IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.4475 of 2009 DINESH KUMAR @ DINESH, son of Nagendra Prasad, R/O village - Ghara Colony Sorangpur, P.S. Gopalpur (Gaurichak), District – Patna Versus STATE OF BIHAR ----------- 2/ 04.02.2009 Heard Mr. Tarakant Jha, Senior Advocate and Mr. Dashrath Mehta, APP. The solitary ground for not releasing the petitioner from custody on account of his failure on the earlier occasion in Cr. Misc. 10603 of 2008 is the non-compliance of the provision of section 437(6) of the Code of Criminal Procedure. That provision directs that in cases triable by a magistrate, an accused has to be released on bail if the trial is not brought to conclusion within a period of sixty days from the first day the case was fixed for evidence. Mr. Jha, learned senior counsel, appearing for the petitioner, has submitted that the petitioner is in custody since 11.11.2007 and the charges were framed against him on 2.8.2008 and thereafter the case was fixed for evidence on 14.8.2008 and it is many many two months from 14.8.2008 that the petitioner is in custody and the trial has not been brought to - 2 - a conclusion. It was contended that, in fact, not even a single witness has been produced by the prosecution in support of the charges. Mr. Mehta, learned Additional Public Prosecutor has resisted the prayer for bail by submitting that it could not be a mandate for a magistrate to act in the light of the provision as indicated above. The provision under section 437(6) of the Code appears in two parts. The first part directs release of the accused in case of the trial not being concluded within a period of sixty days to be counted from the date the case was fixed first for evidence. But when one considers other part of the provision which reads “unless for reasons to be recorded in writing, the magistrate otherwise directs”, one could only come to a conclusion that by virtue of this part of provision, it could not be said that it is mandatory for a magistrate, on account of not concluding the trial, to release an accused. It could be within the discretion of the magistrate if he has reasons appearing from the record to point out as to why he could not conclude the trial, then he could very well refuse releasing an accused on bail. - 3 - I had on some occasions in the past while sitting in this bench to hear such matters have pointed out that the provision is obligatory, it could never be read as a mandate of law. The reason has just been pointed out by me and I simply want to expand it a bit. We have the pendency of cases in lower courts, running into lacs of cases. The number of officers manning lower courts have dwindled over the years. Judges at the higher level, including this court, are below half the capacity of this court. There is complete dearth of judges at the superior level of the lower court. In most of the Judgeships, there may not be permanent additional judges so as to officiating in absence of a District and Sessions Judge. In spite of recruiting over 300 Civil Judges (Junior Division), the court has not been able in ensuring that they assume their court work and impart justice. There could be more than two thousand cases in the file of one magistrate and if one could consider the position of diaries of different courts of magistrates, one could simply find that the turn of a case, as regards its hearing, could be after over sixty days and as such, it could not be expected that the magistrate - 4 - could be paying the same attention and look to the records with the same sense of duty as they could be doing so when their file is confined, say, to five hundred cases. Besides, the agency responsible for production of witnesses are beyond the administrative control of a judge. Officers who are manning the courts also appear lethargic or a bit reluctant in not reading the provisions of law and forcing production of witnesses. Warrant of arrest issued against the witnesses lie in the police station for months and even for years. Documents required to be proved as evidence in support of charge are very hard to get before the court. The official witness, like, the I.O. of the case is almost impossible to be produced. These are some of the circumstances which make it impossible for a magistrate or even a court of higher class, to dispose of the trials as is expected ordinarily by law or by any citizen of India. These could be the reasons which could be taken into account by a court which is called upon to act under section 437(6) of the Code of Criminal Procedure and after pointing out the same, the court could record a reason that it was not possible to release an accused on bail. - 5 - Learned senior counsel for the petitioner canvassed upon me that I should at least direct the lower court to consider the circumstances which could have compelled them or which could have influenced them not to proceed under section 437 of the Code. It was being submitted that the petitioner is not desirous that I should direct release of the petitioner from custody, but he is entitled to know the reasons upon which his prayer for bail could be refused by not acting under section 437 (6) of the Code. This expectation of the petitioner appears genuinely true and the court, when it is expected to act under section 437(6) of the Code, must disclose it reasons for acting as such. Liberty is the right of a citizen. On account of being an accused of an offence, his liberty may be curtailed to a certain extent but not completely. One has generally to be admitted to bail. Only in exceptional cases, one may not be released on bail, which does not mean that one has to be confined in custody for an indefinite period. Fair and speedy trial is, as such, recognized as one of the basic fundamental rights by our constitution and it is - 6 - expected from a judge of any rank that he disposes of a litigation which stakes the liberty of a person without any undue loss of time. I believe that the court below shall re-hear the petitioner if it is approached and then look for and record the reasons on account of which the trial pertaining to the case of the petitioner is not being disposed of. With the aforementioned observation/ direction, this petition is dismissed. Anil/ A.F.R. (Dharnidhar Jha, J.)