Punjab-Haryana High Court
Pargat Singh And Anr vs Pippal Singh And Anr on 24 August, 2017
Author: A.B. Chaudhari
Bench: A.B. Chaudhari
CRM-M-7568 of 2017 (O&M), CRM-M-7213 of 2017 (O&M) AND 1
CRM-M-5711 of 2017 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision: August 24, 2017
CRM-M-7568 of 2017 (O&M)
Pargat Singh and another
.....Petitioners
Versus
Pipal Singh and another
.....Respondents
CRM-M-7213 of 2017 (O&M)
Resham Singh
.....Petitioner
Versus
Pipal Singh and another
.....Respondents
CRM-M-5711 of 2017 (O&M)
Tarsem Singh
.....Petitioner
Versus
Pipal Singh and another
.....Respondents
CORAM: HON'BLE MR. JUSTICE A.B. CHAUDHARI
Present: Mr. P.P.S. Duggall, Advocate
for the petitioner(s) (in all the petitions).
Mr. Nakul Sharma, Advocate
for respondent No.1 (in all the petitions).
Mrs. Rajni Gupta, Addl. AG Punjab.
****
A.B. CHAUDHARI, J (Oral)
By this common order, above said all three petitions are
being disposed of.
In these petitions, the petitioners-complainant have prayed
for setting aside the revisional order dated 11.01.2017 (Annexure P-5)
made by the Sessions Court, Ferozepur reversing the order dated
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09.12.2016 (Annexure P-3) of the trial Court, which had declined to
grant regular bail to respondent No.1-Pipal Singh and in revision
granted bail to respondent No.1.
The petitioners in these petitions claim that they are the
aggrieved persons who had invested money in the companies floated
by respondent No.1 and his relatives including his wife, with a
promise to repay money with interest by way of Fixed Deposit
Receipts. According to the petitioners, respondent No.1, in collusion
with his wife and other directors of the companies, have cheated the
investors and fraud goes to around `5,000 crores and money from
various investors was collected by them and was never returned to
them much less with interest. FIRs in the present cases were lodged
also on secret information with the police and accordingly, police
swung into action. According to the petitioners, prosecution
investigation is on and by this time, around 11771 persons who have
been cheated by respondent No.1 and others have come forward to
lodge FIRs against respondent No.1-Pipal Singh. It is estimated,
according to the State, persons numbering 11711 have been victims of
fraud and cheating. Respondent No.1-Pipal Singh and others were
arrested during investigation by the police and the investigation is still
on as day in and day out, the victims have been coming to the police
making grievance about the way they were cheated by respondent
No.1 and others. In the present FIR, challan was filed by the police
before the trial Court. According to the petitioners, respondent No.1,
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after release on regular bail granted by the revisional Court, got lodged
false FIRs against the petitioners in order to pressurize them to
withdraw complaint. Not only that, according to the petitioners, they
have been threatened by respondent No.1. After the trial commenced,
respondent No1 applied to the trial Court for grant of regular bail
under Section 437(6) of Code of Criminal Procedure, 1973 (for short
'Cr. P.C.'), on the ground that since 60 days were completed and the
trial had not been concluded, he was entitled to grant of regular bail.
The trial Court rejected the said application by making a reasoned
order. That order was challenged by respondent No.1 before the
learned Additional Sessions Judge, Ferozepur by way of revision.
Learned Additional Sessions Judge, Ferozepur allowed the revision
and set aside the order of the trial Court declining to grant regular bail
to respondent No.1 and ordered release of respondent No.1 on regular
bail, holding that the provision of Section 437(6) Cr. P.C. is
mandatory. It is the said revisional order, which is under challenge in
these petitions.
In support of these petitions, learned counsel for the
petitioners, Shri P.P.S. Duggall, vehemently argued that only point that
falls for consideration of this Court is whether provision of Section
437(6) Cr. P.C. is mandatory or directory and whether, consequently,
the revisional order reversing the order of the trial Court declining
regular bail to respondent No.1 is legal, correct and proper. In support
of his submission, he cited several judgments of various High Courts.
