JITENDRA ALIAS JEETU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Aggrieved by the order dated 05.05.2010, passed by the learned Additional Civil Judge (Jr. Division) and Judicial Magistrate No. 1, Ajmer, whereby the learned Magistrate has dismissed the Petitioner's application under Section 437(6) Code of Criminal Procedure and has declined to release the Petitioner on bail, the Petitioner has approached this Court.

(2.) The brief facts of the case are that on 01.06.2009, the complainant, Amrit Lal, had lodged a FIR, FIR No. 116/2009, at Police Station Ramganj, Ajmer for offences under Sections 420 and 120B IPC wherein he has claimed that the Petitioner, in conspiracy with one Ashok Jadeja, has cheated him and has committed breach of trust. After a thorough investigation, the police had filed a charge-sheet for offence under Section 406, 420 and 120B IPC. Vide order dated 21.08.2009, the learned trial Court had framed the charges against the Petitioner for the above mentioned offences. However, as the Petitioner was aggrieved by the said order, he had challenged the same before the Sessions Judge. Vide order dated 08.12.2009, the learned Judge remanded the case back to the learned trial Court and directed it to re-hear the entire case for framing of charge. After re-hearing, vide order dated 14.01.2010, the learned trial Court framed the charges only for offences under Sections 420 and 120B IPC and discharged the Petitioner from the offence under Section 406 IPC. Subsequently, the testimony of Chand Mal (P.W. 1) was recorded. The learned Counsel for the accused wanted to confront this witness with his previous statement. However, this opportunity was denied. Therefore, the order denying such an opportunity was again challenged before the Sessions Court. The Session Court set aside the order denying such an opportunity. According to the Petitioner, despite the fact that six months have lapsed from the first date of recording of the evidence, the trial is yet to be completed. Therefore, the benefit of Section 437(6) Code of Criminal Procedure should be given to him and he is entitled to be released on bail. With this view in mind, the Petitioner had filed a bail application before the learned Sessions Judge, Ajmer. However, vide order dated 29.05.2010, the learned Sessions Judge had declined to grant the benefit of Section 437(6) Code of Criminal Procedure. Therefore, the Petitioner had filed a third bail application before this Court, registered as S.B. Criminal Misc. Third Bail Application No. 1158/2011. However, vide order dated 11.02.2011, this Court had opined that a bail application does not lie, instead the Petitioner should avail of the alternate remedy provided by law. Hence, the said application was withdrawn. Thus, this petition before this Court.

(3.) Mr. Jai Prakash Gupta, the learned Counsel for the Petitioner, has vehemently contended that Section 437(6) Code of Criminal Procedure uses the word "shall". Therefore, it is a mandatory provision. In order to buttress this contention, he has relied upon the cases of Anil Kumar v. State of Rajasthan, 2005 1 RajCriC 284 and Gautam Kandiya Bhonsle v. State of Rajasthan,2004 2 RajCriC 944. Secondly, according to him, the learned Magistrate has not given any cogent reasons whatsoever for declining the benefit of Section 437(6) Code of Criminal Procedure Thirdly, the Petitioner has the right to challenge any order which is prejudicial to his interest. Therefore, in case he avails of the said remedy, he cannot be faulted. Lastly, from 14.01.2010 and from the first date of recording of the testimony of Chand Mal (P.W. 1), sixty days have already expired. Therefore, the Petitioner is entitled to the benefit of Section 437(6) Code of Criminal Procedure.