Banwari Lal Kushwah v. State of Rajasthan)

Judgment

1. All these third bail applications have been filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 on behalf of

accused-petitioners in connection with FIR No.13/2024 registered at Special Police Station (SOG), Jaipur District ATS & SOG for offences under Sections 420, 467, 468, 471 & 120-B IPC and Section 66 of the Information Technology (Amended) Act, 2008, hence, the same are being decided by this common order.

2. Learned counsels appearing for the petitioners submit that the accused-petitioners are in custody for last about one year. Counsels also submit that charge against the accused-petitioners have been framed on 24.09.2024 for offences punishable under Sections 419, 420, 467, 468, 471 & 120-B IPC and Section 66D of the Information Technology Act which are triable by the Court of First Class Magistrate and the first date fixed for recording evidence was on 07.01.2024. Counsels further submit that trial against the present accused-petitioners has not been concluded within the period of 60 days from the first date fixed for recording evidence and therefore, the accused-petitioners are entitled to be released on bail in view of Section 480(6) of the BNSS, 2023. Counsels also submit that there is no credible evidence collected by the Investigating Agency so as to connect the accused- petitioners with the alleged offence. There are bleak chances of conviction of the accused-petitioners and looking to the number of witnesses, conclusion of the trial will take considerable time. [2025:RJ-JP:19905] (3 of 15) [CRLMB-2853/2025]

3. Counsels also submit that the Court in a similar matter has granted the benefit of bail to an accused under the provisions of Section 437(6) Cr.P.C. (similar to Section 480(6) of the BNSS, 2023) vide order dated 04.11.2024 in S.B. Criminal Misc. Bail Application No.12083/2024 (Banwari Lal Kushwah Vs. State of Rajasthan).

4. Learned Public Prosecutor-Mr. Amit Punia vehemently opposed the bail applications and submits that the provisions of Section 480(6) of the BNSS, 2023 which are similar to Section 437(6) Cr.P.C. does not command the Magistrate to mandatorily enlarge an accused on bail but the Magistrate concerned can also dismiss the bail application after recording the reasons for the same.

5. Learned Public Prosecutor has also relied upon an order of the Hon’ble Apex Court passed in the case of Subhelal @ Sushil Sahu Vs. The State of Chhattisgarh (Criminal Appeal No.818/2025) decided on 18.02.2025.

6. Learned Public Prosecutor further submits that though the charges were framed against the present accused-petitioners on

24.09.2024 and the first date fixed for recording evidence was

07.01.2024. However, on the said date, a supplementary charge- sheet was filed against some other accused and hence, the evidence could not be recorded though, the two prosecution witnesses were present before learned trial Court. He further submits that during investigation conduct of certain other near about 50 persons were under cloud and the investigation is still pending as regards those persons. He further submits that the [2025:RJ-JP:19905] (4 of 15) [CRLMB-2853/2025] accused-petitioners in collusion with other co-accused persons have prepared and distributed huge number of documents regarding educational qualifications and sports certificates, on the basis of which many of them were recruited and got Government employment but later-on after scrutiny of their documents 154 persons have already been dismissed from service. The proceedings of dismissal from service of 34 more candidates who opted job on the basis of forged documents issued by the petitioners is under process and also the documents of certain more candidates who have been recruited under Government employment in the last few years are under scrutiny.

7. Learned Public Prosecutor further submits that since the investigation against certain other accused persons is also pending so far and if the accused-petitioners are released on bail, they may in any manner effect the investigation and influence the evidence. He further submits that there are ample evidence on record including the call details and money transactions which connect the accused-petitioners with the alleged offence.

8. Considered the submissions made at bar and also perused the material made available on record.

9. First bail applications of the accused-petitioners were dismissed by this Court vide order dated 31.08.2024 observing as under:- “The participation of the candidates with the forged mark-sheets, certificates, sports certificates in the recruitment process and the instances of dummy candidates in place of original candidates in the recruitment/competitive examination is not only a [2025:RJ-JP:19905] (5 of 15) [CRLMB-2853/2025] crime by a particular person but it has hampered the complete recruitment process and also the claims of the genuine candidates for recruitment/appointment for government employment. The allegations levelled against the accused petitioners are of serious and grave nature.”

