Chattisgarh High Court
Hari Vivek Dahariya vs State Of Chhattisgarh on 8 April, 2025
1
2025:CGHC:16567
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRMP No. 1236 of 2025
Hari Vivek Dahariya S/o Harischandra Dahariya Aged About 40 Years R/o
Pram Nagar, Near Gaura-Gauri, Mova, Thana- Mova/pandari, Raipur,
District- Raipur (Accused)
... Petitioner
versus
State Of Chhattisgarh Through - District Magistrate, Durg, District- Durg
(C.G.) (Prosecution)
... Respondent
(Cause title taken from Case Information System)
For Petitioner : Mr. Mahesh Mishra, Advocate
For Respondent/State : Ms. Laxmeen Kashyap, Penal Lawyer
Hon’ble Shri Justice Ravindra Kumar Agrawal
Order on Board
08/04/2025
1. The present Criminal Miscellaneous Petition has been filed by the
petitioner under Section 528 of Bharatiya Nagarik Suraksha Sanhita,
Digitally
signed by
2023 against the impugned order dated 22.02.2025, passed by
VEDPRAKASH
VEDPRAKASH DEWANGAN
DEWANGAN Date:
learned Second Additional Sessions Judge, Durg, in Criminal
2025.04.17
16:31:52
+0530
2Revision No. 52 of 2025, whereby the revision filed by the petitioner
has been dismissed.
2. The brief facts of the case are that the petitioner is one of the co-
accused in the Criminal Case No. RCC/8781/2024 pending before
the learned Judicial Magistrate First Class, Durg for the offence
under Sections 420, 467, 468, 471 and 120-B of IPC arising out of
Crime No. 393 of 2024, registered at Police Station Supela, District
Durg. It is alleged that the petitioner along with other co-accused
persons have conspired and cheated various persons and collected
huge amount on the pretext of providing them job in Mantralaya,
Chhattisgarh Government, Raipur and issued forged appointment
letter having seal of Under Secretary of General Administration
Department, Women and Child Development Department and
Panchayat and Rural Development Department, Mahanadi Bhawan,
Mantralaya, Raipur. The petitioner was arrested in the offence and
charge sheet was filed against him also along with the other co-
accused persons. The charges have been framed against the
accused persons on 06.11.2024 and the case was fixed for
20.11.2024 for evidence.
3. Since the offences are tribal by learned Judicial Magistrate First
Class and the same has not been concluded within 60 days from the
first date fixed for recording evidence of the prosecution witnesses,
the petitioner has filed an application on 21.01.2025 under Section
437(6) of the CRPC for grant of default bail to the petitioner. Reply to
the application has been filed by the prosecution on 22.01.2025 and
after hearing the parties, the learned trial Court has dismissed the
3
application filed by the petitioner, which is under challenge in the
present petition.
4. Learned counsel for the petitioner would submit that on 06.11.2024
the charges have been framed and till 21.01.2025 i.e. even after 60
days of the framing of charge, the trial of the case has not been
concluded. The offences are tribal by learned Judicial Magistrate
First Class and the trial of the case should have been completed
within 60 days, as provided under Section 437(6) of the CRPC and if
the trial is not concluded, the accused is entitled for default bail. In
the present case also the trial is not concluded and therefore, the
petitioner is also entitled for default bail. In support of his
submissions, he would rely upon the judgement passed by
coordinate Bench of this Court reported in 2009 (3) CGLJ 448 (Atul
Bagga v. State of Chhattisgarh).
5. On the other hand learned counsel for the State opposes the
submissions made by learned counsel for the petitioner and has
submitted that on 06.11.2024, the charges have been framed and on
20.11.2024, the evidence of the complainant Tivendra Kumar Sinha
was started, but for want of certain documents on record, his
examination could not be completed, for which necessary
correspondence is made to police station Supela. The allegation
against the petitioner and the other accused persons are very serious
in nature that they have obtained about Rs. 71 Lakhs from 12 victims
on the pretext of providing them the job and given forged joining
letter. He would also submit that the provisions of Section 437(6) of
CRPC are not mandatory, but there are certain limitations. The
4
learned trial Court is trying to conclude the trial and summons and
bailable warrants are regularly issued to the witnesses for their
presence. He would rely upon the judgement passed by coordinate
Bench of this Court in CRMP No. 112 of 2023 (Prakash
Bahpakadiya v. State of Chhattisgarh), order dated 16.01.2023.
6. I have heard learned counsel for the parties and perused the material
annexed with the petition.
7. In the matter of Atul Kumar Shrivastava Vs. State of CG reported
in 2020 SCC OnLine Chh 2373, Raman Kumar (Supra) and
Biswajeet Barik (Supra), considering the scope and nature of 437 (6)
Cr.P.C., legal proposition has been settled that the right conferred on
the accused under Section 437 (6) Cr.P.C. is not absolute one and
the same is subject to the conditions stated in the said provision. This
Court deems it appropriate to reproduce the relevant portion of the
judgment in Atul Kumar Shrivstava (supra) which reads thus:-
“9. In Gurucharan Singh (supra)1, the Supreme Court
has held that object of Section 437(6) of the CrPC is to
speed up trial without unnecessarily detaining a
person as an under trial prisoner, and observed as
under:
“……..There is similar provision under sub-
section (6) of Section 437 of Cr.P.C. which
corresponds to section 497(3A) of the old Code.
