Whether it is Mandatory for the Magistrate to Release the Accused on Bail, when the Trial is not Concluded within the Period of Sixty Days ?

Criminal Procedure Code, 1973 – S. 437 (6) - When bail may be taken in case of nonbailable offence - Provision envisaged in sub-section (6) of Section 437 of the Code is mandatory in the sense that the Magistrate is required to exercise his power of granting bail after the statutory period, if the trial is not concluded within that, however, passing of an order under Section 437(6) of the Code appears to be mandatory, but not grant of bail. [Para 21]

HIGH COURT OF MADHYA PRADESH : JABALPUR

CORAM : Hon'ble Shri Justice Hemant Gupta, Chief Justice.

Hon’ble Shri Justice Vijay Kumar Shukla, Judge.

(16.03.2018)

M.Cr.C. No.2668/2018

Devraj Maratha @ Dillu -Versus- State of M.P.

Smt. Shobha Menon, Senior Advocate (amicus curiae) with Shri Rahul Choubey and Shri Narendra Nikhare, Advocates for the appellant.

Smt. Namrata Agrawal, Govt. Advocate for the State.

O R D E R

Per : Vijay Kumar Shukla, J.-

In view of cleavage of opinion regarding interpretation of sub-section (6) of Section 437 of the Code of Criminal Procedure (for brevity `the Code’), the learned Single Bench by order dated 18- 01-2018 has referred the following question for consideration before this Bench:

“Whether under the provision of sub-section (6) of Section 437 of the Cr.P.C., it is mandatory for the Magistrate to release the accused on bail, when the trial is not concluded within the period of sixty days, from the first date fixed for taking evidence in the case ? “

2. The factual expose’ necessary to be discussed for consideration of the above referred question, is that the accusedapplicant has filed an application under Section 482 of the Code for setting aside the order, dated 6-01-2018, passed by the learned III Additional Sessions Judge, Raisen in Criminal Revision No.02/2018 whereby the order dated 30-11-2017 passed by the learned Chief Judicial Magistrate dismissing the application preferred under Section 437(6) of the Code, has been affirmed.

3. The applicant – Devraj and co-accused Karan Singh are facing trial for commission of offence punishable under Section 34(2) of the M.P. Excise Act, 1915. The applicant is in custody since 31-5-2017. An application for releasing the accused-applicant on bail under Section 437(6) of the Code was filed which has been dismissed by the learned Magistrate stating that though a period of sixty days have passed, but there are other 25 criminal cases registered against the accused-applicant. Hence, he did not find it a fit case for releasing the accused on bail under the said provision.

4. Being aggrieved by the said order the applicant filed a criminal revision which was dismissed by the learned Additional Sessions Judge, Raisen by order dated 30-11-2017 affirming the order passed by the learned Magistrate. The said order is subjectmatter of challenge in the present application filed under Section 482 of the Code.

5. Learned counsel appearing for the applicant relied on the judgment passed by this Court in Damodar Singh Chouhan vs. State of M.P., 2005 (II) MPWN 138 wherein a Single Bench of this Court has held that the provision of Section 437(6) of the Code is mandatory. Therefore, when the trial is not concluded within the stipulated period of sixty days from the date of initiation of evidence, the accused is entitled to be released on bail.

6. In the case of Ram Kumar @ Raj Kumar Rathore vs. State of M.P., 2000(2) MPLJ 43, again a Single Bench of this Court held that the provision is mandatory in nature and after expiry of the period of 60 days the accused becomes entitled to be released on bail. In the case of Rajendra son of Rajaram Pal vs. State of M.P., 2002(5) MPLJ 301, a Single Bench of this Court has held, that if the trial is not concluded within a period of sixty days from the date fixed for recording the evidence, the accused is entitled to be released on bail. It was further held that the said provision for grant of bail under Section 59-A of the Excise Act does does not debar the accused for grant of bail under Section 437(6) of the Code. In the present case the learned Single Bench noted the divergent views expressed in the case of Asit @ Nakta vs. State of M.P., [M.Cr.C. No.7059/2015, decided on 30-9-2015) wherein a Single Bench of this Court held that provision of Section 437(6) of the Code is not mandatory, but directory. In the case of Manoj Agrawal vs. State of M.P., 2001(1) MPHT 70 it is held that consideration is mandatory, but not the bail.

