Rajesh Agrawal v. State Of Chhattisgarh

HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 1352 of 2017 Rajesh Agrawal S/o Puroshottam Agrawal, Aged About 37 Years R/o Housing Board Jamul P.S. Jamul Bhilai District Durg, Chhattisgarh ---- Petitioner

Versus

State Of Chhattisgarh Through S.H.O., Outpost Padmanadhpur, Durg, City Kotwali Durg ---- Respondent For Petitioner :

Shri T.K. Jha, Advocate.

For Respondent/State :

Shri Ashish Shukla, Dy.A.G.

Hon'ble Shri Justice Goutam Bhaduri Order On Board 11/04/2018 1.

The instant petition is against the rejection of an application under Section 437(6) of Cr.P.C. by the JMFC, Durg dated 31/05/2017. 2.

The facts of the case, in brief, is that a charge sheet was filed against the petitioner under Sections 420, 467, 468, 471 read with 34 of I.P.C. and also under sections 66(b) and 66(d) of the Information Technology Act and the petitioner was arrested on 27/04/2016. It was case of the prosecution that the petitioner alongwith others have committed cheating and forgery in relation to amount of Rs.16,89,100/- which revealed after complaint was made by Lokesh Kumar Patil on 9/03/2016 that his ID, password has been tampered in the RTO office and the tax entry for the 50 goods vehicle amounting to aforesaid amount though was said to be paid but actually amount was not paid and subsequently when charge sheet was filed

charges were framed on 6/10/2016 and first evidence was fixed on 5/11/2016 and thereafter trial could not be completed within period of 60 days from the date of taking of the first evidence as such present petition is filed.

3.

Learned counsel for the petitioner would submit that after case was fixed for first evidence on 5/11/2016 till date entire evidence has not been still completed and out of 25 witnesses 14 witnesses have been examined and remaining are still to be examined and appellant is in jail since 27/04/2016. He further submits that again going back to the revisional court at this stage to challenge the order of the Judicial Magistrate considering the time lapsed in this case will amount to defeat the right of 437(6) of Cr.P.C. He further submits that apart from the fact amount of more than 16 lakhs have already been in the account of the RTO virtually no loss has been caused. 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. Consequently, the petitioner cannot claim bail as a matter of right. He therefore submits that order impugned is well merited, which do not call for any interference.

5.

I have heard learned counsel appearing for the parties. 6.

This fact is not in dispute that the petitioner is in jail since 27/04/2016 and the charges were framed on 6/10/2016. Thereafter, case was fixed for evidence on 5/11/2016. Order sheet which has been filed would show that subsequently certain witnesses have been examined and order sheet dated 16/03/2018 would show that prosecution witnesses are still to be examined. Approximately 32 dates have been passed.

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 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) 2009 Cr.L.J.

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 2012 (1) MPHT 67 2001 (2) MPHT 51 (CG) : 2002 Cri. LR 46 (M.P.) 2004 (4) MPHT 5 (CG) : 2004 (2) CGLJ 135

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 principles are translated in the facts of this case, it would reveal that till date entire evidence has not been completed and after first date of evidence on 5/11/2016 more than 1 1⁄2 years have passed. Considering the fact that the delay is not attributed because of the petitioner and taking into period the petitioner is in jail, 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 order passed by the Court below is 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 gouri