High Court Of ChhattisgarhCRMP/152/2017allowed

Ghanshyam Yadav v. State Of Chhattisgarh

2018-01-18Hon'Ble Shri Justice P. Sam Koshy4 pages

NAFR HIGH COURT of CHHATTISGARH, BILASPUR Criminal Misc. Petition No. 152 of 2017 Ghanshyam Yadav, aged 46 years, S/o Shri Baharta Yadav R/o 62D, Vijayapuram, Sarkanda, District Bilaspur (CG). ---- Petitioner

Versus

State of Chhattisgarh through the District Magistrate, Bilaspur (CG). ---- Respondent For Petitioner :

Shri N.N. Roy, Advocate.

For State :

Shri Gary Mukhopadhyay,Govt. Advocate SB: Hon'ble Shri Justice P. Sam Koshy Order on Board 18.01.2018

1. This petition under Section 482 Cr.PC has been filed challenging the order dated 06.01.2017 passed by the Sessions Judge, Bilaspur, in Criminal Revision No.178/2016. Vide the said order the revisional court has affirmed the order dated 05.10.2016 passed by the Judicial Magistrate First Class, Bilaspur, in Criminal Case No. 2084/2014 whereby the application under Section 437(6) CrPC filed by the petitioner has been rejected by the trial court.

2. The two courts below have rejected the application of the petitioner filed under Section 437(6) Cr.P.C. as well as the revision petition.

3. The contention of the petitioner is that the petitioner has been arrested on 12.12.2014 in connection with offence punishable under Sections 420, 467,468,471/34 and 120-B IPC. The charge sheet was filed somewhere in the year, 2015 and charges were framed on 15.07.2015. Subsequently, the first date of leading evidence of the prosecution was fixed on 27.07.2015. Subsequently, the matter has

been adjourned for 55 times up till the order sheet dated 07.07.2017 and during these period of 55 adjournments the prosecution could examine only three witnesses. One witness on 12.04.2016 while two others on 07.07.2017. The total number of prosecution witnesses cited is 45.

4. The counsel for the petitioner submits that the petitioner has already remained in custody for a period of more than 3 years . The matter is triable by the Magistrate and the petitioner has already undergone most part of the sentence which could be passed by the Magistrate. The petitioner is not at fault in any manner for non examination of the prosecution witnesses. Considering total 45 witnesses to be examined on behalf of the prosecution and that at the given pace where in 55 adjournments up till 07.07.2017 they could examine only three witnesses, there is no likelihood of an early conclusion of trial and thus prayed for the benefit of Section 437(6) CrPC to be provided to the petitioner.

5. The State counsel on the contrary opposing the petition submits that taking into consideration the allegation levelled against the petitioner, he does not deserve for being released under Section 437(6) CrPC. He further submits that even otherwise the scope of interference of this court under Section 482 CrPC is too limited and the said powers cannot be used in the present case. He relies upon the judgment in cases of Atul Bagga Vs. State of chhattisgarh, 2010 CrLJ 508, Lal Sahu Vs. State (2012)3 CGLJ 341 and Gulab Singh Banjare & Ors. Vs. State of CG, 2010 (1) CGLJ 132.

6. At this juncture it would be relevant to refer the provisions of Section 437 (6) CrPC which for ready reference is reproduced hereinafter: "6. If, any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs."

7. A plain reading of said provision by itself very clearly reflects that the said provision is meant for those cases where the matter is being tried before the Magistrate and that accused has remained in custody for more than 60 days and there is no likelihood of an early conclusion of trail. A perusal of order sheet produced along with the petition clearly reflects that though the first date for leading evidence was fixed on 27.07.2015, the first witness could be examined only on 12.04.2016. Thereafter, again after more than about 15 months time two other witnesses were examined on 07.07.2017. From the record and the order sheet it clearly reflects that there is apparent lapse on the part of prosecution in making available the prosecution witnesses for their evidence and for the lapse on the part of prosecution, the petitioner is unnecessarily languishing in jail for more than three years.

8. Taking into consideration the overall factual matrix of the case, if we look at the manner, in which the prosecution has delayed the trial, the same is not appreciable. It is a clear case where the prosecution has taken a lethargic approach in conducting the trial, inasmuch as, the prosecution has not shown any interest for the early disposal of trial or for that matter in conducting the trial as is otherwise required.

9. Further, from the averment made by the counsel for the petitioner, if the same is to be believed, even after six months time having passed from 07.07.2017, till date no further witness have been examined to at least presume that trial is proceeding at a fast pace.

10. For the foregoing reasons and in view of the fact that the petitioner is not to be blamed for not producing the witness before the court below for the early disposal of the trial and there being no justifiable reasons submitted by the State for such delay in trial, this court is of the opinion that it is a fit case to grant bail to the petitioner under Section 437(6) Cr.P.C.

11. Accordingly, the present petition filed under Section 482 Cr.P.C. is allowed.

12. It is directed that the petitioner shall be released on bail on furnishing a personal bond in the sum of Rs.25,000/-with two sureties in the like sum to the satisfaction of the concerned Court for his appearance as and when directed.

13. However, the trial court is directed to ensure that trial itself is concluded at the earliest by invoking all the provisions of Cr.P.C. within its power and jurisdiction for calling upon the witnesses and to decide the matter as early as possible.

Sd/- (P.Sam Koshy) Judge inder