Bail Granted by Rajasthan High Court

An Important judgment on section 167(2) of Cr.P.C......

On the basis of which many high courts including Rajasthan High Court is granting bail on the same issue like section 167(2)...

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEAL NO. 786 OF 2010

Union of India through C.B.I. … Appellant

Versus

Nirala Yadav @ Raja Ram Yadav

@ Deepak Yadav …Respondent

J U D G M E N T

Dipak Misra, J.

The present appeal, by special leave, is directed against

the order dated 4.3.2008 passed by the learned Single Judge

of the High Court of Judicature at Patna in Criminal Misc. No.

44042 of 2007 enlarging the respondent on bail solely on the

ground that he was entitled to the benefit under the proviso

appended to Section 167(2) CrPC of Criminal Procedure (for

short “the CrPC”).

2

2. The antecedent essential facts are that the respondent

was arraigned as an accused in Nauhatta P.S. case No. 4/02

for the offences punishable under Sections 302, 304, 353,

323, 149, 148 and 147 of the Indian Penal Code (IPC), under

Section 27 of the Arms Act and under Section 49(2)(b) of

Prevention of Terrorist Activities Act (POTA) for murder of

Sanjay Kumar Singh, Divisional Forest Officer. Initially the

investigation was carried out by the local investigating agency

and thereafter, the Government of India, Ministry of Personnel,

New Delhi, issued a notification No. 228/9/02-AVD/II dated

21.3.2002 handing over the investigation to the Central

Bureau of Investigation (CBI) after obtaining the consent of the

Government of Bihar.

3. As per the allegations of the prosecution, on 15.2.2002

the deceased Sanjay Kumar Singh, Divisional Forest Officer,

Shahabad Division with Headquarter at Sasaram, was on a

surprise check in village Rehal, District Rohtas along with his

subordinate staff and, at that juncture, he was surrounded by

a group of 25-30 unknown naxalites and was taken outside

3

the village and when he declined to comply with the illegal

demand of the naxalites for payment of rupees five lakhs for

his release, he was taken inside the forest where he was shot

dead. After the criminal law was set in motion on the basis of

an FIR, the investigation commenced.

4. In course of investigation, the respondent was arrested

and was sent to the judicial custody on 5.12.2006. As the

charge-sheet was not filed after lapse of the statutory period of

ninety days, on 14.3.2007 the respondent filed an application

under Section 167(2) CrPC for release on bail on the

foundation that in the absence of challan on record he was

entitled to be admitted to bail after completion of ninety days

from his date of arrest. On 15.3.2007, an application was filed

by the CBI under Section 49(2)(b) of POTA seeking extension of

time for a period of thirty days, but on that day no order was

passed on that application and the learned Special Judge

asked the defence to file a reply in rejoinder to the application

for extension but did not pass any order on the application for

grant of bail.

4

5. As the factual matrix would unfurl, charge-sheet was

filed on 26.3.2007. On 3.4.2007 the learned Special Judge

extended the time for filing the charge-sheet till the date of

such filing, i.e., 26.3.2007 and rejected the application of the

respondent. Being unsuccessful in getting admitted to bail,

the accused-respondent approached the High Court in

Criminal Misc. No. 44042 of 2007 and the learned single

Judge who dealt with the application, after referring to the

decision in Hitendra Vishnu Thakur v. State of

Maharahstra1 and placing reliance on the dictum in Uday

Mohanlal Acharya v. State of Maharahstra2, came to hold

that the right had already accrued to the respondent on

14.3.2007 when he had moved the application for grant of bail

and, accordingly, admitted him to bail on certain conditions.

6. We have heard Mr. P.K. Dey, learned counsel for the

appellant and Ms. Prerna Singh, learned counsel for the

respondent.

1

(1994) 4 SCC 602

2 (2001) 5 SCC 453

5

7. Calling in question the legal acceptability of the order, it

is submitted by Mr. Day that the High Court has been totally

misguided by placing reliance upon the law laid down in

Harindra Vishnu Thakur (supra) without apprising itself

about the Constitution Bench decision in Sanjay Dutt v.