This provision is again intended to speed up trial
without unnecessarily detaining a person as an
undertrial prisoner, unless for reasons to be
5recorded in writing, the Magistrate otherwise
directs……..”
10. This court in Atul Bagga (supra) in unmistakable
terms has held that apart from the gravity of offence
and the quantum of punishment, the following factors,
among others may weigh with the Magistrate while
refusing dealing the application under Section 437(6)
of the CrPC and held as under:
“11. xxx xxx xxx
(a) the overall impact of the offence and the
release of the person accused of such offence
on the society,
(b) the possibility of tampering the evidence by
the accused,
(c) the possibility of the accused absconding if
released on bail, and lastly,
(d) the delay in conclusion of the trial within, a
period of 60 days if attributable to the accused.”
11. Thus, the seriousness of the offences for which
the accused has been charged, the overall impact of
the offence and the release of the person accused of
such offence on the society, the possibility that the
accused, if released on bail is likely to influence the
witnesses or tamper with the prosecution evidence,
the fact that other co-accused are absconding would
be relevant factors for refusing bail under sub-
Section (6) of Section 437 of the Code.
6
12. The Madhya Pradesh High Court in the matter of
Devraj Maratha @ Dillu v. State of M.P. considered the
question whether the provisions contained in sub-
section (6) of Section 437 of the CrPC is mandatory for
the magistrate to release the accused on bail when the
trial is not concluded within a period of sixty days
from the date fixed for taking evidence in the case and
answered the question as under:
“21. In view of preceding analysis and
enunciation of law governing the field, the
reference is answered as under:
(a) Provision envisaged in sub-section (6) of
Section 437 of the Code is mandatory in the
sense that the Magistrate is required to exercise
his power of granting bail after the statutory
period, if the trial is concluded within that,
however, passing of an order under Section
437(6) of the Code is mandatory, but not grant of
bail.
(b) The Magistrate is vested with full power to
take into consideration – (i) the nature of
allegations; (ii) whether the delay is attributable
to the accused or to the prosecution; and (iii)
criminal antecedents of the accused or any other
justiciable reason, while refusing to grant bail.”
13. It has clearly been held by the Madhya Pradesh
High Court that, what is mandatory is passing of an
order under Section 437(6) of the CrPC, but grant of
bail on failure to conclude the trial within the
7
statutorily fixed time limit is not mandatory to which I
respectfully agree.”
8. Recently, in the matter of “Subhelal @ Sushil Sahu v. State of
Chhattisgarh” AIR 2025 SC 1483, the Hon’ble Supreme Court has
observed certain conditions in its judgement for deciding the
application under Section 437(6) of the CRPC. In Para 13 of its
judgement, the Hon’ble Supreme Court has observed that:-
“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 its sweep only the right to speedy trial,
whereas Article 21 of the Constitution of India has a
very wide connotation.”
9. It is necessary to quote here the provisions of Section 437(6) of the
CRPC, which reads as under:-
“437. When bail may be taken in case of non-bailable
offence.–
xxx
(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
8from 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.”
10. In the matter of “Atul Bagga” (supra) the coordinate Bench of this
Court has observed in Para 11 and 13 that:-
“11. The question that arises for determination is as to
what factors should weigh with the Magistrate while
refusing grant of bail under subsection (6) of Section
437 of the Code. In my considered opinion, apart from
the gravity of offence and the quantum of punishment,
one or more of the following factors, among others
may weigh with the Magistrate while refusing bail:
(a) the overall impact of the offence and the
release of the person accused of such offence
on the society,
(b) the possibility of tampering of evidence by
the accused,
(c) the possibility of the accused absconding if
released on bail, and lastly,
(d) the delay in conclusion of the trial within a
period of 60 days if attributable to the accused.
13. Thus the seriousness of the economic offences of
high magnitude for which the petitioner was charged,
the overall impact of the offence and the release of the
person accused of such offence on the society, the
9
possibility that the petitioner, if released on bail was
likely to influence the witnesses or tamper with the
prosecution evidence, the fact that other co-accused
were absconding would be relevant factors for
refusing bail under sub-section (6) of Section 437 of
the Code.”
11. From perusal of the impugned order would show that the learned trial
Court has considered the gravity and seriousness of the offence,
which may affect the public at large. Taking a cumulative view of all
the above mentioned grounds and such serious magnitude that his
release is likely to affect the society at large, this Court is of the
opinion that the learned trial Court has passed the order after due
appreciation of the material available on record as well as the law
laid down in the field, in which I do not find any illegality or perversity
warranting interference in the impugned order as it is well settled that
discretion exercised by the trial Court is not to be interfered by this
Court in exercise of inherent jurisdiction under Section 528 of
Bharatiya Nagarik Suraksha Sanhita, 2023 unless the discretion is
shown to have been exercised arbitrarily, perversely or capriciously,
but in the present case, nothing has been shown that the discretion is
exercised in the manner contrary to the law.
12. Resultantly, the petition filed under Section 528 of Bharatiya Nagarik
Suraksha Sanhita, 2023 deserves to be and is hereby dismissed.
13. Before parting with the case, it is necessary to observe that a duty is
cast on the Magistrate to ensure that summons are promptly issued
10
by the Court and to conclude the trial as early as possible within the
stipulated time framed.
14. A copy of this order be forwarded to the concerned Judicial
Magistrate for speedy disposal of the case.
Sd/-
(Ravindra Kumar Agrawal)
Judge
ved