- (1.) PALOK Basu, J. I have the learned counsel for the applicant as also the learned A. G. A.
(2.) IN pursuance of the order passed by this court on 17-3-1988. Lower court record was summoned which was examined by me with the help of the learned counsel for the applicant and the learned A. G. A. Admittedly a charge, was framed against, the applicant, from 7-8-1987. Thereafter 21-8-1987, 4-9- 1987, 18-9-1987, 16-10-1987, 29-10-1987, 11-11-1987, 25-11-1987, 8-12-1987, 22-12-1987, 4-1-1988, 16-1-1988, 28-1-1988 and 10-2-1988 were fixed for evidence of the prosecution. On the last date there was lawyers' strike also date the accused had applied for adjournment, on other dates the adjournment was sought by the prosecution on one ground or the other. The Magistrate had even to issue bailable warrants against several witness and had to direct the prosecuting agency to produce so much the evi dence so that he was constrained to refer the matter to the S. H. O. concerned. The accused has been languishing in jail ever since the date on which he was arrested, which was soon after 4-9-1986, of the indident. The charge is under Section 380/411/412, I. P. C. relating to theft and recovery of one Motor Cycle.
(3.) THE learned A. G. A. argues that even though the factual details con tained in the order of the Magistrate dated 20-2-1988 are not borne our from the record. Yet the prayer for bail should not be considered by this Court while deciding this application. Even if the detention of the applicant is taken to begin from 7-8-1987 nearly 9 months have already elapsed. The provision contained in sub-section (6) of Section 437, Cr. P. C. is mandatory in nature. The choice of the Magistrate to deny bail to an accused in detention for a period of more than 60 days has to proceed on special reasons to be recorded in writing. In the instant case it is clear that the reason set out in the impugned order are not accurate and are contrary to the record. 7 The application is thus allowed and the order of the Magistrate is quashed. The Magistrate is hereby directed to admit the accused on bail on his furnishing a personal bond of Rs. 10,000 and two sureties each in the like amount to the satisfaction of Chief Judicial Magistrate, Lucknow. Application allowed. .;