Full Judgment
S.L. Kochar, J.
1. This second application, has been filed by the applicant for grant of bail under the Provisions of Section 437 Sub-section (6) of the Code of Criminal Procedure (for short, 'the Code').
2. The contention of the learned Counsel for the applicant is that learned Trial Court fixed the case of summoning the prosecution witnesses and their examination by order dated 22-4-2002. Thereafter, within sixty days, trial has not been completed and the applicant is in custody, therefore, in view of the Provision under Section 437 Sub-section (6), Cr.PC, the applicant is entitled to be released on bail.
3. The applicant has filed bail application before the Trial Court on the aforesaid ground but the learned Trial Court has dismissed the same by order dated 17-7-2002 holding that the provision under Section 437, Cr.PC will not apply in the case of the Excise Act in which more than 50 bulk litres illicit liquor is shown to be seized by the prosecution because for these offences there is special Provision for bail under Section 59-A (ii) of the M.P. Excise Act (for short, 'the Act').
4. Having heard the learned Counsel for the parties, this Court is of the opinion that there is no bar under Section 59 of the Act, which has a special Provision for consideration of bail of the accused facing trial of the offence of the Excise Act. Under Section 59-A (i) there is specific bar for entertaining anticipatory bail by the Court for the offence under Section 49-A or other offences as mentioned therein. If it was an intention of legislation not to apply the Provisions of Section 437 or Section 439, Cr.PC, the same would have been prescribed in this Provision as prescribed for anticipatory bail.
5. To decide the controversy, Section 59-A of the Madhya Pradesh Excise Act is reproduced as under :--
'Section 59-A. Certain offence under the Act to be non-bailable.--Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (No. 2 of 1974) or Section 59 of the Act --
(i) no application for an anticipatory bail shall be entertained by any Court in respect of a person accused of an offence punishable under Section 49-A or in respect of a person not being a person holding a licence under the Act or rules made thereunder who is accused of an offence covered by Clause (a) or Clause (b) of Sub-section (1) of Section 34 with quantity of liquor found at the time or in the course of detection of such offence exceeding fifty bulk litres.
(ii) a person, accused of an offence punishable under Section 49-A or a person not being a person holding a licence under the Act or rules made thereunder who is accused of an offence covered by Clause (a) or Clause (b) of Sub-section (1) of Section 34 with quantity of liquor found at the time or in the course of detection of such offence exceeding fifty bulk litres shall not be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release and in case such an application is opposed by the Public Prosecutor, unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail:
Provided that no Court shall order for detention of such person in custody during the course of investigation for total period exceeding 60 days where it relates to an offence covered by Clause (a) or Clause (b) of Sub-section (1) of Section 34 with quantity of liquor found at the time or in the course of detection of the offence under Section 49-A and on the expiry of such of 60 days or 120 days, as the case may be and in the event of the report of complaint not being filed the accused shall be released on furnishing bail. (iii) the limitation for grant of bail is specified in Clause (ii) are in addition to the limitations prescribed under the Cr. PC, 1973 (No. 2 of 1974) or any other law for the time being in force regarding grant of baft.'
6. Section 59-A Sub-section (iii) of the Act is also showing that the Provision of bail as prescribed under the Code are applicable in addition to the limitation for grant of bail as specified in this Section.
7. Therefore, reasoning given by learned Trial Court that Provision of Section 437 of Sub-section (6) Cr.PC will not apply for the offence punishable under the Excise Act because Special Provision of bail is enumerated under Section 59-A of the Act, is unjust and illegal.
8. Section 437 Sub-section (6) is reproduced as under :--
'437. When bail may be taken in case of non-bailable offence.--
(1).........(2).........(3)....... (4).........(5)......... (6) If, in 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.'
9. This Provision is showing that if the trial is not completed within a period of 60 days from the date fixed for recording evidence then the accused, who is in custody, is entitled to be released on bail. If the Court is of the opinion that the accused is not entitled for bail then it is obligatory on the part of the Court to assign reason for refusing the bail. In view of mandatory Provision of Section 437 Sub-section (6), Cr.PC, the applicant is entitled to be released on bail. There is no special reason on the basis of which his prayer may be refused. Similar view has been taken in the case of Saritadevi v. State of Himachal Pradesh [2000 (2) Crimes 543] and in the case of Mohd. Abdul v. State of West Bengal [1991 (2) Crimes 741].
10. In the light of the aforesaid factual and legal discussion, the application is allowed and applicant Rajendra s/o Rajaram is directed to be released on bail on his furnishing a personal bond of Rs. 20,000/- (Rupees twenty thousand only) with one surety in the like amount to the satisfaction of the Trial Court.
11. With the aforesaid direction, this M.Cr.C stands disposed of. Certified copy be given on usual charges.