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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)
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