Gajju Alias Gajraj Namdeo vs The State Of Madhya Pradesh
2023 Latest Caselaw 14364 MP

                                                           1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                    BEFORE
                                  HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                                            ON THE 2 nd OF SEPTEMBER, 2023
                                        MISC. CRIMINAL CASE No. 30854 of 2023

                          BETWEEN:-
                          GAJJU ALIAS GAJRAJ NAMDEO S/O ANNU NAMDEO,
                          AGED ABOUT 32 YEARS, OCCUPATION: LABOUR R/O
                          KUSHABHAI THAKRE PARISAR NEAR MULTI 12 NO.
                          STOP DISTRICT BHOPAL (MADHYA PRADESH)

                                                                                        .....APPLICANT

                          (BY SHRI ASHOK KUMAR GUPTA - ADVOCATE)

                          AND
                          THE STATE OF MADHYA PRADESH THROUGH POLICE
                          STATION HABIBGANJ DISTRICT BHOPAL (MADHYA
                          PRADESH)

                                                                                      .....RESPONDENT

                          (BY SHRI S.M. PATEL - PANEL LAWYER)

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

Being aggrieved by the order dated 23.06.2023 (Annexure-A/1) passed by the Additional Sessions Judge/Special Judge (Electricity Act, 2003) No.02, Bhopal in Criminal Revision No.332/2023 (Gajju @ Gajraj Vs. State of M.P.) arising out of the order dated 14.06.2023 (Annexure-A/2) passed by learned Chief Judicial Magistrate, Bhopal in Criminal Case No.2077/2023 (State of M.P. Vs. Naveen Solanki & another) for commission of offence under Sections 457 and 380 of IPC in relation to Crime No.81/2023 dated 15.02.2023 registered at Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 9/4/2023 7:16:59 PM

Police Station Habibganj, District Bhopal, whereby the application under Section 437(6) of Cr.P.C. filed by the applicant was dismissed, has filed the present petition challenging the aforesaid orders passed by the Courts below.

2. In short, facts of the case are that the present applicant/petitioner is being prosecuted for offence punishable under Sections 457, 380 of IPC He was arrested on 16.02.2023. The application under Section 437(6) of Cr.P.C. was filed by the applicant on 14.06.2023, wherein it was alleged that from the first date fixed for taking prosecution evidence, since more than two months have elapsed and in this period, only one witness has been produced by the prosecution, therefore, applicant may be released forthwith. The said

application was opposed by the prosecution. After hearing the parties, the application was dismissed against which a revision petition was filed which was also dismissed. Hence, this petition under Section 482 of Cr.P.C.

3 . Learned counsel for the applicant submits that after arrest of the applicant on 16.02.2023, charge-sheet in Crime No.81/2023 was filed on 11.03.2023. Charges were framed on 31.03.2023 for commission of offence punishable under Sections 457, 380 of IPC and for the very first time, case was fixed for prosecution evidence on 13.04.2023. It is submitted that till 14.06.2023, even after two months and one day of framing of the charge, no evidence was adduced by the prosecution. Therefore, application was filed by the applicant on 14.06.2023. It is further submitted that statutory right of the applicant to get himself released as prosecution could not adduce entire evidence within two months from the first date fixed for taking the evidence. It is also submitted that thereafter, the case was listed for evidence and till this date, no other witness of the prosecution has turned up and case is being repeatedly adjourned.

Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 9/4/2023 7:16:59 PM

4 . Aggrieved by the aforesaid order, this petition under Section 482 of Cr.P.C. is filed on that ground that learned Courts below did not consider the facts and law properly and they wrongly interpreted the provisions under Section 437(6) of Cr.P.C. Learned counsel for the applicant has placed reliance on the order dated 14.01.2019 of a Co-ordinate Bench of this case passed in the case of Ratnesh Sonkar Vs. State of M.P. (M.Cr.C. No.50802 of 2018), the order dated 27.07.2019 in Tannu @ Tarwar Vs. State of M.P. (M.Cr.C. No.17058 of 2019) and the order dated 03.08.2022 in Rajkumar @ Halku Vs. State of M.P. (M.Cr.C. No.24890 of 2022).

5. In the case of Tannu @ Tarwar (supra) , the Co-ordinate Bench of this Court has held as under:

"This Court has gone through the record and arguments put forth by the learned counsel for both the parties. It appears from the record that the learned trial court rejected the applicant's application on the basis that more than 50 bulk liter of country made liquor has been seized from the possession of applicant and co-accused and the alleged offence was grievous and applicant has criminal past and learned ASJ rejected the applicant's application merely on the ground that other offences under M.P.Excise Act are also registered against the applicant. But the reasons assigned by the trial Court as well as by the revisional court for rejecting the applicant's application do not appear to be correct. Although Division Bench of this Court in the case of Devraj Maratha @ Dillu Vs. State of M.P. 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 in to consideration - (i) the nature of allegation;

(ii) whether the delay is attributable to the accused or to the prosecution; and (iii) criminal antecedents of the accused or any other justifiable reason, while refusing to grant of bail".

