SUBHELAL @ SUSHIL SAHUversusTHE STATE OF CHHATTISGARH

           [2025] 2 S.C.R. 636 : 2025 INSC 242

                  Subhelal @ Sushil Sahu
                             v.
                 The State of Chhattisgarh
               (Criminal Appeal No. 818 of 2025)
                         18 February 2025
        [J.B. Pardiwala and R. Mahadevan, JJ.]


                     Issue for Consideration
High Court denied regular bail to the appellant for offences
punishable under Sections 420, 201, 120-B read with Section 34,
Penal Code, 1860. On facts, appellant, if entitled to bail. Factors
relevant for considering application under Section 437(6) of Code
of Criminal Procedure, 1973.

                             Headnotes†
Code of Criminal Procedure, 1973 – s.437(6) – Application
under, to be dealt liberally – Penal Code, 1860 – ss.420, 201,
120-B r/w s.34 – Economic offence related to crypto currency –
Out of 189 witnesses to be examined by the prosecution, only
1 witness has been examined – Maximum punishment that can
be imposed if the offence is established is 7 years – Appellant
has been in custody since December, 2023 – If entitled to bail:
Held: Yes, subject to terms and conditions as stated – Applications
u/s.437 (6) have to be given a liberal approach where there is
no chance of tampering of evidence; the accused absconding or
causing delay in trial; any prejudice to prosecution; or there is little
scope for conclusion of trial in near future; where the accused has
been in jail for a substantial period in comparison to the sentence
prescribed for the offence – Thus, application u/s.437(6) has to
be dealt liberally to protect individual liberty as envisaged under
the Constitution of India and sought to be protected by insertion
of sub-section (6) to s.437 by the legislature. [Paras 17, 18, 20]
Code of Criminal Procedure, 1973 – s.437(6) – Illustrative factors
relevant for considering application under – Enumerated.
[Paras 13-16]

Code of Criminal Procedure, 1973 – s.437(6) – Nature and
object of – s.437(6) not mandatory, does not grant right of
bail in favour of accused:
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          Subhelal @ Sushil Sahu v. The State of Chhattisgarh


     Held: s.437(6) is not mandatory in nature and does not grant
     an absolute and indefeasible right of bail in favour of accused –
     Later part of sub-section (6) of s.437 of the Code empowers a
     Magistrate to refuse bail by assigning reasons – Sub-section (6)
     of s.437 has been inserted by the legislature with an intention to
     speed up the trial without unnecessarily detaining a person as
     an under-trial prisoner for a prolonged time recognizing the right
     of an accused for a speedy trial with a view to protect individual
     liberty – At the same time, a balance has also been struck by
     allowing the Magistrate to refuse bail by assigning reasons in a
     given set of circumstances – Thus, 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. [Para 10]

     Code of Criminal Procedure, 1973 – ss.437(1), (2) & (6) –
     Grounds for refusing bail u/s.437(6) vis-à-vis u/ss.437(1) & (2),
     have to be different:
     Held: The grounds relevant for refusing bail u/s.437(6) would not
     be the same which could have weighed with the Magisterial Court
     while refusing bail u/ss.437(1) & (2) as that is a stage much prior
     to trial – Whereas the stage contemplated u/s.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
     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 to insert sub-section (6) – Therefore, reasons for
     rejection of application u/s.437(6) have to be different and little
     more weighty than the reasons that may be relevant for rejection
     for bail at the initial stage, else sub-section (6) would be rendered
     otiose. [Para 11]

                               Case Law Cited
     Nehul Prakashbhai Shah v. State of Gujarat (2012) 53 (3) GLR
     2685 – approved.

                                 List of Acts
     Code of Criminal Procedure, 1973; Penal Code, 1860; Constitution
     of India.
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                               List of Keywords
       Section 437(6) of Code of Criminal Procedure, 1973; Economic
       Offences; Offence related to crypto currency; Scam; Investors
       lost money; Regular bail denied; Bail after trial commences;
       Stage prior to trial; Under-trial prisoner; Right of an accused for
       a speedy trial.

                              Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       818 of 2025
       From the Judgment and Order dated 22.07.2024 of the High Court
       of Chhattisgarh at Bilaspur in MCRC No. 2810 of 2024

                           Appearances for Parties
       Advs. for the Appellant:
       Mangaljit Mukherjee, Mrs. Debarpita Basu Mukherjee, Chand
       Qureshi, Dhirendra Kumar Verma, Deepak Raj Singh, Mohit Yadav,
       Mrs. Aarti Pal.
       Advs. for the Respondent:
       Mrs. Prerna Dhall, Ms. Karishma Rajput, Gopinadh M N, Shivam
       Ganeshia, Prashant Singh, Ms. Akanksha Singh.

                  Judgment / Order of the Supreme Court

                                     Order

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.
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.
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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.
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-bailable
           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.”
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
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       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 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 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 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
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          Subhelal @ Sushil Sahu v. The State of Chhattisgarh


     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 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?
     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.
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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 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 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 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,
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          Subhelal @ Sushil Sahu v. The State of Chhattisgarh


     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 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
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       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
       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 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
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          Subhelal @ Sushil Sahu v. The State of Chhattisgarh


           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 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
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          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 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 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.
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            Subhelal @ Sushil Sahu v. The State of Chhattisgarh


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.
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.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Divya Pandey