The right to be released on bail under Section 437(6) of the Code is not absolute but subject to the discretion of the Magistrate, to be exercised in exceptional cases.

JUDGMENT :

1. Heard Sri Manish Tiwari, learned Senior Counsel assisted by Sri Aushim Luthra and Sri Anurag Vajpeyi, learned counsel for the applicant and Sri Pankaj Srivastava, learned A.G.A. for the State.

2. By way of the instant application u/S 482 Cr.P.C.(hereinafter referred as 'the Code'), the applicant has prayed for setting-aside the order dated 19.07.2023, passed by the Court of Civil Judge, Sr. Division, Fast Track Court, Additional Judicial Magistrate, Gautam Buddh Nagar, in Case No. 6781 of 2021 (State of U.P. vs. Karam Allahi and others), arising out of the Case Crime No. 129 of 2021 u/S 420, 467, 648, 471, 120-B I.P.C. and 4/20/21/25 of Indian Telegraph Act, P.S.-Phase-3 Noida, District- Gautam Buddh Nagar.

3. Learned Senior Counsel appearing for the applicant submits that in the instant case, the applicant herein was arrested on 10.02.2021. Since then, he is in custody. His earlier bail application was initially rejected on 09.07.2021 and the second bail application moved by the applicant was rejected by a detailed order dated 18.11.2022. The instant application has been filed by the applicant herein u/S 437(6) of the Code, which provides that if in a case triable by a Magistrate, if the trial of a person accused of any non-bailable offence is not concluded within a period of 60 days from the first date fixed for taking evidence, 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 the reasons to be recorded in writing, the Magistrate otherwise directs.

4. Learned Senior Counsel further submits that in the instant case, the charges were framed on 25.04.2023 and the first date for evidence was fixed as 19.05.2023. The period of 60 days from the first date fixed for taking evidence has expired on 19.07.2023. Thereafter, the applicant herein had moved an application u/S 437(6) of the Code on 19.07.2023, which has been rejected by the learned Magistrate on the same day. The only reason recorded for the rejection of the said application is the matter relates to grievous nature. Learned Senior Counsel further submits that provisions of Section 437(6) of the Code, are mandatory and the learned Magistrate while rejecting the bail application is required to record its reason in writing.

5. Learned Senior Counsel has further submits that all other co-accused persons have already been released on bail. Learned Senior Counsel for the applicant submits that the provisions of Sub-section (6) of Section 437 of the Code, are in the nature of safeguard provided to the accused persons and while rejecting the bail application moved by the applicant herein under the provisions of Sub-section (6) of Section 437 of of the Code, the learned Magistrate has not assigned any reason as was required nor has adverted to the provisions of the said Section. Therefore, learned Senior Counsel prays for setting-aside the said order passed by the learned Magistrate and grant bail in terms of Sub-section (6) of Section 437 of the of the Code.

6. Sri Pankaj Srivastava, learned A.G.A. for the State submits that while rejecting the application, the learned Magistrate has categorically recorded his reason stating that since the matter is of grievous nature and the earlier bail applications have already been rejected by the Sessions Court as well as by the High Court, therefore, the said application has been rejected. Therefore, learned counsel for the State submits that reasons aforesaid have already been assigned in the order, there is no illegality in the order.

7. Having heard the rival submissions made by learned counsel for the parties, this Court has carefully perused the record of the case.

8. Provisions of Sub-section (6) of Section 437 of the Code, reads as under:

"(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