(1.) THIS criminal revision is directed against the order dated 3. 7. 2009 passed by Smt. Mamta shukla, the Judicial Magistrate First Class, mahasamund in Criminal Case No. 167/ 2009, whereby the application under Section 437 (6) of the Code of Criminal Procedure (henceforth the Code) filed by the petitioner was rejected.

(2.) BRIEF facts are that the petitioner, a transporter having 16 trucks was entrusted with the work of transporting foodgrains from various godowns of Chhattisgarh State civil Supplies Corporation under various agreements. It is alleged by the prosecution that between 19. 1. 2008 to 29. 2. 2008 after loading huge quantities of rice from the concerned godowns of Chhattisgarh State Civil supplies Corporation for delivering at destination at different remote places, the petitioner misappropriated and did not deliver rice worth Rs. 64,34,160 loaded in 16 different trucks to their destination and produced false receipts showing that the consignments have been delivered and realised transportation charges.

(3.) THE petitioner was arrested on 16-8-2008. Criminal prosecution under Sections 407, 409, 420, 467, 468, 471, 120b and 411 of the Indian Penal Code was launched against the petitioner by Police Station bagbahara on 12. 11. 2008 (Criminal Case no. 167/2009, old number of the criminal case was 481/2008).

(4.) BAIL was refused by the Judicial Magistrate First Class, Mahasamund on 26. 11. 2008, by the Additional Sessions judge, Mahasamund on 10. 12. 2008 and by the High Court of Chhattisgarh in Miscellaneous Criminal Case No. 174/2009 arising out of Crime No. 170/2008 of P. S. Pithora, Miscellaneous Criminal Case No. 175/2009 arising out of Crime No. 119/2008 of P. S. Bagbahra i. e. the present case, Miscellaneous Criminal Case No. 386/2009 arising out of Crime No. 17412008 of P. S. Basna, miscellaneous Criminal Case No. 387/2009 arising out of Crime No. 17212008 of P. S. Basna by a common order dated 26. 3. 2009.

(5.) ON 2. 4. 2009 charge under Sections 407, 409, 420, 467, 468 and 471 of the Indian penal Code was framed against the petitioner by Shri Rishi Kumar Barman, the then Judicial Magistrate First Class, mahasamund and the case was fixed for recording prosecution evidence on 25. 4. 2009 and 13. 5. 2009. On both dates, Shri Rishi kumar Barman, the then Judicial Magistrate First Class, Mahasamund proceeded on leave. Prosecution witnesses did not appear. The case was fixed for recording evidence on 30. 5. 2009. On 15. 5. 2009 the criminal case was transferred to the Court of Smt. Mamta Shukla, the Judicial Magistrate first Class, Mahasamund, On 30. 5. 2009, i. e. , the date for recording evidence, she also proceeded on summer vacation. It also appears that these Magistrates did not even ensure that summons were issued in a case involving offences of high magnitude like the present one.

(6.) ON 2. 7. 2009 an application was filed by the petitioner under Section 437 (6) of the gode for grant of bail which was rejected by the impugned order dated 3. 7. 2009 for the following reasons:

(7.) SHRI Prateek Sharma, learned counsel for the petitioner submitted that the petitioner had filed a revision directly in the high Court since in Mahasamund besides shri A. K. Shukla, the Sessions Judge, mahasamund no other Additional Sessions judge was posted in the district and Shri a. K. Shukla, the Sessions Judge, mahasamund had passed the following order in another criminal revision filed by the petitioner pertaining to a similar criminal prosecution launched by the Police Station pithora against the petitioner:

(8.) PLACING reliance on Ram Kumar rathore v. State of M. P. ; Haricharan ramteke v. State of Chhattisgarh; Rajendra v. State of M. P. 3; Smt. Godawari Bai and others v. State of C. G. 4; Damodar Singh chauhan v. State of M. P. 5 and Nanda v. State of Madhya Pradesh it was argued by learned counsel for the petitioner that the mandate of sub-section (6) of Section 437 of the Code requires the Magistrate to release a person accused of any non-bailable offence triable by a Magistrate on bail where the trial of such person was not concluded within a period of 60 days from the first date fixed for taking evidence in the case unless for reasons to be recorded in writing the magistrate otherwise directs. Learned counsel for the petitioner further argued that the gravity of the offence could not in any manner be said to be a valid reason for refusing bail by the Magistrate under sub- section (8) of Section 437 of the Code. It was argued that the right to speedy trial flows from article 21 of the Constitution of India and the commencement of evidence. It was also argued that the petitioner had petitioner had a right to be released on bail under subsection (6) of Section 437 of the Code when the trial was not concluded within a period of 60 days from the first date fixed for taking evidence. It was argued that the petitioner is languishing in jail since 16. 8. 2008, i. e. , about a year and the prosecution evidence has not yet begun. On these premises, it was urged that the impugned order, being contrary to law, is liable to be set aside and the petitioner deserved grant of bail under sub-section (6) of Section 437 of the code.