State3 which makes the order unsustainable. It is urged by

him that when the application for bail was filed on the ground

that the charge-sheet was not filed within ninety days, and the

said application was not considered and no order was passed

by the learned trial Judge before the charge-sheet was filed,

the indefeasible right that vested in an accused, got totally

destroyed, but, unfortunately, the High Court has failed to

appreciate the said legal principle which makes the impugned

order sensitively untenable. It is his further submission that

the learned single Judge has failed to apply the correct

principle on the right of “compulsive bail” inasmuch as such a

right should be available on the date the bail application is

taken up for consideration but not on the date of its

presentation. He has commended us to the decisions in

3 (1994) 5 SCC 410

6

Sanjay Dutt (supra), State of M.P. v. Rustam & ors.4, Bipin

Shantilal Panchal v. State of Gujarat5, Dinesh Dalmia v.

CBI6, Mustaq Ahmed Isak v. State of Maharashtra7 and

Pragyna Singh Thakur v. State of Maharashtra8.

8. Ms. Prerna Singh, learned counsel appearing for the

respondent, per contra, has contended that the controversy is

squarely covered by the decision in Uday Mohanlal Acharya

(supra) and as the High Court has based its decision on the

same in the backdrop of the factual scenario, the order is

absolutely defensible and does not suffer from any infirmity

warranting interference. She would further submit that the

indefeasible right available to the accused cannot be

extinguished by filing an application for extension of time to

file the charge-sheet after expiry of the initial period and filing

the same after certain period, for if such kind of allowance is

conferred, the purpose of the provision engrafted under

Section 167(2) CrPC would be frustrated.

4 1995 Supp (3) SCC 221

5 (1996) 1 SCC 718

6 (2007) 8 SCC 770

7 (2009) 7 SCC 480

8 (2011) 10 SCC 445

7

9. At the outset it is necessary to state that the facts are not

in dispute and, therefore, we are obliged to advert to the law

and adjudge whether the High Court has correctly applied the

legal principles. As we notice from the impugned order the

learned single Judge has referred to the decision in Hatindra

Vishnu Thakur (supra). In the said case the Court had

dwelled upon the import of Section 20(4) of Terrorist and

Disruptive Activities (Prevention) Act, 1987 read with Section

167 CrPC and came to hold that: -

“… we find that once the period for filing the

charge-sheet has expired and either no extension

under clause (bb) has been granted by the

Designated Court or the period of extension has also

expired, the accused person would be entitled to

move an application for being admitted to bail

under sub-section (4) of Section 20 TADA read with

Section 167 of the Code and the Designated Court

shall release him on bail, if the accused seeks to be

so released and furnishes the requisite bail. We are

not impressed with the argument of the learned

counsel for the appellant that on the expiry of the

period during which investigation is required to be

completed under Section 20(4) TADA read with

Section 167 of the Code, the court must release the

accused on bail on its own motion even without any

application from an accused person on his offering

to furnish bail. In our opinion an accused is

required to make an application if he wishes to be

released on bail on account of the ‘default’ of the

investigating/prosecuting agency and once such an

8

application is made, the court should issue a notice

to the public prosecutor who may either show that

the prosecution has obtained the order for extension

for completion of investigation from the court under

clause (bb) or that the challan has been filed in the

Designated Court before the expiry of the prescribed

period or even that the prescribed period has

actually not expired and thus resist the grant of bail

on the alleged ground of ‘default’. The issuance of

notice would avoid the possibility of an accused

obtaining an order of bail under the ‘default’ clause

by either deliberately or inadvertently concealing

certain facts and would avoid multiplicity of

proceedings. It would, therefore, serve the ends of

justice if both sides are heard on a petition for grant

of bail on account of the prosecution’s ‘default’.

Similarly, when a report is submitted by the public

prosecutor to the Designated Court for grant of

extension under clause (bb), its notice should be

issued to the accused before granting such an

extension so that an accused may have an

opportunity to oppose the extension on all

legitimate and legal grounds available to him. It is

true that neither clause (b) nor clause (bb) of

sub-section (4) of Section 20 TADA specifically

provide for the issuance of such a notice but in our

opinion the issuance of such a notice must be read

into these provisions both in the interest of the

accused and the prosecution as well as for doing

complete justice between the parties.”

