Umeshwar Pandey - (1.) -
(2.) HEARD learned counsel for the applicant as well as the learned A.G.A. The petitioner challenges the order dated 2.9.2006 passed by the Sessions Judge whereby the prayer of the petitioner for his release on bail under Section 437 (6), Cr. P.C. has been refused. The learned counsel contends that the applicant-accused is in lockup in Case Crime No. 175 of 2004 of P.S. Sakaran district Sitapur since 27.5.2005. His prayer for release on bail was refused on merits and after submission of the charge-sheet before the Magistrate the trial proceeded, charges were framed on 22.11.2005. Thereafter 6.12.2005 was the date fixed for prosecution evidence. Thereafter five dates for such prosecution evidence were fixed in the case. During this period, no evidence was recorded by the trial court. The last date was 21.2.2006 by which time the period of sixty days as provided under the aforesaid provision of Section 437 (6) of the Code had expired. The learned counsel thus has tried to emphasize that if the trial in such cases before a Magistrate is not concluded within the period of sixty days from the first date for taking evidence in the case, the accused person facing the trial shall be released on bail to the satisfaction of the Magistrate. This is a mandatory provision of law which cannot be overlooked by any court and it has to be followed in letter and spirit. The learned counsel in support of his submission has cited the case law of Goga alias Ahmad Zia v. State of U. P. and 2 others, 1988 LCR 105 and Ram Kumar alias Raj Kumar Rathore v. State of Madhya Pradesh, 2000 Cr LJ 2644 (MP).
(3.) NO doubt, that the provision of sub-section (6) of Section 437, Cr. P.C. is mandatory provision and the Magistrate is obliged to grant release of the accused facing such trial in the case if the period as provided in the provision has expired but at the same time the discretion of the trial court to refuse the release on bail has not been altogether taken away. The aforesaid sub-section (6) provides that the Magistrate shall grant the release of the accused persons unless for the reasons to be recorded he otherwise directs. In the present case, while perusing the order of the learned Sessions Judge before whom also the prayer for bail was made, it is found that the special court designated for that purpose dealing with such embezzlement of Cooperative Society is heavily loaded with work and the accumulation of work has gone further simply because for months together the jurisdiction of this designated court is not conferred upon an officer either by the Government or the High Court. Therefore, if there has been delay in conclusion of the trial in the present case leading to the expiry of period of sixty days provided for the purpose under sub-section (6) of Section 437, Cr. P.C., the refusal of bail by the court appears to be wholly justified and that discretion, which has been given to the Magistrate in the last clause of the sub-section (6), has been applied while refusing the prayer for release on bail. In such circumstances if the learned Sessions Judge has found that the order of refusal of bail is not violative to the aforesaid provision of sub-section (6), such order of the Sessions Judge can be said to be wholly justified. The embezzlement is alleged to be that of a heavy sum of Rs. sixteen lacs which had also led the court to refuse the prayer of bail of this applicant on merits. That ground also has added, to certain extent, to the refusal of bail to the applicant under sub-section (6) of Section 437, Cr. P.C. I do not find any infirmity in the impugned order of the Sessions Judge challenged in the petition and the petition is accordingly found to be without substance. It is hereby dismissed.;