{"id":195477,"date":"2011-05-06T00:00:00","date_gmt":"2011-05-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nehul-vs-state-on-6-may-2011"},"modified":"2018-07-19T10:43:13","modified_gmt":"2018-07-19T05:13:13","slug":"nehul-vs-state-on-6-may-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nehul-vs-state-on-6-may-2011","title":{"rendered":"Nehul vs State on 6 May, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Nehul vs State on 6 May, 2011<\/div>\n
Author: Anant S. Dave,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.MA\/7963\/2010\t 13\/ 13\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\nCRIMINAL\nMISC.APPLICATION No. 7963 of 2010\n \n\nwith\n \n\nCRIMINAL\nMISC.APPLICATION No. 3456 of 2011\n \n\nwith\n \n\nSPECIAL\nCRIMINAL APPLICATION No. 2457 of 2010\n \n\nWITH\n \n\nCRIMINAL\nREVISION APPLICATION No. 114 of 2011\n \n\n======================================\n<\/pre>\n
NEHUL
\nPRAKASHBHAI SHAH & 1 – Applicant(s)<\/p>\n
Versus<\/p>\n
STATE
\nOF GUJARAT – Respondent(s)<\/p>\n
======================================<\/p>\n
Appearance :\n<\/p>\n
Mr.\n<\/p>\n
N.D. Nanavaty, Senior Advocate, with Mr. Nirad Buch for Nanavaty
\nAdvocates for the applicants in Criminal Misc. Application No.7963 of
\n2010<\/span><\/p>\n
Mr.\n<\/p>\n
M.M. Tirmizi in Criminal Misc. Application No.3456 of 2011<\/p>\n
Mr.\n<\/p>\n
Pravin G. Vaghela in Special in Criminal  Application No.2457 of 2010<\/p>\n
Mr.\n<\/p>\n
Vijay H. Patel for HL Patel Advocates in Criminal Revision
\nApplication No.114 of 2011<\/p>\n
Mr.\n<\/p>\n
A.J. Desai, APP, for the State of
\nGujarat
\n======================================<\/p>\n
CORAM
\n\t\t\t:\n<\/p>\n
HONOURABLE
\n\t\t\tMR.JUSTICE ANANT S. DAVE<\/p>\n
Date
\n:06 \/05\/2011 <\/p>\n
COMMON
\nCAV ORDER <\/p>\n
1.\tAll
\nthese applications are preferred under Section 439 of the Code of
\nCriminal Procedure, 1973 [for short, ‘the Code’] by the
\naccused, whose cases are triable by the learned Magistrate of
\ncompetent jurisdiction, who refused to exercise powers under section
\n437(6) of the Code, in a case where the trial of a person accused of
\nnon-bailable offences was not concluded within a period of sixty days
\nfrom the first date fixed for taking evidence in the case and such
\naccused was in custody during the whole of the said period, and, for
\nthe reasons recorded in writing and also considering the merits of
\nthe case, rejected the request of the accused to enlarge on bail.\n<\/p>\n
2.\tIn
\nall these cases, the factual aspects about the offences registered
\nagainst the accused-applicants and they are in custody during the
\nperiod of trial commencing from the first date fixed for taking
\nevidence are not in dispute and also the fact  that the cases are
\ntriable by the learned Magistrate having jurisdiction to try such
\ncases. Therefore, when the learned counsel appearing for the
\nrespective parties have raised a question of law about the nature of
\nright of such accused as envisaged in sub-section (6) of Section 437
\nof the Code to be released on bail under the circumstances as
\nmentioned in the said Section and satisfaction of the Magistrate to
\nrelease such accused on bail or to direct otherwise by recording
\nreasons in writing in exercise of such powers, at this stage, I do
\nnot refer to the facts of each of the applications preferred by the
\naccused.\n<\/p>\n
3.\tAt
\nthe outset, the learned counsel for the parties have, basically,
\nrelied upon the following decisions of this Court and, according to
\nthem, the law laid down by the learned Single Judges about exercise
\nof powers under sub-section (6) of Section 437 of the Code by the
\nlearned Magistrate vis-\u00e0-vis right accrued to the accused is
\ndiametrically opposed and run counter to each other and, therefore,
\nit is submitted that the matters deserve to be referred to the Larger
\nBench so as to avoid any conflict with the decisions of the learned
\nSingle Judges  and the law in this regard may attain finality.\n<\/p>\n
[a]
\nThe first decision referred and relied upon by the learned counsel
\nfor the parties is in the case of  Bhikhaji Chaturji Thakor and
\nothers vs.  State of Gujarat and<\/a> another,
\n 2007(2) GLH 580, wherein the learned Single Judge
\nobserved in paragraphs 23 and 26 as under:\n<\/p>\n
\t“23.\t\tSection
\n437(6) provides that if, in any case triable by a Magistrate, the
\ntrial of a person accused of any non-bailable offence is not
\nconcluded, within a period of sixty days  from the first date fixed
\nfor taking the evidence in the case, such  person shall, if he is in
\ncustody during the whole of the said period, be released on bail to
\nthe satisfaction of the magistrate, unless for reasons to be recorded
\nin writing, the Magistrate otherwise directs.  Sub-section
\n(6) clearly uses the mandatory word “shall” because the
\nscheme of the Act is that if you cannot conclude the trial at least
\nwithin sixty days from the date of starting of the recording of the
\nevidence, then, such an apathy shown by the Court or by the
\nprosecution would pave the path of the accused to walk out of the
\njail. The mandate under the law is to release the accused on bail.