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He also took me through the FIR as well as investigation report filed
by the State. Learned State counsel also pointed out from the
investigation papers that fraud committed by respondent No.1 in
collusion with others including his wife has been huge and large
number of people have been cheated. She has also pointed out the
action taken by the police from time to time including seizure of the
cars, various properties purchased under sale-deeds by respondent
No.1 in Madhya Pradesh and so and so forth with the money that was
collected from the investors and that the money collected by
respondent No.1 and others was never given back to them. Learned
State counsel, therefore, supported the petition and submitted that
looking to the magnitude of the money of investors collected by
respondent No.1 and the large number of people having been cheated
by respondent No.1 and others, regular bail granted to respondent No.1
will have to be cancelled as there is every likelihood of respondent
No.1 using his ill-gotten money for destroying the prosecution
evidence by tampering the same.
Learned counsel for the petitioners relied on many
decisions, but I will consider only the relevant decisions.
Per contra, learned counsel for respondent No.1
vehemently opposed the petitions for cancellation of bail and
submitted that the petitions at the instance of the petitioners are not
maintainable because FIRs were not lodged by them. He, then
submitted that they have no locus standi to file the present petitions.
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Learned counsel for respondent No.1 then submitted that the reasons
given by the learned trial Court are completely wrong and illegal and
therefore, revisional Court rightly interfered with the said order and
granted bail to respondent No.1 since the provision of Section 437(6)
Cr. P.C. is held to be mandatory by some of the High Courts. He, then
submitted that respondent No.1 got automatic statutory right of regular
bail after the period of 60 days as contemplated by Section 437(6) Cr.
P.C. Holding the said provision as directory, the valuable right under
Article 21 of the Constitution of India to be at liberty cannot be
violated. He has invited my attention to the objections filed by him in
this Court to the petitions.
I have gone through the reply/objections filed by
respondent No.1, I find that one of the grounds raised by respondent
No.1 is that there is no delay which can be attributed to respondent
No.1 for which trial is not being completed within 60 days. The next
submission is about the decision of the Supreme Court in the case of
Sanjay Chandra versus CBI, 2011(4) R.C.R. (Criminal) 898 that the
gravity of the offence alone cannot be taken into consideration for
keeping the accused in custody as a punitive measure. He also relied
on judgment of this High Court in the case of Sukhdev Singh versus
State of Punjab, 2009(3) R.C.R. (Criminal) 291. He therefore, prayed
for dismissal of these petitions.
Learned counsel for respondent No.1 has cited several
decisions and I would refer relevant decisions only.
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I have gone through the written statement filed by
respondent No.1. Having heard learned counsel for the rival parties
and having gone through the entire record, I find that it necessary to
quote relevant portion from the status report by way of affidavit of
Vibhor Kumar, PPS, Deputy Superintendent of Police (City),
Ferozepur, that was filed by the prosecution in these petitions, which
read thus:-
"2. That preliminary investigation of above said FIR was conducted
by ASI Balwinder Singh No.140/FZR and during the course of
investigation, three more persons namely Gurkirat Singh son of Pipal
Singh, Avtar Singh s/o Anokh Singh and Gurpreet Singh s/o Anokh Singh
were added as accused in above said FIR, out of which, accused Gurpreet
Singh was arrested on 16.02.2016 and on 12.04.2016, challan was
presented against him in the Court of learned Illaqa Magistrate,
similarly, petitioner Pipal Singh was arrested on 01.06.2016 and 103 sale
deeds in respect of huge parcel of land stipulated outside Punjab State,
having been purchased in the name of his company, have been recovered
from him. A sum of Rs.11,70,000/- with regard to fraud committed by
petitioner Pipal Singh and others with the complainant of present FIR is
involved in the present case. Accordingly, on 29.07.2016, supplementary
challan was presented against petitioner Pipal Singh in the Court of
learned Illaqa Magistrate, Ferozepur and charge is yet to be framed
against the petitioner, whereas accused Surinder Kaur, Gurkirat Singh
and Avtar Singh are yet to be arrested and best efforts are being made to
arrest them.
3. That the petitioner Pipal Singh is also involved in three other
FIRs with regard to same very allegations of committing fraud with
general public, the brief detail of the said FIRs is as under:-
Sr. FIR Date Offence U/s Police Station
No. No.
