Dilip Kumar v. State Of Chhattisgarh

HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 318 of 2018 Dilip Kumar S/o Shri Murli Ram Sahu Aged About 32 Years R/o Club Chowk Basantpur Rajnandgaon, Civil & Revenue District Rajnandgaon Chhattisgarh.

--- Petitioner

Versus

State of Chhattisgarh through the District Magistrate, Distt. Rajnandgaon Chhattisgarh. --- Respondent For Petitioner :

Mr. Samir Singh Advocate For Respondent-State :

Mr. Sangharsh Pandey, Dy. Govt. Advocate Hon'ble Shri Justice Goutam Bhaduri Order On Board 09.08.2018 1.

The present petition is against the order dated 11.01.2018, passed by the learned Additions Sessions Judge Rajnandgaon in Criminal Revision No. 97/2017 whereby the order passed by the JMFC, Rajnandgaon rejecting the application filed u/s 437(6) of Cr.P.C., was affirmed.

2.

The facts as have been pleaded in this case are that the father of the petitioner namely Murli Ram Sahu has obtained a loan from State Bank of India and mortgaged certain lands which actually belonged to one Yogesh Kumar Sahu wherein the documents of Rin Pustika, photographs of Dilip Sahu was affixed, thereby the present petitioner along-with other accused committed offence. 3.

The petitioner was arrested on 11.01.2017 and thereafter the charge sheet was filed.

4. Learned counsel for the petitioner would submit that the case was first fixed for evidence on 14.09.2017, on that date, the witnesses were absent. Subsequently the case was fixed for 27.09.2017 and on further dates few of the witnesses were examined and eventually the evidence could not be concluded within 60 days from 14.09.2017. He further submits that when the application was filed u/s 437(6) of Cr.P.C., the trial court without appreciating the facts had dismissed the same which was affirmed in revision, therefore, the application may be allowed.

5.

Per contra learned State Counsel opposes the petition. He submits that no exorbitant delay has been caused and considering the nature of allegations, the benefit of bail may not be granted. 6.

This fact is not in dispute that the petitioner is in jail since 11.01.2017 and as per the order sheets, for the first time the case was fixed for evidence on 14.09.2017 and though almost 11 dates have been passed, however, the trial was not concluded and in the intermittent period, few of the witnesses were examined. 7.

In the case of Riza Abdul Razak Zunzunia vs. State of Gujarat 1, the scope, extent and object of provisions contained in Section 437(6) of Cr.P.C. has been considered and observed as under :- 21.The question that arises for determination is as to what would be the considerations which would weigh with the Magistrate while deciding an application under Section 437(60 of the Code. Whether the reasons for not releasing an accused on bail would be similar to the reasons for not granting regular bail or whether some special circumstances should exist for the purpose of declining grant of bail under Section 437(6) of the Code? On behalf of the Bank it has 2009 Cr.L.J. 4766

been contended that factors like existence of a prima facie case, gravity of the offence and the likelihood of conviction which give rise to a belief that the accused is not likely to remain present at the time of the trial are required to be taken into consideration, whereas on behalf of the applicant it has been contended that such factors are not germane while deciding an application under Section 437(6) of the Code. On a plain reading of the provision as well as considering the object behind enacting the said provision if the contention advanced on behalf of the Bank viz. the prima facie case, gravity of offence, involvement of the accused, etc.

are the factors which are to be taken into consideration while deciding the application under Section 437(6) of the Code, were to be accepted, the same would render the said provision nugatory, inasmuch as if the same reasons for which the application for regular bail is refused, are to be considered while deciding the application under Section 437(6) of the Code, there would be no necessity for making such a provision. The application under Section 437(6) of the Code would stand rejected merely on the ground that the application for regular bail had been rejected. In the opinion of this Court, the factors which should be kept in mind while considering an application under Section 437(6) would be different from the factors that are to be taken into consideration while deciding an application for regular bail.

Though it may not be possible to lay down any exhaustive list of such factors which may be taken into consideration while deciding the application under Section 437(6) of the Code, some relevant factors would be whether the trial has been delayed on account of the default on the part of the applicant; whether the accused has at any stage during the course of investigation or as an under trial prisoner been absconding; if having regard to the facts of the case there is every likelihood of his jumping bail; or if there are special circumstances due to which it may be deemed expedient not to exercise powers under Section 437(6) etc. But bail cannot be refused for reasons which are generally invoked for refusing bail. The following observations made by the Apex Court in Aslam Babalal Desai v. State of Maharashtra, (1992) 4 SCC 272: (1992 Cr.

L.J.3712) in the context of compulsive bail under the proviso to Section 167(2) are apt even in the context of Section 437(6) of the Code: "15. Even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation. The delay in completion of the investigation can be on pain of the accused being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously or does not complete it within the time allowed by law.

22.Drawing an analogy, it is can be safely stated that law expects early conclusion of cases triable by Magistrate. The delay in completion of trial in such cases, must therefore, be at the pain of the accused being released on bail, except

where the Magistrate by reasons recorded in writing otherwise direct. The said provision therefore, has to be construed strictly in favour of individual liberty. Importing the grounds relevant for the purpose of granting regular bail, for the purpose of deciding an application for bail under Section 437(6) of the Code would not only amount to doing violence to the statute but would defeat the very object of introducing such a provision and reduced it to a mere dead letter. The prosecution, therefore, cannot be permitted to trifle with individual liberty if it does not diligently pursue the proceedings before the Magistrate to ensure that the trial is concluded within the period prescribed under Section 437(6) of the Code."

8.

In a series of decisions including decision of this Court in the case of Lal Sahu Vs. State of Chhattisgarh 2, Haricharan Ramteke v. State of Chhattisgarh 3, Smt. Godawari Bai and Others vs. State of Chhattisgarh 4 and decision of other High Courts cited before this Court, the scope and ambit of provision contained under Section 437(6) of Cr.P.C. has been considered. Broadly speaking while considering application for grant of bail under Section 437(6) of Cr.P.C., the considerations are those which have been laid down by this Court in the case of Lal Sahu (supra) in para 11 which is reproduced herein below : "11. The question that arises for determination is as to what factors should weigh with the Magistrate while refusing grant of bail under sub-section (6) of Section 437 of the Code.

In my considered opinion, apart from the gravity of offence and the quantum of punishment, one or more of the following factors, among others may weigh with the Magistrate while refusing bail:- (a) the overall impact of the offence and the release of the person accused of such offence on the society, (b) the possibility of tampering of evidence by the accused, (c) the possibility of the accused absconding if released on bail, and lastly, (d) the delay in conclusion of the trial within a period of 60 days 2012 (1) MPHT 67 2001 (2) MPHT 51 (CG) : 2002 Cri. LR 46 (M.P.)

if attributable to the accused."

9.

Considering the principles laid down and the facts of the case which were translated as against the gravity of offence and since the perusal of the order shows that considerable delay has caused which cannot be attributed to the petitioner and further looking to the period of custody of the applicant as he is stated to be in jail since 11.01.2017, I am of the opinion that the present is a fit case to release the petitioner/accused under Section 437(6) of Cr.P.C. 10.

In the result, the petition is allowed and the orders passed by the Court below are set aside. The petitioner shall be released on bail on his furnishing personal bond of Rs.25,000/- with one surety of the like amount to the satisfaction of the trial Court. He shall appear before the trial Court on each and every date of hearing, unless exempted.

Sd/- Goutam Bhaduri Judge Rao