(1) By this application under section 397 read with 401 of the Code of criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the applicant has challenged the order dated 7th October, 2008 passed by the learned Chief Judicial magistrate, Surat on the application Exhibit 49 made by the applicant in Criminal Case no. 36128 of 2006, whereby the applicant's application under Section 437 (6) of the Code has been rejected.

(2) The facts of the case stated briefly are that a first information report came to be lodged against the applicant herein before the Salabatpura Police Station alleging commission of offence punishable under Sections 408, 465, 467, 468, 471 (a) and 120 (B)of the Indian Penal Code, which came to be registered vide I C. R. No. 57 of 2006. At the relevant point of time, the applicant was already in police custody in connection with a similar offence registered against him; hence, he was produced before the concerned Court on 28th April, 2006 and was sent to judicial custody at Surat District Jail in connection with the said first information report. Subsequently, the charge-sheet came to be filed and the case was registered as Criminal Case No. 36128 of 2006. The charge was framed on 27th June, 2008 and 10th April 2008 was the first date for recording the evidence. However, it appears that the trial did not proceed further and since on 29th September, 2008, the trial was still not completed and a period of 80 days had already elapsed since the applicant was in judicial custody, the applicant moved the above referred application praying to enlarge him on bail under Section 437 (6) of the Code of Criminal Procedure, 1973.

By the impugned order dated 7th October, 2008, the learned Chief Judicial Magistrate, Surat, after giving opportunity of hearing to the learned advocates for the parties, has rejected the application made by the applicant, which has given rise to the present application under Section 397 read with Section 401 of the Code.

(3) Mr. N. D. Nanvaty learned Senior Advocate appearing with Mr. U. M. Panchal, learned advocate for the applicant, has submitted that the applicant is in judicial custody since 24th April, 2004. It is submitted that the first information report in the present case was lodged on 22nd February, 2006 and he was shown in custody in connection with this case by a transfer warrant of 25th February, 2006. That, the charge was framed on 17th February, 2008 and the first date for recording evidence was 31st july, 2008. Subsequnt to the framing of the charge, the Bank filed an application for framing separate charges in connection with each transaction referred to in the first information report, which came to be rejected by the trial Court. The said order of the trial court came to be challenged before this court by way of Special Criminal Application No. 1370 of 2008, wherein by an order dated 23rd July, 2008, the proceedings of the present Criminal Case came to be stayed. It is submitted that since the period of more than 60 days had elapsed since the first date for recording evidence, the applicant had moved the application under Section 437 (6)of the Code for being released on bail.

(4) Inviting attention to the findings recorded by the learned Chief Judicial Magistrate while rejecting the applicant's application under Section 437 (6) of the Code, it is submitted that relevant factors have not been considered and irrelevant factors have been taken into consideration by the learned magistrate. It is pointed out that initially a case had been registered against the applicant on identical allegations in connection with which he was acquitted. It is submitted that there was a large scale defalcation in the Bank and later on the Bank was taken into liquidation by the Reserve Bank of India. Referring to the findings recorded by the learned Chief Judicial Magistrate while deciding Case No. 5223 of 2006, wherein the applicant had faced similar charge, it is submitted that the