\nThe rejection is an exception and for such rejection, the Court is
\nrequired to record the reasons in writing. The word “shall”
\nis to be read as “shall” and not as “may”. If
\nit is read as “may”, then, there would be reason to give
\nreasons for rejection. When the liberty of a person is involved the
\nmandate of law cannot be diluted by reading the word “shall”
\nas “may”.\n<\/p>\n
\t26.\tIn
\naddition to xx xx xx. However, Section 437(6) of the Code while on
\none side provides  an absolute right in favour of the applicant
\nto secure bail under Section 437(6), but, at the same time, puts a
\ncheck on the said right by conferring jurisdiction upon the
\nMagistrate to reject the applications for the reasons to be recorded
\nin writing.”\n<\/p>\n
[b]\tSecond
\ndecision referred and relied upon by the learned counsel for the
\nparties is reported at  2008(2) GLR 1134, in the case of
\n Jigar Mayurbhai Shah vs.  State of Gujarat,<\/a>
\nwherein the learned Single Judge of this Court held that;\n<\/p>\n
\t“Thus,
\n it is not mandatory or obligatory on the part of the Magistrate
\nthat once period of sixty days from the first date fixed for taking
\nevidence is over, the applicant must be enlarged on bail.  There
\nis no such mathematical consequence. All that depends upon
\nthe facts and circumstances of the case, gravity of the offence,
\nquantum of punishment and the manner in which the present applicant
\nis involved in the offence as alleged by the prosecution. Looking
\nto these circumstances, if the trial court is satisfied that the
\napplicant is not to be enlarged on bail, despite period of sixty days
\nis over from the first date of fixing for taking evidence, the
\napplicant cannot be enlarged on bail.”.\n<\/p>\n
[c]\tThird
\ndecision of the learned Single Judge is in the case of  Riaz
\nAbdul Razak Zunzunia vs.  State of Gujarat;
\nCriminal Revision Application No.229 of 2009, Oral Order dated
\n17.7.2009\/20.7.2009, [hereinafter referred to as ‘Riaz1’
\nfor the sake of brevity]. In the aforesaid judgment, the learned
\nSingle Judge has, in paragraphs 21 and 22, observed as under:\n<\/p>\n
“21.\tOn
\na plain reading of the provision as well as considering the object
\nbehind enacting the said provision if the contention advanced on
\nbehalf of the Bank viz. the prima facie case, gravity of offence,
\ninvolvement of the accused, etc. are the factors which are to be
\ntaken into consideration while deciding the application under
\nSection 437(6) of the Code, were to be accepted, the same would
\nrender the said provision nugatory, inasmuch as if the same
\nreasons for which the application for regular bail is refused,
\nare to be considered while deciding the application under Section
\n437(6) of the Code, there would be no necessity for making such a
\nprovision. The application under Section 437(6) of the Code would
\nstand rejected merely on the ground that the application for regular
\nbail had been rejected. In the opinion of this Court, the
\nfactors which should be kept in mind while considering an application
\nunder section 437(6) would be different from the factors that are to
\nbe taken into consideration while deciding an application for regular
\nbail.”\n<\/p>\n
22.\tImporting
\nthe grounds relevant for the purpose of granting regular bail, for
\nthe purpose of deciding an application for bail under section 437(6)
\nof the Code would not only amount to doing
\nviolence to the statute but would defeat the very object of
\nintroducing such a provision and reduce it to a mere dead letter.”\n<\/p>\n
[emphasis
\nsupplied]<\/p>\n
[d]\tFourth
\ndecision of the learned Single Judge is in the case of  Riaz
\nAbdul Razak Zunzunia v.  State of Gujarat,
\nreported in  2010 (2) GLR 1061, [hereinafter referred to
\nas ‘Riaz 2’ for the sake of brevity] wherein, the learned
\nSingle Judge, has in paragraph 14 observed as under:\n<\/p>\n
“14.\t\tIn
\nso far as the case of Riaz Abdul \tRazak Zunzunia (supra) is
