CHANDRASWAMI Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) The petitioners are facing trial for their having allegedly committed an offence punishable under Sections 420/120(B) Indian Penal Code now pending in the Court of Mr. Ajit Bharioke, Additional Session Judge, Delhi. The charges were framed against the petitioners and the statement of the complainant Lakhubhai Pathak was recorded by the Trial Court on 5th, 6th and 8th July, 1996. .On the basis of the evidence, the Trial Court by order dated 9th July, 1996 added Mr. P.V. Narasimha Rao as an accused to the criminal conspiracy and he was summoned under Sections 120B/420 IPC. This order was challenged by Mr. P.V. Narasimha Rao in this Court. His petition for quashing the summons was dismissed on 30th July, 1996. Against the order of this Court dated 30th July, 1996, Mr. Rao preferred a Special Leave Petition in the Supreme Court of India. The Supreme Court granted exemption from personal appearance till the disposal of the Special Leave Petition. The Special Leave Petition of Mr. Rao was dismissed by the Supreme Court on 20th August, 1996. However, while dismissing the Special Leave Petition, the Supreme Court granted exemption to Mr. Rao from his personal appearance in the Trial Court and it was left open to him to agitate the point as to whether the summons could have been issued to him for an offence under Sections 120B/420 Indian Penal Code before the Trial Court. As exemption from personal appearance had been granted to Mr. Rao, the Trial Court did not record any further evidence and on 2nd August, 1996 the case was adjourned to 31st August, 1996 for awaiting the orders of the Supreme Court.

(2.) The petitioners filed an application in the Trial Court for the grant of bail on the ground that the prosecution evidence had started on 3rd June, 1996 and as the trial of the petitioners has not concluded within a period of sixty days from the first date fixed for taking evidence, they are entitled to be released on bail. This application of the petitioners was dismissed by the Trial Court by the impugned order dated 3rd August, 1996. Aggrieved by the said order of dismissal of the bail application by the Trial Court, the petitioners have filed this petition challenging the order of the Chief Metropolitan Magistrate and for grant of bail.

(3.) The contention of Mr. Rajender Singh, Sr.Advocate, appearing on behalf of the petitioners, is that the Trial Court has ignored the provisions of Section 437(6) of the Code of Criminal Procedure (in short referred to as the "Code") and has wrongly refused to release the petitioners on bail. Rejecting the bail application, the Chief Metropolitan Magistrate held that there was no material change since the last order declining bail to the accused persons on 10th July, 1996 and no case had been made out for the grant of bail. -It was also held by the Trial Court that by order dated 8th May, 1996 the High Court had clearly mentioned that there was a strong apprehension of the petitioners tampering with evidence and as such there was no case to admit the petitioners to bail. Commenting upon these observations of the Trial Court Mr. Rajender Singh submits that since the date of passing of the earlier order refusing to release the petitioners on bail, there has been significant change in as much as sixty days have expired from the first date for taking evidence in the case and as such the petitioners have avested right to be released on bail. According to him, the word 'shall' appearing in Section 437(6) clearly gives a mandate to the Court that in case of non-compliance of the provisions of the said Section, it has no option but to release the petitioner on bail unless the reasons for not releasing them are so compelling that they are not entitled to the benefit of Section 437(6). It is also. his argument that till they are proved guilty, the petitioners are innocent and the basic rule in such cases is bail and not jail except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice and bail should not be withheld as means of punishment. He also submits that there is a legal error in the order when the Chief Metropolitan Magistrate holds that "very fact that another~accused has been added and the case will proceed for charge and witnesses re-heard goes to show that provisions of Section 437(6) of the Code cannot be invoked as the trial has to proceed as a whole." His contention is that the word trial in Section 437(6) is the trial of a person who is already accused of a non-bailable offence and it cannot be held that the trial will start denovo after the third person has been added as an accused. To appreciate the contentions of Mr. Rajender Singh, it will be useful to refer to the provisions of Section 437(6) .which reads asunder: