High Court

Legal Reasoning

1 29-BA.1547-24.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD29 BAIL APPLICATION NO. 1547 OF 2024LATABAI WD/O. BHIMSING JADHAVVERSUSTHE STATE OF MAHARASHTRA...Advocate for Applicant : Mr. Bhaskar M. P.APP for Respondent/s-State : Mr. A. S. Shinde. ...CORAM : S. G. MEHARE, J.DATE :23.09.2024PER COURT :- 1.Heard the learned counsel for the applicant andlearned APP for the respondent-State.2.The applicant seeks bail in Crime No.69 of 2023,registered with Sillod City Police Station, District Aurangabad,of the offences punishable under Sections 120-B, 182, 193,419, 420, 468 read with Section 34 of the IPC.3.Learned counsel for the applicant has vehemently arguedthat the trial is not concluded within 60 days from the firstdate fixed for taking evidence. A few witnesses were examined,and thereafter, the trial was stalled for no satisfactory reasons.Since the trial was not concluded within 60 days from the firstdate fixed for taking evidence, he deserves bail under Section 2 29-BA.1547-24.odt437(6) of the Cr.P.C. He relied on the case of Chandraswamiand another Vs. Central Bureau of Investigation ; (1996) 6Supreme Court Cases 751. He also relied on the case ofSukhdev Singh Vs. State of Punjab ; 2009 Cri.L.J. 2941.Relying on these judgments, he would submit that since thetrial has been delayed for no cause at the hands of theapplicant, the applicant deserves bail. He would submit thatthe learned Trial Court rejected the bail application on theincorrect ground that two witnesses remained to be examined.The reasons for rejecting the bail of the Trial Court as well asSessions Court are against the law. The fundamental rights ofthe applicant to enjoy liberty have been affected. Theprosecution would not ensure a speedy trial. Hence, he may begranted bail. The word “shall” has been used in Section 437 ofthe Cr.P.C. So, the Court should exercise the powers to makethe justice with the accused. Therefore, he may be granted bail.4.Per contra, learned APP for the State has stronglyopposed the application. Relying on the case of U.T. WorldwideIndia Pvt. Ltd. And others Vs. State of Maharashtra andanother; 2007 All M.R. (Cri.) 300 he argued that the word“shall” used in Section 437(6) is not mandatory. The said wordhas been interpreted in this judgment. The law has been laid 3 29-BA.1547-24.odtdown that the term “shall” used in that Section is notmandatory. 5.He also relied on the case of Snehdip Shriram Soni Vs.State of Maharashtra ; 2022 All M.R.(Cri.) 2924, in which theratio laid in of U.T. Worldwide (supra) was reiterated.6.The question before the High Court at Bombay atPrincipal Seat in U.T. Worldwide (supra) was whether theaccused has a right to claim the bail under Section 437(6) ofthe Cr.P.C. in view of the term “shall” used in that Section.7.The Bombay High Court has interpreted the said Sectionand recorded the findings that the power to grant bail undervarious Sub-sections of Section 437 is discretionary and has tobe exercised on sound judicial principles. The same principlewill apply to bail under Section 437(6) of the Cr.P.C. It cannot,therefore, be said that bail must be granted to the accused ifthe trial is not concluded within 60 days from first date fixedfor evidence. Merely because the word shall is used in sectiondoes not mean that it is a mandate to do so. The word “unless”….. otherwise in Sub-Section cannot be ignored. Even if theperiod of 60 days is so over, the Court has discretion to refusethe bail under Section 437(6) but, reasons for that have to be 4 29-BA.1547-24.odtrecorded. Provision is not like that under Section 167(2) ofCr.P.C. If discretion is wrongly exercised, a remedy of appealcan be availed. Power to cancel bail can therefore, be exercisedif the order for grant of bail is palpably illegal, perverse andvitiated by total non-application of mind. Similar was the viewreiterated in the case of Snehdip (supra).8.In Chandraswami (supra), the Hon’ble Supreme Courtobserved in paragraph No.16 that we propose to examine theplea for grant of bail by looking at the totality of the facts andcircumstances of the case at this stage, without going into thequestion of interpretation or applicability of Section 437(6) ofCr.P.C. So also, we do not propose to examine if thecancellation of the bail granted to the appellants earlier inpoint of time was justified.9.So, it could be said that in the said case, no law is laiddown. However, the Hon’ble Supreme Court granted bail tothe accused, looking at the nature of the offence, the facts andcircumstances in existence.10.In Sukhdeo (supra), the Trial Court has declined the bailonly on the ground that the delay has been caused by the JailAuthorities or the prosecution. The Additional Sessions Judge 5 29-BA.1547-24.odtdeclined the prayer of the petitioner for bail on the ground thatthe application under Section 437(6) of the accused is onlymaintainable in the Court of the Magistrate and not in theSessions Court. The Court recorded the findings that the delaywas not attributed to the applicant. Hence, he is entitled torelease on bail. The purport of the findings of the Punjab andHaryana High Court was that the bail was not granted underSection 437(6) of the Code as a matter of right and delaycaused in trial was the consideration for bail.11.The learned Magistrate has passed an elaborate orderand recorded the findings, that apart from the. facts theexamination of the remaining witnesses would not take muchtime to conclude the trial. If this accused is released on bail,she definitely would not turn to the Court. Considering theallegations against her, there is always possibility to abscondwhich will hamper the trial, because since inception of thecrime, the accused was not traceable and arrested belatedly.The learned Magistrate also expressed an apprehension oftampering with the prosecution witnesses.12.Learned Additional Sessions Judge, Aurangabadconsidered the case laws relied upon by the respective partiesand recorded the findings that considering the role of the 6 29-BA.1547-24.odtapplicant/accused and the co-accused as well as theobservations of the Hon’ble High Court in the order ofwithdrawal of bail application dated 11.06.2024, the applicantis not entitled to parity. After considering the entire facts andrival submissions, thus it appears that subsequent applicationsthough maintainable, the grounds raised by theapplicant/accused in the application as well as in thesubmissions of the learned advocate for the applicant are notsufficient to allow the application. 13.Where the trial is not concluded within 60 days asprescribed under Section 437(6) of Cr.P.C. that does not give aright to bail for default. The term “shall” in the said section isdiscretionary. The Court should exercise such powersjudiciously and consider other circumstances as provided underSection 437 of the Code of Criminal Procedure.14.Both Courts have recorded the reasons for declining toexercise the powers under Section 437(6) of the Cr.P.C. Thoughthe trial has been little bit delayed, and the Trial Court wasexpecting a speedy trial, the reasons for not exercising thediscretion recorded by both Courts appears to be correct, legaland proper. The applicant has no good past. Hence,apprehension of her absconding is also justifiable. It appears 7 29-BA.1547-24.odtthat the Trial Court is trying its best to conclude the trial at theearliest. But, many times, many things are not under thecontrol of the Presiding Officer. It is a teamwork. All partiesconcerned should support the Court in concluding the trialwithin a reasonable period. The Court is satisfied that thereasons assigned for declining to exercise the discretionarypowers under Section 437(6) are legal, correct, proper andfree from perversity. 15.Therefore, the bail application stands dismissed. (S. G. MEHARE, J.)...vmk/-