The main legal point established in the judgment is that the provision of Section 437(6) of the Code of Criminal Procedure is discretionary, and the reasons for refusal must be recorded in writing. The judgment emphasized that the seriousness of the offense cannot be the sole criterion for rejection of bail under Section 437(6) and that the delay in trial must be justifiable or otherwise.

JUDGEMENT :

1. Heard.

2. Admit.

3. This application raises a challenge to the order dated 15th March, 2022 of the learned Chief Judicial Magistrate, Gadchiroli, by which bail in terms of Section 437(6) of the Code of Criminal Procedure (‘Code’) has been rejected. Being aggrieved by the said rejection, the applicant (‘accused’) has invoked the inherent jurisdiction of this Court.

4. Briefly stated, at the instance of report lodged by District Irrigation Officer, Gadchiroli, the crime was registered against in all 13 persons for the offence punishable under Sections 420, 465, 467, 468, 471 read with Section 34 of the Indian Penal Code, involving deflection of government money to the tune of Rs. 2.86 crores. The applicant – Snehdip S/o Shriram Soni has been arraigned as accused No.1 alleging to be principal conspirator. Voluminous documents have been seized on account of fraud, forgery and cheating. A list of 100 witnesses has been sited in the charge-sheet. The applicant (accused No.1) has applied to the trying Magistrate for his release on bail in terms of Section 437(6) of the Code, which was rejected and impugned herein.

5. It is argued that the learned Magistrate seriously erred in appreciating the very purport of Section 437(6) of the Code. Sub-clause (6) to Section 437 of the Code has carved out a special provision entitling the accused to release on bail provided that the trial has not been concluded within the period of 60 days from the first date fixed for recording evidence. The special provision has been made to protect the fundamental right of the accused of his life, particularly enshrined in Article 21 of the Constitution of India. It is submitted that the accused has not contributed in delaying the conclusion of trial.

6. On facts, it is submitted that the Trial Court has fixed the case for recording of evidence on 25th October, 2021. However, trial was not concluded within the period of 60 days thereafter, therefore by invoking the right of bail in terms of Section 437(6) of the Code, accused applied for bail. The learned counsel appearing for the applicant cited some decisions of this Court to uphold his contention regarding entitlement of accused for bail.

7. Per-contra, the learned Additional Public Prosecutor (‘APP’) resisted the application vide reply-affidavit dated 25th June, 2022. Most of the part of reply has been devoted in contending the prime role of accused and seriousness of crime. Besides that, it is submitted that the provisions of Section 437(6) of the Code, are not of mandatory nature, but discretionary one. The learned Magistrate is well within his powers to refuse enlargement of bail, provided by assigning reasons. The learned APP would submit that several accused are involved in the trial, therefore, for one or other reason, the trial could not be completed within stipulated period with reference to Section 437(6) of the Code. Some time was consumed as the accused has applied for providing Legal Aid, as well as proceeding was stalled in pandemic period. It is submitted that there are 13 accused whilst the prosecution was to examine 100 witnesses. Till date, the Trial Court has recorded evidence of 17 witnesses and thus, the Magistrate has rightly declined to exercise discretion in refusing bail.

8. The learned APP in resistance, relied on various decisions in cases of Jigar Mayurbhai Shah Vs. State of Gujrat, 2008, Cri. L. J. 2750 (Gujrat High Court), Dharti Singh alias Gograj Vs. State, 2016, Cri L. J. 2242, (Rajasthan High Court), Mukeshkumar Ravishankar Dave Vs. State of Gujrat, 2010 Cri L. J. 3476 (Gujrat High Court), Patel Vinodbhai Manibhai Patel Vs. State of Gujarat, 2008 Cri. L. L. 4613 (Gujarat High Court) and Tamaskant Chatterjee Vs. State of Chhattisgarh, AIR Online 2019 Chh 1721 (Chhattisgarh High Court). In these cases, the different High Courts have expressed that the provision of Section 437(6) is not mandatory, the accused cannot be allowed to take benefit of his own wrong and the ser