After so stating, the Court proceeded to observe as

follows: -

“We must as already noticed reiterate that the

objection to the grant of bail to an accused on

account of the ‘default’ of the prosecution to

complete the investigation and file the challan

9

within the maximum period prescribed under

clause (b) of sub-section (4) of Section 20 TADA or

within the extended period as envisaged by clause

(bb) has to be limited to cases where either the

factual basis for invoking the ‘default’ clause is not

available or the period for completion of

investigation has been extended under clause (bb)

and the like. No other condition like the gravity of

the case, seriousness of the offence or character of

the offender etc. can weigh with the court at that

stage to refuse the grant of bail to an accused under

sub-section (4) of Section 20 TADA on account of

the ‘default’ of the prosecution.”

10. After the said decision was rendered, the interpretation of

clause (bb) of sub-section (4) of Section 20 of TADA was

referred to the Constitution Bench. In Sanjay Dutt (supra)

the two questions that were posed by the Constitution Bench

are as follows: -

“(2) The proper construction of clause (bb) of

sub-section (4) of Section 20 of the TADA Act

indicating the nature of right of an accused to

be released on bail thereunder, on the default

to complete investigation within the time

allowed therein; and

(3) The proper construction and ambit of

sub-section (8) of Section 20 of the TADA Act

indicating the scope for bail thereunder.”

11. A contention was raised before the Constitution Bench

that the two-Judge Bench decision in Hitendra Vishnu

10

Thakur (supra) read in the context of final order made therein

raised some ambiguity about the meaning and effect of Section

20(4)(bb) of the TADA Act. Adverting to the interpretation of

the said provision and scanning the anatomy, the larger Bench

observed thus: -

“43. Section 20 of the TADA Act prescribes the

modified application of the Code of Criminal

Procedure indicated therein. The effect of

sub-section (4) of Section 20 is to apply Section 167

of the Code of Criminal Procedure in relation to a

case involving an offence punishable under the

TADA Act subject to the modifications indicated

therein. One of the modifications made in Section

167 of the Code by Section 20(4) of the TADA Act is

to require the investigation in any offence under the

TADA Act to be completed within a period of 180

days with the further proviso that the Designated

Court is empowered to extend that period up to one

year if it is satisfied that it is not possible to

complete the investigation within the said period of

180 days, on the report of the public prosecutor

indicating the progress of the investigation and the

specific reasons for the detention of the accused

beyond the said period of 180 days. This gives rise

to the right of the accused to be released on bail on

expiry of the said period of 180 days or the extended

period on default to complete the investigation

within the time allowed.”

12. Thereafter, the Court referred to Hitendra Vishnu

Thakur (supra) wherein it has been held that the Designated

Court would have “no jurisdiction to deny to an accused his

11

indefeasible right to be released on bail on account of the

default of the prosecution to file the challan within the

prescribed time if an accused seeks and is prepared to furnish

the bail bond as directed by the court”; and that a ‘notice’ to

the accused is required to be given by the Designated Court

before it grants any extension under the further proviso

beyond the prescribed period for completing the investigation.