10. The allegation against the accused-petitioners is that they in collusion with the other co-accused have prepared huge number of forged documents of educational qualifications and sports certificates and distributed to the unemployed youth which were submitted by them while making applications for recruitment to various posts. It has come out that large number of candidates after obtaining the forged documents from the accused party sought government employment and now have been dismissed from the service. While considering and deciding the bail application of certain other co-accused and also the present accused, namely, Mandeep Kumar vide order dated 28.01.2025, it was revealed that the accused party has prepared and issued about 43,000 forged documents of educational qualifications.

11. The provisions of Section 480(6) of the BNSS, 2023 which reads as under:- “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.” [2025:RJ-JP:19905] (6 of 15) [CRLMB-2853/2025]

12. Learned counsel for the petitioners also referred the order passed by this Court in the case of Banwari Lal Kushwah (supra).

13. In the present case, charges have been framed against the accused-petitioners for the offence punishable under Sections 419, 420, 467, 468, 471 and 120-B IPC and Section 66D of the Information Technology Act where maximum punishment provided is imprisonment for life. In the case of Banwari Lal Kushwah (supra), the charges were framed only for offences punishable under Sections 420, 406 and 120-B IPC. Counsels for the petitioners are unable to point out that what were the allegation against Banwari Lal Kushwah and same may be in relation to a particular person whereas, in the present case, the maximum punishment provided for the offences for which the accused- petitioners have been charged is imprisonment for life and the allegations are of such a nature that their impact is on whole society and so also the recruitment process for the jobs. The allegation against the accused-petitioners is also such a nature that they have played with the unemployed youth at large scale for their financial gains.

14. The Hon’ble Apex Court in the case of Subhelal @ Sushil Sahu (supra) has observed as under:- “10. 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 recognize right of an accused for a speedy trial with a view to protect [2025:RJ-JP:19905] (7 of 15) [CRLMB-2853/2025] individual liberty. At the same time, 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.

11. The grounds relevant for the purpose of refusing bail would not be the same which could have weighed with the Magisterial Court while refusing bail under Section 437(1) & (2) of the Code. That is a stage much prior to trial. Whereas the stage contemplated under Section 437(6), is after filing of charge-sheet and framing of charge when trial commences and the accused prefers an application after lapse of 60 days from first date fixed for taking evidence. If the grounds were expected or intended by the legislature to be the same, there was no reason for the legislature to insert sub-section (6) of the Code. In our view, therefore, reasons for rejection of application under sub-section (6) of the said Section have to be different and little more weighty than the reasons that may be relevant for rejection for bail at the initial stage. If this meaning is not given, sub-section (6) would be rendered otiose.

17. This Court is of a considered view that applications 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 more particularly where there is no chance of tampering of evidence e.g. where the case depends on documentary evidence which is already [2025:RJ-JP:19905] (8 of 15) [CRLMB-2853/2025] 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.

18. Differently put, 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.

19. Sub-section (6) of Section 437 has been very exhaustively explained by the High Court of Gujarat in Nehul Prakashbhai Shah v. State of Gujarat reported in (2012) 53 (3) GLR 2685. One of us, J.B Pardiwala, J. was a part of the Bench which decided the Criminal Reference. We quote the relevant observation: “9.4.2 Our say, in context of Section 437(6), would be better understood if word 'investigation' is read to mean 'trial' in the above quote.

