1 2025:CGHC:18958 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1412 of 2025 1 - Dev Sonkar @ Devkumar Sonkar @ Sanu @ Dev S/o Kishori Lal Sonkar Aged About 25 Years R/o Bada Bazar, Chirmiri, District M.C.B., Chhattisgarh. ... Petitioner(s) versus 1 - State of Chhattisgarh Through District Magistrate, District M.C.B., Chhattisgarh. ... Respondent(s) For Petitioner(s) : Mr. Rajkumar Gupta, Advocate. For Respondent(s) : Ms. Sunita Sahu, Panel Lawyer. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 25/04/2025 1. The present petition under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023, (in short “BNSS”) is filed by the petitioner against the order dated 03-04-2025 passed by the learned Additional Sessions Judge, Chirimiri, District Koriya, in Criminal Revision No. 21/2025, whereby the criminal revision filed by the petitioner is dismissed. 2. Brief facts of the case are that the petitioner is an accused in Crime No. 265/2023, registered at Police Station Chirimiri, District Koriya, for the offence under Sections 420 and 201 of the IPC. The petitioner/accused has been arrested on 04-02-2024, and Charge Sheet has been filed in the case, 2 and Criminal Case No. 458/2024 is pending before the learned Judicial Magistrate First Class, Baikunthpur, District Koriya. 3. It is alleged in the case against the petitioner/accused is that the complainant Om Prakash Agrawal lodged a report to the police on 05-07-2023 that the present petitioner Dev Kumar Sonkar is the friend of his son, in the month of January-2018, he allured him that he would get the petrol pump allotted from Indian Oil Company and get him ready to invest Rs. One Crore. The complainant has paid total Rs. 92 Lakhs in various instalments into the bank account of the petitioner/accused. When he demanded the documents of the allotment process of the petrol pump, he started evading and ultimately called him at Indore. On 06-02-2022, when the documents were produced before him, they appeared to be forged documents and then the dispute started. The complainant demanded his money back, and then the petitioner/accused informed him that Rs. 10 Lakhs would be paid on 07-02- 2022, and the remaining Rs. 90 Lakhs would be paid up to 20-04-2022. Since the petitioner/accused has not returned his money, he lodged a report with the police. On the complaint of the complainant, the police have registered the offence of Crime No. 265/2023 for the offence under Section 420, 201 of the IPC, and after investigation, charge sheet has been filed before the learned Judicial Magistrate First Class, Baikunthpur, District Koriya, where Criminal Case No. 458/2024 is pending. 4. The charges for the offences of Section 420 of the IPC have been framed against the petitioner/accused, and the learned trial court proceeded for recording evidence of the prosecution witnesses and fixed for 03-07-2024. 5. The case was fixed for recording evidence of the prosecution witnesses on 03-07-2024, 16-07-2024, 30-07-2024, 12-08-2024, 24-08-2024, 06-09-2024, 20-09-2024, 30-09-2024, 14-10-2024, 28-10-2024, 11-11-2024, 19-11-2024, 04-12-2024, 19-12-2024, 02-01-2025, 14-01-2025, 25-01-2025, 07-02-2025, 19-02-2025, 05-03-2025 and 19-03-2025 but for examination of only 6 3 witnesses, no other witnesses have been examined. Since, the petitioner/accused is in jail from 04-02-2024, and the trial of the case is not concluded within 60 days from the first date of fixing the case for recording of the prosecution evidence, he moved an application under Section 480(6) of the Bhartiya Nagarik Suraksha Sanhita, 2023 (in short “BNSS, 2023”). The application filed by the petitioner is dismissed by the learned trial court on 12- 03-2025. 6. The order dated 12-03-2025 was challenged by the petitioner before the learned Additional Sessions Judge, Chirimiri, District Koriya, in Criminal Revision No. 21 of 2025, which has also been dismissed vide order dated 03-04-2025, which is under challenge in the present petition. 7. Learned counsel for the petitioner would submit that after the framing of the charge against the petitioner, and till date, even after 60 days of the framing of the charge, the trial of the case has not been concluded. The offences are triable by Judicial Magistrate First Class, and the trial of the case should have been completed within 60 days, as provided under Section 480(6) of the BNSS, 2023, and if the trial of the case is not concluded, the accused is entitled to default bail. In the present case also the trial is not concluded within the stipulated time, and therefore, the petitioner is entitled to default bail. In support of his submissions, he would rely upon the judgment passed by the coordinate bench of this Court reported in MANU/CG/0024/2004 (Godawari Bai and Ors. v. State of Chhattisgarh) and Suneshwar Singh Thakur v. State of Chhattisgarh (CrMP No. 1447/2016, order dated 10-03- 2017, Chhattisgarh High Court). 8. On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the petitioner and has submitted that after framing of charge, regularly the witnesses were summoned and 6 witnesses have been examined till 25-01-2025. It is not the case that the prosecution could not produce its witnesses. Considering the nature of the offence 4 registered against the petitioner, he is not entitled to default bail, and the order passed by the learned trial court is absolutely justified, and the petition is liable to be dismissed. He would also submit that the provisions of Section 480(6) of the BNSS are not mandatory, but there are certain limitations. He would rely upon the judgment passed by the coordinate bench of this Court reported in 2009 (3) CGLJ 448 (Atul Bagga v. State of C.G.). 9. I have heard learned counsel for the parties and perused the material annexed with the petition. 10. It is necessary to quote here the provisions of Section 437(6) of the CRPC, which reads as under:- “437. When bail may be taken in case of non-bailable offence.— xxx (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.” 