Rajeev Kumar Dubey DECISION
Rajeev Kumar Dubey, J.
1. Shri Anil Kumar Tiwari, counsel for the applicant.
2. Shri Rajesh Tiwari, Govt. Advocate for the respondent/State.
3. This petition has been filed under Section 482 of the Cr.P.C. against the order dated 14.01.2019 passed by the learned Sessions Judge, Khandwa in Criminal Revision No. 107/2018, whereby learned Sessions Judge rejected the applicant's revision and affirmed the order dated 19.11.2018 passed by the learned Judicial Magistrate First Class, Khandwa in Cri. Case No. 1028/18, whereby learned JMFC rejected the applicant's application filed under Section 437(6) of the Cr.P.C. for releasing him on bail, without going into the merits of the case observing that the order passed by the JMFC under section 437(6) is an interlocutory order against which revision is not maintainable.
4. Brief facts of the case which are relevant for the disposal of this petition are that on 01.07.2018, on the information of informant, police stopped activa bike bearing registration No. MP-12-MM-5101 and seized 63 bulk liters of country made liquor which was illegally being carried by the applicant Monu @ Lakhan on that bike and registered Crime No. 377/2018 for the offence punishable under Section 34 (2) of Excise Act and arrested the applicant. After investigation of the crime, police filed charge sheet against the applicant. On that charge sheet Criminal Case No. 1028/2018 was registered against the applicant which is pending before Chief Judicial Magistrate, Khandwa. In that case, learned Chief Judicial Magistrate vide order dated 10.09.2018 framed the charge against the applicant for the offence punishable under Section 34 (2) of the M.P. Excise Act and fixed the case for the first time for prosecution evidence on 17.09.2018 and thereafter learned trial Court again gave various dates viz 20.09.2018, 25.09.2018, 09.10.2018, 11.10.2018, 25.10.2018, 03.11.2018 and 16.11.2018 for the same purpose, but somehow trial could not be concluded till 19.11.2018, so applicant filed an application under Section 437 (6) of Cr.P.C. before the trial Court praying therein that since he had been in custody during all this period and the trial could still not be concluded, hence he be released on bail.
5. Learned Chief Judicial Magistrate rejected the applicant's application vide order dated 19.11.2018 observing that because the court of Chief Judicial Magistrate Khandwa has vacant for some time so the trial could not be concluded. So applicant is not entitled to get bail under section 436 (7) of Cr.P.C.. Being aggrieved from that order applicant filed Criminal Revision and the same was dismissed by Sessions Judge, Khandwa, vide order dated 14.01.2019 without going into the merits of the case observing that the impugned order was interim order and hence the revision was not maintainable against the impugned order. Being aggrieved from that order applicant has preferred this petition.
6. Learned counsel for the applicant submitted that the applicant is in custody since 01.07.2018 and learned trial Court framed the charge against the applicant on 10.09.2018 and thereafter fixed the case for prosecution evidence for the first time on 17.09.2018 and till date, the prosecution has not been able to examine all prosecution witnesses and the trial is pending. He further submitted that since the trial could not be concluded within 60 days from the first date of recording of evidence, therefore, under the mandatory provisions of Section 437 (6) of Cr.P.C. the applicant deserve to be enlarged on bail. Learned trial court as well as revisional committed mistake in rejecting the applicant's application filed under section 437(6) of Cr.P.C.
7. Learned counsel for the applicant further submitted that the impugned order passed by learned Chief Judicial Magistrate is final order because impugned order decides applicant's rights finally provided by the legislature under Section 437 (6) of CrPC, so the order is revisable. Learned Sessions Judge without considering these facts wrongly rejected the applicant's revision petition stating that the impugned order was interlocutory order against which revision was not maintainable.
8. Learned counsel for the State opposed the prayer. This Court has gone through the record and arguments put forth by the learned counsel for both the parties. It appears from the record that learned Sessions Judge rejected the applicant's revision without going into the merits of the case observing that the order was an interim order against which revision was not maintainable.
9. Whether the order passed by the learned Magistrate under Section 437 (6) of CrPC is revisable or not, this court in the case of Jitendra Jaiswal v. State of M.P. in M.Cr.C. No. 50262/2018 vide order dated 28.01.2019 observed as under:-
"the parameters relevant for the purpose of considering the bail application under Section 437(6) of Cr.P.C. is different from the parameters relevant for considering the bail application under section 437(1) and 439(1) of Cr.P.C. The Section 437(6) of Cr.P.C. provides a right in favour of the accused to secure bail where the trial could not be concluded within a period of 60 days, from the first date fixed for taking evidence with some restrictions. The order passed by the magistrate under section 437(6) of Cr.P.C. affects or adjudicate the rights of the accused. So it cannot be said to be an interlocutory."
