Brahmananda @ Ankit Kumar Barik vs State Of Odisha

B.P.ROUTRAY. J.

The petitioner has prayed to release him on bail in connection with Keonjhar Sadar P.S.Case No.166 of 2019 corresponding to G.R.Case No.781 of

2019 pending in the court of the learned S.D.J.M., Keonjhar.

The offences alleged in this case are under Sections 468/471/420/34 of the Indian Penal Code on the allegation that the petitioner being the C.E.O. of

a company, named Vatsalya Empire could manage to cheat the innocent villagers in collecting lakhs of rupees giving false assurance of providing

monthly stipend and livestock to them.

It is submitted on behalf of the petitioner that, he has been arrested on 3.7.2019 and in the meantime twenty-six witnesses have been examined in

course of trial. The petitioner thrust upon the provision of sub-section 6 of Section 437 of the Cr.P.C. by submitting that despite completion of sixty

days from the date of examination of the first witness, the trial is yet to be completed and since the trial could not be completed within the said period

of sixty days, he is bound to be released on bail, being in custody for the whole period from 3.7.2019 till date.

On the contrary, learned counsel for the State submits that the allegations leveled against the petitioner is relating to misappropriation of lakhs of

rupees, which he had collectively taken along with other accused persons from the innocent villagers with false assurance to them for providing

monthly stipend and goats. It is also submitted by the learned counsel for the State that the provision contemplated under Section 437(6) of the Cr.P.C.

does not lay any mandate in favour of the accused petitioner for his release on bail in default to complete the trial within the period of sixty days from

the first date of examination of witness. It is also submitted that the mandate of the legislation is not to release the accused in every case irrespective

of the facts considered. Therefore, the learned court below has rightly rejected the prayer for bail of the petitioner considering the prevailing situations

of continued lockdown.

Perusal of case record reveals that the petitioner is inside custody since 3.7.2019 in connection with the aforesaid case. The petitioner had earlier

approached this Court in BLAPL No.6698 of 2019 for his release on bail, which was filed on 31.7.2019 and disposed of by order of this Court on

20.2.2020 rejecting his prayer for bail. But presently the petitioner renews his prayer for bail resting upon the provision under Section 437(6) of the

Cr.P.C.. Though the petitioner has stressed upon the provision of Section 437(6) of the Cr.P.C., still he did not choose to file the copy of the petition

filed before the learned S.D.J.M., nor the order passed by the learned S.D.J.M. in that regard. The petitioner only files the copy of the order passed

by the Sessions court dated 9.6.2020. The said order of the learned Addl. Sessions Judge, Keonjhar reveals that the petitioner is inside custody since

3.7.2019 and the date of examination of first witness is dated 26.7.2019 and the date of examination of last witness as yet i.e. P.W.6, on 24.2.2020.

As the submission of the petitioner is concentrated on the provision under Section 437 (6) of the Cr.P.C., the focal point for consideration is that,

whether the accused has the indefeasible right to be released on bail under Section 437(6) of the Cr.P.C., in case the trial is not completed within the

period of sixty days as stated therein ?

It is relevant to reproduce Section 437(6) of the Cr.P.C here. The said provision reads as follows:

“437. When bail may be taken in case of non-bailable offence.-

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(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.â€​

A careful perusal of the above quoted provision gives an impression of imperative nature of the said provision with discretion to the court in a case

triable by the Magistrate to refuse for bail for the reasons to be recorded in writing. This provision is seen to be linked with right of speedy trial of the

accused as a part of fundamental right guaranteed under Article 21 of the Constitution of India. The last part of the provision speaks that the Court

can also reject the prayer for bail, if reasons are there. This means the provision as a whole is not mandatory but directory in nature, because the court

has the discretion to refuse the bail also. The provision is objected to speed up the trial without unnecessary delay. It is understood that the trial is to be

concluded within a period of sixty days from the first date fixed for taking the evidence and in case the trial is not completed within the said period of

sixty days, then the accused shall be released on bail provided that there are no reasons to be recorded for refusal of bail. To read it otherwise, unless

the accused is refused to bail for reasons to be recorded, he should be released on bail.

Now the question comes for what reason the bail of the accused is to be refused ?

The first obvious answer is, if the delay is not attributable to the accused. Besides this, the other reasonable grounds would be, the nature of allegation,

the proclivity of the accused to commit crime, which can be judged from his criminal antecedents, or any other justifiable reason to refuse the bail. But

nothing is there to preclude the accused from his entitlement to apply for bail in case the trial is not completed within that specified period of sixty

days.

Therefore, upon thorough analysis of the provision, it can safely be said that the same is not mandatory, but directory in nature and when the

accused applies for grant of bail under Section 437(6) of the Cr.P.C., the court is to consider the nature of allegation, whether the delay is attributable

to the accused, the criminal antecedents of the accused, if any, or any other justifiable reason to refuse the bail.

Now switching back to the facts of the present case, it reveals from the order of the learned Addl. Sessions Judge that the prayer of the accused

to grant him bail has been refused mainly on the ground of lockdown situation prevailed due to COVID-19 Pandemic. It is seen that the trial could not

be proceeded further after examination of P.W.26 i.e., on 24.2.2020 due to outbreak of novel Corona virus and the consequent lockdown situation.

But what is notable to see is, the prescribed period of sixty days has already been crossed by 24.2.2020 since the first date of examination of P.W.1

was 26.7.2019 and the period of sixty days as such completed on 26.9.2019. Thus the reasons attributed to lockdown situation for COVID-19 does not

seem correct prior to 24.2.2020. The accused-petitioner does not raise any submission to attribute such delay in trial to the prosecution nor do the

State counsel submits anything to say the reason of delay in trial attributable to the defence. Since the petitioner has not produced any material to

show the delay on the conduct of either party, what is inferred from the circumstances that, the delay perhaps due to long list of witnesses of the

prosecution. When twenty six witnesses have been examined between the period from 26.7.2019 to 24.2.2020, it cannot also be said that the court has

not proceeded in examination of prosecution witnesses without adequate expeditiousness. But one thing is clear that here the delay is neither

attributable to the prosecution nor to the accused nor to the court.

From the nature of allegation, it appears that the petitioner has misappropriated lakhs of rupees from different villagers on false assurance to

provide them monthly stipend and goats. There is no reported criminal antecedent against the petitioner and he is inside custody since 3.7.2019.

Thus, considering all such circumstances, in my considered opinion, there is no justifiable reason to refuse the bail to the petitioner, he is entitled to

in terms of the provision contained in Section 437(6) of the Cr.P.C. Accordingly, it is directed to release the petitioner on bail in the aforesaid case for

Rs.30,000/-(thirty thousand) with two sureties each for the like amount to the satisfaction of the learned S.D.J.M., Keonjhar with further condition

that, one of such sureties shall be his relative and he shall furnish property security free from all encumbrances worth of Rs.5,00,000/-(five lakhs) and

he shall not be involved in any other offence while on bail. It is clarified that the property security has been conditioned keeping in view the nature of

allegations regarding financial fraud.

The BLAPL is disposed of accordingly.