Sukhdev Singh Vs. State of Punjab - Court Judgment

Excerpt:
- - the reasons given by the trial court as well as the additional sessions judge, kapurthala cannot be legally sustained and the petitioner is entitled to the concession of bail under section 437(6) of the code.orderajay kumar mittal, j.1. the petitioner, sukhdev singh, through the present petition filed under section 439 of the code of criminal procedure, seeks concession of regular bail, in case fir no. 357 dated 4-11-2007, under sections 420/406 of the indian penal code, registered at police station city, kapurthala, district kapurthala.2. the petitioner has on an earlier occasion approached this court through crm-m-10449 of 2008 which was dismissed as withdrawn on 23-7-2008 with permission to take recourse to legal remedies available to him in accordance with law. it is the case of the petitioner that he was arrested on 1-3-2008 and the charge was framed on 2-5-2008. the first date fixed for evidence of the prosecution was 29-5-2008 and now the case is fixed for prosecution evidence before the trial court on 30-5-2009. according to the learned counsel, as the trial was not concluded within sixty days from 29-5-2008, the petitioner is entitled to be released on bail in view of the provisions of section 437(6) of the code of criminal procedure (for short 'the code'). accordingly, an application under section 437(6) of the code before the trial court was filed which has been illegally rejected. the learned additional sessions judge, kapurthala had also declined the same without assigning any valid reasons vide order dated 10-12-2008.3. the petitioner now claims that in view of the statutory provisions of section 437(6) of the code under which he is covered, the trial court without recording any legal and valid reasons, as required thereunder, has declined the grant of benefit of the aforesaid provision. learned counsel for the petitioner has placed on record the certified copies of the zimni orders to substantiate his plea.4. on the other hand, 'the learned state counsel has opposed the prayer made for bail by submitting that the petitioner has committed very serious crime and moreover, the trial court had by assigning valid reasons declined to grant the benefit of section 437(6) of the code to the petitioner.5. i have heard the' learned counsel for the parties and have perused the impugned orders along with the zimni orders placed on record by the learned counsel for the petitioner.section 437(6) of the code reads thus:437. when bail may be taken in case of non-bailable offence.:(1) to (5) xx xx xx(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.(7) xx xx xx xx6. the above referred provision mandates that if a case for non-bailable offence is being tried by the magistrate and the trial has not concluded within a period of sixty days from the first date fixed for taking of the evidence in the case and that the accused had remained in custody during the whole of such period, then he becomes entitled to be released on bail. however, the magistrate cart decline the benefit of the aforesaid provision by recording reasons in writing.7. on a perusal of the zimini orders placed on record by the learned counsel for the petitioner, which are not disputed by the learned state counsel, it is observed that the case for the first time was fixed for prosecution evidence on 29-5-2008 and the trial has not concluded within a period of 60 days from that date and the accused is in custody. the trial court has declined the prayer of the petitioner for the grant of bail only on the ground that the delay, has been caused by the jail authorities or the prosecution. further, the additional sessions judge, kapurthala has declined the prayer of the petitioner for bail on the ground that the application under section 437(6) of the code is only maintainable in the court of the magistrate and not in the sessions court. besides this, the additional sessions judge has declined bail keeping in view the gravity of the offence.8. after hearing the learned counsel for the parties and the fact that the petitioner has remained in custody-during the said period of more than sixty days from the first date fixed for recording the evidence of the prosecution and no delay has been attributed to him, is held entitled to be released on bail. the reasons given by the trial court as well as the additional sessions judge, kapurthala cannot be legally sustained and the petitioner is entitled to the concession of bail under section 437(6) of the code.9. consequently, the present application is allowed and the impugned orders passed by the courts below are set aside. the petitioner is ordered to be released on bail in his furnishing bail bonds to the satisfaction of the chief judicial magistrate, kapurthala.10. however, the trial court is directed to conclude the trial expeditiously preferably on or before 30-9-2009.

