Order On Board

03 /02/2023 :

1. This petition has been filed under Section 482 of the CrPC challenging the order dated 9.11.2022 passed by the Additional Judge to the Court of learned Additional Sessions Judge, Kawardha, District Kabirdham in Criminal Revision No.26/2022 upholding the order dated 27.7.2022 passed by the CJM, Kawardha in Criminal Case No.1268/2022, whereby the application preferred by the petitioner under Section 437 (6) of the CrPC for bail has been rejected.

2. Facts of the case are that complainant Neelam Banjara lodged an FIR

alleging that some unknown persons called him through mobile phone and thereafter committed on-line fraud whereby he was cheated for an amount of Rs.5,89,908/-. Therefore, offence under Section 420/34 of the IPC and Section 66-D of the IT Act was registered by the Police Station Pipariya vide Crime No.188/2021. After completion of investigation, charge sheet was filed on 25.4.2022 and charge was framed on 9.5.2022 and the case was fixed for the prosecution evidence for the first time on 23rd May, 2022. However, the prosecution could not conclude the trial within a period of 60 days from the first day of taking evidence in the case i.e. 27th July, 2022. Therefore, the petitioner has moved an application for releasing him on bail under Section 437 (6) of the Code of Criminal Procedure (for short ‘the Code’), which has been dismissed by the CJM vide order dated 27th July, 2022, which has been affirmed by the impugned order.

3. Learned counsel for the petitioner submits that the impugned orders are bad in law and against the spirit of Section 437 (6) of the Code. The said provision is enacted with an intent to expedite the trial and there is no fault on the part of the petitioner to conclude the trial within a reasonable time. As the provision of Section 437 (6) of the Code is mandatory in nature, so, learned counsel prays to quash the impugned orders. Reliance is placed in the matters of Rajiv Bhosle and others Vs. State of Chhattisgarh {2022 SCC Online Chh 287}, Santosh Dubey Vs. State of CG {2017 SCC Online Chh 1641}, Sunil Kumar Ojha Vs. State of Chhattisgarh {2016 SCC Online Chh 1487}, Chandraswami & another Vs. Central Bureau of Investigation {(1996) 6 SCC 751}, Atul Kumar Shrivastava Vs. State of Chhattisgarh {2020 SCC Online Chh 2373}, Atul Bagga (In Jail) Vs. State of Chhattisgarh {2009 SCC Online Chh 211}, Lal Sahu Vs. State of Chhattisgarh {2011 SCC Online Chh 403}, Sujay Chatterjee Vs. State of CG, through Judicial Magistrate 1st Class {2022 SCC Online Chh 526}, Ramanuj Singh Thakur Vs. State of Chhattisgarh {2016 SCC Online Chh 1604}.

4. On the other hand, learned State Counsel would support the impugned orders on submission that Section 437 (6) of the Code is mandatory in nature only to the extent that the Magistrate has to assign reasons and it is not necessary that the petitioner shall be released if the trial is not concluded within a period of 60 days after the first date of evidence.

5. Heard learned counsel for the parties at length and perused the impugned orders along with the cases relied on by counsel for the petitioner.

6. In the matter of Atul Kumar Shrivastava (Supra), it has been categorically held that the right conferred on the accused is not absolute one and the same is subject to the conditions stated in the said provision. At para-11, the following has been observed:-

“11. Thus, the seriousness of the offences for which the accused has been charged, the overall impact of the offence and the release of the person accused of such offence on the society, the possibility that the accused, if released on bail is likely to influence the witnesses or tamper with the prosecution evidence, the fact that other co-accused are absconding would be relevant factors for refusing bail under sub- section (6) of Section 437 of the Code.”

7. In the matter of Chandraswami (Supra), the Hon’ble Supreme Court without going into the question of interpretation and applicability of Section