# Karam Allahi v. State of U.P. & Anr

- **Citation:** (2024) 4 ILRA 717
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-12
- **Case number:** Application U/S 482. No. 30784 of 2023
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/karam-allahi-v-state-of-u-p-anr-50979
- **Pages:** 9

## Headnote

Law
-

Code
of
Criminal
Procedure,1973
-Section
482-
Indian
Penal Code,1860 - Sections 420, 467, 468,
471, 120-B - Quashing of Bail Rejection Order
Denied - The applicant sought to set aside the
order dated 19.07.2023 rejecting
his bail
application under Section 437(6) CrPC in Case
No. 6781 of 2021 for offences under Sections
420, 467, 468, 471, 120-B IPC and Sections
4/20/21/25 of the Indian Telegraph Act - Held,
the Magistrate's rejection was justified due to the
serious nature of the offence, and no illegality
was found in the order. (Paras 2, 20, 22)

B. Section 437(6) CrPC - Mandatory but
Not Absolute - The applicant argued that
Section 437(6) CrPC mandates bail if a trial for a
non-bailable offence is not concluded within 60
days from the first date fixed for evidence -
Held, while the provision is mandatory, it is not
absolute like Section 167(2) CrPC, and the
Magistrate
can
reject
bail
by
recording
exceptional reasons, as clarified in Chhabi Vs St.
of Orissa and Didar Singh Vs St. of Jharkhand.
(Paras 8, 11, 16, 19)

C. Reasons for Bail Rejection - The
Magistrate rejected the bail application citing the
grievous nature of the offence involving an
illegal international telephone exchange - Held,
the reasons were sufficient, as the offence
posed a threat to national security and caused
significant loss to the exchequer, justifying the
exceptional rejection under Section 437(6) CrPC.
(Paras 20, 21)

D. Nature of Offence and National Security
- The applicant was charged with running an
illegal telephone exchange, causing financial
loss and posing a threat to national security -
Held,
such
serious
allegations,
involving
unmonitored international calls and potential
anti-national activities, constituted exceptional
circumstances for denying bail. (Para 21)

E. Judicial Discretion in Bail Rejection -
The court distinguished the applicant's case
from co-accused who were granted bail, noting
the applicant's distinct role - Held, the
Magistrate's limited discretion under Section
437(6) CrPC was exercised judicially, and the
rejection was not arbitrary, as supported by Ram
Kumar Vs St. of M.P. and Bhikhaji Chaturji
Thakore. (Paras 19, 21, 22)

Application Dismissed.
718 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

## Text

4 All. Karam Allahi Vs. State of U.P. & Anr.
717
he has rejected the said final report and has
taken cognizance against the applicants
herein. Therefore, in the considered opinion
of this Court there is no infirmity in the
order passed by the learned Magistrate
rejecting the final report and taking the
cognizance against the applicants herein.

17. So far as the judgement of another
Coordinate Bench of this Court in the case
of Shahid and other (supra) relied upon by
the learned counsel for the applicant is
concerned, in the light of the judgements of
the Apex Court, referred to herein above,
the same is not in conformity with the
aforesaid judgments of the Apex Court and,
therefore, is of no help to the applicants
herein.

18. For the reasons afore stated, the
instant application is devoid of merit and is
hereby dismissed.
----------
(2024) 4 ILRA 717
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.10.2023

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/S 482. No. 30784 of 2023

Karam Allahi ..Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Anurag Vajpeyi, Sri Aushim Luthra, Sri
Manish Tiwari (Sr. Adv.)

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-

Code
of
Criminal
Procedure,1973
-Section
482-
Indian
Penal Code,1860 - Sections 420, 467, 468,
471, 120-B - Quashing of Bail Rejection Order
Denied - The applicant sought to set aside the
order dated 19.07.2023 rejecting
his bail
application under Section 437(6) CrPC in Case
No. 6781 of 2021 for offences under Sections
420, 467, 468, 471, 120-B IPC and Sections
4/20/21/25 of the Indian Telegraph Act - Held,
the Magistrate's rejection was justified due to the
serious nature of the offence, and no illegality
was found in the order. (Paras 2, 20, 22)

