Honble GOYAL, J.–This fourth bail application under Section 439 Cr.P.C. has been filed by accused petitioner Anwar Hussain in FIR No.520/2005 registered at Police Station Vigyan Nagar, Kota for the offence under Sections 382 & 120-B IPC and 3/25 of the Arms Act wherein he case is pending trial before the Additional Judicial Magistrate No.5 (South), Kota in Criminal Case No.27/2006.

(2). Heard learned counsel for accused petitioner, learned Public Prosecutor for the State and perused the material produced during the course of arguments.

(3). The ground raised now by the counsel for accused petitioner is that after framing of the charge on 7.4.2006 the trial of this case has not been completed within the period of sixty days from the first date fixed for taking the evidence i.e. 19.4.2006, therefore, the accused petitioner is now entitled to be released on bail by virtue of the provisions of sub-section 6 of Section 437 Cr.P.C. Reliance has been placed on the decision rendered in the case of (Ram Kumar @ Raj Kumar Rathore vs. State of M.P., reported in 2000(3) Crimes 388 and in Chandraswami & Anr. vs. Central Bureau of Investigation, reported in AIR 1997 Supreme Court 2575.

(4). According to learned Public Prosecutor the provisions of Section 437(6) Cr.P.C. are not mandatory in nature and after assigning the reasons the trial Court is competent to refuse the bail. Reliance is placed on the decision rendered in he case of Budhha @ Maharaj Singh vs. The State of Rajasthan, reported in 1981 Cr.L.R. (Raj.) page 14 and in Didar Singh vs. State of Rajasthan, reported in 2006 Cri.L.J. 1594.

(5). In order to appreciate the rival contentions, it would be appropriate to examine sub-section 6 of the Section 437 Cr.P.C. which reads as under:-

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 otherwise directs.

(6). From the plain reading of the aforesaid provisions, it is clear that ordinarily if trial is not completed within a period of sixty days from the first case fixed for taking the evidence, the accused is entitled to be released on bail but in the same provisions it is further provided that while considering the bail application on this count the court can refuse the bail by assigning the reasons. Therefore, it cannot be said that above provisions are mandatory in nature alike the provisions of Section 167(2) Cr.P.C. which provides that if investigation is not completed within the stipulated period then the accused petitioner is entitled to be released on bail mandatorily irrespective of merit of the case. The decision rendered by Honble the Supreme Court in the case of Chandraswami and another (supra), in my considered view, does not help the present accused petitioner as it appears that the Honble Supreme Court did not consider the interpretation or applicability of Section 437(6) Cr.P.C. I respectively disagree with the view taken by Madhya Pradesh High Court in Ram Kumar @ Raj Kumar Rathores case (supra) wherein it was held that the provisions of Section 437(6) Cr.P.C. are mandatory in nature and after the expiry of sixty days from the first date fixed for recording the evidence the accused acquires statutory right of being released on bail if trial is not concluded within the said period. As discussed earlier, I am of the considered view that the provisions of Section 437(6) Cr.P.C. are not mandatory in nature, the accused does not get an absolute right to be released on bail under Section 437(6) Cr.P.C. and the trial court can refuse the bail pleaded on this ground after assigning the good reasons. My above view is also fortified by the decision rendered by this Court in the case of Budhha @ Maharaj

Click Here to Read the rest of this document