Chattisgarh High Court
Ajay Balmiki vs State Of Chhattisgarh on 3 February, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No.2096 of 2022
1. Ajay Balmiki S/o Jaysingh Balmiki Aged About 27 Years R/o Gadpur,
Police Station - Chaupanki, District : Alwar, Rajasthan
---- Petitioner
Versus
• State Of Chhattisgarh Through District Magistrate, Kawardha, District :
Kawardha (Kabirdham), Chhattisgarh
---- Respondent
For Petitioner : Shri Dharmesh Shrivastava, Advocate.
For Respondent : Shri Vimlesh Bajpai, GA.
Hon'ble Shri Deepak Kumar Tiwari, J
Order On Board
03/02/2023 :
1. This petition has been filed under Section 482 of the CrPC challenging
the order dated 9.11.2022 passed by the Additional Judge to the Court
of learned Additional Sessions Judge, Kawardha, District Kabirdham in
Criminal Revision No.26/2022 upholding the order dated 27.7.2022
passed by the CJM, Kawardha in Criminal Case No.1268/2022,
whereby the application preferred by the petitioner under Section 437
(6) of the CrPC for bail has been rejected.
2. Facts
of the case are that complainant Neelam Banjara lodged an FIR
alleging that some unknown persons called him through mobile phone
and thereafter committed on-line fraud whereby he was cheated for an
amount of Rs.5,89,908/-. Therefore, offence under Section 420/34 of
the IPC and Section 66-D of the IT Act was registered by the Police
Station Pipariya vide Crime No.188/2021. After completion of
investigation, charge sheet was filed on 25.4.2022 and charge was
framed on 9.5.2022 and the case was fixed for the prosecution evidence
for the first time on 23rd May, 2022. However, the prosecution could
not conclude the trial within a period of 60 days from the first day of
taking evidence in the case i.e. 27th July, 2022. Therefore, the petitioner
has moved an application for releasing him on bail under Section 437
(6) of the Code of Criminal Procedure (for short 'the Code'), which has
been dismissed by the CJM vide order dated 27 th July, 2022, which has
been affirmed by the impugned order.
3. Learned counsel for the petitioner submits that the impugned orders are
bad in law and against the spirit of Section 437 (6) of the Code. The
said provision is enacted with an intent to expedite the trial and there is
no fault on the part of the petitioner to conclude the trial within a
reasonable time. As the provision of Section 437 (6) of the Code is
mandatory in nature, so, learned counsel prays to quash the impugned
orders. Reliance is placed in the matters of Rajiv Bhosle and others
Vs. State of Chhattisgarh {2022 SCC Online Chh 287}, Santosh
Dubey Vs. State of CG {2017 SCC Online Chh 1641}, Sunil Kumar
Ojha Vs. State of Chhattisgarh {2016 SCC Online Chh 1487},
Chandraswami & another Vs. Central Bureau of Investigation
{(1996) 6 SCC 751}, Atul Kumar Shrivastava Vs. State of
Chhattisgarh {2020 SCC Online Chh 2373}, Atul Bagga (In Jail) Vs.
State of Chhattisgarh {2009 SCC Online Chh 211}, Lal Sahu Vs.
State of Chhattisgarh {2011 SCC Online Chh 403}, Sujay Chatterjee
Vs. State of CG, through Judicial Magistrate 1 st Class {2022 SCC
Online Chh 526}, Ramanuj Singh Thakur Vs. State of Chhattisgarh
{2016 SCC Online Chh 1604}.
4. On the other hand, learned State Counsel would support the impugned
orders on submission that Section 437 (6) of the Code is mandatory in
nature only to the extent that the Magistrate has to assign reasons and it
is not necessary that the petitioner shall be released if the trial is not
concluded within a period of 60 days after the first date of evidence.
5. Heard learned counsel for the parties at length and perused the
impugned orders along with the cases relied on by counsel for the
petitioner.
6. In the matter of Atul Kumar Shrivastava (Supra), it has been
categorically held that the right conferred on the accused is not absolute
one and the same is subject to the conditions stated in the said
provision. At para-11, the following has been observed:-
"11. Thus, the seriousness of the offences for which the
accused has been charged, the overall impact of the
offence and the release of the person accused of such
offence on the society, the possibility that the accused,
if released on bail is likely to influence the witnesses or
tamper with the prosecution evidence, the fact that
other co-accused are absconding would be relevant
factors for refusing bail under sub- section (6) of
Section 437 of the Code."
7. In the matter of Chandraswami (Supra), the Hon'ble Supreme Court
without going into the question of interpretation and applicability of
Section 437 (6) of the Code, considering the long detention, has allowed
bail.
8. In the case at hand, the petitioner's bail application vide MCRC
No.4290/2022 was rejected by the High Court and the learned
Magistrate considering the seriousness of the offence and also for the
fact that the Presiding Officer was on leave on 20.6.2022 and 4.7.2022,
therefore, witness Deepchand could not be examined, has rightly passed
the impugned order, and the Revisional Court has also affirmed the said
order.
9. The judgments relied on by learned counsel for the petitioner are
distinguishable on facts.
10. For the foregoing, this Court does not find any good ground to interfere
with the impugned orders invoking jurisdiction under Section 482 of the
CrPC.
11. Resultantly, the Petition being devoid of any merit deserves to be and is
hereby dismissed. However, the trial Court is directed to proceed with
the trial on day-to-day basis in view of the provision contained under
Section 309 (1) of the CrPC.
Sd/-
(Deepak Kumar Tiwari)
Judge
Barve
