Gour Das @ Gaur Das vs State Of Jharkhand
2021 Latest Caselaw 3292 Jhar

                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             Cr.M.P. No. 1833 of 2020
             Gour Das @ Gaur Das, aged about 45 years, S/o Prafull Das, R/o village-
             Lakra Joria, P.O. & P.S. Salanpur, Dist.- Bardhman, West Bengal
                                                                     ... Petitioner
                                          -Versus-
             State of Jharkhand                                      ... Opposite Party
                                              -----

             CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                              -----
             For the Petitioner               : Mr. S.K. Laik, Advocate
                                                Mr. Raj Nandan Chatterjee, Advocate
             For the Opposite Party-State     : Mr. Abhay Kumar Tiwari, A.P.P.
                                              -----

06/07.09.2021. Heard Mr. S.K. Laik along with Mr. Raj Nandan Chatterjee, learned

counsel for the petitioner and Mr. Abhay Kumar Tiwari, learned A.P.P. for the

opposite party-State.

2. This criminal miscellaneous 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

this matter has been heard on merit.

3. The petitioner has filed this criminal miscellaneous petition for

quashing the order dated 27.05.2020 passed by the learned Sessions Judge,

Dhanbad in Criminal Revision No.61/2020 in connection with Dhanbad

(Bank More) P.S. Case No. 804/2014, corresponding to G.R. Case No.

3681/2014, whereby, the application preferred by the petitioner under

Section 437(6) of Cr.P.C. for grant of bail has been rejected and the order

dated 10.02.2020 passed by the learned Chief Judicial Magistrate, Dhanbad

is confirmed by the said order.

4. It was alleged in the complaint petition that the petitioner along with

others had induced the informant as well as other innocent persons to

become members of Swabhumika Group of Companies, running several

branches across different states. It was also alleged in the complaint that on

02.09.2009, the petitioner along with co-accused opened office at Dhanbad

branch and started giving lucrative offers to the investors and other persons

and started announcing different schemes including recurring deposit, fixed

deposit, MIS and other though for the same the company has no license

either from SEBI or RBI. Thus, being deceived with the promise made by

the officials of the company several innocent persons have invested their

hard earned money, but when they approached for getting maturity to their

utmost surprise, the post dated cheque issued in their favour was bounced

due to insufficient fund. It was also alleged that the accused persons along

with the petitioner cheated a sum of Rs.5 Crores at Dhanbad branch from

different investors in the name of the company and a sum of Rs.50 Crores

approx from the investors all over India. On this background, complaint was

filed, which was converted into F.I.R. under Section 156(3) of Cr.P.C.

5. Mr. Laik, learned counsel for the petitioner submits that till date only

three witnesses have been examined. The other co-accused namely, Anilava

Deb, Dipesh Chakraborty and Sukanta Das have been granted regular bail

by this Court in B.A. Nos. 6389 of 2019, 6943 of 2015 and 327 of 2016

respectively. He further submits that the petitioner is in judicial custody

since 26.08.2014. He also submits that mainly the documentary evidence is

the subject matter of deciding the trial. He further submits that the

petitioner is seriously ill and has been admitted in RIMS. So far as Section

437(6) of Cr.P.C. is concerned, he submits that this aspect of the matter has

been considered by a coordinate Bench of this Court in the case of Deepak

Das v. The State of Jharkhand, reported in 2017 2 JLJR 43.

6. Mr. Abhay Kumar Tiwari, learned A.P.P. appearing for the opposite

party-State submits that the revisional court has rightly rejected the petition

filed by the petitioner under Section 437(6) of Cr.P.C.

7. The coordinate Bench of this Court in the case of Deepak Das

(supra) has taken into consideration the judgment passed by the

Division Bench of Hon'ble Gujarat High Court in Criminal Reference No.2

of 2011 in the case of Nehul Prakashbhai Shah & Ors. v. State

of Gujarat, in which Section 437(6) of Cr.P.C. 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."

8. On perusal of the impugned order, it transpires that the trial court has

rejected the prayer on the ground that there is apprehension of running

away from the trial during mid trial release by the petitioner. The revisional

court has come to the conclusion that apart from apprehension of fleeing

from the trial by the petitioner, there is apprehension also that

the witnesses may be influenced or evidence may otherwise be tampered

with.

9. A note of caution has been added to the effect that the reasons for

rejection of the application under section 437(6) of the Cr.P.C. need to be

more weighty than the routine grounds of rejection. The impugned order

does not justify the rejection by strengthening it with any plausible

grounds which is in existence rather by one stroke of pain, the said

application has been rejected on the ground of apprehension that the

petitioner may tamper with the evidence. No discussion has been made by

the learned trial court as to who are the witnesses, who have been

examined and who are the witnesses who are yet to be examined. Mere

mention of possibility of tampering with the evidence is basically to frustrate

the legislative intent in section 437(6) of the Cr.P.C. Before rejecting the

petition under Section 437(6) of Cr.P.C., appropriate reason is required to be

provided. Moreover, the petitioner is ill and has been admitted in RIMS.

Another aspect of the matter is there with regard to release on bail on an

application under Section 437(6) of Cr.P.C. Prima facie, it appears that it is

an interlocutory order and the order passed by the revisional court is not

maintainable.

10. In view of the aforesaid facts, the order dated 27.05.2020 passed by

the learned Sessions Judge, Dhanbad in Criminal Revision No.61/2020 in

connection with Dhanbad (Bank More) P.S. Case No. 804/2014,

corresponding to G.R. Case No.3681/2014 and the order dated 10.02.2020

passed by the learned Chief Judicial Magistrate, Dhanbad are, hereby,

quashed and set aside. The learned trial court is directed to release the

petitioner on bail, subject to such conditions it may impose.

11. Accordingly, this criminal miscellaneous petition stands allowed and

disposed of.

(Sanjay Kumar Dwivedi, J.) Ajay/