ORDER
R.S. Garg, J.
1. Heard. Case-diary perused.
2. M.Cr.C. No. 1226 of 2001 so also M.Cr.C. No. 2187 of 2001 have been filed under Section 482 Cr.P.C. mainly on the ground that from the first date of recording the evidence of the prosecution more than 60 days have passed but till date the trial is not completed and is the accused had remained in jail for that entire period of 60 days and more they deserve to be released on bail.
3. Learned counsel for the applicants placing their strong reliance on the language of Section 437(6) Cr.P.C. submit that an accused is entitled to be released on bail unless the Court records reasons in writing that he is not entitled to be released on bail. They submit that the prosecution agency could not keep their witnesses in attendance and the Court taking a very platonic and in human approach in the matter is adjourning the case unnecessarily. They submit that the applicants are in jail for almost more than one year, therefore, at this stage they deserve to be released.
4. Learned counsel for the State has opposed the application.
5. I have heard the parties. I have also gone through the orders passed by the Courts below.
Section 437(6) of the Code of Criminal Procedure reads as under :-
(6) If, in any 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. A perusal of Sub-section (6) of Section 437 would make it clear that it is mandatory in nature but gives a small discretion to the Court that for the special reasons to be recorded in writing the Court before whom the application for release is made may reject the application. The Courts below have simply observed that the Courts are loaded with work and as the summons have been issued time and again and the witnesses present in the Court could not be examined because of the non-availability of the report of the expert, therefore, the applicants are not entitled to be released on bail.
7. In the opinion of this Court these grounds are not germane for rejecting the application. If a Court is loaded with the work then too it has to discharge its judicial functions. A Judge cannot sit and say that because he is loaded with the work or he is being crushed under the pressure of the work he would not work. People repose their confidence in the judiciary, judges and the judicial system. No Judge howsoever low or high he is cannot say that because of the pressure of the work he is unable to dispose of the matters and therefore he would cause further prejudice to an accused by rejecting his application. Section 437(6) in fact, is an enabling provision which confers powers upon the Court and cloths the accused with the right to apply and obtain bail. Such applications cannot be rejected mechanically but the Court must record a reason that for a particular reason the accused is not entitled to be released.
8. In cases where the offences are triable by the Court of Sessions when the trials are not concluded then on the ground of delay the Court of Sessions so also the High Court direct release of the accused persons on bail. That is a discretion given to the Sessions Court and the High Court, but when the Magistrate is conferred specific powers under Section 437(6) Cr.P.C. he cannot reject the application for some lapses either on the part of the prosecution or the police agency or reasons which can be assigned to the lapses of the Court. The two Courts, in the opinion of this Court, were absolutely perverse in their approach and failed in appreciating that an accused cannot be kept in jail indefinitely. After all liberty of a person is not only to be respected by the people who are working on the roads but is also to be respected by the people who are discharging their functions as the Judges of the Courts. Both the petitions are allowed.
9. It is, therefore, directed that the applicants be released on bail on their furnishing personal bonds in sum of Rs. 10,000/- with one surety each in the like amount to the satisfaction of he trial Court for their appearance before the trial Court.
10. Certified copy today.