Judgment:
Sharief-Ud-Din, J.
1. The petitioner has moved this application under S. 439 Cr.P.C. 1973 for grant of bail. It came up for hearing before the learned single Judge of this court. During the course of arguments the learned single Judge felt that the question which arises for determination in the petition is important in the sense that it is likely to arise in many cases. The learned single Judge ordered that the matter be referred to a larger Bench. This is how the petition has come up before us.
2. The facts are that the petitioner Robert Lendi is facing trial under Sections 132 and 135(a) of the Customs Act, 1962 and S. 5 of the Imports and Exports (Control) Act, 1947.
The petitioner had moved an application for bail on 6-2-1986 under S. 437 sub-section (6) Cr.P.C. which was declined by the learned Addl. Chief Metropolitan Magistrate by his order dated 15-2-1986. The petitioner thereafter moved an application for grant of bail before the Sessions Court but the learned Addl. Sessions Judge also refused to admit the petitioner to bail. What followed thereafter is the present bail application.
3. At this stage we may notice the grounds which weighed with the learned Addl. Chief Metropolitan Magistrate in declining to grant bail. The learned Addl. Chief Metropolitan Magistrate observed that the petitioner is a foreign national and gold worth Rs. 12,50,000/- was recovered from him and that there was every likelihood of his jumping the bail.
4. Mr. R. L. Mehta, learned counsel for the petitioner urged that the first date fixed for taking evidence in the case was May 13, 1985 and since the trial did not conclude within sixty days, as envisaged by sub-section (6) of S. 437 of the Code of Criminal Procedure, thereforee, the petitioner was entitled to bail as of right under sub-section (6) of S. 437 Cr.P.C. This argument is based on the assumption that the trial of the case itself started on 13-5-1985. The next contention of Mr. R. L. Mehta is that the reasons given by the learned Addl. Chief Metropolitan Magistrate in refusing bail are not relevant in view of the provisions of sub-section (6) of S. 437 Cr.P.C. as they are not germane to the cause of delay. According to him the fact that the petitioner was a foreign national and the offence was of serious nature and that the petitioner was likely to jump bail, are not relevant for refusing to grant bail under sub-section (6) of S. 437 Cr.P.C.
5. The learned counsel for the other side, Mr. Satish Aggrawal, however, contends that the trial begins after the charge is framed and the first date fixed for taking evidence in the case has reference to the first date fixed for recording the evidence after the charges are framed against the accused. According to him, the reasons given by the learned Addl. Chief Metropolitan magistrate for refusing to grant bail are relevant. In short, he has refuted the contentions raised by Mr. R. L. Mehta.
6. The question that arises for consideration, thereforee, is as to when does the trial of a case commence This question calls for an examination as to the distinction between the enquiry and trial. The second question that arises for consideration is whether bail under sub-section (6) of S. 437 Cr.P.C. can be refused on any ground generally recognized as good ground or it is limited to the reasons germane to the cause of delay only.
7. Sub-section (6) of S. 437 Cr.P.C. read as under :-
'If, in any case tribal 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 the reasons to be recorded in writing the Magistrate otherwise directs.'
According to Mr. Mehta the provision has to be read in the following manner :-
'If from the first date, fixed for taking evidence in the case the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days, such person shall, if he is in custody, during the whole of the said period be released on bail.'
8. This reading of the provision by Mr. Mehta is again based on the assumption that trial of the case starts immediately when the accused in brought before the court and the first date for evidence is fixed. We see no justification to read the provision in the manner in which Mr. Mehta would like to read it. Mr. Mehta has relied upon Narotamdas L. Shah v. Pathak Nathalal Sukhram to support this contention that the trial begins as soon as the accused is brought before the Magistrate and the Magistrate proceeds to hear the evidence, The ratio of this judgment is that the trial is to embrace proceedings in a warrant case from the inception and not proceedings only after the framing of the charge. Mr. Satish Aggarwal on the other hand has placed reliance on the State v. Ambaram , wherein the view has been expressed that a trial means only the proceeding taken in court after a charge has been drawn up. In this judgment the learned Division Bench has recognised the sharp distinction between the enquiry and trial.