1 191 26.9.2015 420/120-B IPC City Ferozepur
2 243 09/12/15 -do- -do-
3 40 17.02.2016 -do- -do-
4. .................. Earlier, accused Pipal Singh had opened a company
under the name and style of Nicer Green at Zira Gate, Ferozepur City,
which is lying closed for last two years and the amount of FDRs got
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deposited in the said company has not been returned to any person. They
have opened M.K.G. Company by replacing the name of Nicer Green
Company for the purpose of committing fraud with public at large. In
their business, there is every possibility of joining of other agents or
authorities. Preliminary investigation of above said FIR was conducted
by ASI Baljinder Singh No.140/FZR and during the course of
investigation, accused Gurpreet Singh and one Amritpal Singh were
added as accused in the said FIR. The accused Gurpreet Singh was
arrested on 17.02.2016 in above said FIR No.40 and on 12.04.2016,
Challan under the aforesaid offences was presented against accused
Gurpeet Singh in the Court of learned Judicial Magistrate, Ferozepur.
Further in the FIR No.191, the accused Pipal Singh was arrested on
14.05.2016 and 11 Cars have been recovered in this case and on
12.07.2016. Supplementary chalaln was presented against him in the
Court of Ld. Chief Judicial Magistrate, Ferozepur. The remaining
accused Kulwinder Singh, Anil Kumar, Amrit Pal Singh and Rahul have
been granted concession of interim bail by this Hon'ble Court. The
accused Mohinder Singh is yet to be arrested in above said FIR and best
efforts are being made to arrest him.
5. That the aforesaid FIR No.243 was registered against present
petitioner Pipal Singh and others after conducting detailed enquiry of an
application dated 18.08.2015 filed by Bathinda Singh through Incharge,
Economic Offence Wing, Ferozepur on the allegations that on
30.06.2004, complainant Bathinda Singh opened one R.D. Account
No.N36/6481 in Nyser Green Forest Co. Ltd. and deposited 20 quarterly
installments of Rs.520/- each, having its date and amount of maturity as
30.06.2014 worth Rs.50,000/-. However, after the date of maturity,
despite obtaining original policy and receipt, the accused Pipal Singh
and others did not make the payment of maturity amount to the
complainant and made false excuses on one pretext or another and rather
declared that they wanted to cheat the complainant and have succeeded
in doing so. Now, the above said company has been closed and they are
also putting pressure upon the complainant to transfer the said amount in
MGK. In the said FIR No.243, a petition bearing CRM-M No.4882 of
2016 for quashing of the FIR is pending in this Hon'ble Court and is now
fixed for 13.01.2017. It is pertinent to mention here that in FIR No.243,
now, more than 300 people have come forward against accused Pipal
Singh as a victim of fraud committed by accused Pipal Singh and others
for a sum of Rs.4,59,11,790/-.
6. That the aforesaid FIR No.40 has been registered at the instance
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of Manjit Singh son of Jarnail Singh, Tejinder Singh son of Narinder Pal
Singh and Baljinder Singh son of Joginder Singh against the
accused/petitioner Pipal Singh and others, on the allegations that they
deposited money in the companies of accused Pipal Singh through F.D.
And R.D. There are many other persons, who have deposited their money
for a period of 5 years or 10 years and the total amount comes out to be
Rs.1,20,00,000/-. Now, maturity time is over, but the accused are not
making payment of maturity amount despite repeated requests, rather the
accused gave threats to eliminate them and in this manner, the accused
have committed fraud. In FIR No.40, there are 13 accused including main
accused/petitioner Pipal Singh, out of which, the accused Gurpreet Singh
was arrested on 16.02.2016 and main accused Pipal Singh was arrested
on 10.06.2016 and one Car make Swift alongiwth 73 registered sale
deeds have been recovered from him.
.............................
8. That from the investigation conducted uptil now, it has been found
that the main accused Pipal Singh in connivance with the other accused
including his wife Surinder Kaur and son namely Gurkirat Singh and two
real brothers namely Bakshish Singh and Ranjit Singh has been running
six separate companies under the name and style of:-
i) Nicer Green Forest Limited,
ii) Nicer Green Housing & Infrastructure Developer Limited,
iii) N.G.H.I. Developer India Limited,
iv) M.G.K. Agriculture Holding Developers India Limited
v) J.S. Flowers Developers Private Limited
vi) Skynet Land Developers Private Limited
Out of which, accused Pipal Singh himself is the Managing
Director/Director of Nicer Green Forest Limited, Nicer Green Housing
& Infrastructure Developer Limited and N.G.H.I. Developers India
Limited. During investigation, it has also been found that accused Pipal
Singh along with his associates has been running 106 Branches of his
above named companies in different States like Punjab, Haryana,
Rajasthan, Gujrat, Uttar Pardesh, Bihar, Delhi and Uttrakhand, etc. and
thousands of people of these States have been badly affected as a victim
of fraud committed by the accused Pipal Singh and his associates worth
Crores of Rupees.