\nconcerned, with profound respect,  I am unable to fully concur
\nwith some of the observations.  The same, if viewed in
\nisolation would suggest  that the circumstances and  grounds which
\nwould be pressed for denying bail under sub-section (1) or (2) of
\nsection 437 could not be the grounds  on which the application  under
\nsub-section (6) of section 437 could be  turned down by the
\nMagistrate.”\n<\/p>\n
\tThe
\nlearned Single Judge has reproduced paragraphs 21 and 22 of the
\njudgment in the case of  Riaz-1 and held as under<\/p>\n
“The
\nabove observations [paragrahs 21 and 22 of Riaz-1], however, must be
\nseen in light of the entire judgment and not in isolation.  While
\nmaking the above observations, the learned Judge has specifically
\nstated that grounds, such as, whether accused has at any stage during
\nthe course of investigation  or as an under-trial prisoner been
\nabsconding or having  regard to the facts of the case, there is
\nlikelihood of his jumping bail or there are special circumstances due
\nto which it may be inexpedient to exercise  the powers, would be some
\nof the grounds on which bail can be refused.  These
\nobservations would persuade me to believe  that the learned Judge did
\nnot mean to convey that the grounds which can be used for refusing
\nordinary bail application could not be the grounds on which the bail
\napplication under section (6) of section 437 can be turned down.”\n<\/p>\n
[emphasis
\nsupplied]<\/p>\n
4\tBy
\nmaking reference to the above decisions of Riaz1 and Riaz2, the
\nlearned Senior Counsel have submitted that the statement of law, with
\nregard to the circumstances, grounds and factors to be considered
\nwhile exercising powers under sub-section (6) of Section 437 of the
\nCode would be different than for considering a case of bail under
\nsub-sections (1), (2), of Section 437 of the Code, though noticed in
\nthe case of Riaz2 by another learned Single Judge,  a different view
\nis taken by believing that the learned Single Judge in Riaz-1 did not
\nmean that factors would be different for exercise of power under
\nSection 437(6) than Section 437(1), (2),  and so is the case about
\nanother decision in the case of   Mukeshkumar Ravishankar Dave
\nv. State of Gujarat,<\/a> reported in  2010(2) G.L.H.554
\nwherein the judgments in the cases of Bhikhaji Chaturji Thakore,
\nJigar Mayurbhai Shah and Riaz-1 [supra] were considered and
\ndistinguished  by holding that the provision of section 437(6)
\nof the Code  is not mandatory.\n<\/p>\n
5.\tThus,
\naccording to the learned Senior Counsel appearing for the parties,
\nwhen a decision on a principle  of law or a statement of law is in
\nexistence of Bench of co-equal strength, no other option is left with
\nthe learned Single Judge considering the similar issue in another
\ncase and it is obligatory upon the learned Single Judge to refer such
\ncase to a Bench of larger strength in case of difference of opinion
\nor disagreement with such statement of law. In support of the above
\nsubmission, the learned Senior Counsel have relied upon the following
\ndecisions:\n<\/p>\n
[i]\tJudgment
\nof the Apex Court in the case of Krishena Kumar vs. Union of India,
\n1990(4) SCC 207, about binding nature of precedent of the decision of
\nthe earlier Bench on the subject upon a Bench of equal strength.\n<\/p>\n
[ii]Judgment
\nof the Full Bench consisting of five Judges of Madhya Pradesh High
\nCourt in the case of Jabalpur Bus Operators Association and others
\nvs. State of M.P. And another, AIR 2003 Madhya Pradesh 81;\n<\/p>\n
[iii]Judgment
\nof Constitution Bench of the Apex Court in the case of Central Board
\nof Dawoodi Bohra Community and another vs. State of Maharashra and
\nanother, AIR 2005 Supreme Court 752;\n<\/p>\n
[iv]Judgment
\nof Apex Court in the case of Official Liquidator vs. Dayanand and
\nothers, (2008)10 SCC 1;\n<\/p>\n
[v]
\nJudgment of the Apex Court in the case of Safiya Be vs. Mohd.