B. Section 437(6) CrPC - Mandatory but
Not Absolute - The applicant argued that
Section 437(6) CrPC mandates bail if a trial for a
non-bailable offence is not concluded within 60
days from the first date fixed for evidence -
Held, while the provision is mandatory, it is not
absolute like Section 167(2) CrPC, and the
Magistrate
can
reject
bail
by
recording
exceptional reasons, as clarified in Chhabi Vs St.
of Orissa and Didar Singh Vs St. of Jharkhand.
(Paras 8, 11, 16, 19)

C. Reasons for Bail Rejection - The
Magistrate rejected the bail application citing the
grievous nature of the offence involving an
illegal international telephone exchange - Held,
the reasons were sufficient, as the offence
posed a threat to national security and caused
significant loss to the exchequer, justifying the
exceptional rejection under Section 437(6) CrPC.
(Paras 20, 21)

D. Nature of Offence and National Security
- The applicant was charged with running an
illegal telephone exchange, causing financial
loss and posing a threat to national security -
Held,
such
serious
allegations,
involving
unmonitored international calls and potential
anti-national activities, constituted exceptional
circumstances for denying bail. (Para 21)

E. Judicial Discretion in Bail Rejection -
The court distinguished the applicant's case
from co-accused who were granted bail, noting
the applicant's distinct role - Held, the
Magistrate's limited discretion under Section
437(6) CrPC was exercised judicially, and the
rejection was not arbitrary, as supported by Ram
Kumar Vs St. of M.P. and Bhikhaji Chaturji
Thakore. (Paras 19, 21, 22)

Application Dismissed.
718 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

1.
Chandraswami
Vs
Central
Bureau
of
Investigation, (1996) 6 SCC 715

2. Chhabi Vs St. of Orissa, 1995 (2) Crimes 622

3. Ram Kumar @ Raj Kumar Rathore Vs St. of
M.P., 2000 (3) Crimes 388

4. Rajendra Rajaram Pal Vs St. of M.P., (2002) 4
MPHT 186

5. Re: 122 Prisoners, 2007 CriLJ 3241

6. Lakki Chakhbeer Singh Vs St., 2006 CriLJ
(NOC) 95 (Raj.)

7. Didar Singh Vs St. of Jharkhand, 2006 (1)
JCR 283 : 2006 CriLJ 1594

8. Bhikhaji Chaturji Thakore Vs St. of Gujarat,
2007 CriLJ 3433

9. Suresh Vs St. of U.P., Application u/S 482 No.
5136 of 2013

10. Saritadevi Vs St. of Himachal Pradesh, 2000
(2) Crimes 543

11. Mohd. Abdul Vs St. of West Bengal, 1991 (2)
Crimes 741

12. Robert Lendy, 1987 CriLJ 55

13. Nageshwar Bhagat Vs St. of Jharkhand,
(2004) 4 JLJR 3

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. Heard Sri Manish Tiwari, learned
Senior Counsel assisted by Sri Aushim
Luthra and Sri Anurag Vajpeyi, learned
counsel for the applicant and Sri Pankaj
Srivastava, learned A.G.A. for the State.

2. By way of the instant application
u/S 482 Cr.P.C.(hereinafter referred as 'the
Code'), the applicant has prayed for settingaside the order dated 19.07.2023, passed by
the Court of Civil Judge, Sr. Division, Fast
Track
Court,
Additional
Judicial
Magistrate, Gautam Buddh Nagar, in Case
No. 6781 of 2021 (State of U.P. vs. Karam
Allahi and others), arising out of the Case
Crime No. 129 of 2021 u/S 420, 467, 648,
471, 120-B I.P.C. and 4/20/21/25 of Indian
Telegraph Act, P.S.- Phase-3 Noida,
District- Gautam Buddh Nagar.

3. Learned Senior Counsel appearing
for the applicant submits that in the instant
case, the applicant herein was arrested on
10.02.2021. Since then, he is in custody.
His earlier bail application was initially
rejected on 09.07.2021 and the second bail
application moved by the applicant was
rejected
by
a
detailed
order
dated
18.11.2022. The instant application has
been filed by the applicant herein u/S
437(6) of the Code, which provides that if
in a case triable by a Magistrate, if the trial
of a person accused of any non-bailable
offence is not concluded within a period of
60 days from the first date fixed for taking
evidence, 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 the
reasons to be recorded in writing, the
Magistrate otherwise directs.