7. In the referral order the learned Single Judge has also noted the judgment passed by the High Court of Jharkhand in the case of Didar Singh vs. State of Jharkhand, 2004 SCC Online Jhar 560, wherein it it has been held that the Magistrate has rightly exercised his discretion and refused bail for justifiable reasons. The High Court of Rajasthan in the case of Anwar Hussain vs. State of Rajasthan, 2006 SCC Online Raj 534 has also held that the provision of Section 437(6) of the Code is not mandatory and the trial Court after assigning the reason is competent to refuse the bail. The learned referral Judge has noted that in the cases decided by Single Bench of this Court, the words contained in sub-section (6) of Section 437 of the Code - “unless for reasons to be recorded in writing, the Magistrate otherwise directs” has not been considered in proper perspective and, therefore, he was of the view that there cannot be any fetter on the power vested with the Magistrate to refuse bail.

8. Shri Narendra Nikhare, learned counsel appearing for the applicant submitted that the provision of Section 437(2) of the Code is mandatory and after expiry of a period of sixty days, the applicant becomes entitled to be released on bail. It is contended by him that the view taken by this Court in the cases of Ram Kumar @ Ram Kumar Rathore (supra) and Rajendra son of Rajaram Pal (Supra) is the correct law.

9. Smt. Shobha Menon, learned senior counsel (amicus curiae) submitted that the words used in sub-section (6) of Section 437 of the Code - “unless for reasons to be recorded in writing, the Magistrate otherwise directs”, connotes a meaning that the general rule is that in case of non-conclusion of the trial within a period of sixty days fixed for recording of evidence, the accused is entitled to be released on bail and the discretion of the Magistrate to refuse the bail after recording reasons in writing, is an exception. The learned senior counsel referred dictionary meaning of the word `unless’ the same is reproduced hereunder :

“Unless. A conjunction, the primary meaning of which is unloosed from from. The word means that same as, or has the form of, “except”. Accordingly, what follows in a sentence after “unless” is excepted or unloosed from what went before it; and it may imply merely an exception to the first clause. Thus, “unless” implies a condition, the non-happening of which prevents a right from arising, or it implies a condition, without the occurrence of which a right does not come into being.”

It has been submitted that the sentence in the sub-section (6) of Section 437 of the Code begins with `unless’ which connotes the meaning of exception.

10. Learned counsel for the State submitted that the provision of sub-section (6) of Section 437 of the Code confers discretionary power on the Magistrate to refuse the bail after recording reasons and, therefore, release of the accused on bail when the trial is not concluded within a period of sixty days from the first date even for taking evidence, cannot be held to be mandatory.

11. Regard being had to the submissions advanced on behalf of the parties, it is apposite to refer the provision of sub-section (6) of Section 437 of the Code. The same is reproduced hereunder :

“S.437. When bail may be taken in case of nonbailable offence.-

(1) xx xx xx

(2) xx xx xx

(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.”

12. Upon a bare perusal of the aforesaid provision and a close scrutiny thereof, it is noted that sub-section (6) of Section 437 of the Code is in two parts. First - 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. Thus, in the first part 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. Still the discretion has been conferred to the Magistrate to record his satisfaction and after recording reasons in writing, the Magistrate can refuse the bail. The issue cropped up for consideration is that whether the aforesaid provision is mandatory to release the accused on bail after expiration of statutory period and the Magistrate has no discretion to refuse bail.

13. Before adverting to the provision of Section 437(6) of the Code, it is condign to consider the provisions of Section 167(2) of the Code and its interpretation by the Courts. In the case of Union of India through Central Bureau of Investigation vs. Nirala Yadav alias Raja Ram Yadav alias Deepak Yadav, (2014) 9 SCC 457 while considering the proviso of Section 167(2) of the Code where the accused was released on bail solely on the ground that he was entitled to the benefit under the proviso of Section 167(2) of the Code, it has been held that the Magistrate under the provisions of sub-section (2) of Section 167 of the Code, may authorise detention of the accused otherwise than in the custody of police for a total period not exceeding 90 days. Where the investigation relates to an offence punishable for both – imprisonment for life or imprisonment for a term not less than 10 years and 60 days where the investigation relates to any other offence. On expiry of aforesaid period of 90 days or 60 days, as the case may be, indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in completion of the investigation within the prescribed period and the accused is entitled to be released on bail. In that case, there is no discretion left with the Court not to release the accused on bail.

