9911796707
TMI Blog1986 (4) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner thereafter moved an application for grant of bail before the Sessions Court but the learned Additional Sessions Judge also refused to admit the petitioner to bail. What followed thereafter is the present bail application. 3. At this stage we may notice the grounds which weighed with the learned Additional Chief Metropolitan Magistrate in declining to grant bail. The learned Additional Chief Metropolitan Magistrate observed that the petitioner is a foreign national and gold worth Rs. 12,50,000/-was recovered from him and that there was every likelihood of his jumping the bail. 4. Mr. R.L. Mehta, learned counsel for the petitioner, urged that the first date fixed for taking evidence in the case was May 13, 1985 and since the trial did not conclude within sixty days, as envisaged by Sub-section (6) of Section 437 of the Code of Criminal Procedure, therefore, the petitioner was entitled to bail as of right under Sub-section (6) of Section 437, Cr. P.C. This argument is based on the assumption that the trial of the case itself started on 13.5.1985. The next contention of Mr. R.L. Mehta is that the reasons given by the learned Additional Chief Metropolitan Magistrate in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We see no justification to read the provision in the manner in which Mr. Mehta would like to read it. Mr. Mehta has relied upon Narotamdas L. Shah v. Pathak Nathalal Sukhram and Another, AIR 1953 Sau 151 to support his contention that the trial begins as soon as the accused is brought before the Magistrate and the Magistrate proceeds to hear the evidence. The ratio of this judgment is that the trial is to embrace proceedings in a warrant case from the inception and not proceedings only after the framing of the charge. Mr. Satish Aggarwal on the other hand has placed reliance on State v. Ambaram and Others A.I.R. 1953, MB 1, wherein the view has been expressed that a trial means only the proceeding taken in Court after a charge has been drawn up. In this judgment the learned Division Bench has recognised the sharp distinction between the enquiry and trial. 10. Having given our careful consideration to the issue involved, we must express our respectful disagreement with the law laid down in Narotamdas L. Shah v. Pathak Nathalal Sukhram and Another (supra). We are rather in respectful agreement with the law laid down on the point in State v. Ambaram and Others (supra). This we do, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced in support of the prosecution." 14. Sub-section (2) of Section 244 reads as under :- "The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing." 15. Section 245 reads as under :- "(1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless." 16. Section 246 reads as under :- "(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a formal charge is framed against the accused. After the framing of the charge, the charge is read over and explained to the accused and if he pleads guilty, the matter ends there, as the Magistrate in his discretion is empowered to convict him, on his plea of guilty. These provisions further clearly lay down that if the accused pleads not guilty and claims to be tried, then he has to be asked whether he wishes to cross-examine any witness for the prosecution, whose evidence has been recorded at the pre-charge stage and, thereafter the prosecution is asked to lead the remaining evidence. These provisions would clearly show that at the enquiry stage, if the Magistrate finds the charge groundless, the accused is discharged. But after the accused is put on trial, the question of discharging him does not arise. At the conclusion of the trial, the accused can either be acquitted or convicted. Even in summons cases and summary cases, the trial starts only after the substance of accusation is read over the explained to the accused. In such cases also if the accused pleads not guilty, the trial begins. 19. Having gone through the relevant provisions carefully we find that even though the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properly and judicially exercised. We find nothing in the provision to support the assertion of Mr. Mehta that the reasons for declining the bail under this provision should be only those which are germane to the cause of delay. There is no reason to give such a restricted meaning to the provision. The expression used in the provision is "unless for reasons to be recorded in writing, the Magistrate otherwise directs". A plain reading of the expression shows that the Legislature has put no fetters on the powers of the Magistrate that under this provision bail can only be refused for reasons germane to the cause of delay. If that were so, the legislature would have certainly made it clear. To us it appears that the considerations for refusing bail under this provision can be the reason which are generally invoked and understood in law as the grounds for refusing bail. All that is required of the magistrate is that should he decide to decline to grant bail, he must record his reasons in writing. There are no fetters place on the exercise of this discretion. 23. It was next urged by Mr. Mehta that even if a distinction is recognised between the "enquiry" and "trial" the petitioner w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