4. Learned Senior Counsel further
submits that in the instant case, the charges
were framed on 25.04.2023 and the first
date for evidence was fixed as 19.05.2023.
The period of 60 days from the first date
fixed for taking evidence has expired on
19.07.2023. Thereafter, the applicant herein
had moved an application u/S 437(6) of the
Code on 19.07.2023, which has been
rejected by the learned Magistrate on the
same day. The only reason recorded for the
rejection of the said application is the
4 All. Karam Allahi Vs. State of U.P. & Anr.
719
matter relates to grievous nature. Learned
Senior
Counsel
further
submits
that
provisions of Section 437(6) of the Code,
are mandatory and the learned Magistrate
while rejecting the bail application is
required to record its reason in writing.

5. Learned Senior Counsel has further
submits that all other co-accused persons
have already been released on bail. Learned
Senior Counsel for the applicant submits
that the provisions of Sub-section (6) of
Section 437 of the Code, are in the nature
of safeguard provided to the accused
persons and while rejecting the bail
application moved by the applicant herein
under the provisions of Sub-section (6) of
Section 437 of of the Code, the learned
Magistrate has not assigned any reason as
was required nor has adverted to the
provisions of the said Section. Therefore,
learned Senior Counsel prays for settingaside the said order passed by the learned
Magistrate and grant bail in terms of Subsection (6) of Section 437 of the of the
Code.

6. Sri Pankaj Srivastava, learned
A.G.A. for the State submits that while
rejecting the application, the learned
Magistrate has categorically recorded his
reason stating that since the matter is of
grievous nature and the earlier bail
applications have already been rejected by
the Sessions Court as well as by the High
Court, therefore, the said application has
been rejected. Therefore, learned counsel
for the State submits that reasons aforesaid
have already been assigned in the order,
there is no illegality in the order.

7. Having heard the rival submissions
made by learned counsel for the parties,
this Court has carefully perused the record
of the case.

8. Provisions of Sub-section (6) of
Section 437 of the Code, reads as under:

"(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."

9. From the plain reading of the said
Sub-section, the following ingredients are
required to be looked into:

(i) Whether the case is triable by
the Magistrate and the offence involved is
of a non-bailable offence;

(ii) Whether the period of 60 days
has expired from first date fixed for taking
evidence in the case; and

(iii) the accused is in custody
during the whole of the said period. Unless
there are some compelling reasons which
are required to be recorded in writing the
bail has to be granted under the said
provisions.

10. With regard to nature of right of
the accused to be released on bail u/S
437(6) of the Code, there are divergent
views of different High Courts and no
direct judgement of the Apex Court is
available with regard to the right of the
accused to be released on bail u/S 437(6) of
the Code. Though, there is a reference to
the provisions of Section 437(6) of the
Code, in a judgement of the Apex Court in
Chandraswami and Others vs. Central
Bureau of Investigation : (1996) 6 SCC
720 INDIAN LAW REPORTS ALLAHABAD SERIES
715, wherein the argument was raised with
regard to the entitlement of the accused
persons for bail u/S 437(6) of the Code.
However, the Hon'ble Apex Court had
considered the grant of bail, looking at the
totality of the facts and circumstances of
the case, without going into the question of
interpretation or applicability of Section
437(6) of the Code.

11. The first judgement which is
available is that of the Odisha High Court,
on the issue in Chhabi vs. State of Orissa :
1995(2) Crimes 622, wherein Justice
Pasayat, J., has held under:

"3. A Magistrate while dealing
with a case under sub-section (6) of
section 437 of the Code has to record
reasons for making an exception. The said
provision deals with cases where the trial
of a person accused of any non-bailable
offence is not concluded within a period of
a sixty days from the first day fixed for
taking evidence in the case, and it provides
that such person shall, if he is in custody
during the whole of the said period be
released on bail unless for reasons to be
recorded
in
writing
the
Magistrate
otherwise directs. It is the right of an
accused person to demand that the charge
against him should be tried without any
unreasonable delay and such delay
entitles the accused to get bail. That right
is statutorily recognised and puts a time
limit. In a case falling under this subsection if the Magistrate for reasons to be
recorded, holds that the accused shall not
be released, then the accused will not be
released on bail. It is stated that merits of
the case should not be considered at that
stage. There is no force in this place. An
overall view cannot be equated with
prejudging the case. The Court is not
precluded from considering the nature of
allegations, while dealing with a. case
under sub-section (6) of section 437 of the
Code. "