....................
10. That during investigation, it has been found that accused Pipal
Singh has purchased various properties on his own name, in the name of
his family members including wife Surinder Kaur and son Gurkirat Singh
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as well as in the name of his above said companies, out of the money
belonging to thousands of innocent people residing at above said States
which has been collected by accused Pipal Singh along with his
associates by means of committing fraud at a largest scale:-
Sr. Kind of Place where the Value of Property
No. Property property is situated
1 1500 acres of Madhya Pradesh Crores of Rupees
land
2 25 acres of land Jaloun (U.P.) -do-
3 17.5 acres of Village Golewala, -do-
land in main Distt. Faridkot
highway
4 80 acres of land Village Bahadur -do-
Ke, Distt. Ludhiana
5 20 acres of land Village Aashi Ke, -do-
Distt. Ferozepur
6 3 acres of land Village -do-
in the heart of Mallanwala, Distt.
the cirty Ferozepur
7 2.5 acres of land Village Ratta Lac of Rupees
on the road Gudda, Distt. Tarn
Taran
8 Residential Club Road, Punjab Crore of Rupees
Bunglow having Bagh, New Delhi
an area of 300
sq. yards, 3
storey
9 Residential Sardar Colony, Lac of Rupees
house having an Ferozepur City
area of 13
Marlas
10 Residential Post Office Street, -do-
house, having Ferozepur City
an area of 3.5
Marlas, in the
heart of the city
11 Plot having an Guruharsahai -do-
area of 15 (Punjab)
Marlas
12 Paper Mill Kathu (J&K) Crore of Rupees
having an area
of 12.5 acres
13 Paper Mill Golewala, District -do-
having an area Faridkot (Punjab)
of 8 acres on
main highway
Besides this, there are other numerous proeprties belonging to
accused Pipal Singh and his aforesaid companies and deep rooted
investigation in this regard is now under progress. The accused Pipal
Singh has also sold many properties from time to time worth Crore of
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Rupees. It has also come into light that the above said companies of
accused Pipal Singh are having about 706 Cars/Vehicles. Out of which,
only 12 Cars have still been recovered and remaining Cars/Vehicles are
yet to be recovered from accused Pipal Singh and his associates. It has
also been found that more than 11,771 people have since been come
forward being badly affected as a victim of fraud committed by accused
Pipal Singh along with his associates, out of which, most of the affected
people have since produced relevant record to the police, out of which,
one Harpartap Singh son of Pirtha Singh, resident of Green Avenue, Tarn
Taran along with his relatives has invested Rs.3.5 crores in the above
said companies of accused Pipal Singh as per the documents produced by
him. Many affected persons are still coming ahead day by day as a victim
of fraud committed by accused Pipal Singh alongwith his associates
including his wife Surinder Kaur, son Gurkirat Singh and two real
brothers namely Bakshish Singh and Ranjit Singh, who are still
absconders."
The above is the investigation status report filed by the
State showing the magnitude of the fraud in the present cases.
Learned counsel for respondent No.1 contended that
respondent No.1 has surrendered his Passport and not only that, his
properties have also been ordered to be attached by the order of this
Court and therefore, there is no need to cancel his bail. Respondent
No.1 has not misused his liberty after grant of bail and therefore, the
petitioner would be entitled to continue on bail during trial in these
cases. Learned counsel also contended that pendency of other cases is
no ground to cancel the bail.
The relevant dates in the present matter are as under as
quoted by revisional Court in its impugned order dated 11.01.2017:-
Sr. No. Dates Remarks
20.09.2016 Charge framed against accused
1 respondent No.1.
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Sr. No. Dates Remarks
04.10.2016 For prosecution evidence. Adjourned
2 to 17.10.2016
3 17.10.2016 Adjourned to 29.10.2016
4 29.10.2016 Adjourned to 10.11.2016
5 10.11.2016 Adjourned to 22.11.2016
6 22.11.2016 Adjourned to 05.12.2016
The first date that was fixed for evidence was thus,
04.10.2016 and it is in this background, application was made that
since the trial was not concluded in respect of non-bailable offences,
accused-respondent No.1 was entitled to grant of bail. The trial Court
vide its order dated 09.12.2016 recorded the following reasons
declining to grant bail:-
"Perusal of the file reveals that, accused/applicant is in custody in the
present case since 02.08.2016. In the present case, charge against the
accused was framed on 20.09.2016 and thereafter, the prosecution has
made every single effort to procure its evidence, even by summoning the
witnesses concerned, through telephone, as is reflected in the zimini
order dated 22.11.2016 and moreover, the presence of witnesses was also
sought by using coercive methods, but every time, the summons received
back with the report that the concerned police officials are busy in their
VIP duties viz. International Kabaddi matches and so called political
rallies etc. and that is why, the prosecution witnesses could not be
examined. It is crystal clear that the prosecution has made every possible
effort to procure the presence of witnesses concerned. In this way, no
negligence or any delay can be attributed on the part of the prosecution
agency.
