RAJESH H. SHUKLA, J. The present application has been filed by the applicant for grant of regular bail under sec. 439 read with sec. 437(6) of the Code of Criminal Procedure, 1973.

2. The applicant-accused is charged with having committed offences under sections 419, 420, 465, 467, 468, 477(A) & 120(B) of IPC for which FIR being C.R. No. I-68/2008 has been registered with Una Police Station.

3. Learned advocate Mr. Hriday Buch for the applicant submitted that the charge has been framed by the competent court on 27.10.2009 and the matter has been adjourned for the recording of evidence. However, an application came to be filed in Criminal Case No. 2906/2009 which came to be rejected as per the order passed below Exh. 20 dated 19.1.2010 by the learned Chief Judicial Magistrate, Junagadh for the reasons recorded therein.

4. Learned advocate Mr. Buch submitted that thereafter the applicant preferred an application being Criminal Misc. Application No. 38 of 2010 before the Sessions Court, Junagadh. The Sessions Court also confirmed the order of the learned Chief Judicial Magistrate vide its order dated 3.2.2010 in aforesaid Criminal Misc. Application No. 38 of 2010 and therefore the present application has been preferred on the grounds narrated in detail in the memo of application which have been referred to and emphasised by learned advocate Mr. Buch for the applicant.

5. Learned advocate Mr. Buch submitted that the provisions of sec. 437(6) of Cr.P.C. are mandatory and it deals with the right of the accused. He referred to the said provision and emphasised that the word used is “shall” and therefore it is mandatory. If the trial is not completed within a period of 60 days from the first date fixed for taking the evidence, such person shall be released on bail (emphasis supplied). He submitted that none of the reasons for the delay could be attributed to the present applicant accused. He therefore strenuously submitted that the applicant-accused is not in any manner responsible for the delay in the trial and if the trial has not been over, the applicant accused may be released under sec. 437(6) of Cr.P.C. Learned advocate Mr. Buch submitted that, however, both the courts below have failed to consider this aspect, particularly the mandatory nature of the provision and therefore the present application may be allowed.

6. In support of his submission, learned advocate Mr. Buch has referred to and relied upon the judgment of this court reported in 2007(2) GLR 580 in the case of Bhikhaji Chaturji Thakore v. State of Gujarat and submitted that it has been observed that 'unless cogent and strong reason for a protracted trial appears on record, the accused has all right to get the benefit under sec. 437(6) of the Code.'

7. He has also referred to and relied upon the judgment of this court reported in 2009 Cri.L.J. 4766 in the case of Riza Abdul Razak Zunzunia v. State of Gujarat and submitted that the same proposition has been considered and confirmed. While reading this judgment, he emphasised the observation in para 21 as under:

“The question that arises for determination is as to what would be the considerations which would weigh with the Magistrate while deciding an application under Section 437(6) of the Code.....On a plain reading of the provision as well as considering the object behind enacting the said provision if the contention advanced on behalf of the Bank viz. the prima facie case, gravity of offence, involvement of the accused, etc. are the factors which are to be taken into consideration while deciding the application under Section 437(6) of the Code, were to be accepted, the same would render the said provision nugatory, inasmuch as if the same reasons for which the application for regular bail is refused, are to be considered while deciding the application under Section 437(6) of the Code, there would be no necessity for making such a provision.....”

He, therefore, submitted that the factors which are required to be con