IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REFERENCE No. 2 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J B PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= NEHUL PRAKASHBHAI SHAH & 4 - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance :
MR N D NANAVATI, LD SENIOR ADVOCATE WITH MR NIRAD D BUCH for Applicants 12–. MR P M THAKKAR, LD SENIOR ADVOCATE WITH MR MR MM TIRMIZI for Applicant: 3 MR PRAVIN G VAGHELA for Applicant(s) : 4, HL PATEL ADVOCATES for Applicant(s) : 5, MR KAMAL B TRIVEDI, LD ADVOCATE GENERAL for Respondent-State of Gujarat ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J B PARDIWALA Date :06/07/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) Incarceration of an accused before trial or conviction is a most criticized shortcoming of the judicial system. The legislature also expects the under-trial imprisonment period to be minimum. With that view in mind, certain provisions have been incorporated in the Code of Criminal Procedure. One such provision is contained in Section 437 (6) of the Code of Criminal Procedure (for short 'Code'), which runs as under:
“437 (6) If, 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 Magistrate otherwise directs.”
2. The language of the Section selected by the legislature makes it possible to have different interpretations and as a corollary, different Courts have taken different views. As a consequence, following questions have been referred to this Bench:
[i] Whether in a case triable by the learned Magistrate particularly of a person accused of any non-bailable offence not concluded within a period of 60 days from the first date fixed for taking evidence in the case and such person is in custody during the whole of the said period, such person gets an absolute indefeasible right to be released on bail to the satisfaction of the learned Magistrate unless for the reasons to be recorded in writing by the learned Magistrate to direct otherwise ?
[ii] Whether the provisions of Section 437 (6) of the Code is mandatory or not ?
[iii] Whether the learned Magistrate has an option to refuse bail upon his satisfaction by recording reasons in writing and, in such an eventuality, what could be the parameters, factors, grounds and circumstances to be considered by the learned Magistrate viz-a-vis the application preferred by the accused claiming absolute right in such circumstances as mentioned in sub-section (6) of Section 437 of the Code ?
[iv] Whether the above factors, parameters, circumstances and grounds for seeking bail by the accused as well as the ground to be considered by the learned Magistrate for his satisfaction are to be similar to that of sub-section (1), (2) of Section 437 of the Code or other than that or no straight jacket formula can be laid ?
(v) Whether the parameters contained in Section
167 (2) (a) (I) (ii) of the Code [default bail] found in Chapter XII pertaining to 'information to the police and their powers
to investigate' can be imported for exercising powers for seeking bail under Section 437 (6) found in Chapter XXXIII pertaining to the provisions as to 'bail
and bonds' ?
(vi) Whether a decision in principle on which it is decided is binding to the co-ordinate bench of equal strength when such decision of the earlier bench is a principle of law laid down and / or a 'statement of law' in the context of the subject matter ?
(vii) When the accused has a fundamental right under Article 21 of the Constitution of India for a speedy trial, can it be pressed into service vis-a-vis right of the accused accruing under Section 437 (6) of the Code.”
3. We have heard learned Senior Advocate Mr.N D Nanavati appearing with Mr.Niraj Buch for applicants No.1 and 2, learned Senior Advocate Mr.P M Thakkar appearing with Mr.Tirmizi for applicant No.3 and learned Advocate General Mr.Kamal Trivedi appearing with learned Additional Public Prosecutor, Mr.A J Desai, as he then was, for respondent-State.
4. The normal principle of interpretation is that where a legislature uses 'shall', it has to be read as a mandate. Whereas, if it is discretion, decided to be given by the legislature to the Court, the word normally used in such situation is 'may'.
4.1 Now, if sub-section (6) of Section 437 of the Code is read with the above settled principles of interpretation of statutes in mind, the first part of sub-section has to be interpreted to make it mandatory for a Magisterial Court to release the accused on bail; if trial of a non-bailable offence is not concluded within a period of sixty days from the first date fixed for recording evidence. It is, of course, provided that in such a situation, such person has to be in custody during the whole of the said period.
4.2 Problem starts, however, when the legislature in its wisdom, has then added a clause saying that such person shall be released on bail unless for the reasons to be recorded in writing, the Magistrate otherwise directs. Therefore, while making it compulsory for the Magistrate to release an accused on bail, if his trial in respect of non- bailable offence is not concluded within sixty days from the first date fixed for taking evidence in the case, the legislature also leaves it open to the Magistrate not to release such person on bail by recording reasons.