12. The next judgement available on
the point is that of the Gwalior Bench of
Madhya Pradesh High Court in Ram
Kumar @ Raj Kumar Rathore vs. State of
M.P. : 2000 (3) Crimes 388, wherein
Justice Dr. Maithli Sharan,J., has observed
as under:

"5. Looking to the provision
referred to above it is but clear that it is
mandatory in nature, and the mandate is
that if the Magistrate is trying a case in
which the accused has been charged for a
non- bailable offence and the trial has not
concluded within a period of sixty days
from the first date of recording the
evidence in the case and that the accused
had remained in custody during the whole
of such period of sixty days, then he
becomes entitled to be released on bail,
provided of course, the Magistrate does not
reject the same recording in writing his
reasons
therefor.
Circumscribing
the
undisputed factual circumstances in the
ambit of the provisions of section 437(6) of
the Code of Criminal Procedure, 1973 it is
apparent that they hold the field and apply
here from all fur corners. In rejecting the
bail application of the petitioner the
learned trial Magistrate and the learned
Fourth
Additional
Sessions
Judge,
Gwalior, have no doubt given their
reasoning as required under the above
provisions of the Code of Criminal
Procedure but they are simply to the effect
that if the petitioner were to be released
then it is doubtful that he would be
attending the Court on each and every date
fixed by the Magistrate. These reasoning's
indicating the apprehension of the learned
Courts
below,
by
no
stretch
of
4 All. Karam Allahi Vs. State of U.P. & Anr.
721
imagination, could be termed as judicious,
and therefore, they are not of such a
nature as to thwart and wash off the
mandatory character of the provisions of
section 437(6) of the Code of Criminal
Procedure, 1973. I am of the considered
view that the statutory right given to the
accused by the above provisions cannot be
taken away in such a fashion. Since the
petitioner had although remained in
custody during the said period of more than
sixty days from the first date fixed for
recording the evidence, he would be
deemed to have been clothed with the right
to be released on bail. The rejection of his
application under section 437(6) of the
Code of Criminal Procedure, 1973 by the
learned trial Magistrate and later the
dismissal of his revision petition by the
learned Fourth Additional Sessions Judge,
Gwalior, was nothing but the abuse of the
process of Court and had given rise to the
miscarriage of justice."

13 . The other judgement of the
Madhya
Pradesh
High
Court
in
Rajendra Rajaram Pal vs. State of M.P. :
(2002) 4 MPHT 186, wherein Justice S.L.
Kochar, has observed as under:

"9. This Provision is showing that
if the trial is not completed within a period
of 60 days from the date fixed for recording
evidence then the accused, who is in
custody, is entitled to be released on bail. If
the Court is of the opinion that the accused
is not entitled for bail then it is obligatory
on the part of the Court to assign reason
for refusing the bail. In view of mandatory
Provision of Section 437 Sub-section (6),
Criminal Procedure Code, the applicant is
entitled to be released on bail. There is no
special reason on the basis of which his
prayer may be refused. Similar view has
been taken in the case of Saritadevi v. State
of Himachal Pradesh [2000 (2) Crimes
543] and in the case of Mohd. Abdul v.
State of West Bengal [1991 (2) Crimes
741]."

14. The next judgement is that of the
High Court of Kerala in Re: 122 Prisoners
: 2007 CriLJ 3241, wherein Justice K.
Hema, has observed as under:

"10. It is also relevant to make
reference to Section 437(6) of the Code, in
this context. As per sub-section (6) of
Section 437 of the Code, in any case triable
by a Magistrate, it 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. So, the
normal rule is to release a prisoner on bail,
who has completed such sixty days of
detention as specified above unless the
court otherwise directs. The rule is
mandatory in nature, as indicated by the
expression "shall" in the provision itself.

