Delhi High Court
Karan Pal Singh Advocate vs Union Of India And Anr. on 6 March, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 06.03.2017
+ W.P.(CRL.) 545/2015 & CRL.M.A. No.1683/2016
KARAN PAL SINGH ADVOCATE ..... Petitioner
Through Petitioner in person
versus
UNION OF INDIA AND ANR. ..... Respondents
Through Mr.Rahul Mehra, Sr.Standing
Counsel for the GNCTD.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. The present public interest petition is filed under Article 226 of the
Constitution of India by the petitioner with the prayer that this court may
pass standing and bondable directions to all courts of Metropolitan
Magistrate/ Additional Metropolitan Magistrate/ Chief Metropolitan
Magistrate in the jurisdiction of this court relating to the provisions of
Section 437(6) Cr.P.C. namely that if the trial cannot be concluded within
specified period of sixty days from the first date fixed for taking evidence,
the accused be released on bail without any further delay provided that there
are no very, very, very special reasons to deny it.
2. The petitioner is an advocate by profession. He submits that he is
filing the present petition for the benefit of under trials whose cases are
pending before various courts and who are in judicial custody due to non-
conclusion of the cases within a period of sixty days from the first date fixed
W.P.(CRL.) 545/2015 Page 1
for taking evidence in the case.
3. The petitioner has in his petition relied upon the judgments of the
various High Courts where directions have been passed in exercise of the
powers under Section 437(6) of the Cr.P.C.
4. The petitioner further avers that a time of about 7-8 months usually
gets consumed in the process of investigations, framing of charges and the
sixty days time to conclude the trial. In between the accused is under
custody as an under trial. The petitioner further avers that appropriate courts
ignore this fact while deciding the bail application. It is further stated that
confinement during the trial in judicial custody is a punishment before
conviction/judgment and nobody can return that time spent by the accused in
judicial custody during the trial if he is acquitted.
5. It is also pointed out that total capacity of Tihar Jail is only about
6250 prisoners. However, the Jail has more than 10,000 prisoners. Based on
the above submissions and on the observations of various courts on the said
provision, the petitioner has moved the present petition.
6. Section 437(6) of the Cr.P.C. reads as follows:
"437(6) 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."
Hence, where the case is triable by a Magistrate and the trial has
commenced against an accused for a non-bailable offence, in case the trial
does not conclude within a period of sixty days from the first date of taking
W.P.(CRL.) 545/2015 Page 2
evidence in the case, the accused if he is in custody should be released on
bail but the court has the option not to release the accused on bail for reasons
to be recorded in writing. Hence, it is not in every case where the stipulated
conditions are met that an accused who is in custody is to be released on
bail.
7. The Supreme Court in the case of Gurcharan Singh & Ors. v. State
(Delhi Administration), (1978) 1 SCC 118 held as follows:
"20...........This proviso is an innovation in the new Code and is
intended to speed up investigation by the police so that a person does
not have to languish unnecessarily in prison facing a trial. There is a
similar provision under sub-section (6) of Section 437 Cr.P.C. which
corresponds to Section 497(3A) of the old Code. This provision is
again intended to speed up trial without unnecessarily detaining a
person as an under trial prisoner, unless for reasons to be recorded in
writing, the Magistrate otherwise directs.............."
8. A Division Bench of this court in Robert Lendi v. The Collector of
Customs & Anr., 1986 (11) DRJ 157 interpreted Section 437(6) of the
Cr.P.C. as follows:
"16. This brings us back to Sub-section (6) of Section 437. The
object of Sub-section 6 of Section 437 is that if the trial of non-
bailable offences in the court of a Magistrate is not concluded within
sixty days from the first date fixed for taking evidence in the cases,
such person shall, if he is in custody during the whole of the said
period, be released on bail to the satisfiaction of the Magistrate, unless
for reasons to be recorded in writing, the Magistrate otherwise directs.
...............
18. The next question that arises for consideration is whether while
refusing bail under sub-section (6) of Section 437 of the Code the
Magistrate can only refuse bail on the limited reasoning germane to
the cause of delay and whether the bail can be refused on the general
grounds recognized as good for refusal to grant bail. Undoubtedly, the
W.P.(CRL.) 545/2015 Page 3
object of sub-section (6) of Section 437 of the Code is to eradicate
delay in trial. To us, it appears that it is equally important that the
ends of justice do not suffer. The procedural laws are essentially
meant to safeguard the interest of justice. The twin objects namely
namely to eradicate the delay in trial and to achieve the ends of justice
are necessarily to be harmonised. It is in that context one has to find
out whether the discretion exercised by the Magistrate, in with
holding bail after sixty days, has been properly and judicially
exercised. We find nothing in the provision to support the assertion of
Mr.Mehta that reasons for declining the bail under this provision
should be only those which are germane to the cause of delay. There
is no reason to give such a restricted meaning to the provision. The
expression used in the provision is "unless for reasons to be recorded
in writing, the Magistrate otherwise directs." A plain reading of the
expression shows that the legislature has put no fetters on the powers
of the Magistrate that under this provision bail can only be refused for
reasons germane to the cause of delay. If that were so, the Legislature
would have certainly made it clear. To us it appears that the
consideration for refusing bail under this provision can be the reasons
which are generally invoked and understood in law as the grounds for
refusing bail. All that is required of the Magistrate is that should he
decide to declining to grant bail, he must record his reasons in writing.
There are no fetters placed on the exercise of this discretion."
Hence, Section 437(6) of the Cr.P.C. gives discretion to the
Magistrate. He may refuse to grant bail. The only fetter on his power is that
he must record reasons for declining the bail in writing.
9. In the light of the above said provision, the Magistrate would
obviously exercise his discretion in a judicial manner depending on the facts
and circumstances of the case, gravity of the offence, quantum of
punishment and the manner in which the applicant is involved, in the
offence, as alleged by the prosecution, etc.
10. No straight jacket formula can be laid down as is sought by the
W.P.(CRL.) 545/2015 Page 4
petitioner in the present petition. There obviously cannot be any
mathematical formula. Hence, the present petition is dismissed. All the
pending applications also stand dismissed.
JAYANT NATH
JUDGE
CHIEF JUSTICE
MARCH 06, 2017v
W.P.(CRL.) 545/2015 Page 5
