Anil Janjua & Ors. v. State of NCT Delhi & Ors.

13) vide which respondents No.2 and 3, who are accused of FIR No.410/08 under Sections 420/406/34/120B of IPC and Sections 3/4/5/6 of Prize Chit and Money Circulation Scheme (Banning) Act, registered at P.S. Rajouri Garden, Delhi, have been granted bail, is sought on the ground of the gravity of the offences committed and because petitioner/complainant was not heard prior to the passing of the impugned order. Alternate prayer made in this petition is to direct trial court to proceed with the trial of this case in a time-bound manner. At the hearing, learned counsel for petitioner had drawn the attention of this Court to order of 29th April, 2010 (Annexure P-10) vide 2013:DHC:5717 CRL.M.C. 2075/2010 Page 2 which bail application of respondents-accused persons was dismissed by a coordinate Bench of this Court in view of the seriousness of the accusations made and in view of the fact that respondents-accused persons had duped nine hundred innocent investors to the tune of more than `8 crores. Impugned order (Annexure P-13) grants bail to respondentsaccused persons by invoking Sub-section 6 of Section 437 of Cr.P.C., which reads as under: - "437. When bail may be taken in case of non-bailable offence. (1) to (5) XXXXXXXX (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." The mandate of aforesaid provision of law is that if the trial is not concluded within sixty days of beginning of recording of evidence, then accused be released on bail. But there is a rider to it i.e. for reasons to be recorded in writing, concerned Magistrate has discretion not to grant bail under Section 437 (6) of Cr.P.C. Impugned order takes note of the fact that respondent-accused persons are in custody for a period of one year and six months respectively and that the period of sixty days have lapsed from the date of recording of prosecution evidence and had relied upon some unreported CRL.M.C. 2075/2010 Page 3 decisions to grant bail to respondents-accused persons under Section 437 (6) of Cr.P.C. while observing that the recording of prosecution of evidence would take substantial time. Learned counsel for respondents-accused persons supports the impugned order and relies upon decisions in Central Bureau of Investigation, Hyderbad v. Subramani Gopalakrishnan and Anr. (2011) 5 SCC 296 and Sami Ullaha v. Superintendent, Narcotic Central Bureau AIR 2009 SC 1357 to contend that to seek cancellation of bail on merits, an appeal has to be filed and cancellation of bail has been sought by petitioner by invoking Section 439 (2) of Cr.P.C. and since respondentsaccused persons have not misused the concession of bail granted to them, therefore, there is no reason to cancel the bail. Lastly, it was submitted on behalf of respondents-accused persons that respondents-accused persons have not sought any adjournment nor have delayed the recording of evidence, therefore, in view of mandatory nature of Section 437 (6) of Cr.P.C., bail has been rightly granted to respondents-accused persons and this petition deserves rejection. After having heard both the sides and on perusal of the impugned order, the material on record and the decisions cited, I find that the gravity of the offence committed is the paramount consideration which has to be kept in mind and if bail has been granted while ignoring the gravity of the offence committed, then it is liable to be cancelled. During the course of the hearing, learned counsel for respondentsaccused persons was not able to draw the attention of this Court to any provision of law which mandates that an appeal has to be filed to seek cancellation of bail granted. If not under Section 439 (2) of Cr.P.C., then CRL.M.C. 2075/2010 Page 4 by invoking inherent jurisdiction of this Court, bail granted to accused can be cancelled if there are very cogent and overwhelming circumstances necessitating cancellation of bail. Impugned order granting bail to respondent-accused persons by invoking Section 437 (6) of Cr.P.C. is patently perverse as it does not take note of the ground reality that in this Capital City, the courts are overburdened and it is not possible to conclude the recording of evidence within sixty days and especially in a case like the instant one where the magnitude of the offences committed affects large number of investors and the extent of cheating is to the tune of `8 crores. It was an improper exercise of jurisdiction by the trial court which deserves to be condemned. Although Section 437 (6) of Cr.P.C. gives a positive command but there is a rider to it and it is rare that in a case like the instant one, Section 437 (6) of Cr.P.C. has been ever invoked. However, the redeeming circumstance, which dissuades this Court to cancel the bail granted to respondents-accused persons is that they have not sought any adjournment before the trial court in the last about three years and because, by now, deposition of nine witnesses out of forty witnesses has been recorded. Since respondents-accused persons have not misused the concession of bail granted to them more than three years ago, therefore, as an exceptional case, this Court refrains from cancelling the bail of respondents-accused persons with a rider that the trial court shall regulate the cross-examination of witnesses by respondents-accused persons and would not entertain any request for adjournment on behalf of respondents-accused persons except for unavoidable reasons. In the CRL.M.C. 2075/2010 Page 5 above-noted background, instead of acceding to the first prayer made in this petition, the alternate prayer made in this petition is accepted and trial court is directed to make all endeavours to conclude the trial of this case within a period of one year from the date already fixed for recording of evidence in this matter. With aforesaid directions, this petition and the application are disposed of while not commenting upon merits lest it may prejudice either side at trial.

JUDGE NOVEMBER 07, 2013 s