11. But, if any such prisoner is to
be detained any further in prison, it shall
be done only as per a specific order passed
by the Magistrate in writing, recording
reasons for the continued detention. Thus,
it follows that if any prisoner is detained in
any of the prisons in the State for more
than the period stated in section 437(6) of
the code, without any reasoned order in
writing for the continued detention, such
detention is unauthorised and illegal. Such
prisoner deserves immediate release from
prison, subject to what has been laid down
in Section 437(6) of the Code."
722 INDIAN LAW REPORTS ALLAHABAD SERIES

15. In case of Lakki Chakhbeer
Singh vs. State : 2006 CRI.L.J. (NOC)
95 (RAJ.), Justice Narendra Kumar Jain,
speaking for the Rajasthan High Court,
has observed as under:

"4. A bare perusal of Subsection (6) of Section 437, Cr.P.C. will
show that it is not necessary that in each
and every case, an accused in a case
triable by Magistrate has to be released
on bail if trial is not concluded within a
period of sixty days from the first date
fixed for taking evidence in the case. A
Magistrate is required to record the
reasons in writing for refusal of the bail.
"

16. In the case of Didar Singh vs.
State of Jharkhand : 2006(1) J.C.R. 283
: 2006 CriLJ 1594, the Jharkhand High
Court has held that the right of the
accused u/S 437(6) of the Code and has
compared with the right of the accused
u/S 167(2) of the Code and has held that
u/S 167(2) of the Code the accused has
absolute right to be released on bail, in
default of submissions of charge-sheet
within time prescribed in the said
sections and held that the right of the
accused to be released on bail u/S 437(6)
of the Code, is not an absolute right and
the learned Magistrate has power to deny
the bail for the reasons to be recorded.
Justice Amareshwar Sayay has held as
under:

"10. From plain reading of the
aforesaid quoted provision, it appears
that the intention of the legislature is to
speed up trial without unnecessarily
detaining a person as an under-trial
prisoner. This provision applies only to a
case triable by a Magistrate and not to a
case committed to the Sessions for trial.
The intention behind the provision is that
the trial should be concluded within period
of sixty days from the first date fixed for
evidence.

11. The contention advanced on
behalf of the petitioner that if the trial
Court is not concluded within a period of
sixty days from fixed date for evidence then
accused who is in custody has to be
released on bail cannot be accepted as
from the plain reading of the aforesaid
provision. It is clear that the said provision
under Section 437(6) is not mandatory in
nature as Section 167(2) of the Criminal
Procedure Code which provides that if the
investigation is not completed within a
period of ninety days or sixty days as the
case may be then the accused is entitled to
be
released
on
bail
mandatorily
irrespectively of the merit of the case.
Under Section 167(2) Criminal Procedure
Code, the right to be released on bail is
absolute under the provision of Section
437(6) of the Criminal Procedure Code
which is not mandatory in nature, the
entitlement of the accused to be released on
bail is dependent upon the reasons to be
recorded in writing by the Magistrate for
refusal to release him on bail. The reasons
may be several, therefore, it is the
discretion of the trial Court either to
release or not to release an accused under
the aforesaid provision for the reasons to
be recorded in writing. There is no doubt
that discretion of the trial Court has to be
exercised judicially and not arbitrarily. It is
found that the trial Court has exercised its
discretion either refusing or granting bail
in exercise of power under Section 437(6)
of the Criminal Procedure Code is
justifiable in the facts and circumstances of
a particular case then such exercise of
discretion is not liable to be interfered with
unless it is found that discretion so
4 All. Karam Allahi Vs. State of U.P. & Anr.
723
exercised by the trial Court is wholly
improper, unjustified and arbitrary The
Division Bench of Delhi High Court in the
case of Robert Lendy (1987 Cri LJ 55)
(supra) has held that the procedural law is
essentially meant to safeguard the interest
of justice. The twin objects, namely, to
reject the delay in trial and to achieve the
ends of justice are necessarily, to be
harmonized. It is in that context, one has to
find out whether the discretion exercised by
the Magistrate in withholding bail after
sixty days, has been properly and judicially
exercised.