9. Having given our careful consideration to the issued involved, we must express our respectful disagreement with the law laid down in Narotamdas L. Shah v. Pathak Nathalal Sukhram (Sau) (supra). We are rather in respectful agreement with the law laid down on the point in State v. Ambaram (Madh B) (supra) This we do, not only for the reason that it suits our line of thinking but also for the reason that the view expressed by the learned Bench seems to be correct view.
10. In the Criminal Procedure Code of 1872 the expression 'Enquiry' was defined as follows :-
'Enquiry includes any enquiry which may be conducted by a Magistrate or court under the Act.'
11. 'Trial' was defined :
'Trial means the proceedings taken in court after a charge had been drawn up and includes the punishment of the offender. It includes the proceedings under Chapters XVI and xviii from the time when the accused appears in the court.'
In the code of the 1882, the definition of trial was omitted and the expression 'Enquiry' was defined.
'Enquiry includes every enquiry conducted under this Code by a Magistrate or a court.'
12. It will be noted that in substance it was the same as in the Code of 1872. In the Code of 1898 also trial is not defined and the expression 'enquiry' is defined as under :-
'Enquiry includes every enquiry other than a trial conducted under this Code by a Magistrate or Court.'
In the code of 1973 enquiry is defined as under :-
'Enquiry means includes every enquiry other than a trial conducted under this Code by a Magistrate or Court.'
13. It is true that the expression 'trial' has not been defined in the Code as it stands now. It was defined it the Code of 1872. In criminal jurisprudence, as also in legal circles, a distinction is generally recognised between enquiry and trial. The very definition of the expression 'enquiry' given in the present Code clearly goes to show that enquiry and trial are two different proceedings under the Code. It clearly emphasises that trial is a proceeding distinct from enquiry and the meaning of the word 'trial' is very well understood in criminal jurisprudence. Having defined the expression 'enquiry' the legislature thought it unnecessary to define 'trial'. It would have been a surplusage which the legislature does not relish.
14. This distinction between 'enquiry' and 'trial' is also recognized in Ch. XIX. Under sub-heading 'Cases instituted otherwise than on police report'.
Section 244, sub-section (1) reads as under :-
'When, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.'
Sub-section (2) S. 244 reads as under :-
'The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.'
Section 245 reads as under :-
'(1) If, upon taking all the evidence referred to in S. 244 the Magistrate considers, for the reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous state of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.'
Section 246 reads as under :-
(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence tribal under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defense to make.
(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon.
(4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine, and if so, which, of the witnesses for the prosecution whose evidence has been taken.
(5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall also be discharged.
(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged.
15. Section 247 reads as under :-
'The accused shall then be called upon to enter upon his defense and produce his evidence; and the provisions of Section 243 shall apply to the case.'
16. Sub-section (1) of S. 248 which relates to the conclusion of trial reads as under :-
'If, any case under this chapter in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.'
17. These provisions of the Code in respect of the proceedings of cases instituted otherwise than on police report clearly recognise the two distinct stages of the proceedings in a complaint case. A plain reading of Sections 244 of 248 would go to show that in complaint cases, before the framing of charge some pre-charge evidence is recorded with a view to enable the Magistrate to form with a view to enable the Magistrate to form an opinion if there is a ground for presuming that the accused has committed an offence tribal under Ch. XIX and which offence such Magistrate is competent to try. If the Magistrate finds it otherwise, there is no option left with the Magistrate but to discharge the accused and dismiss the complaint. It would be noticed that it is only after the Magistrate applies his mind to the pre-charge evidence and after he comes to the conclusion that there is ground for presuming that the accused has committed the offence that a formal charge is framed against the accused. After the framing of the charge, the charge is read over and explained to the accused and if he pleads guilty, the matter ends there, as the Magistrate in his discretion is empowered to convict him, on his plea of guilty. These provisions further clearly lay down that if the accused pleads not guilty and claims to be tried, then he has to be asked whether he wishes to cross-examine any witness for the prosecution, whose evidence has been recorded at the pre-charge stage and thereafter the prosecution is asked to lead the remaining evidence. These provisions would clearly show that at the enquiry stage if the Magistrate finds the charge groundless, the accused is discharged. But after the accused is put on trial, the question of discharging him does not arise. At the conclusion of the trial, the accused can either be acquitted or convicted. Even in summons cases and summary cases, the trial starts only after the substance of accusation is read over and explained to the accused. In such cases also if the accused pleads not guilty, the trial begins.
