1 2025:CGHC:16567 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1236 of 2025 Hari Vivek Dahariya S/o Harischandra Dahariya Aged About 40 Years R/o Pram Nagar, Near Gaura-Gauri, Mova, Thana- Mova/pandari, Raipur, District- Raipur (Accused) ... Petitioner versus State Of Chhattisgarh Through - District Magistrate, Durg, District- Durg (C.G.) (Prosecution) ... Respondent (Cause title taken from Case Information System) For Petitioner : Mr. Mahesh Mishra, Advocate For Respondent/State : Ms. Laxmeen Kashyap, Penal Lawyer Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 08/04/2025 1. The present Criminal Miscellaneous Petition has been filed by the petitioner under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 against the impugned order dated 22.02.2025, passed by learned Second Additional Sessions Judge, Durg, in Criminal VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.04.17 16:31:52 +0530 2 Revision No. 52 of 2025, whereby the revision filed by the petitioner has been dismissed. 2. The brief facts of the case are that the petitioner is one of the co- accused in the Criminal Case No. RCC/8781/2024 pending before the learned Judicial Magistrate First Class, Durg for the offence under Sections 420, 467, 468, 471 and 120-B of IPC arising out of Crime No. 393 of 2024, registered at Police Station Supela, District Durg. It is alleged that the petitioner along with other co-accused persons have conspired and cheated various persons and collected huge amount on the pretext of providing them job in Mantralaya, Chhattisgarh Government, Raipur and issued forged appointment letter having seal of Under Secretary of General Administration Department, Women and Child Development Department and Panchayat and Rural Development Department, Mahanadi Bhawan, Mantralaya, Raipur. The petitioner was arrested in the offence and charge sheet was filed against him also along with the other co- accused persons. The charges have been framed against the accused persons on 06.11.2024 and the case was fixed for 20.11.2024 for evidence. 3. Since the offences are tribal by learned Judicial Magistrate First Class and the same has not been concluded within 60 days from the first date fixed for recording evidence of the prosecution witnesses, the petitioner has filed an application on 21.01.2025 under Section 437(6) of the CRPC for grant of default bail to the petitioner. Reply to the application has been filed by the prosecution on 22.01.2025 and after hearing the parties, the learned trial Court has dismissed the 3 application filed by the petitioner, which is under challenge in the present petition. 4. Learned counsel for the petitioner would submit that on 06.11.2024 the charges have been framed and till 21.01.2025 i.e. even after 60 days of the framing of charge, the trial of the case has not been concluded. The offences are tribal by learned Judicial Magistrate First Class and the trial of the case should have been completed within 60 days, as provided under Section 437(6) of the CRPC and if the trial is not concluded, the accused is entitled for default bail. In the present case also the trial is not concluded and therefore, the petitioner is also entitled for default bail. In support of his submissions, he would rely upon the judgement passed by coordinate Bench of this Court reported in 2009 (3) CGLJ 448 (Atul Bagga v. State of Chhattisgarh). 5. On the other hand learned counsel for the State opposes the submissions made by learned counsel for the petitioner and has submitted that on 06.11.2024, the charges have been framed and on 20.11.2024, the evidence of the complainant Tivendra Kumar Sinha was started, but for want of certain documents on record, his examination could not be completed, for which necessary correspondence is made to police station Supela. The allegation against the petitioner and the other accused persons are very serious in nature that they have obtained about Rs. 71 Lakhs from 12 victims on the pretext of providing them the job and given forged joining letter. He would also submit that the provisions of Section 437(6) of CRPC are not mandatory, but there are certain limitations. The 4 learned trial Court is trying to conclude the trial and summons and bailable warrants are regularly issued to the witnesses for their presence. He would rely upon the judgement passed by coordinate Bench of this Court in CRMP No. 112 of 2023 (Prakash Bahpakadiya v. State of Chhattisgarh), order dated 16.01.2023. 6. I have heard learned counsel for the parties and perused the material annexed with the petition. 7. In the matter of Atul Kumar Shrivastava Vs. State of CG reported in 2020 SCC OnLine Chh 2373, Raman Kumar (Supra) and Biswajeet Barik (Supra), considering the scope and nature of 437 (6) Cr.P.C., legal proposition has been settled that the right conferred on the accused under Section 437 (6) Cr.P.C. is not absolute one and the same is subject to the conditions stated in the said provision. This Court deems it appropriate to reproduce the relevant portion of the judgment in Atul Kumar Shrivstava (supra) which reads thus:- “9. In Gurucharan Singh (supra)1, the Supreme Court has held that object of Section 437(6) of the CrPC is to speed up trial without unnecessarily detaining a person as an under trial prisoner, and observed as under: "........There is similar provision under sub- section (6) of Section 437 of Cr.P.C. which corresponds to section 497(3A) of the old Code. This provision is again intended to speed up trial without unnecessarily detaining a person as an undertrial prisoner, unless for reasons to be 5 recorded in writing, the Magistrate otherwise directs.....