. Learned Senior Advocate also placed reliance in the
matter of Damodar Singh Chauhan v. State of M.P.3 in which
the High Court of Madhya Pradesh has held that provision for
bail under Section 437 (6) of the Code is mandatory in nature
and after lapse of 60 days from the first date of evidence
the accused becomes entitled for bail.
6. On the other hand, learned counsel appearing on behalf
of the State/ respondent opposed the petition and vehemently
argued that the provisions of bail under Section 437 (6) of
the Code are mandatory in nature, but the Court has ample
power to dismiss the application by reasoned order. Learned
State counsel relied upon the order dated 11-8-2009 passed by
a coordinate Bench of this Court in Criminal Revision
No.338/2009 (Atul Bagga v. State of Chhattisgarh) in which it
has been held that the provisions under Section 437 (6) of
the Code are mandatory in nature and in appropriate cases,
the application may be rejected by reasoned order.
7. In the present case, application for release of the
petitioners was filed before the trial Court after completion
of 60 days from the first date fixed for taking evidence,
which has been rejected vide order dated 19-6-2009 on the
ground that the Court is not the regular Court and having its
Link Court at different place, prosecution has cited 64
witnesses, examination of all the witnesses within 60 days
was not possible and considering heavy pendency of civil &
criminal cases, disposal of the case within 60 days was not
possible. Order of the trial Court was challenged before the
revisional Court and the revisional Court has also dismissed
the revision on the ground that the trial Court has assigned
reasons which are just & proper and the Court below has not
committed any illegality.
8. Provision of Section 437 (6) of the Code reads as
follows: –
“(6) 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.”
9. In the matter of Smt. Godawari (supra), the application
for grant of bail under Section 437 (6) of the Code was
rejected by the Magistrate on the ground that one of the
offences punishable under Section 467 of the I.P.C. is
punishable with life imprisonment. The reason assigned by
the Magistrate was not found proper on the ground that the
Magistrate is competent to infringe the sentence to maximum
three years and the accused persons were in custody since
last one year. In the matter of Haricharan (supra), this
Court has held that heavy pendency of cases is not a ground
for denial of bail. In the matter of Damodar (supra), it has
been held by the High Court of Madhya Pradesh that the
accused is in custody for 23 months for the offence
punishable under Section 409 of the I.P.C. therefore, he is
entitled for bail.
10. Dealing with the same question in Criminal Revision
No.338/2009 (Atul Bagga v. State of Chhattisgarh) vide order
dated 11-8-2009, a coordinate Bench of this Court has held
that taking into consideration the gravity of offence,
likelihood of tampering of evidence and dissuading the
evidence, rejection of the application was proper.
11. Provisions under Section 437 (6) of the Code are
mandatory in nature and bail should not be denied only on
trivial ground, but the application for bail under Section
437 (6) of the Code may be denied by reason to be recorded in
writing. The ground for rejection of application is a
question of fact and differs from case to case. No
straitjacket formula would be possible to lay down the
principles/ guidelines for rejection or allowing the
application under Section 437 (6) of the Code, but the Courts
are required to exercise the jurisdiction judicially and not
in arbitrary manner.
12. In the present case, the prosecution has cited 64
witnesses and according to the order impugned, the Court is
not the regular Court and it is having its Link Court at
difference place. The trial Court has specifically mentioned
in its order that if the case would be taken on day to day
basis, even then completion of trial would not be possible
within the stipulated time. According to the facts and
circumstances of the case, the matter relates to Pora Bai’s
case, the mega scandal in education sector. Reasons assigned
by the trial Court are not arbitrary. This is not the case
in which the trial Court is reluctant to decide the case, but
on factual matrix of the case, disposal within the stipulated
time is not possible. Reason assigned by the trial Court is
just and proper. The Court below has not committed any
illegality by dismissing the application or revision filed on
behalf of the petitioners.
13. Consequently, I do not find any ground for interference
in exercise of inherent jurisdiction. The petition is,
therefore, liable to be dismissed and it is hereby dismissed.
However, the trial Court is directed to expedite the trial
and fix the case for evidence on day to day basis with
interval of some weeks so that the case may be concluded as
early as possible.
JUDGE
