Karan Rathore vs The State Of Madhya Pradesh
2021 Latest Caselaw 5656 MP

                                                        1                           MCRC-25006-2021
                              The High Court Of Madhya Pradesh
                                        MCRC-25006-2021
                                       (KARAN RATHORE Vs THE STATE OF MADHYA PRADESH)


                      Jabalpur, Dated : 20-09-2021
                            Heard through Video Conferencing.

                            Shri C.L. Sethi, counsel for the petitioner.
                            Shri Utkarsh Agrawal, Panel Lawyer for the respondent/State.

This petition under Section 482 read with Section 437 (6) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") challenging

the order dated 11.05.2021, passed in Criminal Revision No.24/2021, by the Third Additional Sessions Judge, Khandwa, affirming the order dated 02.03.2021, passed in Criminal Case No.1183/2020, by the learned Judicial Magistrate First Class, Khandwa; whereby, the learned trial Court has dismissed the application filed under Section 437 (6) of Cr.P.C.

It is submitted that, with respect to an offence registered against the petitioner under Crime No.216/2020 for the offence punishable under Section 34 (2) of the Excise Act at Police Station Piploudkhan, District Khandwa, he was arrested on 21.07.2020 and was sent to judicial custody. After

completion of investigation, the Police has filed charge-sheet before the learned trial Court initiating Criminal Case No.1183/2020. It is submitted that despite of lapse of 60 days the trial is not concluded and the statements have not been recorded till date. Therefore, an application under Section 437 (6) of Cr.P.C. was filed seeking bail. The aforesaid application was rejected by the learned Judicial Magistrate First Class, Khandwa vide order dated 02.03.2021 against which a revision was preferred being Criminal Revision No.24/2021, which was also dismissed vide order dated 11.05.2021 and order passed by the trial Court was affirmed.

It is submitted that the challan was filed before the trial Court on 21.09.2020 and during Covid-19 Pandemic the case was adjourned from time to time. The charges were framed on 07.11.2020 and the trial has Signature Not SAN Verified commenced. The case was listed for recording of evidence of witnesses on Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2021.09.24 11:06:00 IST 2 MCRC-25006-2021 25.11.2020. The witnesses Vikesh and Vipin were present but could not be cross-examined; thereafter, the case was fixed on 05.02.2021, but no cross- examination could have been done. It is submitted that in terms of provisions of Section 437 (6) of Cr.P.C from the date of initiation of the trial and recording of statement of first witness normally the trial should conclude

within 60 days. The petitioner is in custody since 21.07.2020 and not even a solitary witness examination has been concluded by the trial Court. In such circumstances, he is entitled to get the benefit of Section 437 (6) of Cr.P.C. He has placed reliance on the judgment passed by this Court in the case of Vijay Vs. State of M.P. reported in 2006 (3) M.P.H.T. 380 and also in the case of Hari Singh Vs. State of M.P. reported in (2011) 3 MPWN 74; wherein, the aforesaid proposition was considered by the Coordinate Benches and the application filed under Section 437 (6) of Cr.P.C. was allowed. It is submitted that the reason for rejection of the application was only shown to be that the petitioner has been convicted in one of the cases, but the fact remains that he is in custody for almost one year for a petty offence and in such circumstances the benefit should have been extended to the petitioner.

Per contra, counsel appearing for the State has opposed the prayer and has supported the impugned orders. It is argued that, it is the discretion of the Magistrate to consider an application under Section 437 (6) of Cr.P.C. and the directions are not mandatory. The witnesses have appeared before the Court for examination but cross-examination could not be concluded. Looking to the Covid-19 Pandemic scenario as the Courts were not functioning on regular basis the statements could not be recorded. It is argued that the Courts started functioning on regular basis now; therefore, the trial will be concluded within a short time. As far as the cases, which are relied upon by the counsel for the petitioner were factually on different footings. As the reason for rejection of the application under Section 437 (6) of Cr.P.C. is

Signature Not concerned with respect to the petitioner that he stands convicted in one of the SAN Verified

Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2021.09.24 11:06:00 IST 3 MCRC-25006-2021 offences, in such circumstances, the learned Magistrate as well as the Revisional Court has recorded the reasons for rejection of the application, no interference is called for in the impugned orders. The petitioner is having liberty to file an application under Section 439 of Cr.P.C. seeking bail in the matter.

Heard the learned counsels for the parties and perused the record. From the perusal of the record it is seen that an application under Section 437 (6) of Cr.P.C. has been filed seeking the benefit of bail. Section 437 (6) of Cr.P.C. is required to be seen, which reads as under:-

"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 f o r reasons to be recorded in writing, the Magistrate otherwise directs."

From perusal of Section 437 (6) of Cr.P.C. it is seen that the aforesaid provisions are not mandatory. It is upon the discretion of the Court and the Court can reject the application after recording reasons. In the present case, the Court has rejected the application after recording the reasons pointing out the fact that the petitioner stands convicted in one of the offences. It is further pointed out that owing to the Covid-19 Pandemic scenario as the trial Courts are not regularly functioning; therefore, the statements could not be recorded. The case laws which are relied upon by the petitioner factually on a different footing; therefore, they are of no help to the petitioner. Counsel for the petitioner has not filed any order-sheets to point out the fact that on whose pretext the case pending before the trial Court has been adjourned or the statements of the witnesses could not have been recorded. No such order- sheets of the trial Court are filed. As far as the provisions of Section 437 (6) of Cr.P.C. are concerned, they are merely directory in nature and the reasons Signature SAN Not Verified

Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2021.09.24 11:06:00 IST 4 MCRC-25006-2021 are recorded by the Magistrate as well as the Revisional Court in the matter; therefore, the orders are just and proper does not call for any interference in the present case.

Accordingly, the petition stands dismissed. However, a liberty is extended to the petitioner to file appropriate application under Section 439 of Cr.P.C. seeking bail in the matter.

                                                                             (VISHAL MISHRA)
                                                                                  JUDGE


                      taj




Signature
 SAN      Not
Verified

Digitally signed by
TAJAMMUL
HUSSAIN KHAN
Date: 2021.09.24
11:06:00 IST