18. Having gone through the relevant provisions carefully we find that even though the word 'trial' has not been defined in the present Code, it does not recognise the distinction between two distinct stages of enquiry and trial in complaint cases.
19. This brings us back to sub-section (6) of S. 437. The object of sub-section (6) of S. 437 is that if the trial of non-bailable offences in the court of Magistrate is not concluded within 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.
20. The expression 'from the first date fixed for taking evidence in the case', cannot be read in isolation of the expression 'if the trial of a person accused of any non-bailable offence is not concluded within a period of the sixty days'. Both these expressions have to be read together and in harmony. A plain reading of the provision would clearly go to show that the period of sixty days will start from the date fixed for taking evidence in the case in which the accused has been charged and has pleaded not guilty to the charge, and has asked for being tried. In other words the time spent on recording the pre-charge evidence which is usually recorded in complaint cases before the charge is framed, will not be counted for purposes of sub-section (6) of S. 437 Cr.P.C. In our view, thereforee, Mr. Mehta's line of reasoning is not correct and it does not commend to us.
21. The next question that arises for consideration is whether while refusing bail under sub-section (6) of S. 437 of the Code the Magistrate can only refuse bail on the limited reasoning germane to the cause of delay and whether the bail can be refused on the general grounds recognised as good for refusal to grant bail. Undoubtedly, the object of sub-section (6) of S. 437 of the Code is to eradicate delay in trial. To us, it appears that it is equally important that the ends of justice do not suffer. The procedural laws are essentially meant to safeguard the interest of justice. The twin objects namely to eradicate the delay in trial and to achieve and ends of justice are necessarily to be harmonized. It is in that the 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. We find nothing in the provision to support the assertion of Mr. Mehta that the reasons for the declining the bail under this provision should be only those which are germane to the cause of delay. There is no reason to give such a restricted meaning to the provision. The expression used in the provision is 'unless for the reasons to be recorded in writing, the Magistrate otherwise directs'. A plain reading of the expression shows that the Legislature has put no fetters on the powers of the Magistrate that under this provision bail can only be refused for reasons germane to the cause of delay. If that were so, the Legislature would have certainly made it clear. To us it appears 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 the the Magistrate is that should he decide to decline to grant bail, he must record his reasons in writing. There are no fetters placed on the exercise of this discretion.
22. It was next urged by Mr. Mehta that the even if a distinction is recognised between the 'Enquiry' and 'Trial' the petitioner was entitled to grant of bail, as the first date fixed for taking evidence in the case was 17th of February 1986 and that since sixty days' period has expired the petitioner should be released on bail. We have given our anxious consideration to the contention of Mr. Mehta. The learned A.C.M.M. has refused bail on the ground that the case against the petitioner is a serious one involving smuggling of gold and since the petitioner is a foreigner and has no fixed residence in India there is likelihood of this jumping the bail. We do not find anything wrong in the reasons given by the learned Magistrate for refusing to grant bail. We may, however, additionally state that on a perusal of the copy of the order sheet, right from 17-2-1986 onwards, it is abundantly clear that the delay in the trial of the case against the petitioner has mostly been caused due to the conduct of the defense. In that view of the matter and in the light of the reasons given by the learned A.C.M.M. for refusing bail, we are of the opinion that the petitioner cannot be granted bail.
23. In conclusion we may state that there is a sharp distinction recognised by the Code of Criminal Procedure between the Enquiry and Trial Under Sub-section (6) of S. 437 of the Code the first date fixed for taking evidence in the case, would be the date fixed for recording of evidence, after the accused is charge-sheeted and the prosecution is given notice of the date on which the evidence of the prosecution is to be recorded. We are further of the view that the reasons for refusing bail under this provision need not be restricted to reasons which are germane to the cause of delay. We see no such fetters on the powers of the Magistrate and the only requirement of law is that should the Magistrate refuse to grant bail, he must record his reasons for so doing in writing. The reference is accordingly answered.
24. With these observations, the petition for bail is dismissed.
25. Order accordingly.