10. Attempt on part of the Magisterial Court in such situation should be to strike a balance by putting one hand on right to speedy trial of an accused as embodied under Article 21 of the Constitution of India and the interest of the prosecution and society on the other hand. [2025:RJ-JP:19905] (9 of 15) [CRLMB-2853/2025]

11. A close reading of provisions of Section 437(6) of the Code, prima-facie would show that a duty is cast upon the concerned Magistrate to see that the trial of an accused is concluded within a period of sixty days from the first date of taking evidence. The Magistrate is obliged to make all possible endevours to see that provisions contained in Section 437(6) of the Code are complied with in its true, letter and spirit. To that extent, it appears that a right accrues in favour of an accused to tell the Court concerned that the trial has not been concluded within sixty days from the first date fixed for taking evidence for no fault on his part and, therefore, he should be released on bail, may be at that stage, there is some discretion vested in the Magistrate to refuse bail for the reasons which the Magistrate may deem fit to record. Such reasons cannot be routine. Such reasons have to weighty enough to outweigh the right that accrues to the accused in first part of sub-section (6) of Section 437(6) of the Code, which appears to be drawing force from Article 21 of the Constitution of India.

11.1 The words 'any case' appearing in sub section (6) of Section 437(6) of the Code point at the legislative intent to make that provision applicable to all cases which are Magisterial triable and nonbailable. Legislature has not drawn any other distinction for applicability of sub-section (6) of Section 437(6) of the Code. In comparison to that, the provisions contained in Section 167(2)(a)(i) and (ii) of the Code provide for grant of bail in event charge-sheet is not filed within stipulated time. The provision is aimed at expeditious conclusion of investigation. It also protects liberty of an accused where the Investigating Agency fails [2025:RJ-JP:19905] (10 of 15) [CRLMB-2853/2025] to conclude investigation and file charge-sheet within a stipulated time. Since the accused gets arrested on basis of allegations of offence, the legislature has deemed it proper to protect his interest by awarding to him a right of bail, irrespective of nature of offence if the charge-sheet is not filed within stipulated time limit. That right has been held to be absolute and indefeasible. The parameters contained therein cannot be wholly employed while dealing with an application under Section 437(6) of the Code since they both operate on different plains. Even the language employed in both the provisions is different. Whereas, it gives discretion to Judicial Officer to refuse bail under Section 437(6), it leaves no scope for such discretion under Section 167(2) of the Code.

12. So far as Question No.VI referred by the learned Single Judge is concerned, we state that decision of a co-ordinate Bench of equal strength will have a binding effect on another co-ordinate Bench as it lays down a principle of law rather than a statement of law in context of the subject matter.

13. So far as fundamental right of an accused envisaged under Article 21 of the Constitution of India is concerned, insofar as it relates to a speedy trial, the same cannot be pressed into service vis- a-vis the right of an accused accruing under Section 437(6) of the Code. Because the right of the accused under Section 437(6) of the Code is altogether different than one envisaged under Article 21 of the Constitution of India. Section 437(6) of the Code takes its sweep only the right to speedy trial, whereas Article 21 of the Constitution of India has a very wide connotation. [2025:RJ-JP:19905] (11 of 15) [CRLMB-2853/2025]

14. The foregoing discussion lead us to conclude and answer the questions under reference as under: Q-1 An accused involved in a non-bailable offence triable by Magisterial Court whose trial is not concluded within a period of sixty days from the first date fixed for taking evidence in that case, and who has been in custody during the whole of the said period, does not get an absolute or indefeasible right to be released on bail to the satisfaction of the Magistrate. The Magistrate has a discretion to direct otherwise (refuse bail) by recording in writing the reasons for such rejection. Q-2 The provisions contained in Section 437(6) of the Code are not mandatory. Q-3 The Magistrate has option/discretion to refuse bail by assigning reasons therefor. The parameters, factors, circumstances and grounds to be considered by Magistrate vis-a-vis such application preferred by the accused under Section 437(6) of the Code may be:

1. Whether the reasons for being unable to conclude trial within sixty days from the first date fixed of taking evidence, are attributable to the accused?

2. Whether there are any chances of the accused tampering with evidence or causing prejudice to the case of the prosecution in any other manner?