But from the above decision, it does not imply that the accused who has a criminal past, will not be released on bail under Section 437(6) of Cr.P.C. in any case related to the offence Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 9/4/2023 7:16:59 PM

punishable under Section 34(2) of M.P. Excise Act. It only appears from the above mentioned judgment that at the time of considering the bail application of an accused under Section 437(6) of the Code, four factors i.e. (i) the nature of allegations; (ii) whether the delay is attributable to the accused or to the prosecution (iii) criminal antecedents of the accused and (iv) any other justifiable reason, will be taken into the consideration, in which the criminal past of the accused is one of the factors and not the sole one.

I n this case, the applicant is facing trial for the offence punishable under Section 34(2) of the M.P. Excise Act in which the maximum sentence is prescribed three years. There is no evidence on record that the applicant had earlier also been convicted by the Court for the offence punishable under Section 34(2) of the m.P. Excise Act. There is no evidence on record to show that applicant cause delay in trial. No other justiciable reason is mentioned by the learned ASJ in his impugned order for rejecting the applicant's application. Learned ASJ only on the ground that other offences are also registered against the applicant, rejected the applicant's application without considering the other factors i.e. (i) the nature of allegations; (ii) whether the delay is attributable to the accused or to the prosecution or whether there is any other justiciable reason on record to reject the applicant's application.

It is alleged that other offence under M.P. Excise Act are also registered against the applicant. Prosecution did not even file a copy of the charge-sheet of that offences to show whether prosecution had filed charge-sheet against the applicant in those offence and on what basis did the police implicate applicant in these crimes. Learned trial Court as well as the revisional Court without considering all these facts, rejected the applicant's application."

6. It is clear from the record that the said criminal case was first fixed for recording of prosecution evidence on 13.04.2023 and till 14.06.2023, the prosecution has examined only one prosecution witness and trial is still pending. Provisions of Section 437(6) of 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 Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 9/4/2023 7:16:59 PM

fixed for recording evidence and in case, the accused is in custody and trial Court fails to conclude the trial in the aforesaid period, it is the trial Court's duty to release the accused. This case was first fixed for recording evidence on 13.04.2023 and the trial is pending as yet and trial Court has failed to conclude the trial within the stipulated period.

7 . Undoubtedly, a Division Bench of this Court in the case of Devraj Maratha @ Dillu Vs. State of M.P.; 2018(2) MPLJ (Cri) 386 has held as under:

"On a plain reading of the provisions 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 60 days from the date fixed for evidence."

8. In this case, it is to be noted that as per the Revisional Court's order, 15 cases are registered against the applicant and out of those cases, 4 cases are of under Sections 457, 380, 454, 411 and 379 of IPC. But, there is no proof on record to show whether applicant has been convicted in any case or not so far. I t also cannot be over-looked that learned Courts below i.e. trial Court and Revisional Court have dismissed the application and revision on the ground of seriousness of the offence and not on the ground of pendency of criminal cases registered against the applicant. On a perusal of impugned orders, it is revealed that application and revision has been dismissed on the ground of seriousness of offence and not on the ground of pendency of criminal cases against the present applicant.

9 . In this case, the applicant is in jail for last more than six months. Therefore, this Court is of the considered view that the statutory right given to

Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 9/4/2023 7:16:59 PM

the accused by the above provision 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 day fixed for recording the evidence; in total, he has undergone more than 6 months and 15 days in jail, he would be entitled to be released on bail under the provisions of Section 437(6) of Cr.P.C. Undoubtedly, the right conferred under Section 437(6) of Cr.P.C. is not absolute, however, nonetheless, it is a right which caanot be defeated easily.

10. Consequently, in view of the aforesaid discussion, this petition under Section 482 Cr.P.C. is allowed and the orders passed by both the Courts below are set-aside.

11. It is directed that applicant -Gajju @ Gajraj Namdeo be released on bail in the aforesaid case subject to furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees One Lacs) with two sureties of Rs.50,000/- (Rupees Fifty Thousand) each to the satisfaction of the trial Court for his appearance before the trial Court on the date fixed by the said Court and on the subsequent

dates as may be fixed during the pendency of this case. He shall abide by all the conditions enumerated under Section 437(3) of Cr.P.C.

1 2 . This order shall be effective till the end of the trial. However, it is made clear that in case of bail jump and in violation of any condition enumerated under Section 437(3) of Cr.P.C., this order shall become ineffective.

Certified copy as per rules.

(DINESH KUMAR PALIWAL) JUDGE @shish

Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 9/4/2023 7:16:59 PM

Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 9/4/2023 7:16:59 PM