HIGH COURT OF UTTARAKHAND AT
NAINITAL
THE HON’BLE SRI JUSTICE RAKESH THAPLIYAL
C482 Application No. 2502 of 2023
Mohd. Inam ….....Applicant
Versus
State of Uttarakhand and Another ….Respondents
Counsel for the applicant : Mr. Rajendra Dobhal, learned
Senior Counsel assisted by Mr.
Shubhang Dobhal, learned counsel
Counsel for the State : Mr. Saurabh Pandey, learned Brief
Holder
Counsel for the respondent : Mr. Arvind Vashisth, learned Senior
Counsel, assisted by Mr. Hemant
Mehra, learned counsel
Hon’ble Rakesh Thapliyal, J. (Oral)
1. The brief facts of the case are that the applicant
moved an application for default bail under Section
437(6) Cr.P.C., which was rejected by the Additional
Chief Judicial Magistrate/ 5th Additional Senior Civil
Judge, Dehradun by order dated 01.09.2023, against
which, Criminal Revision No.214 of 2023 was preferred
before the 5th Additional Sessions Judge, Dehradun,
which was also rejected by order dated 01.12.2023.
2. Being aggrieved with the orders dated 01.09.2023
and 01.12.2023, the present C482 application has been
preferred, wherein a relief is being sought that both the
orders may be set-aside, and the applicant be released
on default bail during the pendency of trial.
2
3. On the previous date when the matter was heard at
length i.e. on 03.01.2024, Mr. Arvind Vashisth, learned
Senior Counsel for respondent no.2, has raised a
preliminary objection with regard to the maintainability of
the present C482 application, and submits that against
the order, rejecting the application under Section 437(6)
Cr.P.C., neither a revision was maintainable, nor the
present C482 application. He further submits that the
applicant can move an application under Section 439
Cr.P.C. for seeking default bail.
4. Apart from this, Mr. Vashisth submits that the order
rejecting the application under Section 437(6) Cr.P.C. is
an interlocutory order, therefore, neither the revision was
maintainable, nor the present C482 application.
5. The matter was again heard on 08.01.2024 and on
that day, both the learned counsel for the parties had
argued at length and relied upon several judgments. For
ready reference, the order passed by this Court on
08.01.2024 is being reproduced herein as under:-
“Mr. Rajendra Dobhal, learned Senior Counsel for the
applicant, submits that the order rejecting the Application of the
applicant under Section 437(6) of Cr.P.C. is not an
interlocutory order, since Section 437(6) of Cr.P.C. gives an
absolute right to the applicant to be released on bail, if the trial
is not concluded. In reference to this, Mr. Dobhal placed
reliance on the judgment rendered by the Madhya Pradesh High
Court in Rajesh Sarathe vs. the State 2 of Madhya Pradesh
(MCRC 22726 of 2019, decided on 01.08.2019). By giving
3
reference of this judgment, Mr. Dobhal submits that the
parameters relevant for the purpose of considering Bail
Application under Section 437(6) of Cr.P.C. are different from
the parameters relevant for considering the bail application
under Section 437(1) and 439(1) of Cr.P.C. He submits that
Section 437 of Cr.P.C. provides a right in favour of the accused
to secure bail where the trial could not be concluded within a
period of 60 days, from the first date fixed for taking evidence.
He further submits that since the order passed by the Magistrate
under Section 437(6) of Cr.P.C. affects or adjudicate the right
of the accused, it cannot be said to be an interlocutory order.
2. In the judgment of the Madhya Pradesh High Court in
the case of Rajesh Sarathe (supra), reference of the judgment
of the Hon’ble Apex Court rendered in the case of Amar Nath
vs. State of Haryana (1977) 4 SCC 137 was also given,
wherein the Hon’ble Apex Court interpreted the provision of
Section 397(2) of Cr.P.C.
3. Interestingly, both the counsels Mr. Rajendra Dobhal
and Mr. Arvind Vashisth placed reliance on the judgment
rendered by the Hon’ble Apex Court in the case of Amar Nath
(supra), and both the counsels placed reliance particularly on
Paragraph-6 of the said judgment.
4. Apart from this, Mr. Rajendra Dobhal also placed
reliance upon the judgment of Suresh Verma vs. State of U.P .
and another 2013 SCC OnLine All 1694, wherein the C-482
application was preferred against the order rejecting the
application moved under Section 437(6) of Cr.P.C. The
Allahabad High Court, in this case, in exercise of the inherent
jurisdiction as conferred by Section 482 of Cr.P.C., released the
applicant on bail. Apart from this, Mr. Dobhal as well as Mr.
