Subhelal @ Sushil Sahu vs The State Of Chhattisgarh

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.818/2025 (@Petition for Special Leave to Appeal (Crl.) No.1314/2025

SUBHELAL @ SUSHIL SAHU Appellant(s)

VERSUS

THE STATE OF CHHATTISGARH Respondent(s)

O R D E R

1. Leave granted.

2. This appeal arises from the impugned order

passed by the High Court of Chhattisgarh, Bilaspur

dated 22-7-2024 in MCRC No.2810/2024 by which the

High Court denied regular bail to the appellant in

connection with Crime No.460/2023 registered at

Police Station Dindayal Upadhyay Nagar, District

Raipur, Chhattisgarh for the offence punishable under

Sections 420, 201, 120-B read with Section 34 of the

Indian Penal Code.

Signature Not Verified Digitally signed by VISHAL ANAND Date: 2025.02.18 Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 19:16:49 IST Reason: 1

3. The offence relates to crypto currency. The

amount involved according to the Investigating

Officer, who is personally present in the Court, is

approximately Rs.4 Crore.

4. Undoubtedly, it is an economic offence. We do

not undermine the seriousness of the alleged crime.

Unfortunately, almost 2000 investors have lost their

money in the scheme floated by the appellant – herein

along with other co-accused. Charge-sheet has been

filed against 5 individuals including the appellant –

herein. The trial is going on in the Court of Chief

Judicial Magistrate, Raipur. Till date, one witness

has been examined. We are informed that the first

informant has entered the box and the recording of

his oral evidence is going on. The problem is that

the prosecution intends to examine 189 witnesses.

Again, a big question who are these 189 witnesses and

why the public prosecutor intends to examine so many

witnesses.

Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 2

5. Be that as it may, the appellant is in custody

since December, 2023. Even if 50 witnesses are

examined before the oral evidence is closed, it will

take a long time.

6. We take notice of the fact that since the trial

is being conducted by the Chief Judicial Magistrate,

the maximum punishment he can impose if the offence

is established would be 7 years.

7. At this stage, the learned counsel appearing for

the petitioner also invited our attention to Section

437(6) of the Code of Criminal Procedure, 1973 (for

short, “the Code”) which reads thus:-

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

(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.”

Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 3

8. It is not necessary for us to consider the

scope, purport and applicability of sub-section (6)

of Section 437 referred to above, however, as it has

been relied upon, we take this opportunity of

explaining the proviso.

9. Sub-section (2) of Section 437 of the Code can be

divided in two parts. The first part would indicate

that it is mandatory, but in the next breath, the

legislature has given discretion to the Magistrate

not to grant bail by assigning reasons. In that

situation, although the first part can momentarily

said to be mandatory, it cannot be interpreted to

give an indefeasible right to the accused of being

released on bail, since that right is controlled /

regulated by the later part of the sub-section. If

legislature had stopped at the end of the first part,

making it mandatory for the Magistrate to release the

accused on bail if the trial is not over within 60

days from the first date of taking evidence, the Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 4 provision would have been somewhat akin to

sub-section (2) of Section 167 of the Code. But, with

the second part being in its place, the two

provisions cannot be equated. The provision of

sub-section (6) of Section 437 can certainly be said

to have been inserted with an intention to speed up

the trial without unnecessarily detaining a person as

an under-trial prisoner for a prolonged time.

Contrary to that, Section 167(2) leaves no room for

any discretion with the Court so far as release of an

accused on bail is concerned in the given set of

circumstances. Under this provision

of the Code no reason is good to deny bail to the

accused.

10. Later part of sub-section (6) of Section 437 of

the Code empowers a Magistrate to refuse bail by

assigning reasons. In our view, the legislature, has

incorporated this provision with a view to recognize

right of an accused for a speedy trial with a view to

Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 5 protect individual liberty. At the same time, the

legislature has tried to strike a balance by allowing

the Magistrate to refuse bail by assigning reasons in

a given set of circumstances. Meaning thereby, that

where in the opinion of the Magistrate, it is not

proper or desirable or in the interest of justice to

release such accused on bail, he may refuse bail by

assigning reasons. The provisions of Section 437(6),

as such, cannot be considered to be mandatory in

nature and cannot be interpreted to grant an absolute

and indefeasible right of bail in favour of accused.

