Gujarat High Court
Mukeshkumar vs State on 23 April, 2010
Author: Rajesh H. Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
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CR.MA/2001/2010 18/ 18 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2001 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
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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 ?
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MUKESHKUMAR
RAVISHANKAR DAVE - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
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Appearance :
MR
HRIDAY BUCH for
Applicant(s) : 1,
MR HL JANI, ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 23/04/2010
ORAL
JUDGMENT
The present application has been filed by the applicant for grant of regular bail under sec. 439 read with sec. 437(6) of the Code of Criminal Procedure, 1973.
2. The applicant-accused is charged with having committed offences under sections 419, 420, 465, 467, 468, 477(A) & 120(B) of IPC for which FIR being C.R. No. I-68/2008 has been registered with Una Police Station.
3. Learned advocate Mr. Hriday Buch for the applicant submitted that the charge has been framed by the competent court on 27.10.2009 and the matter has been adjourned for the recording of evidence. However, an application came to be filed in Criminal Case No. 2906/2009 which came to be rejected as per the order passed below Exh. 20 dated 19.1.2010 by the learned Chief Judicial Magistrate, Junagadh for the reasons recorded therein.
4. Learned advocate Mr. Buch submitted that thereafter the applicant preferred an application being Criminal Misc. Application No. 38 of 2010 before the Sessions Court, Junagadh. The Sessions Court also confirmed the order of the learned Chief Judicial Magistrate vide its order dated 3.2.2010 in aforesaid Criminal Misc. Application No. 38 of 2010 and therefore the present application has been preferred on the grounds narrated in detail in the memo of application which have been referred to and emphasised by learned advocate Mr. Buch for the applicant.
5. Learned advocate Mr. Buch submitted that the provisions of sec. 437(6) of Cr.P.C. are mandatory and it deals with the right of the accused. He referred to the said provision and emphasised that the word used is "shall" and therefore it is mandatory. If the trial is not completed within a period of 60 days from the first date fixed for taking the evidence, such person shall be released on bail (emphasis supplied). He submitted that none of the reasons for the delay could be attributed to the present applicant accused. He therefore strenuously submitted that the applicant-accused is not in any manner responsible for the delay in the trial and if the trial has not been over, the applicant accused may be released under sec. 437(6) of Cr.P.C. Learned advocate Mr. Buch submitted that, however, both the courts below have failed to consider this aspect, particularly the mandatory nature of the provision and therefore the present application may be allowed.
6. In support of his submission, learned advocate Mr. Buch has referred to and relied upon the judgment of this court reported in 2007(2) GLR 580 in the case of Bhikhaji Chaturji Thakore v. State of Gujarat and submitted that it has been observed that 'unless cogent and strong reason for a protracted trial appears on record, the accused has all right to get the benefit under sec. 437(6) of the Code.'
7. He has also referred to and relied upon the judgment of this court reported in 2009 Cri.L.J. 4766 in the case of Riza Abdul Razak Zunzunia v. State of Gujarat and submitted that the same proposition has been considered and confirmed. While reading this judgment, he emphasised the observation in para 21 as under:
"The question that arises for determination is as to what would be the considerations which would weigh with the Magistrate while deciding an application under Section 437(6) of the Code.....On a plain reading of the provision as well as considering the object behind enacting the said provision if the contention advanced on behalf of the Bank viz. the prima facie case, gravity of offence, involvement of the accused, etc. are the factors which are to be taken into consideration while deciding the application under Section 437(6) of the Code, were to be accepted, the same would render the said provision nugatory, inasmuch as if the same reasons for which the application for regular bail is refused, are to be considered while deciding the application under Section 437(6) of the Code, there would be no necessity for making such a provision....."
He, therefore, submitted that the factors which are required to be considered are different while deciding an application under sec. 437(6) of the Code. He submitted that both the courts have failed to appreciate this aspect.