\nVajahath Hussain<\/a> alias Fasi, AIR 2011 Supreme Court 421;\n<\/p>\n
and
\nit was emphasized that the statement of law by a Bench is binding on
\nthe Bench of same or lesser number of Judges and in case of doubt or
\ndisagreement about decision of earlier Bench, the well accepted and
\ndesirable practice is that the latter Bench would refer the case to a
\nLarger Bench but the latter Bench cannot overrule the statement of
\nlaw by a co-ordinate Bench of co-equal strength.\n<\/p>\n
6.\tReliance
\nis placed on the following decisions of various High Courts on the
\nissue of interpreting Section 437(6) of the Code having persuasive
\nvalue.\n<\/p>\n
[i]\tJudgment
\nof High Court of Chhattisgarh in the case of Haricharan Ramteke vs.
\nState of Chhattisgarh, reported in 2002 Cr.LR 46, upholding mandatory
\nnature of sub-section (6) of Section 437;\n<\/p>\n
[ii]Judgment
\nof High Court of Kerala in Re:122 Prisoners V\/s. reported in 2007
\nCr.LJ 3241 -provision of Section 437(6) was held to be mandatory in
\nnature;\n<\/p>\n
[iii]Judgment
\nof High Court of Jharkhand, in the case of Didar Singh vs. State of
\nJharkhand, reported in 2006 Cr.LJ 1594 wherein the learned Single
\nJudge has considered the provisions of Section 437(6) of the Code in
\njuxtaposition and held that the provision of Section 437(6) of the
\nCode is not mandatory in nature;\n<\/p>\n
[iv]Judgment
\nof High Court of Madhya Pradesh, in the case of Arjun Sahu vs. State
\nof Madhya Pradesh, reported in 2008 Cr.LJ 2771, wherein after
\nconsidering various case-laws on the subject, including the decision
\nin the case of Didar Singh [supra], the learned Single Judge accepted
\nthe discretion of the Magistrate to give reasons in support of his
\nsatisfaction of granting or refusing bail;\n<\/p>\n
[v]Judgment
\nof High Court of Chhattisgarh, in the case of Ajay Haldar vs. State
\nof  Chhattisgarh, reported in 2009 LawSuit (Chh) 221,upholding the
\nprovision of Section 437(6) as mandatory and normally the accused
\nshould be released on bail in suitable cases and upholding the power
\nof the Magistrate to dismiss the application after recording the
\nreasons.\n<\/p>\n
7.\tIn
\nview of the above decisions and the law laid down therein,  Section
\n437(6) of the Code, which reads as follows;\n<\/p>\n
\t“if,
\nin any case triable by a Magistrate the trial of a person accused of
\nany non-bailable offence is not concluded within a period of sixty
\ndays from the first date fixed for taking evidence in the case, such
\nperson  shall, if he is in custody during the whole of the said
\nperiod, be released on bail to
\nthe satisfaction of the Magistrate, unless for reasons to be recorded
\nin writing, the Magistrate otherwise directs.”\n<\/p>\n
\tneeds
\nto be considered and interpreted by the Larger Bench.\n<\/p>\n
8.\tThe
\nfollowing definite statements of law emerge from the decisions relied
\nupon by the learned counsel for the parties :\n<\/p>\n
[1]\tIn
\ncase of Bhikhaji Chaturji Thakor [supra] in para 23 in no uncertain
\nterms subsection (6) section 437 which uses mandatory word  `shall’
\nbecause of the scheme of the Act was held to be the legislative
\nmandate under the law  to release the accused on bail.  It was
\nfurther held that the mandate of law therein cannot be diluted by
\nreading the word `shall’ as `may’ and in para 26 learned Single Judge
\nconcluded that the above provision provides an absolute right in
\nfavour of the applicant to secure bail under section 437(6) but puts
\na check on the said right by conferring jurisdiction upon the
\nMagistrate to decide otherwise by recording reasons.\n<\/p>\n
[2]\tIn
\nthe decision of Jigar Mayurbhai Shah [supra] learned Judge held that
\nit was not mandatory or obligatory on the part of the Magistrate to
\nenlarge the accused on bail and there is no such mathematical
\nconsequences arise and further that factors and grounds to be
\nconsidered by granting regular bail to the accused.\n<\/p>\n
[3]
\n\tIn Riaz-1 the learned Judge concluded that in the opinion of the
\ncourt, the factors which should be kept in mind while considering an
\napplication under section 437(6) would be different from the factors
\nthat are to be taken into consideration while deciding application
\nfor regular bail. In para 22, it was further held that importing the
\ngrounds relevant for the purpose of granting regular bail for the
\npurpose of deciding an application for bail under section 437(6) of
\nthe Code would not only amount to doing violence to the statue but
\nwould defeat the very object of introducing such a provision and
\nreduce it to a mere dead letter.\n<\/p>\n
[4]\tThe
\nabove decision and definite statements of law on Section 437(6) of
\nRiaz-I though noticed by learned Single Judge in Riaz-2,  the learned
