Amareshwar Sahay, J.

1. Heard the parties.

2. The petitioner is facing trial for commission of the offences under Sections 419, 420, 386 and 387, I.P.C. There is no dispute of the fact that the prayer for bail of the petitioner was earlier rejected up to this Court.

3. Admittedly till 13-7-2004, five prosecution witnesses have already been examined during the trial.

4. It appears that the petitioner, filed a fresh application for bail before the trial Court on 18-8-2004, only on the ground that sixty days has already expired from the first date fixed for evidence i.e. 8-6-2004 and the trial has not yet concluded and, as such, under the provisions of Section 437(6) of the Code of Criminal Procedure, he was entitled to be released on bail. The learned Magistrate by order dated 18-8-2004, itself rejected the petition for bail tiled by the petitioner under Section 437(6) of the Cr.P.C. for the reasons that only five witnesses have been examined till date and the other important charge-sheet witnesses, namely, Dr. Una Priya, Dr. Manjit Singh, Dr. Ashok Kumar Gupta and some other witnesses from whom the petitioner had demanded huge amount by way of ransom have not yet been examined and further that the Investigating Officer has also not yet been examined by the prosecution. The learned trial Court was of the view that unless those charge-sheet witnesses are examined, releasing the petitioner on bail would not be justifiable.

5. The petitioner thereafter moved before the Sessions Judges for bail under Sections 437(6), Cr.P.C. which has also been rejected by the impugned order dated 26-8-2004.

6. Thereafter the petitioner has filed this application before this Court contending inter alia that 8-6-2004, was the first date fixed by the trial Court for evidence and till 13-7-2004, only five prosecution witnesses could be examined by the prosecution and on 10-8-2004, sixty days expired counting from 8-6-2004, the first date fixed for evidence and, therefore, in view of Section 437(6) Cr.P.C, the petitioner is entitled to be released on bail.

7. Mr. Babban Lal, learned Counsel appearing for the petitioner, relying on the provisions of Sections 437(6) of the Cr.P.C. contended that admittedly sixty days had already expired from the first date fixed for evidence in this case and, therefore, the petitioner who is being tried by a Magistrate is in and custody is entitled to be released on bail. In support of his submission he has relied on a decision of Madhya Pradesh High Court in the case of Ram Kumar @ Raj Kumar Rathore v. State of Madhya Pradesh reported in 2000 Cri LJ 2644 and also on an order of this Court in B. A. No. 2173 of 2004 in the case of Nageshwar Bhagat v. The State of Jharkhand reported in (2004(4) JLJR 3 (HC)).

8. On the other hand, Mr. Mehta learned Government Advocate by referring Section 437(6), Cr.P.C. submitted that the said provision is not mandatory in nature rather, it is discretionary. Elaborating his argument Mr. Mehta has contended that under the provisions of Section 437(6) of the Cr.P.C, the Magistrate can refuse bail, even though the trial is not concluded within a period of sixty days from the first date, fixed for evidence, for the reasons to be recorded by the Magistrate. It is submitted that the only requirement is that the Magistrate has to record for refusing to grant bail. Mr. Mehta has relied on the decision of a Division Bench of Delhi High Court in the case of Robert Lendi v. Collector of Customs and Anr. reported in 1987 Cri LJ 55 and also in the decision of the Supreme Court in the case of Chandra Swami v. Central Bureau of Investigation .

9. In order to examine the rival contentions of the parties, it is necessary to examine Section 437(6), Cr.P.C. which reads as under:

437(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