5. Different Courts took different views and hence this Reference.
5.1 In following cited decisions, the Courts took a view that provisions contained in Section 437(6) of the Code is mandatory and the accused has to be released on bail if trial is not concluded within stipulated time limit. The law leaves no room for the Magisterial Court to pass an order otherwise:
1. Bhikhaji Chaturji Thakor & Ors., Vs. State of Gujarat & Anr., reported in 2007 (2) GLH 580.
2. Riaz Abdul Razak Zunzunia Vs. State of Gujarat in Criminal Revision Application No.229 of 2009 decided on 17-07-2009 / 20-07-2009.
3. Haricharan Ramteke Vs. State of Chhattisgarh, reported in 2002 Cr.LR 46.
4. Ajay Haldar vs. State of Chhattisgarh, reported in 2009 LawSuit (Chh) 221.
5. Re:122 Prisoners in Crl. M.C. No.3179 of 1998 decided on 10/10/2006 of Kerala High Court reported in 2007 Cr.LJ 3241.
5.2 The following judgments hold that, a discretion is available to the Magistrate to direct otherwise (refuse bail) after assigning reasons for the same:
1. Jigar Mayurbhai Shah vs. State of Gujarat reported in 2008(2) GLR 1134.
2. Mukeshkumar Ravishankar Dave v. State of Gujarat, reported in 2010(2) G.L.H.554.
3. Didar Singh vs. State of Jharkhand, reported in 2006 Cr.LJ 1594.
4. Arjun Sahu vs. State of Madhya Pradesh, reported in 2008 Cr.LJ 2771.
6. Since, all questions referred, are more or less interconnected, they are discussed together.
7. As discussed earlier, subs-section (2) of Section 437 of the Code can be divided in two parts. The first part would indicate that it is mandatory, but in the next breath, the legislature has given discretion to the Magistrate not to grant bail by assigning reasons. In that situation, although the first part can momentarily said to be mandatory, it can not be interpreted to give an indefeasible right to the accused of being released on bail, since that right is controlled / regulated by the later part of the sub-section. If legislature had stopped at the end of the first part, making it mandatory for the Magistrate to release the accused on bail if the trial is not over within 60 days from the first date of taking evidence, the provision would have been somewhat akin to sub-section (2) of Section 167 of the Code. But, with the second part being in its place, the two provisions cannot be equated. The provision of sub-section (6) of Section 437 can certainly be said to have been inserted with an intention to speed up the trial without unnecessarily detaining a person as an under-trial prisoner for a prolonged time. Contrary to that, Section 167 (2) leaves no room for any discretion with the Court so far as release of an accused on bail is concerned in the given set of circumstances. Under this provision of the Code no reason is good to deny bail to the accused.
8. Later part of sub-section (6) of Section 437 of the Code empowers a Magistrate to refuse bail by assigning reasons. In our view, the legislature, has incorporated this provision with a view to recognize right of an accused for a speedy trial with a view to protect individual liberty. At the same time, the legislature has tried to strike a balance by allowing the Magistrate to refuse bail by assigning reasons in a given set of circumstances. Meaning thereby, that where in the opinion of the Magistrate, it is not proper or desirable or in the interest of justice to release such accused on bail, he may refuse bail by assigning reasons. The provisions of Section 437 (6), as such, cannot be considered to be mandatory in nature and cannot be interpreted to grant an absolute and indefeasible right of bail in favour of accused.
9. The grounds relevant for the purpose of refusing bail would not be the same which could have weighed with the Magisterial Court while refusing bail under Section 437(1) & (2) of the Code. That is a stage much prior to trial. Whereas the stage contemplated under Section 437(6), is after filing of charge-sheet and framing of charge when trial commences and the accused prefers an application after lapse of 60 days from first date fixed for taking evidence. If the grounds were expected or intended by the legislature to be the same, there was no reason for the legislature to insert sub-section (6) of the Code. In our view, therefore, reasons for rejection of application under sub-section (6) of the said Section have to be different and little more weighty than the reasons that may be relevant for rejection for bail at the initial stage. If this meaning is not given, sub-section (6) would be rendered otiose.
9.1 We may, however, hasten to add that, that cannot be an absolute proposition and some of the reasons which may be relevant for rejection for regular bail under Section 437(1)(2) of the Code, may also be relevant for rejection of application under sub-section (6) of the said Section, in a given situation. We do not subscribe to the theory that factors which are relevant for rejection of regular bail, at the initial stage are not at all relevant for rejection of application under sub-section (6) of the said Section. Fact situations are so large in numbers, that it may not be possible to contemplate, enumerate, illustrate or incorporate here the factors which would be relevant and which would not be relevant for the purpose of rejection of application under sub-section (6) of Section 437 of the Code. But, it can certainly be said that grounds relevant for considering application under sub-section (6) of Section 437 of the Code and the grounds relevant for considering application for regular bail would be different to some extent.
