Considerations for granting bail.
Delay in Trial
Bail u/s. 437 of Criminal Procedure Code of India:
“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 direct.”
The question is that whether above provision is mandatory or directory? In other words can Magistrate deny bail even if trial is not conducted within 60 days?
Exception to grant of bail:
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.
Right of trial without delay:
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 sub-section 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.
Sources: Chhabi v. State of Orissa reported in 1995(2) Crimes 2773
No mathematical consequence:
It is not mandatory or obligatory on the part of the Magistrate that once period of sixty days from the first date fixed for taking evidence is over, the applicant must be enlarged on bail. There is no such mathematical consequence. All that depends upon the facts and circumstances of the case, gravity of the offence, quantum of punishment and the manner in which the present applicant is involved in the offence as alleged by the prosecution.
Jigar Mayurbhai Shah v. State of Gujarat, (2008) 2 GLR 1134.