Judgment:
ORDER

Ajay Kumar Mittal, J.

1. The petitioner, Sukhdev Singh, through the present petition filed under Section 439 of the Code of Criminal Procedure, seeks concession of regular bail, in case FIR No. 357 dated 4-11-2007, under Sections 420/406 of the Indian Penal Code, registered at Police Station City, Kapurthala, District Kapurthala.

2. The petitioner has on an earlier occasion approached this Court through CRM-M-10449 of 2008 which was dismissed as withdrawn on 23-7-2008 with permission to take recourse to legal remedies available to him in accordance with law. It is the case of the petitioner that he was arrested on 1-3-2008 and the charge was framed on 2-5-2008. The first date fixed for evidence of the prosecution was 29-5-2008 and now the case is fixed for prosecution evidence before the trial Court on 30-5-2009. According to the learned Counsel, as the trial was not concluded within sixty days from 29-5-2008, the petitioner is entitled to be released on bail in view of the provisions of Section 437(6) of the Code of Criminal Procedure (for short 'the Code'). Accordingly, an application under Section 437(6) of the Code before the trial Court was filed which has been illegally rejected. The learned Additional Sessions Judge, Kapurthala had also declined the same without assigning any valid reasons vide order dated 10-12-2008.

3. The petitioner now claims that in view of the statutory provisions of Section 437(6) of the Code under which he is covered, the trial Court without recording any legal and valid reasons, as required thereunder, has declined the grant of benefit of the aforesaid provision. Learned Counsel for the petitioner has placed on record the certified copies of the zimni orders to substantiate his plea.

4. On the other hand, 'the learned State counsel has opposed the prayer made for bail by submitting that the petitioner has committed very serious crime and moreover, the trial Court had by assigning valid reasons declined to grant the benefit of Section 437(6) of the Code to the petitioner.

5. I have heard the' learned Counsel for the parties and have perused the impugned orders along with the zimni orders placed on record by the learned Counsel for the petitioner.

Section 437(6) of the Code reads thus:

437. When bail may be taken in case of non-bailable offence.:

(1) to (5) xx xx xx

(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.

(7) xx xx xx xx

6. The above referred provision mandates that if a case for non-bailable offence is being tried by the Magistrate and the trial has not concluded within a period of sixty days from the first date fixed for taking of the evidence in the case and that the accused had remained in custody during the whole of such period, then he becomes entitled to be released on bail. However, the Magistrate cart decline the benefit of the aforesaid provision by recording reasons in writing.

7. On a perusal of the zimini orders placed on record by the learned Counsel for the petitioner, which are not disputed by the learned State counsel, it is observed that the case for the first time was fixed for prosecution evidence on 29-5-2008 and the trial has not concluded within a period of 60 days from that date and the accused is in custody. The trial Court has declined the prayer of the petitioner for the grant of bail only on the ground that the delay, has been caused by the Jail authorities or the prosecution. Further, the Additional Sessions Judge, Kapurthala has declined the prayer of the petitioner for bail on the ground that the application under Section 437(6) of the Code is only maintainable in the Court of the Magistrate and not in the Sessions Court. Besides this, the Additional Sessions Judge has declined bail keeping in view the gravity of the offence.

8. After hearing the learned Counsel for the parties and the fact that the petitioner has remained in custody-during the said period of more than sixty days from the first date fixed for recording the evidence of the prosecution and no delay has been attributed to him, is held entitled to be released on bail. The reasons given by the trial Court as well as the Additional Sessions Judge, Kapurthala cannot be legally sustained and the petitioner is entitled to the concession of bail under Section 437(6) of the Code.

9. Consequently, the present application is allowed and the impugned orders passed by the Courts below are set aside. The petitioner is ordered to be released on bail in his furnishing bail bonds to the satisfaction of the Chief Judicial Magistrate, Kapurthala.

10. However, the trial Court is directed to conclude the trial expeditiously preferably on or before 30-9-2009.