8. Learned advocate Mr. Buch also referred to and relied upon the judgment of Punjab & Haryana High Court reported in 2009 Cri. L.J. 2941 in the case of Sukhdev Singh v. State of Punjab and also other orders passed in Special Criminal Application Nos. 2010 of 2008 and 2022 of 2008. He also referred to the judgment of the Hon'ble Apex Court reported in (2002) 10 SCC 677 in the case of Mehmood Mohammed Sayeed v. State of Maharashtra and submitted that as observed in this judgment, the accused was in custody for one year and the charge-sheet was filed and the apex court had released the accused on bail. He also referred to the judgment of the Honorable Apex Court in the case of Shashi Bhushan Jaruhar v. State of Bihar and anr.
reported in (2006) 1 SCC 783 and submitted that in the Fodder Scam case the bail was granted. He therefore submitted that the present application may be allowed.
9. Learned APP Mr. Jani submitted that the provisions of sec. 437(6) of the Code are not mandatory. He also referred to the provisions and emphasised the words, "unless for reasons to be recorded in writing, the Magistrate otherwise directs." Learned APP Mr. Jani submitted that both the courts below, while rejecting the application under sec. 437(6), has recorded the reasons and therefore the orders cannot be said to be erroneous. He submitted that the word "shall" will have to be interpreted as "may" considering the provision as a whole. Learned APP Mr. Jani also submitted that though the reliance is placed on a judgment of this court in the case of Bhikhaji Chaturji Thakore (supra) and also the judgment in the case of Riza Abdul Razak Zunzunia (supra), the judgment of this court in the case of Jigar Mayurbhai Shah v. State of Gujarat, reported in 2008(2) GLR 1134, is also required to be considered.
10. Learned APP Mr. Jani submitted that in a judgment in the case of Riza Abdul Razak Zunzunia (supra) there is a reference to the earlier judgment of this court in the case of Jigar Mayurbhai Shah (supra).
Two different views are expressed and therefore it will depend upon the facts and circumstances and it cannot be suggested that the right is absolute and the provision is mandatory. For that purpose, learned APP Mr. Jani referred to and relied upon the following observations made in the case of Jigar Mayurbhai Shah (supra) :
"Thus, it is not mandatory or obligatory on the part of the Magistrate that once period of sixty days from the first date fixed for taking evidence is over, the applicant must be enlarged on bail. There is no such mathematical consequence. All that depends upon the facts and circumstances of the case, gravity of the offence, quantum of punishment and the manner in which the present applicant is involved in the offence as alleged by the prosecution. Looking to these circumstances, if the trial Court is satisfied that the applicant is not to be enlarged on bail, despite period of sixty days is over from the first date of fixing for taking evidence, the applicant cannot be enlarged on bail."
11. Therefore, learned APP Mr. Jani submitted that the court may consider the background and the facts and circumstances involving the scam of huge amount of Rs. 56 crores and if there is a prima facie case, merely because there is delay by itself would not entitle the applicant to be released on bail. He emphasised and submitted that admittedly regular bail application was not granted and once if the regular bail application is also not entertained considering the material on record, merely because some time has lapsed, could it be a ground to release the applicant on bail, without considering all relevant facts, as stated hereinabove in th earlier judgment in the case of Jigar Mayurbhai Shah (supra)? He, therefore, submitted that the present application may not be entertained.
12. Learned advocate Mr. Buch, in rejoinder, submitted that as the proceedings are not making any progress, the right is absolute under sec. 437(6) of the Code. He also submitted that the judgment of this court which has been referred to hereinabove is binding and has also referred to and relied upon the judgment reported in 1990(4) SCC 207 in the case of Krishena Kumar v. Union of India and ors., in support of his submission with regard to the precedent.
13. In view of rival submissions, the first aspect which is required to be considered is whether the provisions of sec. 437(6) of Cr.P.C. can be said to be mandatory or not. It is required to be noted that this court, while deciding Special Criminal Application No. 1344 of 2008 vide order dated 9.10.2009, has considered in detail the provision and interpreting the same, has observed that the provisions of sec. 437(6) cannot be said to be mandatory. The earlier judgment of this court in the case of Bhikhaji Chaturji Thakore (supra) has been considered and as it can be read out from the language itself, it is an enabling provision.
14. Sub-section (6) of Section 437 of Cr.P.C. 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 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."