(9.) ON the other hand, Shri G. D. Vaswani, learned Government Advocate for the State/ non-applicant argued in support of the impugned order and contended that so far as the detention of the petitioner/accused in jail for a period of about one year is concerned, the prosecution is not at all at fault. After the presentation of challan on 12. 11. 2008 the petitioner made several applications for arguments on charge and also filed criminal revision before the 1st Additional Sessions Judge, Mahasamund in which the record of the case was requisitioned. Thus, after filing of the challan on 12. 11. 2008 arguments on charge could only be heard as late as on 2-4-2009 when charges were framed. Thereafter, the order-sheets would reveal that the learned Judicial Magistrate first Class, Mahasamund did not issue summons to the prosecution witnesses for their appearance on 25. 4. 2009, 13. 5. 2009 and 30. 5. 2009. Then, the petitioner again sought adjournment by filing application under Section 91 of the Code on 17. 4. 2009. The record was again requisitioned by the 1st Additional Sessions Judge, mahasamund on a criminal revision filed by the petitioner. Thus, it was not the prosecution but the delaying tactics of the petitioner and the trial Judges inaction in not issuing summons to the prosecution witnesses which were responsible for the non-commencement of evidence. It was also argued that the petitioner had filed a certified copy of the order passed by the Sessions judge, Mahasamund which revealed that in a revision pertaining to similar offences registered against the petitioner he did not even hesitate to approach the Sessions judge due to which the learned Sessions judge, Mahasamund was compelled to pass order dated 2. 7. 2009 declining to hear the matters of the petitioner. Thus, if the petitioner could take steps to approach the Sessions Judge, Mahasamund, the apprehension of the learned Judicial Magistrate First class, Mahasamund in the impugned order that the petitioner, if released on bail was likely to influence the prosecution witnesses was also not out of place. It was further contended that the gravity of the offence and its overall impact on the society, the possibility of tampering with the prosecution witnesses by the petitioner/accused in an economic offence of high magnitude and the quantum of punishment provided for the offences charged were relevant factors which the Magistrate may take into consideration while refusing bail under sub section (6) of Section 437 of the Code.

(10.) HAVING considered the rival submissions, I have perused the record. Sub section (1) of Section 437 of the Code puts an embargo on a Magistrate to grant bail to any person against whom reasonable grounds exist for believing that he has been guilty of an offence punishable with death or imprisonment for life and reads as under:

"437. When bail may be taken in case of non-bailable offence - (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or court of Session, he may be released on bail, but: (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. "

Offences under Sections 409 and 467 of the Indian Penal Code are punishable with imprisonment for life and the offences under Sections 407, 420, 468 and 471 of the Indian Penal Code are punishable with imprisonment for 7 years and with fine. Thus, the Magistrate had no jurisdiction under subsection (1) of Section 437 of the Code to grant bail to the petitioner under sections 409 and 467 of the Indian penal Code which were punishable with imprisonment for life. Sub-section (6) of Section 437 of the Code carves out an exception to the provision contained in clause (i) of sub-section (1) of section 437 of the Code and reads as follows:

"437. When bail may be taken in case of non-bailable offence- xxxxx xxxxx xxxxx (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. "

It would, thus, appear that under the first limb of sub-section (6) of Section 437 of the Code where the trial of a person accused of any non-bailable offence is not concluded within a period of 60 days from the first date fixed for taking evidence in the case the law mandates that 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. The second limb of sub-section (6) of Section 437 of the Code carves out an exception and empowers the Magistrate to refuse bail for reasons to be recorded in writing. It is therefore, open to a magistrate to refuse bail under subsection (6) of Section 437 of the Code where the Magistrate assigns reasons in writing which are amenable to scrutiny by a superior Court for examining whether the Magistrate was justified for reasons recorded by him in writing in refusing bail under sub-section (6) of Section 437 of the Code. If the reasons assigned by the Magistrate justify refusal of bail and cannot be termed arbitrary then the order refusing bail by the Magistrate under subsection (6) of Section 437 of the Code would be in accordance with law and not open to interference in revision.

(11.) THE question that arises for determination is as to what factors should weigh with the Magistrate while refusing grant of bail under sub- section (6) of Section 437 of the Code. In my considered opinion, apart from the gravity of offence and the quantum of punishment, prior more of the following factors, among others may weigh with the Magistrate while refusing bail:

(a) the overall impact of the offence and the release of the person accused of such offence on the society, (b) the possibility of tampering of evidence by the accused, (c) the possibility of the accused absconding if released on bail, and lastly (d) the delay in conclusion of the trial within a period of 60 days if attributable to the accused.