11. In the matter of Atul Kumar Shrivastava Vs. State of CG reported in 2020 SCC OnLine Chh 2373, Raman Kumar (Supra) and Biswajeet Barik (Supra), considering the scope and nature of 437 (6) Cr.P.C., legal proposition has been settled that the right conferred on the accused under Section 437 (6) Cr.P.C. is not absolute one and the same is subject to the conditions stated in the said provision. This 5 Court deems it appropriate to reproduce the relevant portion of the judgment in Atul Kumar Shrivstava (supra) which reads thus:- “9. In Gurucharan Singh (supra)1, the Supreme Court has held that object of Section 437(6) of the CrPC is to speed up trial without unnecessarily detaining a person as an under trial prisoner, and observed as under: "........There is similar provision under sub-section (6) of Section 437 of Cr.P.C. which corresponds to section 497(3A) of the old Code. This provision is again intended to speed up trial without unnecessarily detaining a person as an undertrial prisoner, unless for reasons to be recorded in writing, the Magistrate otherwise directs.....…" 10. This court in Atul Bagga (supra) in unmistakable terms has held that apart from the gravity of offence and the quantum of punishment, the following factors, among others may weigh with the Magistrate while refusing dealing the application under Section 437(6) of the CrPC and held as under: "11. xxx xxx xxx (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 the evidence by the accused, (c) the possibility of the accused absconding if released on bail, and lastly, 6 (d) the delay in conclusion of the trial within, a period of 60 days if attributable to the accused." 11. Thus, the seriousness of the offences for which the accused has been charged, the overall impact of the offence and the release of the person accused of such offence on the society, the possibility that the accused, if released on bail is likely to influence the witnesses or tamper with the prosecution evidence, the fact that other co-accused are absconding would be relevant factors for refusing bail under sub- Section (6) of Section 437 of the Code. 12. The Madhya Pradesh High Court in the matter of Devraj Maratha @ Dillu v. State of M.P. considered the question whether the provisions contained in sub- section (6) of Section 437 of the CrPC is mandatory for the magistrate to release the accused on bail when the trial is not concluded within a period of sixty days from the date fixed for taking evidence in the case and answered the question as under: "21. In view of preceding analysis and enunciation of law governing the field, the reference is answered as under: (a) Provision envisaged in sub-section (6) of Section 437 of the Code is mandatory in the sense that the Magistrate is required to exercise his power of granting bail after the statutory period, if the trial is concluded within that, however, passing of an order under Section 437(6) of the Code is mandatory, but not grant of bail. 7 (b) The Magistrate is vested with full power to take into consideration - (i) the nature of allegations; (ii) whether the delay is attributable to the accused or to the prosecution; and (iii) criminal antecedents of the accused or any other justiciable reason, while refusing to grant bail." 13. It has clearly been held by the Madhya Pradesh High Court that, what is mandatory is passing of an order under Section 437(6) of the CrPC, but grant of bail on failure to conclude the trial within the statutorily fixed time limit is not mandatory to which I respectfully agree.” 12. In the matter of “Atul Bagga” (supra) the coordinate Bench of this Court has observed in Para 11 and 13 that:- “11. The question that arises for determination is as to what factors should weigh with the Magistrate while refusing grant of bail under subsection (6) of Section 437 of the Code. In my considered opinion, apart from the gravity of offence and the quantum of punishment, one or 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, 8 (d) the delay in conclusion of the trial within a period of 60 days if attributable to the accused. 13. 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." 13. Reverting to the facts of the case, the charge against the present petitioner is that he has cheated the complainant and obtained Rs. 90 Lakhs in various instalments on the pretext that he would get him allotted the petrol pump of the Indian Oil company and showed forged documents of the allotment process. It reveals that after framing of charge, on 24-08-2024, the witness (PW-1) Manish Kumar Jaiswal was examined. On 20-09-2024, Arvind Jain (PW-2) was examined, on 30-09-2024, Om Prakash Agrawal (complainant/PW-3) was examined, on 14-10-2024, Sumit Agrawal (PW-4) was examined, on 02-01-2025, Kamlesh Ekka (PW-5) was examined, and on 25-01-2025, Piyush Agrawal (PW-6) was examined. The witnesses are appearing and examining before the learned trial court regularly. 14. The impugned order would show that the learned trial court has considered the gravity and seriousness, and nature of the offence. Taking a cumulative view of all the above mentioned grounds and such serious magnitude that their release are likely to affect the society at large, this Court is of the opinion that the learned trial court as well as the revisional court have passed the orders after due appreciation of the material available on record as well as the law laid down in the field, in which I do not find any illegality or perversity warranting interference in the impugned order as it is well settled 9 that discretion exercised by the trial court is not to be interfered by this court is exercise of inherent jurisdiction under Section 528 of the BNSS, 2023 unless the discretion is shown to have been exercised arbitrarily, perversely or capriciously, and in the present case, nothing has been shown that the discretion is exercised in the manner contrary to the law. 15. 15. The benefit from the judgment cited by the learned counsel for the petitioner could not be extended to him because the said judgments are distinguishable on the facts of the present case. 16. Resultantly, the petition filed under Section 528 of the BNSS, 2023, deserves to be and is hereby dismissed. 17. Before parting with the case, it is necessary to observe that a duty is cast on the Magistrate to ensure that summons are promptly issued by the Court and to conclude the trial as early as possible within the stipulated time frame. 18. A copy of this order shall be forwarded to the concerned trial court for the speedy disposal of the case. Sd/- (Ravindra Kumar Agrawal) Judge Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.06.09 18:15:59 +0530