15. A bare perusal of sec. 437(6) of the Code clearly suggests that though the word "shall" has been used, reading the section as a whole and considering the language used and the manner in which the said section is made, it leaves to the discretion of the Magistrate, for reasons to be recorded in writing, meaning thereby it is an enabling provision for exercise of such discretion in a given situation where the trial may not have been over and the circumstances justify release of the accused. Therefore, it is an enabling provision which the court is required to consider in the facts and circumstances of a given case depending upon various factors including the nature and gravity of the offence, the manner in which it is alleged to have been committed and prima facie material suggesting involvement of the accused and also the impact in the society. Focusing on the language employed in sec. 437(6) of the Code on the contrary would suggest that discretion has been left to the Magistrate when the words used are "unless for the reasons to be recorded in writing, the Magistrate otherwise directs." Thus, it suggests that for recording the reasons the magistrate is required to consider relevant factors stated hereinabove. In other words, if the discretion is left to the magistrate, can it be read from the section itself that it is a mandatory provision? Had it been so, the discretion would not have been left to the magistrate and that could not be the object of the legislature considering the scenario of pendency of cases and number of criminal cases in the courts in India. There may be delay, but the ultimate object is rule of law and the administration of justice which is of paramount importance for governance in the society. By emphasising on the aspect of delay, the reality and the actual scenario at the grass root level with regard to pendency of cases, increase in the crime and more particularly white collar crimes like in the present case cannot justify such interpretation.
16. The magnitude of the amount involved, the manner in which the offence is committed and the modus operandi adopted for the offence are required to be considered. It has been emphasised that there was a well designed fraud to dupe huge amount of money of the bank affecting the public at large. The applicant's role is very specifically referred to that duplicate FDRs are created for making advances on such duplicate FDRs misusing the position.
17. Therefore, if the provisions of sec. 437(6) of the Code are closely considered, it appears that enough care has been taken by the 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 sec. 437(6) itself, it cannot be said to be mandatory as sought to be canvassed.
18. In fact, this court had also in detail considered this aspect while passing the order in Special Criminal Application No. 1344 of 2008 dated 9.10.2009. Moreover, though much emphasis has been given relying on the judgment of this court in the case of Bhikhaji Chaturji Thakore (supra) as well as the judgment in the case of Riza Abdul Razak Zunzunia (supra) one cannot also overlook the fact that a judgment of this court in the case of Jigar Mayurbhai Shah (supra) has considered this very aspect with regard to interpretation of sec. 437(6) and this very issue has been considered as to whether the right is absolute. In that judgment also, observations have been made analysing the provisions of sec. 437(6) of the Code.
19. Moreover, reference made to other judgments of the Hon'ble Apex Court with regard to delay and the right of the accused under Arr. 21 of the Constitution are also misconceived.
20. A useful reference can also be made to the judgment of the Hon'ble Apex Court in the case of Himanshu Chandravadan Desai and ors. v. State of Gujarat, reported in (2005) 13 SCC 234. That case was also with regard to the systematic fraud siphoning off huge amount, like in the present case, and referring to the facts it has been observed, "The crime in which the petitioners are involved is very serious involving a conspiracy to cheat and defraud public institutions in a systematic manner and the punishment is likely to be severe in the event of conviction...."
The Hon'ble Apex Court has also specifically observed, "Having regard to the huge amounts involved in the systematic fraud, there was danger of the appellants absconding, if released on bail, or attempting to tamper with evidence by pressurising witnesses - Hence, interference with High Court's order refusing bail uncalled for as grant of relief sought may thwart the court of justice."
21. Further, the reliance placed by learned advocate Mr. Buch on a judgment of the Hon'ble Apex Court in the case of Shashi Bhushan Jaruhar (supra) and in the case of Mehmood Mohammed Sayeed (supra) both are orders in the facts and circumstances of the case and cannot be said to have laid down any proposition or guideline.
22. Moreover, it is also required to be appreciated that in such cases, a balance has to be struck between the right of the accused and the prosecution as well as the society in general. It is for such reason the provision enabling the magistrate to exercise discretion under sec. 437(6) has been enacted and the magistrate is obliged to record reasons for not exercising the discretion, meaning thereby, if there are reasons recorded, the bail may not be granted. This would again imply that for recording the reasons the magistrate is required to consider the relevant aspects like the nature and gravity of offence, prima facie case, the manner in which it is alleged to have been committed, the role and prima facie material suggesting the involvement of the accused.