14. The language employed in sub-section (6) of Section 437 of the Code is different from sub-section (2) of Section 167 of the Code that on expiry of the period of 60 or 90 days, as case may be, the accused person shall be released on bail, unless for reasons to be recorded in writing by the Magistrate. In the case of Ram Kumar @ Ram Kumar Rathore (supra) the Single Bench held that the provision of Section 437(6) of the Code is mandatory, unless bail is rejected for the reasons to be recorded. In the case of Rajendra son of Rajaram Pal (Supra) another Single Bench of this Court held that the provision of Section 437(6) of the Code is mandatory and if the Court is of the opinion, that the accused is not entitled for bail, then it is obligatory on the part of the Court to assign reason for refusing bail. In case of Damodar Singh Chouhan(supra) the Single Bench held that the provision of Section 437 (6) is mandatory. In the case of Asit @ Nakta (supra) the Single Bench of this Court held that the provision of Section 437(6) of the Code is not mandatory but directory. The Magistrate has full power to refuse or grant of bail for the reasons to be recorded in writing. The learned Single Judge disagreed from the view expressed in the cases of Ram Kumar @ Ram Kumar Rathore (supra) and Rajendra son of Rajaram Pal (Supra).

15. Learned counsel appearing for the applicant submitted that in sub-section (6) of Section 437 of the Code the word `shall’ has been used and, therefore, the provision has to be construed as mandatory. In case of non-conclusion of the trial within a period of 60 days from the first date for taking evidence in the case, it is mandatory for the Magistrate to release the accused on bail.

16. The use of word “may” or “shall” is not conclusive. Whether the provision is merely directory or mandatory, was examined by Hon'ble the Supreme Court in a judgment reported as (2007) 8 SCC 338 (Dhampur Sugar Mills Ltd. vs. State of U.P.), wherein it has been held that whether the provision is directory or mandatory is required to be decided by ascertaining the intention of the Legislature and not by looking at the language in which the the provision is clothed. The Court must examine the scheme of the Act, purpose and object underlying the provision, consequences likely to ensue or inconvenience likely to result if the provision is read one way or the other and many more considerations relevant to the issue. The relevant extract from the judgment reads thus :

“35. Reading the substantive provisions in the Act as also subordinate legislation by way of the Rules, there is no doubt in our minds that the submission of the learned counsel for the writ petitioner that such a Committee ought to have been constituted by the State is well- founded and must be upheld. The High Court dealt with the submission of the writ petitioner but did not accept it observing that the Legislature had used the expression “may” and not “shall” in Section 3 of the Act. The Court ruled that the provision was merely directory and not mandatory.

36. We are unable to subscribe to the above view. In our judgment, mere use of word “may” or “shall” is not conclusive. The question whether a particular provision of a statute is directory or mandatory cannot be resolved by laying down any general rule of universal application. Such controversy has to be decided by ascertaining the intention of the Legislature and not by looking at the language in which the provision is clothed. And for finding out the legislative intent, the Court must examine the scheme of the Act, purpose and object underlying the provision, consequences likely to ensue or inconvenience likely to result if the provision is read one way or the other and many more considerations relevant to the issue.

37. Several statutes confer power on authorities and officers to be exercised by them at their discretion. The power is in permissive language, such as, “it may be lawful”, “it may be permissible”, “it may be open to do”, etc. In certain circumstances, however, such power is “coupled with duty” and must be exercised.

38. Before more than a century in Baker, Re, Nicholas v. Baker, (1890) 44 Ch D 262(CA), Cotton, L.J. Stated;

“I think that great misconception is caused by saying that in some cases 'may' means 'must'. It never can mean 'must', so long as the English language retains its meaning; but it gives a power, and then it may be question inwhat cases, where a Judge has a power given by him by the word 'may', it becomes his duty to exercise it.

(emphasis supplied)

39. In leading case of Julius v. Lord Bishop of Oxford, (1880) 5 AC 214 : 49 LJ QB 577 : (1874- 80) All ER Rep 43 (HL), the Bishop was empowered to issue commission of inquiry in case of alleged misconduct by a clergyman, either on an application by someone or suo motu. The question was whether the Bishop had right to refuse commission when an application was made. The House of Lords held that the Bishop had discretion to act pursuant to the complaint and no mandatory duty was imposed on him.

40. Earl Cairns, L.C., however, made the following remarkable and oft-quoted observations : (All ER p. 47 H-I)

“The words 'it shall be lawful' are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the condition under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so.” (Emphasis supplied)

41. Explaining the doctrine of power coupled with duty, De Smith, (Judicial Review of Administrative Action, 1995, pp.300-01) states:

“Sometimes the question before a court is whether words which apparently confer a discretion are instead to be interpreted as imposing duty. Such words as 'may' and 'it shall be lawful' are prima facie to be construed as permissive, not imperative. Exceptionally, however, they may be construed as imposing a duty to act, and even a duty to act in one particular manner.” (Emphasis supplied)

42. Wade also says (Wade & Forsyth, Administrative Law, 9th Edn.) : p.233) :

“The hallmark of discretionary power is permissive language using words such as 'may' or 'it shall be lawful', as opposed to obligatory language such as 'shall'. But this simple distinction is not always a sure guide, for there have been many decisions in which permissive language has been construed as obligatory.