Saurabh Pandey, learned Brief Holder for the State, placed
reliance on the judgment of the Madhya Pradesh High Court in
the case of Ram Kumar @ Raj Kumar Rathore vs. State of
M.P. 2000 CriLJ 2644, wherein it is opined that the provisions
of Section 437(6) of Cr.P.C. are mandatory in nature. Apart
from this, Mr. Rajendra Dobhal, learned counsel for the
applicant, further placed reliance on another judgment of the
Hon’ble Supreme Court in the case of Abdul Rehman Antulay
v. R.S. Nayak, (1992) 1 SCC 225 and he particularly referred
to paragraph 86 of the said judgment and submits that the right
to speedy trial is a fundamental right of the party.
5. Another judgment, which has been placed reliance upon
by Mr. Rajendra Dobhal, learned Senior Counsel, is in the case
of Devraj Maratha @ Dillu vs. State of Madhya Pradesh
(M.Cr.C. No.2668/2018, decided on 16.03.2018), wherein in
Paragraph 22, the Madhya Pradesh High Court observed that
the 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 period, however, passing
of an order under Section 437(6) of the Code appears to be
mandatory.
4
6. On the other hand, Mr. Arvind Vashisth, learned Senior
Counsel, who appears for the complainant, placed reliance on
the judgment of the Allahabad High Court in the case of In re
Provisions of Section-14A of SC/ST (Prevention of
Atrocities) Amendment Act, 2015 vs. NIL 2018 SCC
OnLine All 2087 and refers Paragraphs 64, 85 and 87, and in
response to this, Mr. Dobhal submits that in this judgment,
interpretation of Section 437(6) of Cr.P.C. has not been dealt
with and, therefore, this judgment is not applicable.
7. Another judgment, which has been placed reliance upon
by Mr. Arvind Vashishth, is the Full Bench judgment of the
Allahabad High Court in the case of Ghulam Rasool Khan
and others vs. State of U.P. and others 2022 SCC OnLine
Allahabad 1975 and he refers particularly Paragraphs 6 and 11
of the said judgment. In this judgment Question No. 3 was
framed which is as follows:
“Whether an aggrieved person who has not availed of
the remedy of an appeal under the provisions of Section
14A of Act, 1989 can be allowed to approach the High
Court by preferring an application under the provisions
of Section 482 of the Cr.P.C.?
8. This Question No. 3, as framed, has been dealt with in
Paragraph 12, and in Paragraph-13, the answer has been given
in negative.
9. Another judgment, which has been placed reliance upon
by Mr. Arvind Vashisht, is of the Allahabad High Court in the
case of Surendra Kuwar Singh vs. State of U.P. and others
2015 SCC OnLine All 7137, and he refers to Paragraph-12 of
this judgment.
10. Apart from this, Mr. Arvind Vashisth further placed
reliance upon the judgment of the Hon’ble Supreme Court in
the case of Dharmatma Singh vs. Harminder Singh and
others (2011) 6 SCC 102 and he referred to Paragraph-22 of
the said judgment.
11. Finally, Mr. Rajendra Dobhal, learned Senior Counsel
for the applicant, submits that this is a case of default bail and
not of regular bail and so far as the default bail is concerned,
the same is a matter of right. In response to this, Mr. Arvind
Vashsith, learned Senior Counsel for the complainant, submits
that there is a major difference under Section 167(2)(a)(ii) of
Cr.P.C. and Section 437(6)of Cr.P.C. The major different has
been pointed out by Mr. Arvind Vashisth, learned Senior
Counsel, is that Section 167 of Cr.P.C. is mandatory to release
the accused on bail but under Section 437(6) of Cr.P.C. there is
a discretionary power of the Trial Court to release the accused
on bail. Mr. Rajendra Dobhal, learned Senior Counsel, in
response to this, further submits that Section 167 of Cr.P.C.
will attract during the investigation, but Section 437(6) of
Cr.P.C. will attract when the trial has begun. Finally, he
submits that if we take both the provisions, both are meant for
default bail. The concept of default bail, according to both the
counsels, is that the accused can claim, as a matter of right, to
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be released on bail, but Mr. Arvind Vashisth, learned Senior
Counsel for the complainant, submits that Section 437(6) of
Cr.P.C. does not pertain to default bail because the bail can be
refused.”
6. Thereafter, the matter was taken up on several
occasions and today, Mr. Rajendra Dobhal, learned
Senior Counsel for the applicant again placed reliance on
the judgment in the case of Suresh Verma Vs. State of
U.P. and another, 2013 SCC OnLine All 1694
(supra), wherein it has been held that the provisions of
Section 437(6) of CrPC are mandatory in nature and if
the trial has not concluded within sixty days from the first
date fixed for evidence, then the accused by virtue of
Section 437(6) CrPC is entitled to be released on bail.