12. It is further held in the
aforesaid decision of the Delhi High Court
that the considerations for refusing bail
under this provision can be the reasons
which
are
generally
invoked
and
understood in law as the grounds for
refusing bail. All that is required of a
Magistrate is that if he decides to decline to
grant bail, he must record his reason in
writing. The decision of Supreme Court
cited by the learned counsel for the
petitioner in the case of Chandra Swami
(AIR 1997 Supreme Court 2576) (supra) is
of no avail for this case, as it appears that
the Supreme Court did not go into question
of interpretation or applicability of Section
437(6), Criminal Procedure Code.

13. In the decision in the case of
Ram Kumar alias Raj Kumar Rathore
(supra), the Madhya Pradesh High Court
has held that the provisions of Section
437(6), Criminal Procedure Code is
mandatory in nature and after the expiry of
sixty days from the first date fixed for
recording evidence, the accused acquires
statutory right of being released on bail, if
the trial is not concluded within the said
period. With all due respect, I differ with
the view of the Single Judge of Madhya
Pradesh High Court, because in my view
the provisions of Section 437(6) is not
mandatory in nature and the accused does
not get absolute right to be released on bail
under Section 437(6) of the Criminal
Procedure Code, if the period of sixty days
expires from the first date fixed for
recording evidence and the trial is not
concluded within the said period.

14. In the case of Nageshwar
Bhagat v. State of Jharkhand reported in
(2004 (4) JLJR 3) it appears that the
learned single Judge of this Court has not
laid down any law nor has interpreted
Section 437(6), Criminal Procedure Code
but has only held that rejection of bail by
High Court at an earlier stage cannot be a
ground for not invoking the power as
vested in Section 437, Clause (6), Criminal
Procedure Code It further appears that in
the said case, not a single witness was
examined on behalf of the prosecution
within a period of sixty days from the first
date for recording evidence, therefore, the
aforesaid decision of this Court cited on
behalf of the petitioner is not applicable in
the facts and circumstances of the case. "

17. In the case of Bhikhaji Chaturji
Thakore vs. State of Gujarat : 2007 0
CrLJ 3433, the Gujarat High Court has
held that by holding that the provisions of
section 437(6) of the Code are mandatory,
has held as under:

"(23) SECTION 437 (6) provides
that if, in any case triable by a Magistrate,
the trial of a person accused of any nonbailable offence is not concluded, within a
period of sixty days from the first date fixed
for taking the 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,
724 INDIAN LAW REPORTS ALLAHABAD SERIES
unless for reasons to be recorded in
writing, the magistrate otherwise directs.
Sub-section (6) clearly uses the mandatory
word "shall" because the scheme of the Act
is that if you cannot conclude the trial at
least within sixty days from the date of
starting of the recording of the evidence,
then, such an apathy shown by the Court or
by the prosecution would pave the path of
the accused to walk out of the jail. The
mandate under the law is to release the
accused on bail. The rejection is an
exception and for such Drejection, the
Court is required to record the reasons in
writing. The word "shall" is to be read as
"shall" and not as "may". If it is read as
"may", then, there would be reason to give
reasons for rejection. When the liberty of a
person is involved the mandate of law
cannot be diluted by reading the word
"shall" as "may".

18. In Application u/S 482 No. 5136
of 2013 (Suresh vs. State of U.P. and
Another), the Co-ordinate Bench of this
Court has held that the provisions of
Section 437(6) of the Code, are mandatory
in nature without discussing the said
provisions in detail.

19. From the aforesaid judgements,
the proposition of law emerges is that the
provisions of Section 437(6) of the Code,
are mandatory in nature but are not
absolute as the provisions of Section 167(2)
of the Code is. The right of the accused to
be released on bail u/S 437(6) of the Code,
is in the nature of a statutory protection
granted under the Code. However, such
protection is not an absolute protection.
Looking at the facts and circumstances of
each case, the Magistrate has a discretion to
reject such application by recording the
reason. Therefore, from the discretion of
Magistrate
while
exercising
the
bail
applications u/S 437(6) of the Code, if it is
compared with the discretion of the
Magistrate to grant bail u/S 437(1) of the
Code, then while rejecting the the bail
Application u/S 437(6) of the Code, the
learned
Magistrate
has
very
limited
discretion to reject the bail application and
it should be exercised in exceptional cases.
In the normal course, when the Magistrate
is trying a case where the accused has been
charged for a non-bailable offence and the
trial has not been concluded within a period
of 60 days from the first date fixed for
recording the evidence, then, normally the
learned Magistrate is required to grant bail.
It is only in exceptional cases where the
exceptional reasons are to be recorded in
writing when such bail Applications u/S
437(6) of the Code, can be rejected by the
learned Magistrate.