23. Further, an analogy can also be drawn with reference to the observations made by the Constitution Bench of the Hon'ble Apex Court which had considered all common cause judgments in the case of Raj Deo Sharma v. State of Bihar, AIR 1998 SC 328, with reference to Art. 21 and the right of the accused for a speedy trial. The Hon'ble Apex Court, of course, while dealing with the aspect of delay in the trial has made the observation, "Having placed on record the exposition of law as to right to speedy trial flowing from Art. 21 of the Constitution, this Court held that it was necessary to leave the rule as elastic and not to fix it in the frame of defined and rigid rules. It must be left to the judicious discretion of the court seized of an individual case to find out from the totality of circumstances of a given case if the quantum of time consumed up to a given point of time amounted to violation of Art. 21, and if so, then to terminate the particular proceedings, and if not, then to proceed ahead. The test is whether the proceedings or trial has remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and unwarranted, as suggested in A.R. Antulay. In Kartar Singh's case (supra) the Constitution Bench while recognizing the principle that the denial of an accused's right of speedy trial may result in a decision to dismiss the indictment or in reversing of a conviction, went on to state, "of course, no length of time is per se too long to pass scrutiny under this principle nor the accused is called upon to show the actual prejudice by delay of disposal of cases. On the other hand, the court has to adopt a balancing approach by taking note of the possible prejudices and disadvantage to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors
- (1) length of delay, (2) the justification for the delay, (3) the accused's assertion of his right to speedy trial, and (4) prejudice caused to the accused by such delay."
24. Therefore, it was left to the discretion without fixing the time-limit though particular guidelines have been laid down for expediting the trial. Therefore, the right of speedy trial has been considered and when the trial is not expeditiously proceeding another aspect with regard to bail like under sec. 437(6) has to be considered in the same manner, meaning thereby there cannot be a straight-jacket formula for the time-limit and it has to be left to the discretion of the court. It may also be noted that it is in this background sec. 437(6) is made for enabling the courts to exercise the discretion and at the same time refuse some but then the court is obliged to record the reasons for refusing such bail. This is a mechanism by which the rights of the accused and the rights of the society as a whole can be balanced.
25. In view of the aforesaid discussion, once it is accepted that the right of the accused under sec. 437(6) of the Code is not an absolute right and it cannot be interpreted to have any absolute right, it will have to be considered in the facts and circumstances of each case. In the facts of the present case, the courts below, particularly the learned Chief Judicial Magistrate, while deciding such application has considered the details and the role which is confirmed by the Sessions Court also and therefore it does not call for any interference by this court. It is also required to be mentioned that the present applicant accused had earlier filed Criminal Misc. Application No. 6174 of 2009 which came to be rejected vide order date 29.6.2009 by a detailed reasoned order considering the nature of offence, the role and the prima face involvement of the accused and therefore after some time when the trial has not been over, it would not be justified to exercise the discretion releasing the applicant accused on bail ignoring all these aspects only on the ground that sixty days has been over and the trial is not over. One more aspect which is required to be mentioned is, when the reference is made to the judgment of this court in the case of Riza Abdul Razak Zunzunia (supra) wherein it has been observed referring to provisions of sec. 437(6), that it is mandatory and the relevant factors are different than the relevant factors for grant of regular bail. There are no grounds or circumstances referred to in sec. 437(6) either in the statute or in the aforesaid judgment as to what could be the relevant factors which could be considered.
26. Moreover, the judgment of this court in the case of Jigar Mayurbhai Shah (supra) has specifically referred to the relevant factors like the gravity of offence, quantum of punishment, the manner in which the offence is committed. These aspects will have to be considered also in light of the judgment of the Constitution Bench of the Hon'ble Apex Court in the case of Raj Deo Sharma (supra) and referring to the aspect of delay has analysed as to what are the relevant aspects to be considered. In other words, the guidelines or the factors may not be specifically enumerated, but the aforesaid factors could be broad parameters for considering an application under sec. 437(6) of the Code.
27. Therefore, it necessarily implies that the discretion is vested with the court and it will have to be exercised depending upon the facts and circumstances of each case and, therefore, at the cost of repetition, it is stated that it cannot be interpreted that the provisions of sec. 437(6) of the Code are mandatory in nature.
In the result, the present application deserves to be rejected and accordingly stands rejected. Rule is discharged.
(hn) (Rajesh H. Shukla, J.) Top