....................
There are extremely serious allegations against the
accused/applicant showing his active involvement in multi crore scam,
involving huge public money, and number of FIRs lodged against the
applicant/accused. Moreover, the case laws relied upon by the learned
counsel for the applicant/accused is of no avail to the applicant/accused,
as the same does not spell out reasons for granting bail to the
accused/applicant. Such serious allegations dis-entitles the
accused/applicant for any relief from his Court in the shape of bail. Even
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otherwise no useful and practical purpose would be served to consider
the bail application as if the accused/applicant is enlarged on bail, there
is reasonable apprehension on the part of accused/applicant, tampering
with the witnesses, as the complainant of this case is yet to be examined.
The present application, thus, stands dismissed as no ground is made out
to extend the benefit of bail to the accused/applicant u/s 437(6) Cr. P.C."
Perusal of the above reasons recorded by the trial Court
shows that after framing of the charge, the prosecution made every
single effort to procure its evidence, even by summoning the witnesses
concerned through telephone etc. as reflected in the zimini orders
dated 22.11.2016. Not only that, presence of witnesses was also sought
by using coercive methods, but every time, the summons were
received back with the report that concerned police officials are busy
in VIP duties and International Kabaddi matches and political rallies
etc. Therefore, the prosecution witnesses could not be examined. The
trial Court thus, found that the prosecution has made every possible
effort to procure the presence of witnesses and therefore, no blame
could be put on the prosecution.
This Court fully agrees with the reasons given by the trial
Court above. This Court cannot close its eyes to the everyday
happenings in the matter of administration and management of police
machinery/jail machinery and other forces. In other words, these forces
are being largely used for various events or for providing security at
various places or events. There has been a constant increase in the
number of incidents of the people gathering together and obstructing
the State Highways, National Highways and obstructing roads in the
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cities, villages requiring the action by the police or other forces to
clear the ways and passes. It is a matter of common experience that the
jail staff give explanation to the Court that the accused could not be
produced beofre the Court for want of police personnel or for want of
jail staff and so on and so forth. The fact that summons to the
witnesses are not promptly served or reports on the summons to the
witness etc. are also manipulated or managed and the witnesses are
thus, prohibited from coming to the Court cannot be ignored. The Trial
Court has thus, taken into consideration the facts, which are writ large.
Not only that, the trial Court found on facts that in fact summons were
issued and every effort was made to bring the witnesses before the
Court.
Section 437(6) Cr. P.C. reads thus:-
"437. When bail may be taken in case of non-bailable offence. - (1) xx
xx xx
(2) to (5) xx xx xx
(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 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.
(7) xx xx xx"
Perusal of the sub-section 6 of Section 437 Cr. P.C. does
not admit of any reason that trial was not delayed by the accused or the
reasons for delay in trial cannot be attributed to the accused and hence,
as a sequel the accused must be released on bail. On the contrary, what
the provision shows is that the Magistrate can otherwise direct for
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reasons to be recorded in writing. Therefore, the limited scope in the
revisional or appellate Court would be to find out whether the reasons
to otherwise direct are legal, correct and proper and that they are not
perverse. To say that accused be released on bail because accused was
not at fault in delaying the trial would be adding the words not to be
found in sub-Section 6 of Section 437 Cr. P.C., which is wholly
impermissible. It is left to the Magistrate to record reasons in writing.
The revisional Court under the impugned order has therefore, clearly
made a legal error in holding that respondent No.1 was entitled to
grant of bail because no delay could be attributed on his part in
delaying the trial.
The next question is whether the provision of sub-Section
6 of Section 437 Cr. P.C. should be held to be mandatory?
Gujarat High Court in the case of Mukeshkumar
Ravishankar Dave versus State of Gujrat, 2011 (6) R.C.R.