(12.) IN the present case, number of similar criminal prosecutions have been launched against the petitioner. A perusal of the record of Criminal Case No. 167/2009 shows that investigation against the remaining accused who absconded was in progress and a supplementary challan was to be filed. The serious allegations of committing criminal breach of trust and misappropriation of huge quantity of rice entrusted to the petitioner for supply to the concerned godowns of Chhattisgarh State civil Supplies Corporation and preparation of false receipts showing that the consignments have been delivered at destination by the petitioner and realisation of transportation charges by the petitioner are serious offences of a very high magnitude. The rice meant for the poor and the downtrodden was allegedly sabotaged and misappropriated by the petitioner. The allegations levelled by the prosecution against the petitioner constitute a serious violation of the right to food of the millions of poor and downtrodden. Besides, the conduct of the petitioner in trying to approach and influence the Sessions Judge, Mahasamund in other matters is such that the possibility expressed by the Judicial Magistrate First class, Mahasamund that the petitioner was likely to influence the prosecution witnesses if released on bail could also not be ruled out. The offences under Sections 409 and 467 of the Indian Penal Code are punishable with imprisonment for life and other offences are punishable with imprisonment for seven years and with fine. If the alleged offences were proved against the petitioner, the Magistrate would have jurisdiction to proceed under Section 325 of the Code. Therefore, the mere fact that the petitioner was in jail since a year and the Magistrate could not pass sentence more than three years would not be relevant consideration for granting bail under Section 437 (6) of the code.

(13.) THUS the seriousness of the economic offences of high magnitude for which the petitioner was charged, the overall impact of the offence and the release of the person accused of such offence on the society, the possibility that the petitioner, if released on bail was likely to influence the witnesses or tamper with the prosecution evidence, the fact that other co-accused were absconding would be relevant factors for refusing bail under sub-section (6) of Section 437 of the code.

(14.) IN Ram Kumar Rathore v. State of m. P. (supra), the Magistrate and the Additional Sessions Judge had refused bail under Section 437 (6) of the Code only on the ground that it was doubtful that the accused would be attending the Court on each and every date fixed by the Magistrate, if released on bail. In Haricharan Ramteke v. State of Chhattisgarh (supra), the Magistrate had refused bail under Section 437 (6)of the Code on the ground that the Courts are loaded with work and as the summons have been issued time and again and the witnesses present in the Court could not be examined because of the non-availability of the report of the expert. In Rajendra v. State of M. P. (supra), bail was refused under Section 437 (6) of the Code on the ground that there is special provision for bail under Section 59a (ii) of the M. P. Excise Act. In Smt. Godawari Bai and others v. State of C. G. (supra), the Magistrate had refused bail for offence under Sections 420,467,468 and 471 of the Indian Penal Code on the sole ground that the offence under Section 467 of the indian Penal Code was punishable with imprisonment for life. In Damodar Singh chauhan v. State of M. P. (supra), the Magistrate had refused bail on the ground that during the statutory period of 60 days the trial could not be concluded since one or two dates were taken by the accused for calling of the documents. In Nanda v. State of madhya Pradesh (supra), the reasons assigned by the Magistrate for refusing bail under Section 437 (6) of the Code have not been mentioned. In all the abovementioned cases, the High Court granted bail invoking the provision contained in sub-section (6) of Section 437 of the Code. However, the facts and circumstances of the present case are clearly distinguishable. In the present case, since the petitioner did not even hesitate to approach the Sessions Judge, mahasamund in other cases the possibility that if he was released on bail, he would tamper evidence and dissuade the witnesses from giving evidence cannot be ruled out. The economic offences alleged against the petitioner are of such serious magnitude that his release is likely to affect the society at large. Taking a cumulative view of all the abovementioned grounds, I am of the considered opinion that the learned Magistrate was wholly justified in rejecting bail under Section 437 (6) of the Code. The criminal revision has no merit and is accordingly dismissed.

(15.) BEFORE parting with the case, it is necessary to observe that a duty is cast on the magistrates in trial Courts to ensure that summons are promptly issued by the Court in compliance with the orders passed by the court and sent to the concerned police station for service. It is also the duty of the presiding Magistrates of the trial Courts to ensure that before proceeding on leave, they should make arrangement for informing the witnesses for not attending the Court on the date fixed for evidence. The presiding Magistrates should request the Chief Judicial magistrate well in advance to transfer a case fixed for recording evidence if the Magistrate is to proceed on leave. The abounding faith which the people still have in the judiciary gets shaken when witnesses turn up for testifying before the Court from long distances and find that the case is adjourned because the presiding Judge is on leave. The judicial Magistrate First Class, mahasamund shall now ensure that, summons are issued to the witnesses promptly without any further delay and the trial is concluded within six months from the date of receipt of a copy of this order. A report of compliance be sent to this Court. A copy of this order be sent to all the District and Sessions Judges in the State of Chhattisgarh for circulation amongst the Judicial Magistrates in the Districts and for sending their acknowledgements to the Registry of this court within a period of 15 days. The Judicial Magistrates in the State be informed that the observations made in paragraph 15 of this order shall be followed by them with utmost sincerity, failing which, a remark shall be given by the District and Sessions judge in their annual confidential report to that effect. The High Court may also consider issuing instructions to the Judicial magistrates on the administrative side and take suitable administrative action against the erring Judicial Magistrates in appropriate cases. Petition dismissed.