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Synopsis

The Supreme Court recently said that provisions of Section 437(6) of the Criminal Procedure Code 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.   

A bench of Justices J B Pardiwala and R Mahadevan, however, said that bail applications filed 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.

Court highlighted some of the factors to be considered in such applications, viz where there is no chance of tampering of evidence; 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," the bench said.

Differently put, the bench said, 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.

Court was dealing with a submission by the counsel appearing for the petitioner who relied upon Section 437(6) of the Code of Criminal Procedure, 1973 which reads, "When bail may be taken in case of non-bailable offence -- 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.”

The court, however, noted that sub-section (2) of Section 437 of the Code can be divided into two parts. The first part would indicate that it is mandatory, but in the next breath, the court noted that the legislature has given discretion to the Magistrate not to grant bail by assigning reasons. In that situation, although the first part can momentarily be said to be mandatory, it cannot 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, court held.

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 bench said. 

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, the bench said.

The court pointed out that the 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 recognise the right of an accused for a speedy trial with a view to protect individual liberty," the bench said. 

At the same time, it noted, 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," the bench said.  

Appellant Subhelal alias Sushil Sahu was aggrieved with the Chhattisgarh High Court's order of July 22, 2024, denying him bail in a case registered at Police Station Dindayal Upadhyay Nagar, District Raipur, Chhattisgarh for the offence punishable under Sections 420, 201, 120-B read with Section 34 of the Indian Penal Code.

The offence pertained to cryptocurrency. The amount involved was approximately Rs 4 Crore.  

"Undoubtedly, it is an economic offence. We do not undermine the seriousness of the alleged crime. Unfortunately, almost 2000 investors have lost their money in the scheme floated by the appellant herein along with other co-accused. Charge-sheet has been filed against five individuals, including the appellant herein. The trial is going on in the Court of Chief Judicial Magistrate, Raipur, the bench noted.

Till date, one witness has been examined and the first informant has entered the box and the recording of his oral evidence is going on, court pointed out.

"The problem is that the prosecution intends to examine 189 witnesses. Again, a big question: who are these 189 witnesses and why does the public prosecutor intend to examine so many witnesses?" the bench asked.

Be that as it may, the court noted the appellant had been in custody since December 2023. Even if 50 witnesses are examined before the oral evidence is closed, it will take a long time, court said.

"We take notice of the fact that since the trial is being conducted by the Chief Judicial Magistrate,the maximum punishment he can impose if the offence is established would be 7 years, the bench said.

The bench felt convinced that the appellant deserved to be released on bail, subject him depositing Rs 35 lakh, attributed to him, within a period of six months.

"We are conscious of the fact that we have been condemning the High Courts when they impose such conditions. But here is a case wherein we are compelled to impose such conditions having regard tothe peculiar facts of this case," the bench said.

The court clarified that if the amount is not deposited by the appellant, this bail would stand automatically cancelled.

Case Title: Subhelal @ Sushil Sahu Vs The State of Chhattisgarh