7. Mr. Arvind Vashisth, learned Senior Counsel for the
respondent submits in support of preliminary objection
with regard to maintainability of instant C482 Application
by placing reliance on several judgments including the
judgment rendered by the Hon’ble Supreme Court in the
case of Amar Nath (supra) and submits that since the
order passed by the Magistrate under Section 437(6)
CrPC is an interlocutory order, therefore, the Revision
would not lie under Section 397(2) of CrPC. He submits
that since the present applicant has preferred a Revision
against the order refusing to grant bail under Section
6
437(6) CrPC, and hence the present C482 Application is
also not maintainable and the remedy available to the
applicant is to seek regular bail under Section 439 CrPC.
8. Apart from this, he submits that earlier, the present
st
applicant preferred a 1 Bail Application, which was
nd
rejected on 11.08.2022 and thereafter a 2 Bail
Application was also preferred, which was also dismissed
on 23.08.2023. He submits that since in this case, the
st
charges were framed on 10.08.2022 and when the 1
nd
Bail Application, as well as 2 Bail Application was
decided, the grounds which he has taken in an
Application moved under Section 437(6) CrPC, were
available to the applicant which he has not taken while
st nd
moving the 1 Bail Application, as well as in the 2 Bail
Application.
9. Mr. Arvind Vashisth, learned Senior Counsel for the
respondent further submits that the Revisional Court,
st
after taking into consideration that the 1 Bail Application
nd
as well as the 2 Bail Application of the present applicant
were rejected, therefore, he is not entitled to get the
benefit of Section 437(6) of CrPC. Apart from this, he
also placed reliance on the judgment rendered by the
Hon’ble Supreme Court in the case of Dharmatma
7
Singh Vs. Harminder Singh and others, (2011) 6
SCC 102, and by placing reliance on para 22 of the said
judgment, Mr. Arvind Vashisth, learned Senior Counsel
for the respondent submits that Section 482 CrPC saves
the inherent powers of the High Court to make such
orders as may be necessary to give effect to any order
under the Code or to prevent abuse of the process of any
court or otherwise to secure the ends of justice, and
therefore, he submits that under Section 482 CrPC, the
applicant cannot be enlarged on bail particularly when
the applicant has a remedy to move an Application under
Section 439 of CrPC to seek regular bail and the remedy
available under Section 482 of CrPC is not meant for this.
10. In response to this, Mr. Rajendra Dobhal, learned
st
Senior Counsel for the applicant submits that the 1 Bail
nd
Application was rejected on 11.08.2022 and the 2 Bail
Application was rejected on 23.08.2023 and in both the
Bail Applications, the grounds of Section 437(6) of CrPC
were not taken and the Application moved under Section
nd
437(6) of CrPC was moved after disposal of the 2 Bail
Application and it was a new and fresh ground.
11. Mr. Saurabh Pandey, learned Brief Holder for the
State submits that the application moved by the
8
accused/applicant under Section 437(6) of CrPC was
rejected by the trial Court on 01.09.2023. The order
passed by the trial Court, rejecting the Application under
Section 437(6) of CrPC on 01.09.2023 is being extracted
herein as below:-
**01-09-2023
vkt ;g tekur izkFkZuk i= vUrxZr /kkjk 437¼6½ n0iz0l0a
vfHk;qDr bZuke dh vksj ls }kjk vf/koDrk izLrrq A lqukA vkns”k gqvk
fd vfHk;qDr bZuke dk tekur izkFkZuk i= vUrxZr /kkjk 437¼6½
n0iz0la0 vLohdkj fd;k tkrk gSA vkns”k dh izfr vfHk;qDr dks
fu”kqYd iznku dh tk, rFkk ,d izfr ftyk dkjkxkj nsgjknwu dks
izsf’kr dh tk,A i=koyh fu;r frfFk dks is”k gksA
g0 vifBr
¼eerk iar½
iape vij flfu;j flfoy
tt@,0lh0t0s ,e
nsgjknuw
12. Mr. Saurabh Pandey, learned Brief Holder for the
State submits that as per Section 437(6) CrPC, if in any
case triable by Magistrate the trial of a person accused of
any non-bailable offence is not concluded within a period
of the sixty days from the first date fixed for taking
evidence then such person shall, if he is in custody
during the whole period of the said person, be released
on bail to the satisfaction of the Magistrate concerned,
unless for reasons to be recorded in writing, the
Magistrate otherwise directs.
13. It is submitted that by virtue of Section 437(6)
CrPC, the Magistrate should give the reasons while
9
rejecting the Application under Section 437(6) CrPC but
on plain reading of the order passed by the learned
Magistrate dated 01.09.2023 no reasoning has been
given while rejecting the application under Section
437(6) CrPC.