\nJudge prima facie was not able to fully concur with the above
\nfindings treating to be observations, distinguished the said judgment
\nand held that the learned Judge in Riaz-1 did not mean to convey that
\nthe grounds which may be used for refusing ordinary bail could not be
\ngrounds on which the bail application under Section 437(6) can be
\nturned down.\n<\/p>\n
[5]\tFinally,
\nin case of Mukeshkumar [supra] the learned Judge noticed earlier
\ndecisions of Bhikhaji Chaturji Thakor [supra], Jigar Shah [supra]
\nRiaz-1 [supra] and, considering the provisions of the Code and
\ndecision of the Apex Court and Articles 21 of the Constitution of
\nIndia, held that provision of section 437(6) of the Code is not
\nmandatory.\n<\/p>\n
\t9.\tThe
\nabove conflicting views, according to this Court, do not resolve the
\ndispute as rightly submitted by learned counsel for the parties and
\ntherefore I am in agreement with the submission of the learned
\ncounsel for the parties that there appears to be conflicting views of
\nthe learned Single Judges of this Court in the cases of Bhikhaji
\nChaturji Thakor, Jigar Mayurbhai Shah, Riaz-1, Riaz-2, and
\nMukeshkumar Ravishankar Dave [supra] and in view of the decisions of
\nthe various High Courts, about right of the accused, nature of the
\nprovision whether mandatory or directory, grounds to be urged by the
\naccused persons, factors and parameters to be considered by the
\nlearned Magistrate while considering such application for bail,
\ncoupled with other decisions relied upon by the learned Senior
\nCounsel for the parties about binding nature of precedent and,
\ntherefore, I am inclined to refer these matters to a Larger Bench to
\nanswer the following questions;\n<\/p>\n
[i]\tWhether
\nin a case triable by the learned Magistrate  particularly of a person
\naccused of any non-bailable offence not concluded within a period of
\n60 days from the first date fixed for taking evidence in the case and
\nsuch person is in custody during the whole of the said period, such
\nperson gets an absolute indefeasible right to be released on bail to
\nthe satisfaction of the learned Magistrate unless for the reasons to
\nbe recorded in writing by the learned Magistrate to direct otherwise?\n<\/p>\n
[ii]Whether
\nthe provision of Section 437(6) of the Code is mandatory or not ?\n<\/p>\n
[iii]Whether
\nthe learned Magistrate has an option to refuse bail upon his
\nsatisfaction by recording reasons in writing and, in such an
\neventuality, what could be the parameters, factors, grounds and
\ncircumstances to be considered by the learned Magistrate vis-\u00e0-vis
\nthe application preferred by the accused claiming absolute right in
\nsuch circumstances as mentioned in sub-section (6) of Section 437 of
\nthe Code ?\n<\/p>\n
[iv]Whether
\nthe above factors, parameters, circumstances and grounds for seeking
\nbail by the accused as well as the ground to be considered by the
\nlearned Magistrate for his satisfaction are to be similar to that of
\nsub-section (1), (2) of Section 437 of the Code  or other than that
\nor no straight jacket formula can be laid ?\n<\/p>\n
[v]Whether
\nthe parameters contained in  Section 167(2)(a)(i)(ii) of
\nthe Code [default bail] found in  Chapter XII pertaining
\nto  ‘information to the police and their powers to investigate’
\ncan be imported for exercising powers for seeking bail under Section
\n437(6) found in  Chapter XXXIII pertaining to the
\nprovisions as to  ‘bail and bonds’ ?\n<\/p>\n
[vi]Whether
\na decision in principle on which it is decided is binding to the
\nco-ordinate bench of equal strength when such decision of the earlier
\nbench is a principle of law laid down and\/or a ‘statement of law’ in
\nthe context of the subject matter ?\n<\/p>\n
[vii]When
\nthe accused has a fundamental right under Article 21 of the
\nConstitution of India for a speedy trial, can it be pressed into
\nservice vis-a-vis right of the accused accruing under Section 437(6)
\nof the Code.\n<\/p>\n
10.\tThe
\nOffice is directed to place these matters forthwith before Honourable
\nthe Chief Justice for appropriate orders as the subject of these
\napplications has direct nexus with the freedom and liberty of the
\napplicants.\n<\/p>\n
(ANANT
\nS. DAVE, J.)<\/p>\n
(swamy)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Nehul vs State on 6 May, 2011 Author: Anant S. Dave,&Nbsp; 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-195477","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nNehul vs State on 6 May, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nehul-vs-state-on-6-may-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nehul vs State on 6 May, 2011 - 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