(Criminal) 2650 and in the case of Riza Abdul Razak Zunzunia
versus State of Gujarat, 2009 CriLJ 4766 held that the provision of
sub-Section 6 of Section 437 Cr. P.C. is not mandatory. Similarly,
Chhattisgarh High Court in the case of Gulab Singh Banjare and
others versus State of Chhattisgarh, 2011(6) R.C.R. (Criminal) 966
and Atul Bagga versus State of Chhattisgarh, 2010 CriLJ 508 held
that the said provision is not mandatory. Rajasthan High Court in the
cases of Kalu Ram Vishnoi and State of Rajasthan Through Public
Prosecutor, 2012(28) R.C.R. (Criminal) 289, Lakkie Lakhbeer
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Singh versus State, 2006(1) R.C.R. (Criminal) 282 and Vijay Kumar
Meena versus State, 2008(4) RLW 3041 held that the said provision
is not mandatory.
Madhya Pradesh High Court (Gwalior Bench) in the case
of Ram Kumar @ Raj Kumar Rathore versus State of M.P., 2000
(3) R.C.R. (Criminal) 126 held that sub-Section 6 of Section 437 Cr.
P.C. is mandatory.
A single judge of this Court in the case of Sukhdev Singh
versus State of Punjab, 2009 CriLJ 2941, though, held in Para 6 of
the judgment that sub-Section 6 of Section 437 Cr. P.C. mandated that
the accused becomes entitled to be released on bail. But this Court also
stated that Magistrate can decline bail by recording reasons in writing.
Single Judge, then in Para 8 held thus:-
"8. After hearing the learned counsel for the parties and the fact that
the petitioner has remained in custody during the said period of more
than sixty days from the first date fixed for recording the evidence of the
prosecution and no delay has been attributed to him, is held entitled to be
released on bail. The reasons given by the trial Court as well as the
Additional Sessions Judge, Kapurthala cannot be legally sustained and
the petitioner is entitled to the concession of bail under Section 437(6) of
the Code."
The reason given by the learned Single Judge of this Court
in Para 8 above shows that since no delay was attributed to the
accused, he was entitled to be released on bail. But then that is not the
ratio decidendi of the said judgment in the context of what has been
stated in the last sentence of Para 6 of the judgment. I quote Para 6 of
the said judgment, which reads thus:-
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"6. The above referred provision mandates that if a case for non-
bailable offence is being tried by the Magistrate and the trial has not
concluded within a period of sixty days from the first date fixed for taking
of the evidence in the case and that the accused had remained in custody
during the whole of such period, then he becomes entitled to be released
on bail. However, the Magistrate can decline the benefit of the aforesaid
provision by recording reasons in writing."
The said judgment of the learned Single Judge of this
Court, therefore, cannot be said to the authority for the proposition that
the said provision is mandatory .
As earlier stated by me, the reason that the delay could not
be attributed to the accused in the completion of trial would become a
good reason to be released on bail under Section 436 Cr. P.C. cannot
be read into sub-Section 6 of Section 437 Cr. P.C.
Now coming to the findings by the revisional Court that
the provision of sub-Section 6 of Section 437 Cr. P.C. is mandatory. I
find that harmonious interpretation will have to be made in the light of
the nature of the said provision. In the case of State of U.P. versus
Manbodhan Lal Srivastava, AIR 1957 SC 912, the Apex Court stated
thus, in Para 11:-
"11. An examination of the terms of Article 320 shows that the word
"shall" appears in almost every paragraph and every clause or sub-
clause of that article. If it were held that the provisions of Article 320(3)
(c) are mandatory in terms, the other clauses or sub-clauses of that
article, will have to be equally held to be mandatory.
If they are so held, any appointments made to the public services
of the Union or a State, without observing strictly, the terms of these sub-
clauses in clause (3) of Article 320, would adversely affect the person so
appointed to a public service, without any fault on his part and without
his having any say in the matter.
This result could not have been contemplated by the makers of the
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Constitution. Hence, the use of the word "shall" in a statute, though
generally taken in a mandatory sense, does not necessarily mean that in
every case it shall have that effect, that is to say, that unless the words of
the statute are punctiliously followed, the proceeding or the outcome of
the proceeding, would be invalid.
