Dismissed

Baldau Prasad Kashyap @ B.p.kashyap v. State Of Chhattisgarh

Chhattisgarh HC7 Feb 2014CRMP/64/2014

Case brief

AI extract

What is this about?

The Single Bench upheld an order refusing bail under Section 437(6) CrPC, holding that the trial court was justified in recording special reasons. The trial was delayed partly due to adjournments sought by the applicant and administrative constraints, warranting refusal of bail despite the 60-day limit. (284 words total in this field limit exceeded? No, summary field limit is 400 chars. This is ap

What did the court decide?

Application under Section 482 CrPC dismissed; order refusing bail under Section 437(6) CrPC upheld.

Baldau Prasad Kashyap @ B.p.kashyap Vs State Of… — Cheating and Forgery | Chhattisgarh HC (2014)

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S1NGLE BENCH

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INLTIIEJ-ION'BLE HIGH COURT OF CHHAmSGARH AT BILASPUR

CRMP. N0. ^V_ _/2014

APPLICANT

(injail)

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Baldau PrasadKashyap @ B.P. Kashyap, S/o Shn' Narottam Prasad Kashyap, Aged about 55 R/o Vaishnavi years, Vihar, Uslapur B-16, PS Chakarbhata Chowki Sakri, Oistt. Bilaspur Civil & revenue Distt. Bilaspur {C.G.)

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VERSUS

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NON-APPLICANT

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State of Chhattisgarh, Through: - District Magistrate tiistt.^rajgir -Champa (C.G.)

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APPLICATCON UNbER SECTEON_482^FJHE ^QDE^F CRIMINAL PROCEDURE FOR^RANTLQF BAIL AND QUASHME^JT OF THE OR&ERS OF THE SUBORbINATE

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COURTS

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Crime No. ;, 129/2012 ^-—
Police station SakfCt)istt.Jangir-Champa Civil <&
Revenue t>istt.Jangir-Champa (C.G^

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Being aggrieved against the impugned order Annexure A-l dated 10/01/2014 Passed by Shri B.P. Verma, first Additional session judge Sakti District Janjgir-Champa Chhattisgarh in Crifflinal Revision No.97/2Dl3 dismissing The revision of the applicant arising out of an order passed by Rajesh Kumar Verma, Judicial magistrate First Class Sakti ^ bistrict Janjgir-Champa in Criminal Casz No. 361/2013 ^ order dated 12/12/2013 by non considen'ng illegally and

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improperly the of the applicant regarding the prayer Bail U/s 437(6) of the applicant. The applicant named above begs to file this application for consideration of the matter and to pass an appropn'ate order and granted Bail to the applicant.

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That applicant named above respectfully submits as under: -

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HIGH COURT OF CHHATTISGARH AT BILASPUR

Cr.M.P.No.64of2014

Applicant

Baldau Prasad Kashyap

B.P. Kashyap.

VERSUS

Respondent

State of Chhattisgarh

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APPLICATION U/S. 482 OF THE CODE OF CRIMINAL PROCEDURE

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SB: Hon'ble Shri Goutam Bhaduri. J.

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Present: Shri Dheerendra Pandey, Advocate for the applicant.

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Shri Anand Verma, Panel Lawyer for the State.

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ORDER

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(Passed on 07th day of February, 2014)

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This is a petition against the order dated 10.01.2014 passed by the Court of First Additional Gessions Judge, Sakti, in Criminal Revision No.97/2013. By the said revision, the order of Judicial Magistrate First Class, Sakti, passed in Criminal Case No.361/2013 was under challenge, whereby the learned trial Court has dismissed the application under Section 437(6) of Cr.P.C. and refused to grant bail to the applicant. The said order was challenged by way of revision, which was also dismissed.

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^ 2.

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Learned counsel for the applicant submits that the evidence initially commenced on 07.10.2013, therefore, calculating 60 days, the same comes to 06.12.2013. Therefore, it was the deadtine according to the provisions of Section 436(7) of Cr.P.C. and therefore, the learned trial Court should have considered thesame. He further submits when the application was preferred for release of the applicant on bail, the same was dismissed for the grounds stated that the offence involves grievousⁱⁿ nature. He further submits that any other reason except for examining^the witness and conclusion oftrial could not be accepted againstthe mandate of Section 436(7). He further submits that when the trial could not be

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concluded for any reasons, which are not attributed to the lapses on the part of the applicant and the case was adjourned on various grounds, the benefit of bail cannot be taken away.

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On the other hand, the learned State counsel opposes the same. He submits that merely because 60 days have completed, therefore, the accused do not get any right of bail after 60 days. He further submits that the trial began on 07.10.2013 and 60 days would have been on 06.12.2013. He further submitted that for the reasons as stated in the order, it cannot be termed as illegal as the order is well merited, which may not be disturbed in this petition. He further stated that the learned Magistrate was within its power and discretion by giving the reason for dismissal of the case and that being a discretionary in nature that cannot be gone into by invoking power under Section 482 of Cr.P.C. i.e. exercising the inherent power of the Court. He further submits that the accused is facing the prosecution of the grave offence of Section 420, 467,468, 471 & 120-B of IPC, as he had manipulated the result and the tabulation sheet while appointment of Shiksha Karmi Grade-111 and have admitted his relations and son by making false and fabricated mark sheet.

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Therefore, the other eligible candidates were debarred for his action. He further submjts that under these circumstances, he cannot be extended bail under Section 437(6) of Cr.P.C.

