Jharkhand High Court
Partho Sarthi Pandey @ Partha ... vs The State Of Jharkhand on 20 October, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2263 of 2020
Partho Sarthi Pandey @ Partha Sarathi Pandey
...... Petitioner
Versus
...............
1.The State of Jharkhand
2.Selukesh Trivedi ...... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate
For the State : Mr. P.A.S. Pati, G.A.-II
7/Dated: 20/10/2021
Heard Mr. R.S. Mazumdar, learned senior counsel for the
petitioner and Mr. P.A.S. Pati, learned counsel for the State.
2. This petition has been heard through Video Conferencing in view of
the guidelines of the High Court taking into account the situation arising due to
COVID-19 pandemic. None of the parties have complained about any technical
snag of audio-video and with their consent the matter has been heard on merit
3. The present petition has been filed for quashing of order
dated 10.08.2020 passed in Criminal Revision No. 06 of 2020 by learned
Principal District & Sessions Judge, Pakur whereby revision application has
been dismissed and also for quashing of order dated 01.05.2020 passed in
Misc. Criminal Application No. 369 of 2020 by the learned Chief Judicial
Magistrate, Pakur in connection with Pakur (T) P.S. Case No. 58 of 2018,
corresponding to G.R. Case No. 237 of 2018 whereby prayer for grant of
bail under section 437(6) of the Cr.P.C. has been rejected.
4. Mr. R.S. Mazumdar, learned senior counsel for the petitioner
submits that the charge-sheet has been submitted against the petitioner
under sections 406/420/120-B/34 of the Indian Penal Code and under
section 138 of N.I. Act but the learned court below has taken cognizance
only under section 406/420/120B/34 of the Indian Penal Code and the case
was fixed on 06.03.2019 for recording evidence. He submits that on
19.03.2019 only one witness has been examined thereafter no witness has
been examined in this case and the petitioner is still in custody. He submits
that the petitioner is entitled for release on bail under section 437(6) of the
Cr.P.C. According to him on merit the trial court has rejected the application
filed by the petitioner which has been affirmed by the revisional court which
is not under parameters of section 437(6) Cr.P.C.
5. Mr. P.A.S. Pati, learned counsel for the State submits that
applying section 437 (6) Cr.P.C., parameters described by the Hon'ble Gujrat
High Court is required to be considered by the Court. He submits that a co-
ordinate Bench of this Court in the case of Deepak Das v. The State of
Jharkhand, reported in 2017 2 JLJR 43 has taken into consideration the
judgment of the Hon'ble Gujrat High Court in Criminal Reference No. 2 of
2011 in the case of Nehul Prakashbhai Shah & Ors. V. State of Gujrat
in which section 437(6) of Cr.P.C. has been has been considered whereby it
has been held that the provisions are not mandatory in nature. Various
factors, which must weigh in the mind of the Magistrate have been
enumerated in the judgment under reference and the same is quoted herein
below:-
"Q-3 The Magistrate has option/discretion to refuse bail by
assigning reasons therefor. The parameters, factors,
circumstances and grounds to be considered by Magistrate
vis-à-vis such application preferred by the accused under
Section 437(6) of the Code may be:
(1)Whether the reasons for being unable to conclude trial
within sixty days from the first date fixed of taking evidence,
are attributable to the accused?
(2) Whether there are any chances of the accused
tampering with evidence or causing prejudice to the case of
the prosecution in any other manner?
(3) whether there are any chances of abscondence of the
accused on being bailed out?
Whether accused was not in custody during the whole of
the said period?
If the answer to any one of the above referred fact
situations or similar fact situations is in affirmative than that
would work as a fetter on the right that accrues to the
accused under first part of sub section (6) of Section 437 of
the Code."
6. On perusal of impugned orders it transpires that the trial court
as well as the revisional court has dealt with section 437(6) of the Cr.P.C.
and on merit rejected the petition filed by the petitioner. In view of the
parameters held by this Court considering the judgment of the Hon'ble
Gujrat High Court, the trial court is required to meet this parameter.
7. Accordingly, order dated 10.08.2020 passed in Criminal Revision
No. 06 of 2020 by learned Principal District & Sessions Judge, Pakur
whereby revision application has been dismissed and order dated
01.05.2020 passed in Misc. Criminal Application No. 369 of 2020 by the
learned Chief Judicial Magistrate, Pakur in connection with Pakur (T) P.S.
Case No. 58 of 2018, corresponding to G.R. Case No. 237 of 2018 whereby
prayer for grant of bail under section 437(6) of the Cr.P.C. has been
rejected, are hereby quashed.
8. The matter is remitted back to the court of learned Chief Judicial
Magistrate, Pakur to consider afresh in the light of above parameters on the
petition filed by the petitioner and to pass order in accordance with law.
9. The criminal miscellaneous petition is allowed and disposed of.
(Sanjay Kumar Dwivedi, J.)
Satyarthi/