…" 10. This court in Atul Bagga (supra) in unmistakable terms has held that apart from the gravity of offence and the quantum of punishment, the following factors, among others may weigh with the Magistrate while refusing dealing the application under Section 437(6) of the CrPC and held as under: "11. xxx xxx xxx (a) the overall impact of the offence and the release of the person accused of such offence on the society, (b) the possibility of tampering the evidence by the accused, (c) the possibility of the accused absconding if released on bail, and lastly, (d) the delay in conclusion of the trial within, a period of 60 days if attributable to the accused." 11. Thus, the seriousness of the offences for which the accused has been charged, the overall impact of the offence and the release of the person accused of such offence on the society, the possibility that the accused, if released on bail is likely to influence the witnesses or tamper with the prosecution evidence, the fact that other co-accused are absconding would be relevant factors for refusing bail under sub- Section (6) of Section 437 of the Code. 6 12. The Madhya Pradesh High Court in the matter of Devraj Maratha @ Dillu v. State of M.P. considered the question whether the provisions contained in sub- section (6) of Section 437 of the CrPC is mandatory for the magistrate to release the accused on bail when the trial is not concluded within a period of sixty days from the date fixed for taking evidence in the case and answered the question as under: "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 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." 13. It has clearly been held by the Madhya Pradesh High Court that, what is mandatory is passing of an order under Section 437(6) of the CrPC, but grant of bail on failure to conclude the trial within the 7 statutorily fixed time limit is not mandatory to which I respectfully agree.” 8. Recently, in the matter of “Subhelal @ Sushil Sahu v. State of Chhattisgarh” AIR 2025 SC 1483, the Hon'ble Supreme Court has observed certain conditions in its judgement for deciding the application under Section 437(6) of the CRPC. In Para 13 of its judgement, the Hon'ble Supreme Court has observed that:- “13. So far as fundamental right of an accused envisaged under Article 21 of the Constitution of India is concerned, insofar as it relates to a speedy trial, the same cannot be pressed into service vis-a- vis the right of an accused accruing under Section 437(6) of the Code. Because the right of the accused under Section 437(6) of the Code is altogether different than one envisaged under Article 21 of the Constitution of India. Section 437(6) of the Code takes in its sweep only the right to speedy trial, whereas Article 21 of the Constitution of India has a very wide connotation.” 9. It is necessary to quote here the provisions of Section 437(6) of the CRPC, which reads as under:- “437. When bail may be taken in case of non-bailable offence.— xxx (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 8 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.” 10. In the matter of “Atul Bagga” (supra) the coordinate Bench of this Court has observed in Para 11 and 13 that:- “11. The question that arises for determination is as to what factors should weigh with the Magistrate while refusing grant of bail under subsection (6) of Section 437 of the Code. In my considered opinion, apart from the gravity of offence and the quantum of punishment, one or more of the following factors, among others may weigh with the Magistrate while refusing bail: (a) the overall impact of the offence and the release of the person accused of such offence on the society, (b) the possibility of tampering of evidence by the accused, (c) the possibility of the accused absconding if released on bail, and lastly, (d) the delay in conclusion of the trial within a period of 60 days if attributable to the accused. 13. Thus the seriousness of the economic offences of high magnitude for which the petitioner was charged, the overall impact of the offence and the release of the person accused of such offence on the society, the 9 possibility that the petitioner, if released on bail was likely to influence the witnesses or tamper with the prosecution evidence, the fact that other co-accused were absconding would be relevant factors for refusing bail under sub-section (6) of Section 437 of the Code." 11. From perusal of the impugned order would show that the learned trial Court has considered the gravity and seriousness of the offence, which may affect the public at large. Taking a cumulative view of all the above mentioned grounds and such serious magnitude that his release is likely to affect the society at large, this Court is of the opinion that the learned trial Court has passed the order after due appreciation of the material available on record as well as the law laid down in the field, in which I do not find any illegality or perversity warranting interference in the impugned order as it is well settled that discretion exercised by the trial Court is not to be interfered by this Court in exercise of inherent jurisdiction under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 unless the discretion is shown to have been exercised arbitrarily, perversely or capriciously, but in the present case, nothing has been shown that the discretion is exercised in the manner contrary to the law. 12. Resultantly, the petition filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 deserves to be and is hereby dismissed. 13. Before parting with the case, it is necessary to observe that a duty is cast on the Magistrate to ensure that summons are promptly issued 10 by the Court and to conclude the trial as early as possible within the stipulated time framed. 14. A copy of this order be forwarded to the concerned Judicial Magistrate for speedy disposal of the case. Sd/- (Ravindra Kumar Agrawal) Judge ved