This is not so much because one form of words is interpreted to mean its opposite, as because the power conferred is, in the circumstances, prescribed by the Act, coupled with a duty to exercise it in a proper case.” (Emphasis supplied)

43. In the leading case of Padfield v. Minister of Agriculture, Fisheries & Food, 1968 AC 997 : (1968) 2 WLR 924 (HL), the relevant Act provided for the reference of a complaint to a committee of investigation “if the Minister so directs”. The Minister refused to act on a complaint. It was held that the Minister was required to act on a complaint in absence of good and relevant reasons to the contrary.”

17. In another judgment reported as (2008) 12 SCC 372, Bachahan Devi vs. Nagar Nigam, Gorakhpur, the Court held that the use of the words “may” and “shall” may help the courts in ascertaining the legislative intent without giving to either a controlling or a determinating effect. The relevant extract from the judgment reads thus :

“21. The ultimate rule in construing auxiliary verbs like “may” and “shall” is to discover the legislative intent; and the use of words “may” and “shall” is not decisive of its discretion or mandates. The use of the words “may” and “shall” may help the courts in ascertaining the legislative intent without giving to either a controlling or a determinating effect. The courts have further to consider the subject matter, the purpose of the provisions, the object intended to be secured by the statute which is of prime importance, as also the actual words employed.”

18. Similar is the view reiterated in the judgment reported as (2015) 8 SCC 744 (D.K. Basu vs. State of W.B.), wherein it was held to the following effect :

“13. A long line of decisions of this Court starting with Sardar Govindrao v. State of M.P., AIR 1965 SC 1222 have followed the above line of reasoning and authoritatively held that the use of the words “may” or “shall” by themselves does not necessarily suggest that one is directory and the other mandatory, but, the context in which the said expressions have been used as also the scheme and the purpose underlying the legislation will determine whether the legislative intent really was to simply confer the power or such conferment was accompanied by the duty to exercise the same.”

19. On a plain reading of the provision of Section 437(6) of the Code it is graphically clear that it is mandatory in the sense that a person should not be kept in jail ordinarily if a trial for nonbailable offence which is triable by the Magistrate, is not concluded within a period of sixty days from the date fixed for evidence. Provided, it is proved that the concerned person was in jail for a period of sixty or ninety days, as the case may be. However, passing of an order under Section 437(6) of the Code appears to be mandatory, but not grant of bail. Sub-section (6) of Section 437 of the Code per se show that if there be any reason for refusing the bail, the Magistrate has to record reasons in writing. Thus, recording of reasons in writing is also mandatory and the reasons would be justiciable in an appropriate criminal or extraordinary jurisdiction under Section 482 of the Code. No fetters have been put on the Magistrate to exercise jurisdiction under Section 437(6) of the Code and bail can be refused for the reasons to be recorded in writing. Magistrate has full power to take into consideration - (i) the nature of allegations; (ii) whether the delay is attributable to the accused or to the criminal prosecution; and (iii) criminal antecedents of the accused or any other justiciable reason.

20. In view of delineation of facts and law elaborated in a greater detail herein-above, we hold that the law laid down in the cases of Ram Kumar @ Raj Kumar Rathore vs. State of M.P., 2000(2) MPLJ 43; Rajendra son of Rajaram Pal vs. State of M.P., 2002(5) MPLJ 301; and Damodar Singh Chouhan vs. State of M.P., 2005 (II) MPWN 138 wherein it has been held that the provisions of Section 437(6) of the Code are mandatory in nature and the accused is entitled for bail, if the trial is not concluded by the Magistrate within the statutory period and the Magistrate will not have any discretion to refuse bail is not a good law and the law laid down in the case of Asit @ Nakta vs. State of M.P. (supra) and Manoj Agrawal vs. State of M.P. (supra) is approved.

21. In view of preceding analysis and enunciation of law governing the field, the reference is answered as under:

(a) Provision envisaged in sub-section (6) of Section 437 of the Code is mandatory in the sense that the Magistrate is required to exercise his power of granting bail after the statutory period, if the trial is not concluded within that, however, passing of an order under Section 437(6) of the Code is mandatory, but not grant of bail.

(b) The Magistrate is vested with full power to take into consideration - (i) the nature of allegations; (ii) whether the delay is attributable to the accused or to the prosecution; and (iii) criminal antecedents of the accused or any other justiciable reason, while refusing to grant bail.

22. Let the matter be listed before the appropriate Bench as per roster, for consideration on merits.