Rajasthan High Court - Jaipur
Suresh Narayan Soni vs State Of Raj Asthan Through Pp on 15 February, 2011
Author: R.S. Chauhan
Bench: R.S. Chauhan
S.B. Cr. Misc. III Bail Appln. No.860/2011 Suresh Narayan Soni Vs. State of Rajasthan Date of Order: February 15, 2011 HON'BLE MR. JUSTICE R.S. CHAUHAN Mr. S.K. Jain, for the petitioner. Mr. Javed Chaudhary, Public Prosecutor for the State.
Vide order dated 6-4-2010, this Court had rejected the second bail application filed by the petitioner. This third bail application has been moved ostensibly on the ground that the time period prescribed by Section 437 (6) Cr.P.C.that the trial shall be concluded within a period of thirty days from the first date fixed for taking evidenceis long over. Therefore, the petitioner should be released on bail ipso facto.
2. The learned counsel for the applicant has vehemently contended that according to Section 437 (6) Cr.P.C. in case the trial is not completed within 60 days from the date first fixed for taking evidence, the accused person becomes entitled to be released on bail. In order to buttress this contention, the learned counsel for the applicant has relied upon the case of Gautam Kandiya Bhonsle Vs. State of Rajasthan [2004 (2) RCC 244], Anil Kumar Vs. State of Rajasthan [2005 (1) RCC 284] and Rahul Sanwant @ Prince @ Karmjeet Singh Salooja Vs. State of Rajasthan [2008 (3) RCC 1061]. He has further contended that so far only twelve witnesses have been examined and nineteen witnesses are yet to be examined. According to him, ever since 6-11-2006 no witnesses have been examined so far. Therefore even if 6-11-2006 is taken as the last date fixed for taking evidence, even than sixty days have already expired. Therefore according to the learned counsel the benefit of Section 437 (6) should be given to the applicant.
3. On the other hand, the learned Public Prosecutor has contended that Section 437 (6) Cr.P.C. is not a mandatory provision. A perusal of the order sheets clearly reveal that the trial court could not proceed for at time the Presiding Officer was not appointed, and at other times, the learned members of the Bar were abstaining from working, Therefore even if the trial could not be completed within sixty days from the date fixed for recording of evidence, it would not entitle the petitioner to be released on bail.
4. Heard the learned counsel for the parties and perused the material available on record.
5. Section 437 (6) Cr.P.C. reads as under:-
437.When bail may be taken in case of non-bailable offence:-
(1) x x x (2) x x x (3) x x x (4) x x x (5) x x x (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.
6. Although Section 437 (6) uses the word shall but considering the difficulties and hardships faced by the trial court in completing the trial, the word shall cannot possibly be interpreted to be mandatory in nature. In fact, in the three cases cited by the learned counsel for the applicant, this Court has never held that the word shall is mandatory in nature. Considering the fact that there are large number of vacancies in subordinate courts, considering the fact that at times the learned members of the Bar are abstaining from the court, for one reason of the other, considering the fact that large number of litigations are pending before the trial court, the word shall cannot be interpreted to be mandatory in nature. At best, it is merely directory, in nature. The provision merely directs the Magistrate to try to complete trial within sixty days from the date first fixed for taking the evidence.
7. It is pertinent to note that in case of Gautam Kandiya Bhonsle (supra) this Court has not given any reason while granting bail under Section 437 (6) Cr.P.C. Thus, the said order is sub-silentio. Similarly in the case of Anil Kumar (supra) this Court had not given any reason for granting the benefit of the said provision. In the case of Rahul Sanwant @ Prince @ Karmjeet Salooja (supra), this Court granted the benefit of the said provision on the ground that not a single witness was examined by the trial court, and the court had not given any cogent reason for not examining a single witness. However, on factual matrix the present case is distinguishable from the case of Rahul Sanwant @ Prince @ Karmjeet (supra). In the present case twelve witnesses have already been examined. In fact, according the order dated 20-1-2011, on 12-10-2010, the testimony of PW-9 was recorded, on 16-11-2010 the testimony of PW-10 and PW-11 was equally recorded. Thus, it is obvious that the trial court is trying to conclude the trail. The trial has not come to a grinding hault. However, due to difficultly of non-availability of the Presiding Officer, due to non- working of the members of Bar, the trial is proceeding at a slow pace. However, this cannot be a reason for grant of bail under Section 437 (6) Cr.P.C.
8. Considering the facts that the applicant was a Sarpanch and the allegation against him was that he has allegedly embezzled Rs.12 lacs, this court is not inclined to grant bail to the petitioner. Hence, the third bail application is, hereby, dismissed.
[R.S.CHAUHAN] J arn/-