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Perusal of the order of learned trial Court would reflect that the applicant is facing trial for manipulation and fabrication of the mark sheet thereby admitting his son and other relative to be appointed as Shiksha Karmi Grade-111. The learned trial Court has rejected the application under Section 476(6) of Cr.P.C. and refused to grant discretion in favour of the applicant. When such order was made a subject of challenge before the revisional Court, the revisional Court further while deciding the revision also examined the issue and dismissed the revision and has recorded that

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the criminal act done by the applicant was of grave nature. Further the order reflect that on each and every date, the evidence .was being recorded regularly. The order also purports that out of the total prosecution witnesses, eight prosecution witnesses have been examined and two witnesses remains. The trial Court further had recorded that on 04.12.2013 though one prosecution witness Sadheshwar Kumar Gabel had appeared, adjournment was sought on behalf of the applicant and for cross examination the date was further adjourned.

Now again going back to the order of the trial Court, it purports that it is recorded that the case was fixed for 10.10.2013, 26.10.2013, 31.10.2013 and so on upto 06.12.2013 & 11.12.2013. While giving the reason the trial Court has recorded that on this date i.e. on 19.11.2013 since there was an assembly election took place, the applicant could not be produced from the jail. The Court has recorded that on this date, the applicant could not be produced before the Court and, as such, the evidence could not be recorded.

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The learned trial Court has further recorded that on 04.12.2013 one witness Sadheshwar Kumar Gabel was present but after the examination at the request of the Advocate for the applicant, the case was adjoumed and therefore for this reason, the trial could not be commenced within 60 days.

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Section 437(6) of the Cr.P.C. reads as under:

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"(6) If, in any case triable by a Magistrate, the trial of a person accused by 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 shail, 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."

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A bare reading of the above provision makes it clear that the provision is mandatory in nature, but also provides discretion to the Court to refuse bail on special reasons to be recorded by it in writing. The Court is busy or Court is over burdened with work are not reasons which can be accepted for refusal of the bail but non-production of the applicant due to some acute reasonable reason or for any other reasons which caused hindrance in proceeding the trial can also be taken into consideration for refusal of the bail.

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Section 437(6) of the Cr.P.C. is an enabling provision which empowers the Court, other than High Court or Court of Sessions to grant bail in those cases also in which it has no power to grant bail under various provisions of law though it has power to try the offence. Here it is not out of place to mention that on delay in investigation also Courts have power under Section 167(2) of the Cr.P.C. but no discretion has been allowed under Section 167(2) ofthe Cr.P.C. whereas Section 437(6) ofthe Cr.P.C. gives discretion to the Court while granting bail due to delay in trial of the case, therefore, the Court has to exercise the judicial discretion and not to act mechanically. The provisions contained in Section 437(6) of the Cr.P.C. have no application to Court of Session or High Court as no such provisions have been embodied in Section 439 ofthe Cr.P.C.

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Right of liberty does not mean to infringe the right of others, therefore, if the provision shall be construed liberally by applying its benefit without due consideration it will amount to provide tool in the hand of hardened and habitual criminals.

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It would, thus, appear that under the first limb of sub-section (6) of Section 437 of the Code where the trial of a person accused of any non-bailable offence is not concluded within a period of 60 days from the first date fixed for taking evidence in the case, the law mandates that such person shall if

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he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate. The second limb of sub-section (6) of Section 437 of the code carves out an exception and empowers the Magistrate to refuse bail for reasons to be recorded in writing. It is, therefore, open to a Magistrate to refuse bail under sub-section (6) of Section 437 of the Code where the Magistrate assigns reason in writing which are amenable to scrutiny by a superior Court for examining whether the Magistrate was justified for reasons recorded by him in writing in refusing bail under sub-section <6) of Section 437 of the code. If the reasons assigned by the Magistrate justify refusal of bail and cannot be termed arbitrary then the order refusing bail by the Magistrate under subsection (6) of Section 437 of the Code would be in accordance with law and not open to interference in revision.

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"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:

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(a) the overall impact of the offence and the release of the person accused of such offence on the society,

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(b) the possibility of tampering of evidence by the accused.

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(d) the delay in conclusion of the trial within a period of 60 days if attributable to the accused"

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Thus, for the proper and relevant reason, the Magistrate had jurisdiction not to release the accused undergo the trial not only on the ground that the trial could not be concluded within 60 days. The relevant consideration

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-S'i r?

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would be in the mind of the Court that the law have been laid down in case of Atul Bagga v. State ofC.G. [2010 Cr.LJ. 508/which is mentioned hereinabove.

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In the instant case, the evidence had commenced from 07.10.2013 and the learned Court below has recorded that out of the prosecution witnesses, eight witnesses have been examined while two are still remained to be examined. Further, it is recorded that, at one point oftime because of the adjournment sought by the applicant the evidence could not be concluded. Further, the order also reflects that because of the assembly election on 19.11.2013, the applicant could not be produced on certain dates from the jail and therefore the case was adjourned.

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Considering the reasons assigned by the learned Court below, it do not appear to be unjust and the discretion used by the learned Court below while dismissing the application under Section 437(6) in this case do not require any interference by this Court in exercise of inherent power under Section482ofCr.P.C.

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Thus, in view of the discussion made hereinabove, 1 am not inclined to

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allow this petition and the same is herebv dismissed.

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Sd/Goutam Bhaduri' Judge

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Aks '''

Baldau Prasad Kashyap @ B.p.kashyap v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Baldau Prasad Kashyap @ B.p.kashyap v. State Of Chhattisgarh

Case brief

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What did the court decide?

What the court decided

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