Gujarat High Court
Nehul vs State on 6 May, 2011
Author: Anant S. Dave
Bench: Anant S. Dave
Gujarat High Court Case Information System
Print
CR.MA/7963/2010 13/ 13 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 7963 of 2010
with
CRIMINAL
MISC.APPLICATION No. 3456 of 2011
with
SPECIAL
CRIMINAL APPLICATION No. 2457 of 2010
WITH
CRIMINAL
REVISION APPLICATION No. 114 of 2011
======================================
NEHUL PRAKASHBHAI SHAH & 1 - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ====================================== Appearance :
Mr. N.D. Nanavaty, Senior Advocate, with Mr. Nirad Buch for Nanavaty Advocates for the applicants in Criminal Misc. Application No.7963 of 2010 Mr. M.M. Tirmizi in Criminal Misc. Application No.3456 of 2011 Mr. Pravin G. Vaghela in Special in Criminal Application No.2457 of 2010 Mr. Vijay H. Patel for HL Patel Advocates in Criminal Revision Application No.114 of 2011 Mr. A.J. Desai, APP, for the State of Gujarat ====================================== CORAM :
HONOURABLE MR.JUSTICE ANANT S. DAVE Date :06 /05/2011 COMMON CAV ORDER
1. All these applications are preferred under Section 439 of the Code of Criminal Procedure, 1973 [for short, 'the Code'] by the accused, whose cases are triable by the learned Magistrate of competent jurisdiction, who refused to exercise powers under section 437(6) of the Code, in a case where the trial of a person accused of non-bailable offences was not concluded within a period of sixty days from the first date fixed for taking evidence in the case and such accused was in custody during the whole of the said period, and, for the reasons recorded in writing and also considering the merits of the case, rejected the request of the accused to enlarge on bail.
2. In all these cases, the factual aspects about the offences registered against the accused-applicants and they are in custody during the period of trial commencing from the first date fixed for taking evidence are not in dispute and also the fact that the cases are triable by the learned Magistrate having jurisdiction to try such cases. Therefore, when the learned counsel appearing for the respective parties have raised a question of law about the nature of right of such accused as envisaged in sub-section (6) of Section 437 of the Code to be released on bail under the circumstances as mentioned in the said Section and satisfaction of the Magistrate to release such accused on bail or to direct otherwise by recording reasons in writing in exercise of such powers, at this stage, I do not refer to the facts of each of the applications preferred by the accused.
3. At the outset, the learned counsel for the parties have, basically, relied upon the following decisions of this Court and, according to them, the law laid down by the learned Single Judges about exercise of powers under sub-section (6) of Section 437 of the Code by the learned Magistrate vis-à-vis right accrued to the accused is diametrically opposed and run counter to each other and, therefore, it is submitted that the matters deserve to be referred to the Larger Bench so as to avoid any conflict with the decisions of the learned Single Judges and the law in this regard may attain finality.
[a] The first decision referred and relied upon by the learned counsel for the parties is in the case of Bhikhaji Chaturji Thakor and others vs. State of Gujarat and another, 2007(2) GLH 580, wherein the learned Single Judge observed in paragraphs 23 and 26 as under:
"23. Section 437(6) provides that 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 the 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. Sub-section (6) clearly uses the mandatory word "shall" because the scheme of the Act is that if you cannot conclude the trial at least within sixty days from the date of starting of the recording of the evidence, then, such an apathy shown by the Court or by the prosecution would pave the path of the accused to walk out of the jail. The mandate under the law is to release the accused on bail.
The rejection is an exception and for such rejection, the Court is required to record the reasons in writing. The word "shall" is to be read as "shall" and not as "may". If it is read as "may", then, there would be reason to give reasons for rejection. When the liberty of a person is involved the mandate of law cannot be diluted by reading the word "shall" as "may".
26. In addition to xx xx xx. However, Section 437(6) of the Code while on one side provides an absolute right in favour of the applicant to secure bail under Section 437(6), but, at the same time, puts a check on the said right by conferring jurisdiction upon the Magistrate to reject the applications for the reasons to be recorded in writing."
[b] Second decision referred and relied upon by the learned counsel for the parties is reported at 2008(2) GLR 1134, in the case of Jigar Mayurbhai Shah vs. State of Gujarat, wherein the learned Single Judge of this Court held that;
"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.".
[c] Third decision of the learned Single Judge is in the case of Riaz Abdul Razak Zunzunia vs. State of Gujarat; Criminal Revision Application No.229 of 2009, Oral Order dated 17.7.2009/20.7.2009, [hereinafter referred to as 'Riaz1' for the sake of brevity]. In the aforesaid judgment, the learned Single Judge has, in paragraphs 21 and 22, observed as under:
"21. 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. The application under Section 437(6) of the Code would stand rejected merely on the ground that the application for regular bail had been rejected. In the opinion of this Court, the factors which should be kept in mind while considering an application under section 437(6) would be different from the factors that are to be taken into consideration while deciding an application for regular bail."