It is apt to state that learned counsel for the petitioner therein

conceded the legal position that the right of the accused which

is enforceable only upto the filing of the challan and does not

survive for enforcement on the challan being filed in the court

against him. It was further contended that the decision in

Hitendra Vishnu Thakur (supra) could not be read to confer

on the accused an indefeasible right to be released on bail

under Section 20(4)(bb) once the challan has been filed if the

accused continues in custody. Such a concession was given

by stating that Section 167 CrPC has relevance only to the

period of investigation. The said position of law was accepted

by the learned Additional Solicitor General. However, it was

contended by him that direction for grant of bail in Hitendra

12

Vishnu Thakur (supra) was not in consonance with such

reading of the decision and indicates that the indefeasible

right of the accused to be released on bail on expiry of the time

allowed for completing the investigation survives and is

enforceable even after the challan has been filed, without

reference to the merits of the case or the material produced in

the court with the challan. Mr. Dey has drawn inspiration

from paragraphs 48 and 49 of the said decision which we

think should be reproduced: -

“48. We have no doubt that the common stance

before us of the nature of indefeasible right of the

accused to be released on bail by virtue of Section

20(4)(bb) is based on a correct reading of the

principle indicated in that decision. The indefeasible

right accruing to the accused in such a situation is

enforceable only prior to the filing of the challan and

it does not survive or remain enforceable on the

challan being filed, if already not availed of. Once

the challan has been filed, the question of grant of

bail has to be considered and decided only with

reference to the merits of the case under the

provisions relating to grant of bail to an accused

after the filing of the challan. The custody of the

accused after the challan has been filed is not

governed by Section 167 but different provisions of

the Code of Criminal Procedure. If that right had

accrued to the accused but it remained unenforced

till the filing of the challan, then there is no

question of its enforcement thereafter since it is

extinguished the moment challan is filed because

13

Section 167 CrPC ceases to apply. The Division

Bench also indicated that if there be such an

application of the accused for release on bail and

also a prayer for extension of time to complete the

investigation according to the proviso in Section

20(4) ( bb ), both of them should be considered

together. It is obvious that no bail can be given even

in such a case unless the prayer for extension of the

period is rejected. In short, the grant of bail in such

a situation is also subject to refusal of the prayer for

extension of time, if such a prayer is made. If the

accused applies for bail under this provision on

expiry of the period of 180 days or the extended

period, as the case may be, then he has to be

released on bail forthwith. The accused, so released

on bail may be arrested and committed to custody

according to the provisions of the Code of Criminal

Procedure. It is settled by Constitution Bench

decisions that a petition seeking the writ of habeas

corpus on the ground of absence of a valid order of

remand or detention of the accused, has to be

dismissed, if on the date of return of the rule, the

custody or detention is on the basis of a valid order.

(See Naranjan Singh Nathawan v. State of Punjab9;

Ram Narayan Singh v. State of Delhi10 and A.K.

Gopalan v. Government of India11.)

49. This is the nature and extent of the right of the

accused to be released on bail under Section 20(4)

(bb) of the TADA Act read with Section 167 CrPC in

such a situation. We clarify the decision of the

Division Bench in Hitendra Vishnu Thakur,

accordingly, and if it gives a different indication

because of the final order made therein, we regret

our inability to subscribe to that view.”

[Emphasis supplied]

9 1952 SCR 395

10 1953 SCR 652

11 (1966) 2 SCR 427

14

After laying down the principles, the Constitution Bench

recorded its conclusions of which conclusions (2)(a) and (2)(b),

being relevant for the present purpose, are reproduced below: -

“(2)(a) Section 20(4)(bb) of the TADA Act only

requires production of the accused before the

court in accordance with Section 167(1) of the

Code of Criminal Procedure and this is how

the requirement of notice to the accused before

granting extension beyond the prescribed

period of 180 days in accordance with the

further proviso to clause (bb) of sub-section (4)

of Section 20 of the TADA Act has to be

understood in the judgment of the Division

Bench of this Court in Hitendra Vishnu

Thakur. The requirement of such notice to the

accused before granting the extension for

completing the investigation is not a written

notice to the accused giving reasons therein.

Production of the accused at that time in the

court informing him that the question of

extension of the period for completing the

investigation is being considered, is alone

sufficient for the purpose.

(2)(b) The “indefeasible right” of the accused to be

released on bail in accordance with Section

20(4)(bb) of the TADA Act read with Section

167(2) of the Code of Criminal Procedure in

default of completion of the investigation and

filing of the challan within the time allowed, as

held in Hitendra Vishnu Thakur is a right

which ensures to, and is enforceable by the

accused only from the time of default till the

filing of the challan and it does not survive or

remain enforceable on the challan being filed.

15

If the accused applies for bail under this

provision on expiry of the period of 180 days or

the extended period, as the case may be, then

he has to be released on bail forthwith. The

accused, so released on bail may be arrested

and committed to custody according to the

provisions of the Code of Criminal Procedure.