9.2 In our view, following factors would be relevant.
1. Whether the reasons for being unable to conclude trial within sixty days from the first date fixed of taking evidence, are attributable to the accused?
2. Whether there are any chances of the accused tampering with evidence or causing prejudice to the case of the prosecution in any other manner?
3. Whether there are any chances of abscondence of the accused on being bailed out?
4. Whether accused was not in custody during the whole of the said period?
If the answer to any one of the above referred fact situations or similar fact situations is in affirmative then that would work as a fetter on the right that accrues to the accused under first part of sub-section (6) of Section 437 of the Code.
9.2.1 The right accrues to him only if he is in custody during the whole of the said period as can be seen from the language employed in sub-section (6) of Section 437 of the Code by the legislature.
9.2.2 It would also be relevant to take into consideration the punishment prescribed for the offence for which the accused is being tried in comparison to the time that the trial is likely to take, regard being had to the factors like volume of evidence, number of witnesses, workload on the Court, availability of prosecutor, number of accused being tried with accused and their availability for trial, etc.
9.3 Therefore, so far as question Nos.3 and 4 are concerned, this Court is of the view that the factors, parameters, circumstances and grounds for seeking bail by the accused as well as grounds to be considered by the Magistrate for his satisfaction, would not be exactly the same, but they may in a fact situation be relevant and may overlap each other in both the situation. The factors which are quoted above by this Court are only illustrative and not exhaustive.
9.4 This Court is of a considered view that applications under Section 437 (6) have to be given a liberal approach and it would be a sound and judicious exercise of discretion in favour of the accused by the Court concerned more particularly where there is no chance of tampering of evidence e.g. where the case depends on documentary evidence which is already collected; where there is no fault on part of the accused in causing of delay; where there are no chances of any abscondence by the accused; where there is little scope for conclusion of trial in near future; where the period for which accused has been in jail is substantial in comparison to the sentence prescribed for the offence for which he is tried. Normal parameters for deciding bail application would also be relevant while deciding application under Section 437 (6) of the Code, but not with that rigour as they might have been at the time of application for regular bail.
9.4.1 Differently put, where there is absence of positive factors going against the accused showing possibility of prejudice to prosecution or accused being responsible for delay in trial, application under Section 437 (6) has to be dealt with liberal hands to protect individual liberty as envisaged under the Constitution of India and sought to be protected by insertion of sub-section (6) to Section 437 of the Code by the legislature. The provision has to be read or construed strictly in favour of individual liberty but at the same time, protecting larger interest of justice or society. In this context, observations of the Hon'ble Apex Court in case of Aslam Babalal Desai v. State of Maharashtra, (1992) 4 SCC 272 in the context of compulsive bail under the proviso to section 167(2) may be referred to though may not be applied to an accused seeking bail under section 437(6) of the Code stricto senso.
“15. Even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation. The delay in completion of the investigation can be on pain of the accused being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously or does not complete it within the time allowed by law.”
9.4.2 Our say, in context of Section 437 (6), would be better understood if word 'investigation' is read to mean 'trial' in the above quote.
10. Attempt on part of the Magisterial Court in such situation should be to strike a balance by putting one hand on right to speedy trial of an accused as embodied under Article 21 of the Constitution of India and the interest of the prosecution and society on the other hand.
11. A close reading of provisions of Section 437 (6) of the Code, prima-facie would show that a duty is cast upon the concerned Magistrate to see that the trial of an accused is concluded within a period of sixty days from the first date of taking evidence. The Magistrate is obliged to make all possible endevours to see that provisions contained in Section 437 (6) of the Code are complied with in its true, letter and spirit. To that extent, it appears that a right accrues in favour of an accused to tell the Court concerned that the trial has not been concluded within sixty days from the first date fixed for taking evidence for no fault on his part and, therefore, he should be released on bail, may be at that stage, there is some discretion vested in the Magistrate to refuse bail for the reasons which the Magistrate may deem fit to record. Such reasons can not be routine. Such reasons have to weighty enough to outweigh the right that accrues to the accused in first part of sub-section (6) of Section 437 of the Code, which appears to be drawing force from Article 21 of the Constitution of India.
