The main legal point established in the judgment is that the provision of section 437(6) of the Code is mandatory in requiring the Magistrate to exercise the power of granting bail after the statutory period, but the grant of bail is not mandatory. The Magistrate has full power to consider various factors while refusing to grant bail.

JUDGMENT :

VIJAY KUMAR SHUKLA, J.

1. In view of cleavage of opinion regarding interpretation of sub-section (6) of section 437 of the Code of Criminal Procedure (for brevity the Code), the learned Single Bench by order dated 18-1-2018 has referred the following question for consideration before this Bench :

Whether under the provision of sub-section (6) of section 437 of the Criminal Procedure Code, it is mandatory for the Magistrate to release the accused on bail, when the trial is not concluded within the period of sixty days, from the first date fixed for taking evidence in the case?

2. The factual expose necessary to be discussed for consideration of the above referred question, is that the accused-applicant has filed an application under section 482 of the Code for setting aside the order, dated 6-01-2018, passed by the learned III Additional Sessions Judge, Raisen in Criminal Revision No. 02/2018 whereby the order dated 30-11-2017 passed by the learned Chief Judicial Magistrate dismissing the application preferred under section 437(6) of the Code, has been affirmed.

3. The applicant Devraj and co-accused Karan Singh are facing trial for commission of offence punishable under section 34(2) of the M.P. Excise Act, 1915. The applicant is in custody since 31-5-2017. An application for releasing the accused-applicant on bail under section 437(6) of the Code was filed which has been dismissed by the learned Magistrate stating that though a period of sixty days have passed, but there are other 25 criminal cases registered against the accused-applicant. Hence, he did not find it a fit case for releasing the accused on bail under the said provision.

4. Being aggrieved by the said order the applicant filed a criminal revision which was dismissed by the learned Additional Sessions Judge, Raisen by order dated 30-11-2017 affirming the order passed by the learned Magistrate. The said order is subject-matter of challenge in the present application filed under section 482 of the Code.

5. Learned counsel appearing for the applicant relied on the judgment passed by this Court in Damodar Singh Chouhan vs. State of M.P., 2005 (II) MPWN 138 wherein a Single Bench of this Court has held that the provision of section 437(6) of the Code is mandatory. Therefore, when the trial is not concluded within the stipulated period of sixty days from the date of initiation of evidence, the accused is entitled to be released on bail.

6. In the case of Ram Kumar @ Raj Kumar Rathore vs. State of M.P., 2000(2) M.P.L.J. 43, again a Single Bench of this Court held that the provision is mandatory in nature and after expiry of the period of 60 days the accused becomes entitled to be released on bail. In the case of Rajendra son of Rajaram Pal vs. State of M.P., 2002(5) M.P.L.J. 301, a Single Bench of this Court has held, that if the trial is not concluded within a period of sixty days from the date fixed for recording the evidence, the accused is entitled to be released on bail. It was further held that the said provision for grant of bail under section 59-A of the Excise Act does does not debar the accused for grant of bail under section 437(6) of the Code. In the present case the learned Single Bench noted the divergent views expressed in the case of Asit @ Nakta vs. State of M.P., M.Cr.C. No. 7059/2015 decided on 30-9-2015 wherein a Single Bench of this Court held that provision of section 437(6) of the Code is not mandatory, but directory. In the case of Manoj Agrawal vs. State of M.P., 2001(1) MPHT 70 it is held that consideration is mandatory, but not the bail.

7. In the referral order the learned Single Judge has also noted the judgment passed by the High Court of Jharkhand in the case of Didar Singh vs. State of Jharkhand, 2004 SCC Online Jhar 560, wherein it has been held that the Magistrate has rightly exercised his discretion and refused bail for justifiable reasons. The High Court of Rajasthan in the case of Anwar Hussain vs. State of Rajasthan, 2006 SCC On