22. Importing the grounds relevant for the purpose of granting regular bail, for the purpose of deciding an application for bail under section 437(6) of the Code would not only amount to doing violence to the statute but would defeat the very object of introducing such a provision and reduce it to a mere dead letter."
[emphasis supplied] [d] Fourth decision of the learned Single Judge is in the case of Riaz Abdul Razak Zunzunia v. State of Gujarat, reported in 2010 (2) GLR 1061, [hereinafter referred to as 'Riaz 2' for the sake of brevity] wherein, the learned Single Judge, has in paragraph 14 observed as under:
"14. In so far as the case of Riaz Abdul Razak Zunzunia (supra) is concerned, with profound respect, I am unable to fully concur with some of the observations. The same, if viewed in isolation would suggest that the circumstances and grounds which would be pressed for denying bail under sub-section (1) or (2) of section 437 could not be the grounds on which the application under sub-section (6) of section 437 could be turned down by the Magistrate."
The learned Single Judge has reproduced paragraphs 21 and 22 of the judgment in the case of Riaz-1 and held as under
"The above observations [paragrahs 21 and 22 of Riaz-1], however, must be seen in light of the entire judgment and not in isolation. While making the above observations, the learned Judge has specifically stated that grounds, such as, whether accused has at any stage during the course of investigation or as an under-trial prisoner been absconding or having regard to the facts of the case, there is likelihood of his jumping bail or there are special circumstances due to which it may be inexpedient to exercise the powers, would be some of the grounds on which bail can be refused. These observations would persuade me to believe that the learned Judge did not mean to convey that the grounds which can be used for refusing ordinary bail application could not be the grounds on which the bail application under section (6) of section 437 can be turned down."
[emphasis supplied] 4 By making reference to the above decisions of Riaz1 and Riaz2, the learned Senior Counsel have submitted that the statement of law, with regard to the circumstances, grounds and factors to be considered while exercising powers under sub-section (6) of Section 437 of the Code would be different than for considering a case of bail under sub-sections (1), (2), of Section 437 of the Code, though noticed in the case of Riaz2 by another learned Single Judge, a different view is taken by believing that the learned Single Judge in Riaz-1 did not mean that factors would be different for exercise of power under Section 437(6) than Section 437(1), (2), and so is the case about another decision in the case of Mukeshkumar Ravishankar Dave v. State of Gujarat, reported in 2010(2) G.L.H.554 wherein the judgments in the cases of Bhikhaji Chaturji Thakore, Jigar Mayurbhai Shah and Riaz-1 [supra] were considered and distinguished by holding that the provision of section 437(6) of the Code is not mandatory.
5. Thus, according to the learned Senior Counsel appearing for the parties, when a decision on a principle of law or a statement of law is in existence of Bench of co-equal strength, no other option is left with the learned Single Judge considering the similar issue in another case and it is obligatory upon the learned Single Judge to refer such case to a Bench of larger strength in case of difference of opinion or disagreement with such statement of law. In support of the above submission, the learned Senior Counsel have relied upon the following decisions:
[i] Judgment of the Apex Court in the case of Krishena Kumar vs. Union of India, 1990(4) SCC 207, about binding nature of precedent of the decision of the earlier Bench on the subject upon a Bench of equal strength.
[ii]Judgment of the Full Bench consisting of five Judges of Madhya Pradesh High Court in the case of Jabalpur Bus Operators Association and others vs. State of M.P. And another, AIR 2003 Madhya Pradesh 81;
[iii]Judgment of Constitution Bench of the Apex Court in the case of Central Board of Dawoodi Bohra Community and another vs. State of Maharashra and another, AIR 2005 Supreme Court 752;
[iv]Judgment of Apex Court in the case of Official Liquidator vs. Dayanand and others, (2008)10 SCC 1;
[v] Judgment of the Apex Court in the case of Safiya Be vs. Mohd. Vajahath Hussain alias Fasi, AIR 2011 Supreme Court 421;
and it was emphasized that the statement of law by a Bench is binding on the Bench of same or lesser number of Judges and in case of doubt or disagreement about decision of earlier Bench, the well accepted and desirable practice is that the latter Bench would refer the case to a Larger Bench but the latter Bench cannot overrule the statement of law by a co-ordinate Bench of co-equal strength.
6. Reliance is placed on the following decisions of various High Courts on the issue of interpreting Section 437(6) of the Code having persuasive value.