11. The grounds relevant for the purpose of refusing

bail would not be the same which could have weighed

with the Magisterial Court while refusing bail under

Section 437(1) & (2) of the Code. That is a stage

much prior to trial. Whereas the stage contemplated

under Section 437(6), is after filing of charge-sheet

and framing of charge when trial commences and the

accused prefers an application after lapse of 60 days

Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 6 from first date fixed for taking evidence. If the

grounds were expected or intended by the legislature

to be the same, there was no reason for the

legislature to insert sub-section (6) of the Code. In

our view, therefore, reasons for rejection of

application under sub-section (6) of the said Section

have to be different and little more weighty than the

reasons that may be relevant for rejection for bail

at the initial stage. If this meaning is not given,

sub-section (6) would be rendered otiose.

12. We may, however, hasten to add that, that cannot

be an absolute proposition and some of the reasons

which may be relevant for rejection for regular bail

under Section 437(1)&(2) of the Code, may also be

relevant for rejection of application under

sub-section (6) of the said Section, in a given

situation. We do not subscribe to the theory that

factors which are relevant for rejection of regular

bail, at the initial stage are not at all relevant

Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 7 for rejection of application under sub-section (6) of

the said Section. Fact situations are so large in

numbers, that it may not be possible to contemplate,

enumerate, illustrate or incorporate here the factors

which would be relevant and which would not be

relevant for the purpose of rejection of application

under sub-section (6) of Section 437 of the Code.

But, it can certainly be said that grounds relevant

for considering application under sub-section (6) of

Section 437 of the Code and the grounds relevant for

considering application for regular bail would be

different to some extent.

13. In our view, following factors would be relevant:

1. Whether the reasons for being unable to conclude trial within sixty days from the first date fixed of taking evidence, are attributable to the accused?

2. Whether there are any chances of the accused tampering with evidence or causing prejudice to the case of the prosecution in any other manner?

3. Whether there are any chances of abscondence of the accused on being bailed out?

Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 8

4. Whether accused was not in custody during the whole of the said period?

If the answer to any one of the above referred fact

situations or similar fact situations is in

affirmative then that would work as a fetter on the

right that accrues to the accused under first part of

sub-section (6) of Section 437 of the Code.

14. The right accrues to him only if he is in

custody during the whole of the said period as can be

seen from the language employed in sub-section (6) of

Section 437 of the Code by the legislature.

15. It would also be relevant to take into

consideration the punishment prescribed for the

offence for which the accused is being tried in

comparison to the time that the trial is likely to

take, regard being had to the factors like volume of

evidence, number of witnesses, workload on the Court,

availability of prosecutor, number of accused being

Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 9 tried with accused and their availability for trial,

etc.

16. Therefore, so far as question Nos. 3 and 4 are

concerned, this Court is of the view that the

factors, parameters, circumstances and grounds for

seeking bail by the accused as well as grounds to be

considered by the Magistrate for his satisfaction,

would not be exactly the same, but they may in a fact

situation be relevant and may overlap each other in

both the situation. The factors which are quoted

above by this Court are only illustrative and not

exhaustive.

17. This Court is of a considered view that

applications under Section 437 (6) have to be given a

liberal approach and it would be a sound and

judicious exercise of discretion in favour of the

accused by the Court concerned more particularly

where there is no chance of tampering of evidence

e.g. where the case depends on documentary evidence

Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 10 which is already collected; where there is no fault

on part of the accused in causing of delay; where

there are no chances of any abscondence by the

accused; where there is little scope for conclusion

of trial in near future; where the period for which

accused has been in jail is substantial in comparison

to the sentence prescribed for the offence for which

he is tried. Normal parameters for deciding bail

application would also be relevant while deciding

application under Section 437(6) of the Code, but not

with that rigour as they might have been at the time

of application for regular bail.