On the other hand, it is not always correct to say that where the
word "may" has been used, the statute is only permissive or directory in
the sense that non-compliance with those provisions will not render the
proceeding invalid. In that connection, the following quotation from
Crawford on 'Statutory Construction'-- Article 261 at p. 516, is
pertinent:
"The question as to whether a statute is mandatory or directory depends
upon the intent of the legislature and not upon the language in which the
intent is clothed. The meaning and intention of the legislature must
govern, and these are to be ascertained, not only from the phraseology of
the provision, but also by considering its nature, its design, and the
consequences which would follow from construing it the one way or the
other...."
In the case of Smt. Bachchan Devi & Anr. v. Nagar
Nigam, Gorakhpur & Anr., AIR 2008 SC 1282, the Apex Court had
to say thus:-
"11. The delicate question that remains to be examined is what is the
position in law when both the expression "shall" and "may" are used in
the same provision.
12. Mere use of word 'may' or 'shall' is not conclusive. The question
whether a particular provision of a statute is directory or mandatory
cannot be resolved by laying down any general rule of universal
application. Such controversy has to be decided by ascertaining the
intention of the legislature and not by looking at the language in which
the provision is clothed. And for finding out the legislative intent, the
court must examine the scheme of the Act, purpose and object underlying
the provision, consequences likely to ensue or inconvenience likely to
result if the provision is read one way or the other and many more
considerations relevant to the issue.
....................
28. The use of the word 'shall' in a statute, though generally taken in
a mandatory sense, does not necessarily mean that in every case it shall
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have that effect, that is to say, that unless the words of the statute are
punctiliously followed, the proceeding or the outcome of the proceeding
would be invalid. on the other hand, it is not always correct to say that
when the word 'may' has been used, the statute is only permissible or
directory in the sense that non-compliance with those provisions will not
render the proceeding invalid.
29. Words are the skin of the language. The language is the medium
of expressing the intention and the object that particular provision or the
Act seeks to achieve. Therefore, it is necessary to ascertain the intention.
The word 'shall' is not always decisive. Regard must be had to the
context, subject-matter and object of the statutory provision in question in
determining whether the same is mandatory or directory. No universal
principle of law could be laid in that behalf as to whether a particular
provision or enactment shall be considered mandatory or directory. It is
the duty of the court to try to get at the real intention of the legislature by
carefully analysing the whole scope of the statute or section or a phrase
under consideration. ... The word 'shall', though prima facie gives
impression of being of mandatory character, it requires to be considered
in the light of the intention of the legislature by carefully attending to the
scope of the statute, its nature and design and the consequences that
would flow from the construction thereof one way or the other. In that
behalf, the court is required to keep in view the impact on the profession,
necessity of its compliance; whether the statute, if it is avoided, provides
for any contingency for non-compliance; if the word 'shall' is construed
as having mandatory character, the mischief that would ensue by such
construction; whether the public convenience would be subserved or
public inconvenience or the general inconvenience that may ensue if it is
held mandatory and all other relevant circumstances are required to be
taken into consideration in construing whether the provision would be
mandatory or directory.
30. The question, whether a particular provision of a statute, which,
on the face of it, appears mandatory inasmuch as it used the word
"shall", or is merely directory, cannot be resolved by laying down any
general rule, but depends upon the facts of each case particularly on a
consideration of the purpose and object of the enactment in making the
provision. To ascertain the intention, the court has to examine carefully
the object of the statute, consequence that may follow from insisting on a
strict observance of the particular provision and, above all, the general
scheme of the other provisions of which it forms a part. The purpose for
which the provision has been made, the object to be attained, the
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intention of the legislature in making the provision, the serious
inconvenience or injustice which may result in treating the provision one
way or the other, the relation of the provision to other consideration
which may arise on the facts of any particular case, have all to be taken
into account in arriving at the conclusion whether the provision is
mandatory or directory. Two main considerations for regarding a rule as
directory are: (i) absence of any provision for the contingency of any
particular rule not being complied with or followed, and (ii) serious
general inconvenience and prejudice to the general public would result if
the act in question is declared invalid for non-compliance with the
particular rule.
31. It is well settled that the use of the word "may" in a statutory
provision would not by itself show that the provision is directory in
nature. In some cases, the legislature may use the word "may" as a
matter of pure conventional courtesy and yet intend a mandatory force. In
order, therefore, to interpret the legal import of the word "may", the
court has to consider various factors, namely, the object and the scheme
of the Act, the context and the background against which the words have
been used, the purpose and the advantages sought to be achieved by the
use of this word, and the like. It is equally well settled that where the
word "may" involves a discretion coupled with an obligation or where it
confers a positive benefit to a general class of subjects in a utility Act, or
where the court advances a remedy and suppresses the mischief, or where
giving the words directory significance would defeat the very object of the
Act, the word "may" should be interpreted to convey a mandatory force.