[i] Judgment of High Court of Chhattisgarh in the case of Haricharan Ramteke vs. State of Chhattisgarh, reported in 2002 Cr.LR 46, upholding mandatory nature of sub-section (6) of Section 437;
[ii]Judgment of High Court of Kerala in Re:122 Prisoners V/s. reported in 2007 Cr.LJ 3241 -provision of Section 437(6) was held to be mandatory in nature;
[iii]Judgment of High Court of Jharkhand, in the case of Didar Singh vs. State of Jharkhand, reported in 2006 Cr.LJ 1594 wherein the learned Single Judge has considered the provisions of Section 437(6) of the Code in juxtaposition and held that the provision of Section 437(6) of the Code is not mandatory in nature;
[iv]Judgment of High Court of Madhya Pradesh, in the case of Arjun Sahu vs. State of Madhya Pradesh, reported in 2008 Cr.LJ 2771, wherein after considering various case-laws on the subject, including the decision in the case of Didar Singh [supra], the learned Single Judge accepted the discretion of the Magistrate to give reasons in support of his satisfaction of granting or refusing bail;
[v]Judgment of High Court of Chhattisgarh, in the case of Ajay Haldar vs. State of Chhattisgarh, reported in 2009 LawSuit (Chh) 221,upholding the provision of Section 437(6) as mandatory and normally the accused should be released on bail in suitable cases and upholding the power of the Magistrate to dismiss the application after recording the reasons.
7. In view of the above decisions and the law laid down therein, Section 437(6) of the Code, which reads as follows;
"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."
needs to be considered and interpreted by the Larger Bench.
8. The following definite statements of law emerge from the decisions relied upon by the learned counsel for the parties :
[1] In case of Bhikhaji Chaturji Thakor [supra] in para 23 in no uncertain terms subsection (6) section 437 which uses mandatory word `shall' because of the scheme of the Act was held to be the legislative mandate under the law to release the accused on bail. It was further held that the mandate of law therein cannot be diluted by reading the word `shall' as `may' and in para 26 learned Single Judge concluded that the above provision provides an absolute right in favour of the applicant to secure bail under section 437(6) but puts a check on the said right by conferring jurisdiction upon the Magistrate to decide otherwise by recording reasons.
[2] In the decision of Jigar Mayurbhai Shah [supra] learned Judge held that it was not mandatory or obligatory on the part of the Magistrate to enlarge the accused on bail and there is no such mathematical consequences arise and further that factors and grounds to be considered by granting regular bail to the accused.[3]
In Riaz-1 the learned Judge concluded that in the opinion of the court, the factors which should be kept in mind while considering an application under section 437(6) would be different from the factors that are to be taken into consideration while deciding application for regular bail. In para 22, it was further held that importing the grounds relevant for the purpose of granting regular bail for the purpose of deciding an application for bail under section 437(6) of the Code would not only amount to doing violence to the statue but would defeat the very object of introducing such a provision and reduce it to a mere dead letter.
[4] The above decision and definite statements of law on Section 437(6) of Riaz-I though noticed by learned Single Judge in Riaz-2, the learned Judge prima facie was not able to fully concur with the above findings treating to be observations, distinguished the said judgment and held that the learned Judge in Riaz-1 did not mean to convey that the grounds which may be used for refusing ordinary bail could not be grounds on which the bail application under Section 437(6) can be turned down.
[5] Finally, in case of Mukeshkumar [supra] the learned Judge noticed earlier decisions of Bhikhaji Chaturji Thakor [supra], Jigar Shah [supra] Riaz-1 [supra] and, considering the provisions of the Code and decision of the Apex Court and Articles 21 of the Constitution of India, held that provision of section 437(6) of the Code is not mandatory.
9. The above conflicting views, according to this Court, do not resolve the dispute as rightly submitted by learned counsel for the parties and therefore I am in agreement with the submission of the learned counsel for the parties that there appears to be conflicting views of the learned Single Judges of this Court in the cases of Bhikhaji Chaturji Thakor, Jigar Mayurbhai Shah, Riaz-1, Riaz-2, and Mukeshkumar Ravishankar Dave [supra] and in view of the decisions of the various High Courts, about right of the accused, nature of the provision whether mandatory or directory, grounds to be urged by the accused persons, factors and parameters to be considered by the learned Magistrate while considering such application for bail, coupled with other decisions relied upon by the learned Senior Counsel for the parties about binding nature of precedent and, therefore, I am inclined to refer these matters to a Larger Bench to answer the following questions;
[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 provision 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 vis-à-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.
10. The Office is directed to place these matters forthwith before Honourable the Chief Justice for appropriate orders as the subject of these applications has direct nexus with the freedom and liberty of the applicants.
(ANANT S. DAVE, J.) (swamy) Top