18. Differently put, where there is absence of

positive factors going against the accused showing

possibility of prejudice to prosecution or accused

being responsible for delay in trial, application

under Section 437(6) has to be dealt with liberal

hands to protect individual liberty as envisaged

under the Constitution of India and sought to be

Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 11 protected by insertion of sub-section (6) to Section

437 of the Code by the legislature.

19. Sub-section (6) of Section 437 has been very

exhaustively explained by the High Court of Gujarat

in Nehul Prakashbhai Shah v. State of Gujarat

reported in (2012) 53 (3) GLR 2685. One of us, J.B

Pardiwala, J. was a part of the Bench which decided

the Criminal Reference. We quote the relevant

observation:

“9.4.2 Our say, in context of Section 437(6), would be better understood if word 'investigation' is read to mean 'trial' in the above quote.

10. Attempt on part of the Magisterial Court in such situation should be to strike a balance by putting one hand on right to speedy trial of an accused as embodied under Article 21 of the Constitution of India and the interest of the prosecution and society on the other hand.

11. A close reading of provisions of Section 437(6) of the Code, prima-facie would show that a duty is cast upon the concerned Magistrate to see that the trial of an accused is concluded within a period of sixty days from the first date of taking Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 12 evidence. The Magistrate is obliged to make all possible endevours to see that provisions contained in Section 437(6) of the Code are complied with in its true, letter and spirit. To that extent, it appears that a right accrues in favour of an accused to tell the Court concerned that the trial has not been concluded within sixty days from the first date fixed for taking evidence for no fault on his part and, therefore, he should be released on bail, may be at that stage, there is some discretion vested in the Magistrate to refuse bail for the reasons which the Magistrate may deem fit to record. Such reasons cannot be routine. Such reasons have to weighty enough to outweigh the right that accrues to the accused in first part of sub-section (6) of Section 437 of the Code, which appears to be drawing force from Article 21 of the Constitution of India.

11.1 The words 'any case' appearing in sub section (6) of Section 437 of the Code point at the legislative intent to make that provision applicable to all cases which are Magisterial triable and nonbailable.

Legislature has not drawn any other distinction for applicability of sub-section (6) of Section 437 of the Code. In comparison to that, the provisions contained in Section 167(2)(a)(i) and (ii) of the Code provide for grant of bail in event charge-sheet is not filed within stipulated time. The provision is aimed at expeditious conclusion of investigation. It also protects liberty of an accused where the Investigating Agency fails to conclude investigation and file charge-sheet within a Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 13 stipulated time. Since the accused gets arrested on basis of allegations of offence, the legislature has deemed it proper to protect his interest by awarding to him a right of bail, irrespective of nature of offence if the charge-sheet is not filed within stipulated time limit. That right has been held to be absolute and indefeasible. The parameters contained therein cannot be wholly employed while dealing with an application under Section 437(6) of the Code since they both operate on different plains. Even the language employed in both the provisions is different. Whereas, it gives discretion to Judicial Officer to refuse bail under Section 437(6), it leaves no scope for such discretion under Section 167(2) of the Code.

12. So far as Question No.VI referred by the learned Single Judge is concerned, we state that decision of a co-ordinate Bench of equal strength will have a binding effect on another co-ordinate Bench as it lays down a principle of law rather than a statement of law in context of the subject matter.

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 Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 14 its sweep only the right to speedy trial, whereas Article 21 of the Constitution of India has a very wide connotation.

14. The foregoing discussion lead us to conclude and answer the questions under reference as under:

Q-1 An accused involved in a non-bailable offence triable by Magisterial Court whose trial is not concluded within a period of sixty days from the first date fixed for taking evidence in that case, and who has been in custody during the whole of the said period, does not get an absolute or indefeasible right to be released on bail to the satisfaction of the Magistrate. The Magistrate has a discretion to direct otherwise (refuse bail) by recording in writing the reasons for such rejection.

