Brief Facts
- An FIR was registered against the Petitioner under Section 3 & 9 of Official Secrets Act and Section 120-B IPC alleging that the petitioner is in contact with the Pakistani Intelligence through social media and he is providing military related confidential information to them.
- Bail application was filed by the Petitioner claiming the benefit under section 437(6) of the Cr.P.C. as the Petitioner was behind the bar since 08.06.2023 and only 2 out of 37 cited prosecution witnesses were examined till date. Maximum punishment in the case triable by Magistrate can be up to 7 years and the accused has already undergone half of the maximum sentence which could be awarded to him. The Ld. Subordinate Court rejected the bail of the Petitioner observing that serious efforts were being made to complete the trial in expeditious manner.
Issues
- Whether the conditions stipulated under Section 437 (6) CrPC are mandatory in nature?
- Whether the rejection of the bail to the Petitioner would defeats the ends of justice and would breach the fundamental rights of the Petitioner?
- Whether the provisions of Section 436A can be invoked in the present case to enlarge the Petitioner on bail?
Held
- The accused-applicant was enlarged on bail in light of provisions of section 437(6) CrP.C. and also considering the fact that the offence was triable by magistrate and the accused had already undergone more than half of the maximum sentence.
- The pre-charge evidence was recorded and on 17.04.2023, charges were framed against the petitioner and the case was ordered to be posted for 01.05.2023 for recording prosecution evidence. Thus, 60 days have already been passed from the first date fixed for recording/taking prosecution evidence. Moreso, the trial is still pending and statements of only two witnesses out of 37 cited witnesses have been recorded and the delay in conclusion of trial are not attributable to the accused petitioner. This lethargic attitude of the prosecution is seriously violating the fundamental right of the speedy trial of the petitioner as guaranteed under Article 21 of the Constitution of India and in such a situation, the conditional liberty must override the statutory embargo. In the case of Jahir Hak vs State of Rajasthan (2022) 0 AIR (SC) 3047, indulgence of bail was extended to the accused therein by the Hon’ble Apex Court by considering the following observations made in the case of Union of India vs K.A. Najeeb (2021) 3 SCC 713.
Interpretation of section 437(6) CrPC; whether mandatory or directory:
- Section 437(6) of the CrPC is in two parts. In first part, it says that if in any case triable by a Magistrate, the alleged offence is non-bailable and the trial is not concluded within a period of sixty days from the first date fixed for taking evidence, in case such person shall be released on bail to the satisfaction of the Magistrate and in second part, discretion has been conferred to the Magistrate to record his satisfaction and after recording reasons in writing, the Magistrate can refuse the bail.
- From plain reading of the aforesaid provision and the observation made in the case of Haricharan Ramteke vs State of Chhattisgarh, 2002 (3) CRJ 118, it is clear that the provisions of Section 437 (6) Cr.P.C. are mandatory in nature and a very little discretion is available with the learned magistrate to refuse the bail of an under-trial prisoner subject to recording his reasons for rejecting such bail application in writing which primarily may be possibility of tampering the evidence by the accused, the possibility of the accused absconding if released on bail, the delay in conclusion of the trial within a period of 60 days if attributable to the accused and lastly if it appears that there are reasonable grounds for believing that releasing the accused on bail would defeat the ends of justice.
Conclusion on facts:
- Admittedly, in the present case, the petitioner is facing trial before the magistrate court and in any case, he cannot be awarded sentence of more than seven years. The petitioner is in custody since 08.06.2020 and thus, he has already undergone one-half of the maximum sentence which can be awarded in case of conviction and till date, out of 37 cited witnesses, only two witnesses have been examined for the last six months since the first date i.e., 01.05.2023 fixed for prosecution witnesses.
Relevant Para No.
8, 11, 13, 15