Durga Prasad Lodhi vs State Of Mp.
2021 Latest Caselaw 3631 MP

                                                       1                          MCRC-28379-2021
                             The High Court Of Madhya Pradesh
                                       MCRC-28379-2021
                                           (DURGA PRASAD LODHI Vs STATE OF MP.)

                      4
                      Jabalpur, Dated : 26-07-2021
                            Heard through Video Conferencing.

                            Ms. Shahin Fatima, learned counsel for the applicant.
                            Shri DK Khare, learned PL for the respondent/State.

Heard. Perused the case diary.

This is the second bail application filed by the applicant under Section 439 of the Cr.P.C. for grant of bail in connection with Crime No. 527/2020 registered at P.S. Themi District Narsinghpur (M.P.) for the offence punishable under section 420/34 of the IPC and also under Sections 3/7 of the Essential Commodities Act. The first bail application was dismissed as withdrawn by this court on 27.04.2021 in M.Cr.C. No. 14245/2021.

As per the prosecution story, the applicant instead of distributing wheat, rice and kerosene to the beneficiaries from Fair

Price Shop made an illegal distribution and embezzled a huge amount to earn profit. On the basis of aforesaid, offence has been registered against the applicant.

Learned counsel for the applicant submits that the applicant is innocent and he has been falsely implicated in this case. It is further submitted that applicant is in jail more than 60 days and trial was not completed within 60 days from the day when case was fixed for evidence therefore, he filed an application for releasing on bail under the provisions of section 437 (6) of Cr.P.C but the same has been rejected by the trial court and subsequently court of sessions. It is Signature SAN Verified Not submitted that the provision of section 437 (6) of Cr.P.C is Digitally signed by MANVENDRA SINGH PARIHAR Date: 2021.07.26 17:48:53 IST 2 MCRC-28379-2021 mandatory. Since 60 days have elapsed from the first date when the case was fixed for evidence i.e. 09.02.2021 so the applicant shall be enlarged on bail. On the aforesaid changed grounds, it is prayed that trial court and court of sessions have committed error in rejecting the bail application without considering the provisions u/s 437 (6) of

Cr.P.C therefore, applicant be released on bail.

Learned panel lawyer opposing the submissions made on behalf of the applicant has prayed for rejection of the bail application on the ground that Division Bench of this High Court has settled the law on this point holding that only passing of an order u/s 437 (6) of Cr.P.C is mandatory but granting the bail under this provision is not mandatory.

I have heard learned counsel for both the parties and considered the judgment of Division Bench of this Court in the case of Devraj Maratha @ Dillu Vs. The State of Madhya Pradesh on 16th March, 2018 passed in M.Cr.C. No. 2667/2018 in which Division Bench of this Court in para 21 has held as under:-

"21. In view of preceding analysis and enunciation of law governing the field, the reference is answered as under:-

(a) Provision envisaged in sub-section (6) of Section 437 of the Code is mandatory in the sense that the Magistrate is required to exercise his power of granting bail after the statutory period, if the trial is not concluded within that, however, passing of an order under Section 437(6) of the Code is mandatory, but not grant of bail.

(b) The Magistrate is vested with full power to take into consideration - (i) the nature of allegations; (ii) whether the delay is attributable to the accused or to the prosecution; and (iii) criminal 3 MCRC-28379-2021 antecedents of the accused or any other justiciable reason, while refusing to grant bail."

Considering the entire material available on record and looking to the legal provision as settled by the Division Bench in aforesaid case, this Court do not find any illegality in passing the order rejecting the bail application of applicant by the trial court as well as the session court u/s 437 (6) of Cr.P.C. Hence, there is no substantial change in circumstances in this case so as to take a different view as taken earlier for releasing the applicant on bail.

Accordingly, this repeat bail application filed u/s 439 of Cr.P.C

is hereby dismissed.

(AKHIL KUMAR SRIVASTAVA) JUDGE

MSP