10. The Apex Court in the case of Amar Nath v. State of Haryana, MANU/SC/0068/1977 : (1977) 4 SCC 137 interpreting the provisions of section 397(2) of Cr.P.C. held as under:-
"It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court."
11. Which shows that any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory.
12. Sub Section 6 of Section 437 of CrPC reads as under:-
"If, in any case tribal 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 the reasons to be recorded in writing the Magistrate otherwise directs."
13. The aforementioned provision mandates that in case of non-bailable offence, which is being tried by a Magistrate and where the trial has not concluded within a period of sixty days from the first date fixed for taking evidence in the case and the accused has remained in custody during whole of the said period, he becomes entitled to be released on bail. Though, the Magistrate can decline the benefit of aforesaid provisions by recording reasons in writing. That section on one side provides an absolute right in favour of the applicant to secure bail under Section 437(6), but, at the same time, puts a check on the said right by conferring jurisdiction upon the Magistrate to reject the applications for the reasons to be recorded in writing.
14. The stage contemplated under Section 437(6), is accrued after filing of charge-sheet and framing of charge when trial commences and the accused prefers an application after lapse of 60 days from first date fixed for taking evidence. Reasons for rejection of application under sub-section (6) of the said Section have to be different and little more serious than the reasons that may be relevant for rejection for bail at the initial stage.
15. A coordinate bench of this Court in M.Cr.C No. 12453/2016 - Bhagwan and Others Vs. State of M.P, observed "It is obvious that there needs to be something more for denying bail under sub-section (6) than mere grounds on which the bail may be refused under sub-section (1), for the simple reason that the accused would be in jail after 2 months from the first date of evidence only where the grounds for refusing bail under section 437(1) are in existence. If same reasons are cited again for denying bail under sub-section 437(6), it would render the provision under sub-section (6) of section 437 otiose".
16. A coordinate Bench of this Court in the case of M.Cr.C No. 13444/2018 Pramod Kumar Vishwakarma v. State of Madhya Pradesh order dated 19.04.2018 also observed that "Section 437(6) Cr.P.C. provides that in every case, which is triable by a Magistrate, of an offence which is non-bailable and where the trial cannot be concluded within a period of 60 days, from the first date fixed for taking evidence, the accused shall, if has been 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. The provision is unambiguous in its intent to protect the fundamental right of the accused under Article 21 of the Constitution by taking cognizance of his right to a speedy trial. The provision unequivocally mandates the release of such a person after the end of sixty days from the first date fixed for the recording of evidence. His continued incarceration is an exception to be exercised for reasons to be recorded by the Magistrate."
17. The Division Bench of this Court in the case of Devraj Maratha @ Dillu v. State of Madhya Pradesh reported in 2018(2) MPLJ (Cri) 386 while answering the reference of a Single bench after considering earlier judgments of this Court held as under:-
"19. On a plain reading of the provision of Section 437(6) of the Code it is graphically clear that it is mandatory in the sense that a person should not be kept in jail ordinarily if a trial for non-bailable offence which is triable by the Magistrate, is not concluded within a period of sixty days from the date fixed for evidence."
18. Which shows that the parameters relevant for the purpose of considering the bail application under Section 437(6) of Cr.P.C. is different from the parameters relevant for considering the bail application under section 437(1) and 439(1) of Cr.P.C. The Section 437(6) of Cr.P.C. provides a right in favour of the accused to secure bail where the trial could not be concluded within a period of 60 days, from the first date fixed for taking evidence with some restrictions. The order passed by the magistrate under section 437(6) of Cr.P.C. affects or adjudicate the rights of the accused. So it cannot be said to be an interlocutory."
19. So, in the considered opinion of this Court, learned Sessions Judge committed mistake in rejecting the applicant's revision without going in to the merits of the case with the observation that the impugned order was an interim order and hence revision was not maintainable against it. So, the petition is allowed and the order dated 14.01.2019 passed by learned Sessions Judge, Khandwa in Criminal Revision No. 107/2018 is hereby set-aside and the case is remanded back to the learned Sessions Judge with the direction to pass a reasoned order after hearing both the parties.
20. With the aforesaid, the petition is disposed of.
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