20. Having considered the position of
law as enumerated from the aforesaid
judgements, if we test the impugned order
passed by the learned Magistrate, rejecting
the bail application, the learned Magistrate
has rejected the instant bail application
recording the reason that in the instant case
the charges against the applicant herein is
of very serious in nature, where the
applicant herein has been charged for
running
an
international
telephone
exchange, which is a threat to the national
security of the country. Therefore, the said
offence was of a serious nature. Therefore,
the learned Magistrate has rejected the bail
application of the applicant herein.

21. Looking at the nature of
allegations against the applicant herein,
which are serious in nature and the modus
operandi of the applicant was to cause a
huge loss to the Government exchequer and
the accused gain advantage for themselves
dishonestly through the fraudulent means
4 All. Shanu Raja Vs. State of U.P.
725
and such type of international calls pose a
great threat to the national security as the
international calls remain unmonitored by
the law enforcement agencies and the
public at large is affected by such calls and
which are mostly used for cheating the
public at large and such calls are often
involved in illegal activities and antinational activities and thus, this is a serious
threat to the national security. Therefore, in
the considered view of this Court, the
instant case is of an exceptional nature,
where, though this Court has granted bail to
the other co-accused persons, has rejected
the bail applications of the applicant herein
twice as the case against the applicant
herein was found distinguishable with the
other co-accused persons.

22. Therefore, in the considered view
of this case, the learned Magistrate is
justified in rejecting the bail application
filed by the applicant u/S 437(6) of the
Code,
considering
the
exceptional
circumstances involved in the case against
the applicant herein. Therefore, there is no
illegality in the impugned order dated
19.07.2022,
passed
by
the
learned
Magistrate. Therefore, the application is
devoid of merits and is hereby dismissed.
----------
(2024) 4 ILRA 725
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.02.2024

BEFORE

THE HON'BLE VINOD DIWAKAR, J.

Application U/S 482. No. 31760 of 2023

Shanu Raja ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Saurabh Gour, Sri A.B.L. Gour (Sr.
Adv.), Sri Pradeep Kumar Bhardwaj

Counsel for the Opposite Party:
G.A.

Criminal
Law
-

Code
of
Criminal
Procedure,1973 -Section 482- Juvenile
Justice (Care and Protection of Children)
Act, 2015 - Section 14(3) - Quashing of
Juvenile Justice Board Order - The applicant
sought to set aside the order dated 19.07.2019
by the Juvenile Justice Board (JJB), Lalitpur,
transferring his case to the Children's Court
under the Juvenile Justice (Care and Protection
of Children) Act, 2015 - Held, the order was set
aside
due
to
non-compliance
with
the
mandatory time limit under Section 14(3) of the
Act, and the case was remanded to the JJB for
trial. (Paras 4, 38, 39)

B. Section 14(3) of JJ Act, 2015 -
Mandatory
Time
Limit
for
Preliminary
Assessment - The JJB conducted a preliminary
assessment under Section 15 for a heinous
offence after a delay of over two years from the
first production of the juvenile, contrary to the
three-month limit prescribed by Section 14(3) -
Held, the provision is mandatory, and noncompliance renders the assessment non-est, as
it prejudices the juvenile's rights. (Paras 12, 25,
34, 36, 37)

C. Section 15 of JJ Act, 2015 - Preliminary
Assessment for Heinous Offences - The JJB
assessed the applicant's mental and physical
capacity to commit murder, concluding he could
understand the consequences - Held, the
assessment was invalid due to the delay beyond
the statutory period, violating the principles of
best interest and non-waiver of rights under
Sections 3 and 8 of the Act. (Paras 4, 29, 34,
35)

D. Best Interest and Non-Waiver of Rights
- The Juvenile Justice Act emphasizes the best
interest of the child and prohibits waiver of
rights - Held, the delay in conducting the
preliminary
assessment
violated
these
principles, causing prejudice to the juvenile and
undermining the Act's objective of child-friendly
justice. (Paras 9, 10, 23, 33, 37)