Jitendra vs The State Of Madhya Pradesh
2022 Latest Caselaw 11637 MP

                                                            1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                    AT JABALPUR
                                                          BEFORE
                                         HON'BLE SHRI JUSTICE RAJEEV KUMAR DUBEY
                                                 ON THE 5th OF SEPTEMBER, 2022

                                         MISC. CRIMINAL CASE No. 37132 of 2022

                                  Between:-
                                  JITENDRA S/O RAJARAM KOCHURE, AGED
                                  ABOUT 52 YEARS, OCCUPATION: LABOUR R/O
                                  M.G. NAGAR NEPANAGAR BURHANPUR M.P.
                                  (MADHYA PRADESH)

                                                                                          .....APPLICANT
                                  (SHRI ANIL KUMAR TIWARI, LEARNED COUNSEL FOR THE
                                  APPLICANT)

                                  AND

                          1.      THE STATE OF MADHYA PRADESH THROUGH
                                  POLICE STATION NEPANAGAR DISTRICT
                                  BURHANPUR M.P. (MADHYA PRADESH)

                          2.      THE STATE OF M.P., THROUGH DISTRICT
                                  MAGISTRATE,       BURHANPUR DISTRICT
                                  BURHANPUR (MADHYA PRADESH)

                                                                                      .....RESPONDENTS
                                  ( SHRI RAM MILAN PRAJAPATI, LEARNED P.L. FOR THE
                                  RESPONDENT / STATE )

                                This application coming on for admission this day, the court passed the

                          following:
                                                             ORDER

Heard.

This petition has been filed under Section 482 of the Cr.P.C. against the order dated 21.07.2022 passed by the learned Ist Additional Sessions Judge, Burhanpur, Distt. Burhanpur (MP) in Criminal Revision No.46/2022, whereby learned Additional Sessions Judge rejected the applicant's revision and affirmed the order dated 12.07.2022 passed by the learned Chief Judicial Magistrate Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 9/5/2022 5:45:33 PM

Burhanpur in RCT No. 229/2022, whereby learned CJM rejected the applicant's application filed under Section 437(6) of the Cr.P.C. for releasing him on bail.

It appears from the record that the applicant is facing trial in RCT No. 229/2022 pending before the Chief Judicial Magistrate Burhanpur (MP) for the offence punishable under Sections 34 (2) r/w 45 and 49-A of M.P. Excise Act. In that case, learned Chief Judicial Magistrate vide order dated 18.02.2022 framed the charge against the applicant for the offence punishable under Section 34(2) r/w 45 and 49-A of the M.P. Excise Act and fixed the case for the first time for prosecution evidence on 04.03.2022, but somehow trial could not be concluded till 12.07.2022, so applicant filed an application under Section 437

(6) of Cr.P.C. before the trial Court praying therein that since he had been in custody during all this period and the trial could still not be concluded, hence he be released on bail.

Learned Chief Judicial Magistrate, Burhanpur rejected the applicant's application vide order dated 12.07.2022. Against that order, applicant preferred Criminal Revision No.46/2022 which was also dismissed vide order dated 21.07.2022. Being aggrieved from that order, the applicant preferred this petition.

Learned counsel for the applicant submitted that the applicant has been in custody since 01.12.2021 and learned trial Court framed the charge against the applicant on 18.02.2022 and thereafter, fixed the case for the first time for prosecution evidence on 04.03.2022 and till date the prosecution could not examine all prosecution witnesses and thus, the trial could not be concluded. He further submitted that since the trial could not be concluded within 60 days from the first date of recording of evidence, therefore, under the mandatory provisions of Section 437 (6) of Cr.P.C. the applicant deserves to be enlarged Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 9/5/2022 5:45:33 PM

on bail.

Learned counsel for the State opposed the prayer. This Court has gone through the record and arguments put forth by the learned counsel for both parties.

It appears from the record that the learned trial court rejected the applicant's application on the basis that more than 60 bulk liter of country made liquor has been seized from the possession of applicant and applicant has criminal past. But the reasons assigned by the trial Court for rejecting the applicant's application do not appear to be correct. Learned ASJ rejected the applicant's application without assigning any reason which is not proper.

Division Bench of this Court in the case of Devraj Maratha @ Dillu v. State of Madhya Pradesh, 2018 (2) MPLJ (Cri.) 386 held "while considering the bail application filed under section 437(6) of Cr.P.C., 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 antecedents of the accused or any other justiciable reason, while refusing to grant bail."

The Division Bench further held:-

"19. On a plain reading of the provision of Section 437(6) of the Code it is graphically clear that it is mandatory in the sense that a person should not be

kept in jail ordinarily if a trial for non-bailable offence which is triable by the Magistrate, is not concluded within a period of sixty days from the date fixed for evidence."

From the above-mentioned judgment of the Division Bench of this Court i t appears that if a trial for a non-bailable offence which is triable by the

Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 9/5/2022 5:45:33 PM

Magistrate, is not concluded within a period of sixty days from the date fixed for evidence, ordinarily accused person should not be kept in jail. Although at the time of considering the bail under Section 437 (6) of CrPC the Court has the power to take into consideration the criminal antecedent of the applicant, the nature of allegations or any other justifiable reason while refusing to grant bail only as a ground and not a sole ground.

In this case, the applicant is facing trial for the offence punishable under Section 34(2) r/w Section 45 and 49-A of the M.P. Excise Act, in which the maximum sentence is prescribed three years. There is no evidence on record to show that the applicant caused delay in trial. No other justifiable reason is mentioned by the learned trial court in his impugned order for rejecting the applicant's application. Learned trial court rejected the applicant's application only on the basis that the applicant has criminal past, but the said ground cannot be said to be correct for rejecting the applicant's application filed under Section 437(6) of the Cr.P.C. Even the learned ASJ rejected applicant's application without assigning any reason which is also not proper.

It is clear from the record that the said criminal case was first fixed for recording of prosecution evidence on 04.03.2022 and till date the prosecution has not examined all prosecution witnesses and trial is still pending. Provisions of Section 437 (6) of the Cr.P.C. make it obligatory on the part of the trial Court to conclude the trial within a period of 60 days from the first date fixed for recording of evidence and in case the accused is in custody and trial Court fails to conclude the trial within the aforesaid period, it is the trial Court's duty to release the accused. The case was first fixed for recording of prosecution evidence on 04.03.2022 and the trial is pending as yet and trial Court has failed to conclude the trial within the stipulated period. Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 9/5/2022 5:45:33 PM

This Court is of the considered view that the statutory right given to the accused by the above provisions cannot be taken away in such a fashion. Since the applicant had remained in custody during the said period for more than 60 days from the first date fixed for recording evidence, he would be entitled to be released on bail under the provision of Section 437 (6) of Cr.P.C.

Consequently, in view of the aforesaid discussion this petition is allowed and the order passed by both the Courts below are set aside and it is directed that applicant Jitendra be released on bail in aforesaid crime subject to his furnishing a personal bond in the sum of Rs.10,000/- (Rs. Ten Thousand) with one surety of Rs.10,000/- (Rs. Ten Thousand) to the satisfaction of the trial Court for his appearance before the trial Court on the date fixed by the said Court and on subsequent dates as may be fixed during pendency of this case.

Certified copy as per rules.

(RAJEEV KUMAR DUBEY) JUDGE sarathe

Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 9/5/2022 5:45:33 PM