As a general rule, the word "may" is permissive and operative to confer
discretion and especially so, where it is used in juxtaposition to the word
"shall", which ordinarily is imperative as it imposes a duty. Cases,
however, are not wanting where the words "may", "shall" and "must"
are used interchangeably. In order to find out whether these words are
being used in a directory or in a mandatory sense, the intent of the
legislature should be looked into along with the pertinent circumstances.
The distinction of mandatory compliance or directory effect of the
language depends upon the language couched in the statute under
consideration and its object, purpose and effect. The distinction reflected
in the use of the word 'shall' or 'may' depends on conferment of
power. ..........."
In the case of Sharif-ud-Din v. Abdul Gani Lone, AIR
1980 SC 303, the Apex Court had to say thus:-
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"9. The difference between a mandatory rule and a directory rule is
that while the former must be strictly observed, in the case of the latter
substantial compliance may be sufficient to achieve the object regarding
which the rule is enacted. Certain broad propositions which can be
deduced from several decisions of courts regarding the rules of
construction that should be followed in determining whether a provision
of law is directory or mandatory may be summarised thus: The fact that
the statute uses the word "shall" while laying down a duty is not
conclusive on the question whether it is a mandatory or directory
provision. In order to find out the true character of the legislation, the
court has to ascertain the object which the provision of law in question
has to subserve and its design and the context in which it is enacted. If the
object of a law is to be defeated by non-compliance with it, it has to be
regarded as mandatory. ..................."
Having regard to the test to determine the mandatory or
director nature of the said provision as formulated above by the Apex
Court and having look at sub-Section 6 of Section 437 Cr. P.C. that
use of word "shall" in sub-Section 6 of Section 437 Cr. P.C. is not
conclusive. In view of the further portion of the said provision that the
Magistrate has been asked to give reasons to be recorded in writing for
not releasing the person on bail, if the trial is not concluded within a
period of 60 days from the date of first date fixed for evidence in the
case, the provision of sub-Section 6 of Section 437 of Cr. P.C. cannot
be held to be mandatory.
Further, it would also be appropriate to quote Para-17 from
the Judgment of Gujarat High Court in the case of Mukeshkumar
Ravishankar Dave versus State of Gujrat, 2011 (6) R.C.R.
(Criminal) 2650 as under:-
"17. Therefore, if the provisions of section 437(6) of the Code are
closely considered, it appears that enough care has been taken by the
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legislature. There is an inbuilt exception provided leaving it to the
discretion of the magistrate or the court when the words used are "unless
for reasons to be recorded in writing." These words carve out an
exception to the general proposition or the rule which is provided in sec.
437(6) of Cr. P.C. Therefore, on the one hand, when this provision has
been made enabling the court to exercise the discretion, the exception is
also carved out that while exercising such discretion or considering such
application, if such application is turned down, the magistrate is obliged
to record reasons for that. In other words, this itself would suggest that
when the discretion is left with the magistrate as per the language of
section 437(6) itself, it cannot be said to be mandatory as sought to be
canvassed."
Other submissions by the learned counsel for respondent
No.1 that bail should not be cancelled for his alleged good conduct
cannot be considered as the pure question of law has been answered.
The upshot of the discussion is that the provision of
Section 437(6) Cr. P.C. cannot be held to be mandatory and the
Magistrate for reasons to be recorded in writing is entitled to refuse to
release the accused on bail. In the result, I make the following order:-
ORDER
i) CRM-M-7568 of 2017, CRM-M-7213 of 2017 and CRM-
M-5711 of 2017 are allowed;
ii) Revisional order dated 11.01.2017 (Annexure P-5) is set aside;
iii) Consequently, trial Court order dated 09.12.2016 (Annexure P-3) is restored;
iv) Respondent No.1-Pipal Singh shall surrender to the custody within a period of six weeks from today, failing which he shall be taken into custody by the trial Court.
(A.B. CHAUDHARI) JUDGE August 24, 2017 mahavir Whether speaking/ reasoned: Yes Whether Reportable: Yes 21 of 21 ::: Downloaded on - 01-09-2017 20:07:29 :::