3. Whether there are any chances of abscondence of the accused on being bailed out?

4. Whether accused was not in custody during the whole of the said period? [2025:RJ-JP:19905] (12 of 15) [CRLMB-2853/2025] If the answer to any one of the above referred fact situations or similar fact situations is in affirmative than that would work as a fetter on the right that accrues to the accused under first part of sub- section (6) of Section 437 of the Code. The right accrues to him only if he is in custody during the whole of the said period as can be seen from the language employed in sub-section (6) of 437 of the Code by the legislature. It would also be relevant to take into consideration the punishment prescribed for the offence for which the accused is being tried in comparison to the time that the trial is likely to take, regard being had to the factors like volume of evidence, number of witnesses, workload on the Court, availability of prosecutor, number of accused being tried with accused and their availability for trial, etc. The factors which are quoted above by this Court are only illustrative and not exhaustive. Q-4 The factors, parameters, circumstances and grounds for seeking bail by the accused as well as grounds to be considered by the learned Magistrate for his satisfaction would not be identical or similar to subsection (1) and sub-section (2) of the Section 437 of the code, but may be relevant and overlapping each other depending upon facts and there cannot be any straight jacket formula. But, we may add that the reasons for rejection of applications under Section 437(6) need to be more weighty than the routine grounds of rejection. Q-5 The parameters relevant for deciding application under Section 167(2)(a)(I)(II) of the [2025:RJ-JP:19905] (13 of 15) [CRLMB-2853/2025] Code (default bail), cannot be imported for exercise of power under Section 437(6) of the Code. Q-6 A decision in principle rendered by a coordinate Bench of equal strength would bind another co-ordinate Bench as it lays down a principle of law and not a statement of law in context of subject matter. Q-7 The legislature, while enacting Section 437(6) of the Code, has not given an absolute, indefeasible or unfettered right of bail. But right of bail is given with a rider investing the Magistrate with discretion to refuse bail by recording reasons therefor. Therefore, the right of accused for a speedy trial, though, Constitutional and aimed at liberty of accused, is not put on that high a pedestal that it becomes absolute. It is a right given with reasonable restrictions. This is the only way the provisions of Section 437(6) of the Code and Article 21 of the Constitution of India can be harmonised and have to read and interpreted accordingly.””

15. The Court has also gone through the order whereby, application filed by the accused-petitioners in view of the provisions of Section 480(6) of the BNSS, 2023 and also order- sheets of the learned trial Court.

16. The trial Court has assigned the reason for refusal of the bail that part of recording evidence is yet to commence.

17. This Court has also gone through the order-sheets of the learned trial Court. After perusing the order-sheets of the learned trial Court, the Court finds that the trial proceeding is against the [2025:RJ-JP:19905] (14 of 15) [CRLMB-2853/2025] accused-petitioners and could not be attributed to the prosecution only, because the order-sheets of learned trial Court show that it is the accused party including the other co-accused who have taken time in making their submissions for framing of the charge. As regards the completion of 60 days for conclusion of trial from the first date fixed for recording evidence is concerned, the Court finds that after framing of the charge, the first date fixed for recording of evidence was 07.01.2024 and on that day two prosecution witnesses were present before the learned trial Court but since a supplementary charge-sheet was filed against the other co-accused, the matter was adjourned and thereafter, time was taken by the accused party i.e. co-accused for making their submissions as regards framing of charge. Hence, it cannot be said that trial has not been concluded within 60 days from first date fixed for recording evidence.

18. In view of the aforesaid facts, the reasons assigned by the trial Court for refusal of the bail is just and proper. No fault is attributed to the prosecution for not leading the evidence.

19. Taking into consideration overall facts and circumstances of the case and so also the allegations against the accused- petitioners which are serious and grave nature and the maximum sentence provided under the law for offences for which the accused-petitioners have been charged is of imprisonment for life and the criminal act of the accused-petitioners is against the whole society, this Court is not inclined to enlarge the accused- petitioners on bail. [2025:RJ-JP:19905] (15 of 15) [CRLMB-2853/2025]

20. Accordingly, all these bail applications are dismissed.

21. This Court while considering the bail application of the co- accused vide order dated 28.01.2025, has already observed that the trial Court is expected to conclude the trial as early as possible.

22. Sincere efforts of learned Public Prosecutor-Mr. Amit Punia in making submissions on behalf of the State deserves appreciation by this Court. Ashish Kumar /10-12 (GANESH RAM MEENA),J