14. Mr. Saurabh Pandey, learned Brief Holder for the
State, by giving reference of Section 437(6) CrPC,
submits that whether the order passed by the learned
Magistrate dated 01.09.2023 is as per the mandate of
Section 437(6) CrPC or not, that aspect can only be
examined under Section 482 CrPC. He fairly submits that
against the order rejecting the Application under Section
437(6) CrPC, a Revision was preferred by the
accused/application wherein the complainant also put his
appearance; however, the question of maintainability
was not raised by the complainant before the Revisional
Court.
15. In response to this, Mr. Arvind Vashisth, learned
Senior Counsel for the applicant submits that it is purely
a question of law whether the application preferred under
Section 482 CrPC is maintainable or not, particularly
when a remedy is available to the applicant to seek
regular bail under Section 439 CrPC, therefore, such a
10
legal issue with regard to maintainability can be raised at
any stage.
16. Several judgments have been relied upon by Mr.
Arvind Vashisth, learned Senior Counsel for the
respondent but in none of the judgments, the issue of
maintainability has been dealt with, particularly, in
reference to Section 437(6) CrPC. Even on perusal of all
the judgments, this aspect has also not been dealt with
whether the condition as stipulated under Section 437(6)
of CrPC is mandatory in nature or not.
17. Mr. Rajendra Dobhal, learned Senior Counsel for the
applicant also placed reliance on several judgments,
wherein, a particular issue with regard to Section 437(6)
of CrPC has been dealt with and it has been held that the
conditions as stipulated under Section 437(6) of CrPC are
mandatory in nature.
18. So far as the preliminary objection as raised by the
learned Senior Counsel for the respondent that the
present C482 Application is not maintainable, this Court
is of the view that the order rejecting the application of
the applicant under Section 437(6) of CrPC is not an
interlocutory order since Section 437(6) of CrPC gives an
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absolute right to the accused to be released on bail if the
trial is not concluded.
Furthermore, the order passed by the Magistrate
rejecting application under Section 437(6) of CrPC affects
the right of the applicant who wants to secure bail on the
ground that the trial could not be concluded within 60
days, therefore, it cannot be said to be an interlocutory
order.
Furthermore, it is settled principle of law that
Section 482 CrPC save the inherent powers of the High
Court to make such orders as may be necessary to give
effect to any order under this Code, or to prevent
abuse of the process of any Court or otherwise to secure
the ends of justice.
19. Here, in the present case, while rejecting
application under Section 437(6) of CrPC, the Magistrate
concerned have not recorded any reasons which in fact is
the mandate of Section 437(6) of CrPC and this aspect
has also been overlooked by the revisional Court.
Therefore, the question here to examine is that whether
the order passed by the Magistrate on 01.09.2023 is as
per the mandate of Section 437(6) of CrPC or not, that
aspect can only be examined by this Court while
exercising inherent powers under Section 482 CrPC.
12
Therefore, this Court rejects the submissions as
advanced by Mr. Arvind Vashisth, learned Senior Counsel
for the respondent and holds that the present C482
Application is maintainable.
20. Further, after taking into consideration all the
arguments as advanced by the learned Senior Counsel
for the petitioner and the learned Senior Counsel for the
respondent, as well as Mr. Saurabh Pandey, learned Brief
Holder for the State, this Court is of the view that the
conditions, as stipulated under Section 437(6) of CrPC
are mandatory in nature and if the trial is not concluded
within the period as stipulated under Section 437(6) of
CrPC, then the accused is entitled to get the benefit to be
released on bail.
21. Here, in the present case, the applicant is in jail
since 18.05.2022 and up till date, only two witnesses
have been examined out of 14 witnesses. Thus, after
taking into consideration all these aspects, this Court is
of the opinion that the present C482 Application is
maintainable and since the accused/applicant already
remained in custody since 18.05.2022, therefore, he is
entitled to be released on bail.
13
22. In view of the observations and reasons as given
above, the order dated 01.09.2023, as well as the order
passed by the Revisional Court dated 01.12.2023 are
hereby set aside; the present C482 Application is allowed
without expressing any opinion on the merit of the case
and the Trial Court is directed to release the applicant on
bail subject to executing his personal bond and furnishing
two sureties each in the like amount with the following
conditions:-
(i) The applicant shall cooperate with the trial and
attend the Court on each date of hearing.
(ii) The applicant shall not tamper the evidence.
(iii) The applicant shall not pressurise/intimidate the
prosecution witnesses.
23. In defiance of above conditions, the prosecution
would be at liberty to move application for cancellation of
bail.
___________________________
Rakesh Thapliyal, J.
Dt: 24.05.2024
Mahinder/