11.1 The words 'any case' appearing in sub- section (6) of Section 437 of the Code point at the legislative intent to make that provision applicable to all cases which are Magisterial triable and non- bailable. Legislature has not drawn any other distinction for applicability of sub-section (6) of Section 437 of the Code. In comparison to that, the provisions contained in Section 167 (2) (a) (i) and (ii) of the Code provide for grant of bail in event charge-sheet is not filed within stipulated time. The provision is aimed at expeditious conclusion of investigation. It also protects liberty of an accused where the Investigating Agency fails to conclude investigation and file charge-sheet within a stipulated time. Since the accused gets arrested on basis of allegations of offence, the legislature has deemed it proper to protect his interest by awarding to him a right of bail, irrespective of nature of offence if the charge-sheet is not filed within stipulated time limit. That right has been held to be absolute and indefeasible. The parameters contained therein cannot be wholly employed while dealing with an application under Section 437 (6) of the Code since they both operate on different plains. Even the language employed in both the provisions is different. Whereas, it gives discretion to Judicial Officer to refuse bail under Section 437(6), it leaves no scope for such discretion under Section 167(2) of the Code.
12. So far as Question No.VI referred by the learned Single Judge is concerned, we state that decision of a co-ordinate Bench of equal strength will have a binding effect on another co-ordinate Bench as it lays down a principle of law rather than a statement of law in context of the subject matter.
13. So far as fundamental right of an accused envisaged under Article 21 of the Constitution of India is concerned, insofar as it relates to a speedy trial, the same cannot be pressed into service vis-a- vis the right of an accused accruing under Section 437 (6) of the Code. Because the right of the accused under Section 437 (6) of the Code is altogether different than one envisaged under Article 21 of the Constitution of India. Section 437 (6) of the Code takes in its sweep only the right to speedy trial, whereas Article 21 of the Constitution of India has a very wide connotation.
14. The foregoing discussion lead us to conclude and answer the questions under reference as under:
Q-1 An accused involved in a non-bailable offence triable by Magisterial Court whose trial is not concluded within a period of sixty days from the first date fixed for taking evidence in that case, and who has been in custody during the whole of the said period, does not get an absolute or indefeasible right to be released on bail to the satisfaction of the Magistrate. The Magistrate has a discretion to direct otherwise (refuse bail) by recording in writing the reasons for such rejection.
Q-2 The provisions contained in Section 437(6) of the Code are not mandatory.
Q-3 The Magistrate has option/discretion to refuse bail by assigning reasons therefor. The parameters, factors, circumstances and grounds to be considered by Magistrate vis- a-vis such application preferred by the accused under Section 437(6) of the Code may be:
1. Whether the reasons for being unable to conclude trial within sixty days from the first date fixed of taking evidence, are attributable to the accused?
2. Whether there are any chances of the accused tampering with evidence or causing prejudice to the case of the prosecution in any other manner?
3. Whether there are any chances of abscondence of the accused on being bailed out?
4. Whether accused was not in custody during the whole of the said period?
If the answer to any one of the above referred fact situations or similar fact situations is in affirmative than that would work as a fetter on the right that accrues to the accused under first part of sub-section (6) of Section 437 of the Code.
The right accrues to him only if he is in custody during the whole of the said period as can be seen from the language employed in sub-section (6) of Section 437 of the Code by the legislature.
It would also be relevant to take into consideration the punishment prescribed for the offence for which the accused is being tried in comparison to the time that the trial is likely to take, regard being had to the factors like volume of evidence, number of witnesses, workload on the Court, availability of prosecutor, number of accused being tried with accused and their availability for trial, etc.
The factors which are quoted above by this Court are only illustrative and not exhaustive.
Q-4 The factors, parameters, circumstances and grounds for seeking bail by the accused as well as grounds to be considered by the learned Magistrate for his satisfaction would not be identical or similar to sub- section (1) and sub-section (2) of the Section 437 of the code, but may be relevant and overlapping each other depending upon facts and there cannot be any straight jacket formula. But, we may add that the reasons for rejection of applications under Section 437 (6) need to be more weighty than the routine grounds of rejection.
Q-5 The parameters relevant for deciding application under Section 167 (2) (a) (I) (II) of the Code (default bail), can not be imported for exercise of power under Section 437 (6) of the Code.
Q-6 A decision in principle rendered by a co- ordinate Bench of equal strength would bind another co-ordinate Bench as it lays down a principle of law and not a statement of law in context of subject matter.
Q-7 The legislature, while enacting Section 437(6) of the Code, has not given an absolute, indefeasible or unfettered right of bail. But right of bail is given with a rider investing the Magistrate with discretion to refuse bail by recording reasons therefor. Therefore, the right of accused for a speedy trial, though, Constitutional and aimed at liberty of accused, is not put on that high a pedestal that it becomes absolute. It is a right given with reasonable restrictions. This is the only way the provisions of Section 473(6) of the Code and Article 21 of the Constitution of India can be harmonised and have to read and interpreted accordingly.
15. The reference stands answered accordingly.
(A L DAVE, J.) (J B PARDIWALA, J.) sompura