Q-2 The provisions contained in Section 437(6) of the Code are not mandatory.

Q-3 The Magistrate has option/discretion to refuse bail by assigning reasons therefor. The parameters, factors, circumstances and grounds to be considered by Magistrate vis-a- vis such application preferred by the accused under Section 437(6) of the Code may be:

1. Whether the reasons for being unable to conclude trial within sixty days from the first date fixed of taking evidence, are attributable to the accused?

2. Whether there are any chances of the accused tampering with evidence or causing Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 15 prejudice to the case of the prosecution in any other manner?

3. Whether there are any chances of abscondence of the accused on being bailed out?

4. Whether accused was not in custody during the whole of the said period?

If the answer to any one of the above referred fact situations or similar fact situations is in affirmative than that would work as a fetter on the right that accrues to the accused under first part of sub-section (6) of Section 437 of the Code.

The right accrues to him only if he is in custody during the whole of the said period as can be seen from the language employed in sub-section (6) of Section 437 of the Code by the legislature.

It would also be relevant to take into consideration the punishment prescribed for the offence for which the accused is being tried in comparison to the time that the trial is likely to take, regard being had to the factors like volume of evidence, number of witnesses, workload on the Court, availability of prosecutor, number of accused being tried with accused and their availability for trial, etc.

The factors which are quoted above by this Court are only illustrative and not exhaustive.

Q-4 The factors, parameters, circumstances Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 16 and grounds for seeking bail by the accused as well as grounds to be considered by the learned Magistrate for his satisfaction would not be identical or similar to subsection (1) and sub-section (2) of the Section 437 of the code, but may be relevant and overlapping each other depending upon facts and there cannot be any straight jacket formula. But, we may add that the reasons for rejection of applications under Section 437(6) need to be more weighty than the routine grounds of rejection.

Q-5 The parameters relevant for deciding application under Section 167(2)(a)(I)(II) of the Code (default bail), cannot be imported for exercise of power under Section 437(6) of the Code.

Q-6 A decision in principle rendered by a coordinate Bench of equal strength would bind another co-ordinate Bench as it lays down a principle of law and not a statement of law in context of subject matter.

Q-7 The legislature, while enacting Section 437(6) of the Code, has not given an absolute, indefeasible or unfettered right of bail. But right of bail is given with a rider investing the Magistrate with discretion to refuse bail by recording reasons therefor. Therefore, the right of accused for a speedy trial, though, Constitutional and aimed at liberty of accused, is not put on that high a pedestal that it becomes absolute. It is a right given with reasonable restrictions. This is the only way the provisions of Section 473(6) of the Code and Article 21 of the Constitution of India can be harmonised Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 17 and have to read and interpreted accordingly.”

20. In the overall view of the matter, we are

convinced that the appellant deserves to be released

on bail, subject to certain terms and conditions as

may be imposed by the Trial Court. It is ordered

accordingly.

21. However, we on our own would like to impose one

condition.

22. According to the learned counsel appearing for

the appellant – herein, the total amount involved in

the alleged scam is approximately Rs.4/- Crore but he

attributes about Rs.35 lakh to the appellant -

herein.

23. For the purpose of bail and in the peculiar

facts and circumstances of the case, we direct the

appellant – herein to deposit an amount of

Rs.35,00,000/- lakh with the Trial Court within a

period of six months from today.

Criminal Appeal No.818/2025@SLP (Crl.) No.1314/2025 18

24. We are conscious of the fact that we have been

condemning the High Courts when they impose such

conditions. But here is a case wherein we are

compelled to impose such conditions having regard to

the peculiar facts of this case.

25. We make it clear that within the time period of

6 months, if the amount is not deposited by the

appellant, this bail shall stand automatically

cancelled.

26. The appeal is allowed in the aforesaid terms.

27. Pending applications, if any, shall also stand

disposed of.

…………………………………………J (J.B. PARDIWALA)

…………………………………………J (R. MAHADEVAN) NEW DELHI 18TH FEBRUARY, 2025.

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