Full Judgment
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Miscellaneous Petition No. 1076 of 2017 --- Bachchan Das son of Chandeshwar Das resident of village Kaikhali, Sardarpura, Sharda Apartment, C/13, Kolkata, PO & PS Dumdum Airport, District Kolkata East, West Bengal … … Petitioner Versus The State of Jharkhand … … Opposite Party --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioner : Mr. Arwind Kumar, Advocate For the Opposite Party : Mr. Kaushik Sarkhel, A.P.P. --- 4/17.07.2017 Heard Mr. Arwind Kumar, learned counsel for the petitioner and Mr. Kaushik Sarkhel, learned A.P.P. for the State.
2. In this application the petitioner has challenged the order dated 17.04.2017 passed by the learned Judicial Magistrate 1st class, Dhanbad in Dhanbad P. S. Case No. 1015 of 2015 corresponding to G. R. No. 5335 of 2015 whereby and whereunder the application preferred by the petitioner under Section 437 (6) of the Cr.P.C. has been rejected. A further prayer has been made for a direction to release the petitioner on bail in terms of Section 437(6) of the Cr.P.C.
3. It has been stated by the learned counsel for the petitioner that even after remand of the case by this Court in Cr.M.P. No. 435 of 2017, the learned court below has once again rejected the application preferred by the petitioner under Section 437 (6) of the Cr.P.C. on grounds not germane for considering the application made under the said provision. He further submits that the petitioner is in custody for a considerable long period of time and therefore, the petitioner be directed to be released on bail.
4. Learned A.P.P. for the State has opposed the prayer made by the petitioner.
5. It appears that the petitioner is being proceeded in a case instituted under Section 406/419/420 of I.P.C. and Section 138 of the Negotiable Instrument Act. The charges were framed on 14.07.2016 and the first date fixed for evidence was 28.07.2016. After expiry of 60 days since trial had not been concluded, the petitioner had preferred an application for grant of bail under Section 437 (6) of Cr.P.C. which -2- however was rejected by the learned Magistrate on 20.01.2017. The petitioner had preferred an application under Section 482 of Cr.P.C. which was registered as Cr.M.P. No. 435 of 2017 and vide order dated 24.03.2017, the order passed by the learned Judicial Magistrate 1st class, Dhanbad on 20.01.2017 was quashed and the matter was remanded back to the learned Judicial Magistrate to pass a fresh order in accordance with law. Subsequent to the order passed in Cr.M.P. No. 435 of 2017, the impugned order dated 17.04.2017 has been passed by the learned Magistrate.
6. Perusal of the impugned order dated 17.04.2017 reveals the reasons for rejecting the application under Section 437 (6) of the Cr.P.C. which includes - 1. Offence is serious in nature; 2. No vital evidence has been produced by the prosecution; 3. Witnesses resides outside the State of Jharkhand; & 4. Petitioner might influence or threat the witnesses. On these four considerations, the application under Section 437 (6) of Cr.P.C. has been rejected.
7. Now it is to be seen as to whether the reasons assigned by the learned Magistrate are appropriate or not in considering such application. In the context of the above, reference may be made to the case of Nehru Prakash Bhai Shai and others Vs. State of Gujarat (Criminal Reference No. 2 of 2011) wherein the factors which should weigh in the mind of the Magistrate has been enumerated and the same reads as under:
9. ........................................................................ “Q-3. The Magistrate has option/discretion to refuse bail by assigning reasons therefor. The parameters, factors, circumstances and grounds to be considered by Magistrate vis-a`-vis such application preferred by the accused under Section 437(6) of the Code may be: (I) Whether the reasons for being unable to conclude trial within sixty days from the first date fixed of taking evidence, are attributable to the accused? (2) Whether there are any chances of the accused tampering with evidence or causing prejudice to the case of the prosecution in any other manner? (3) Whether there are any chances of abscondence of the accused on being bailed out? Whether accused was not in custody during the whole of the said period? -3- If the answer to any one of the above referred fact situations or similar fact situations is in affirmative than that would work as a fetter on the right that accrues to the accused under first part of sub-section (6) of Section 437 of the Code”
8. The parameters which guide consideration of an application under Section 437 (6) of Cr.P.C. has not at all been considered by the learned Magistrate and on reasons which do not justify rejecting the application under Section 437 (6) of Cr.P.C., the impugned order dated 17.04.2017 has been passed. A vague reference has been made that the petitioner might influence or threat the witnesses, but such vague grounds cannot be justifiable in rejecting such application. The reasons for rejecting an application under Section 437 (6) of Cr.P.C. need to be more weighty than the normal grounds of rejection. It is not in doubt that an accused does not have an indefeasible right for being released on bail under Section 437 (6) of Cr.P.C., but even then if an accused invokes the provision under Section 437 (6) of Cr.P.C., his release cannot be thwarted by reasons which are not germane for consideration of the said application or for that matter for reasons which appears to be vague and is not based on any sound logic. The learned Magistrate therefore, has not considered the guidelines necessary to be followed in considering an application under Section 437 (6) of Cr.P.C. and accordingly, the impugned order dated 17.04.2017 passed in Dhanbad P. S. Case No. 1015 of 2015 corresponding to G. R. No. 5335 of 2015 being not in accordance with law is hereby quashed and set aside.
9. The petitioner is directed to be released on bail on such terms and conditions as may be imposed by the learned Magistrate.
10. This application stands allowed. (Rongon Mukhopadhyay, J) R. Shekhar Cp 3