Maneesh Kumar Vishvakarma v. State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 556 of 2018 Maneesh Kumar Vishvakarma, S/o. Tularam Vishvakarma, Aged About 23 Years, R/o. Village- Parevadih, Ward No.19, Thana- Lalbag, DistrictRajnandgaon, Chhattisgarh. ---- Petitioner

Versus

State Of Chhattisgarh, Through- District Magistrate, Police Station- Kotwali, District- Rajnandgaon, Chhattisgarh.

---- Respondent For Petitioner :

Mr. Samir Singh, Advocate For Respondent-State :

Mr. Ashish Shukla, Dy. A.G.

Hon'ble Shri Justice Goutam Bhaduri Order On Board 18.07.2018 Heard 1.

The present petition is against the order dated 11.01.2018 passed in Criminal Revision No.96/2017 whereby the Second Additional Sessions Judge affirmed the order of rejection of the application under Section 437(6) of Cr.P.C. passed by the Judicial Magistrate dated 20.11.2017. 2.

The facts of this case as would be evident is that one Tularam was the land owner situated at Parevadih admeasuring 2.11 acres. The said land was sold by one Brijlal by false impersonation as Tularam to one Anita Bai on 20.07.2015. It is alleged that the present petitioner also in connivance with others colluded to execute such forged deed.

3.

Learned counsel for the petitioner submits that the petitioner was arrested on 25.03.2017 and thereafter when the case was remanded under Section 419, 420 read with Section 34, the charges were framed on 07.09.2017 and the case was first fixed for evidence on 21.09.2017. It is stated that till today

the evidence is not concluded within 60 days from the date of taking first evidence, however, when the application was filed the same was rejected and having been taken up in the revision, the same was affirmed. Therefore, both the Court below failed to exercise its jurisdiction vested in it under Section 437(6) of Cr.P.C.

4.

Per contra, learned State counsel opposes the argument and would submit that there is no deliberate omission on the part of the State/ prosecution to produce the witnesses and the adjournment was not at the behest of the prosecution, therefore, the petitioner cannot claim for bail as a matter of right. He further submits that the order passed by the learned Court below is well merited, which do not call for any interference. 5.

I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.

6.

This fact is not in dispute that the petitioner is in jail since 25.03.2017 and the order sheets which are placed would show that the case was first fixed for evidence on 21.09.2017 and thereafter it appears that 11-12 dates have passed and till date the evidence is not concluded. 7.

In the case of Riza Abdul Razak Zunzunia vs. State of Gujarat1, 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 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 2009 Cr.L.J.

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 Chhattisgarh2, Haricharan Ramteke v. State of Chhattisgarh3, Smt. Godawari Bai and Others vs. State of Chhattisgarh4 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 if attributable to the accused."

9.

Considering the principles laid down as above, if the facts are translated alongwith the nature of allegation on this present petitioner, the delay cannot be attributed to the petitioner. Therefore, taking into the nature of allegation, 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. 2012 (1) MPHT 67 2001 (2) MPHT 51 (CG) : 2002 Cri. LR 46 (M.P.) 2004 (4) MPHT 5 (CG) : 2004 (2) CGLJ 135

10.

In the result, the petition is allowed and the orders passed by the learned 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 Ashok