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Rajasthan High Court · body

2008 DIGILAW 2050 (RAJ)

Bana Singh v. State of Rajasthan

2008-09-02

M.N.BHANDARI

body2008
JUDGMENT 1. - Heard learned Counsel for the petitioner as well as the learned Public Prosecutor and perused the record of the case. 2. Learned Counsel for the petitioner submits that a case was registered against the petitioner under section 420, 409, 467 and 471, Indian Penal Code and after framing of charges, the case was fixed for recording of the evidence on 18.2.2008. It is stated that till date, statements of only four witnesses have been recorded though as per the mandate of provisions of section 437 (6) of Cr. P.C., the trial in this case should have been concluded within a period of 60 days as the matter is triable by the Magistrate, however, the trial has not been concluded within a period of 60 days from the date fixed for taking evidence and thus, the petitioner deserves to be released on bail. It is also submitted that the petitioner is behind the bars for more than two months. 3. Learned Public Prosecutor has opposed the bail application of the petitioner and submits that provisions of section 437 (6) are not mandatory in nature though word 'shall' has been used but that is to be considered as 'may' and otherwise the provisions itself provide that even if the trial is not concluded within a period of 60 days, then for the reasons to be recorded, the bail may be refused, thus looking to the aforesaid, it is prayed that the bail application of the petitioner may not be accepted in view of the fact that the allegation against the petitioner is quite serious in nature and otherwise the trial would be concluded soon. 4. I have considered the rival submissions of the parties and perused the record of the case. 5. First, it is necessary to consider section 437 (6). Cr. P.C., which is reproduced below for ready reference : "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." 6. Perusal of 1hs aforesaid provisions shows that if a case triable by the Magistrate, the trial of a person 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, then be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing. The word starting "unless for the reasons to be recorded in writing, the Magistrate otherwise directs" shows that release on bail is subjected to one exception, i.e., if the reasons are recorded for that purpose. In the present matter, an argument was raised before the Court below in regard to the provisions of section 437 (6) Cr. P.C., however, the Court below come to the conclusion that statement of four witnesses have already been recorded and the statements of the remaining sixteen witnesses would be recorded soon, thus for those reasons and taking into consideration the allegation against the petitioner, the bail application is rejected. Considerin the facts and circumstances of the case and the provisions of section 431 (6), Cr. P.C., I am of the view that the provisions cannot be said to be mandatory in nature, thus if the trial is not concluded within a period of 60 days and as and when bail application is moved with the aid of provisions of section 437 (6) Cr. P.C., then rejection of the bail application can be for the reasons to be recorded in writing. In the present matter, since the statements of four witnesses have already been recorded and otherwise statement of sixteen witnesses would be recorded soon coupled with the fact that the allegations exist against the petitioner, which are otherwise said to be of serious in nature. 7. The provisions of section 437 (6). Cr. P.C. came up for consideration before Orissa High Court in the case of Chhabi v. State of Orissa, 1995 (2) Crimes 622 wherein considering the aforesaid provision, the Court came to the conclusion that the provisions of section 437 (6), Cr. 7. The provisions of section 437 (6). Cr. P.C. came up for consideration before Orissa High Court in the case of Chhabi v. State of Orissa, 1995 (2) Crimes 622 wherein considering the aforesaid provision, the Court came to the conclusion that the provisions of section 437 (6), Cr. P.C. are meant for speedy trial without any unreasonable delay, but then the said provision gives power to the Magistrate to deny bail even if the trial is not concluded within a period of 60 days from the date fixed for evidence and the only embargo on the Magistrate to record its reasons. 8. Similar view has been taken by Delhi High Court in the case of Robert Lendi v. The Collector of Customs, 1987 Cri. LJ 55 wherein while considering the provisions of section 437 (6), Cr. P.C. in para 21, the Court held thus: "The next question that arises for consideration is whether while refusing bail under sub-section (6) of section 437 of the Code the Magistrate can only refuse bail on the limited reasoning germane to the cause of delay and whether the bail can be refused on the general grounds recognised as good for refusal to grant bail. Undoubtedly, the object of sub-section (6) of section 437 of the Code is to eradicate delay in trial. To us, it appears that it is equally important that the ends of justice do not suffer. The procedural laws are essentially meant to safeguard the interest of justice. The twin objects namely to eradicate the delay in trial and to achieve the ends of justice are necessarily to be harmonized. It is in that context one has to find out whether the discretion exercised by the Magistrate in withholding bail after sixty days. has been 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". 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 reasons 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 decided to decline to grant bail, he must record his reasons in writing. There are no fetters placed on the exercise of this discretion." 9. Looking to the aforesaid judgments, it becomes clear that the argument of learned Counsel for the petitioner to read the provisions of section 437 (6) Cr. P.C. as mandatory in nature and to release the accused on expiry of the period of 60 days from the first date fixed for taking evidence after framing of the charge cannot be accepted, thus I am not inclined to accept this bail application for the reasons recorded above and accordingly the bail application of the petitioner is rejected. 10. It is, however, expected from the Trial Court to conclude the trial expeditiously and if possible the same may be concluded within a period of 45 days from the date of receipt of certified copy of this order. The Trial Court is also directed to take up the matter and conclude the trial on day to day basis. The matter needs to be complied with strictly as directed by this Court above.Application Rejected. *******