The right of the accused to be released on bail

after filing of the challan, notwithstanding the

default in filing it within the time allowed, is

governed from the time of filing of the challan

only by the provisions relating to the grant of

bail applicable at that stage.”

[Emphasis added]

13. Thus, the decision in Hitendra Narain Thakur (supra)

has been explained by the Constitution Bench and it has laid

down the principles pertaining to grant of bail on default.

14. In Dr. Bipin Shantilal Panchal (supra) the Court was

dealing with a controversy whereby the High Court had

rejected the prayer for bail to the appellant who was an

accused for offences under the Narcotic Drugs and

Psychotropic Substances Act, 1985. A contention was

advanced that the statutory period prescribed under the

proviso (a) to sub-section (2) of Section 167 CrPC providing for

completion of investigation, had expired and, therefore, the

16

accused-appellant therein should have been released on bail.

The three-Judge Bench referred to the decision in Union of

India v. Thamisharasi12, reproduced a passage from Sanjay

Dutt (supra) and came to hold as follows: -

“… if an accused person fails to exercise his right to

be released on bail for the failure of the prosecution

to file the charge-sheet within the maximum time

allowed by law, he cannot contend that he had an

indefeasible right to exercise it at any time

notwithstanding the fact that in the meantime the

charge-sheet is filed. But on the other hand if he

exercises the right within the time allowed by law

and is released on bail under such circumstances,

he cannot be rearrested on the mere filing of the

charge-sheet, as pointed out in Aslam Babalal Desai

v. State of Maharashtra13.

[Emphasis added]

15. In Rustam and others (supra) the two-Judge Bench was

addressing to the controversy where the High Court had

entertained the bail petition after the challan was filed. After

stating that the controversy had been covered by the decision

in Sanjay Dutt (supra) wherein Hitendra Vishnu Thakur

(supra) had been explained, the Court proceeded to state as

follows: -

12 (1995) 4 SCC 190

13 (1992) 4 SCC 272

17

“The court is required to examine the availability of

the right of compulsive bail on the date it is

considering the question of bail and not barely on

the date of the presentation of the petition for bail.”

16. After so stating the Court proceeded to state that when

the High Court entertained the petition for bail and granted it

to the respondents therein, undeniably the challan stood filed

in the court and, therefore, the indefeasible right for getting

bail was not available.

17. In Mohammed Iqbal Madar Sheikh and others v.

State of Maharshtra14, while interpreting the proviso (a) to

sub-section (2) of Section 167 CrPC in the context of TADA,

the three-Judge Bench opined thus: -

“It need not be pointed out or impressed that in

view of a series of judgments of this Court, this right

cannot be defeated by any court, if the accused

concerned is prepared and does furnish bail bonds

to the satisfaction of the court concerned. Any

accused released on bail under proviso (a) to

Section 167(2) of the Code read with Section 20(4)(b)

or Section 20(4)(bb), because of the default on the

part of the investigating agency to conclude the

investigation, within the period prescribed, in view

of proviso (a) to Section 167(2) itself, shall be

deemed to have been so released under the

provisions of Chapter XXXIII of the Code. It cannot

be held that an accused charged of any offence,

14 (1996) 1 SCC 722

18

including offences under TADA, if released on bail

because of the default in completion of the

investigation, then no sooner the charge-sheet is

filed, the order granting bail to such accused is to

be cancelled. The bail of such accused who has

been released, because of the default on the part of

the investigating officer to complete the

investigation, can be cancelled, but not only on the

ground that after the release, charge-sheet has been

submitted against such accused for an offence

under TADA. For cancelling the bail, the well-settled

principles in respect of cancellation of bail have to

be made out.”

18. Be it noted, in the said case, the accused-appellants were

taken into custody on 16.1.1993 and the charge-sheet was

submitted on 30.8.1993, obviously beyond the statutory

period provided under Section 20(4)(b). However, the Court

proceeded to opine thus: -

“But it is an admitted position that no application

for bail on the said ground was made on behalf of

the appellants. Unless applications had been made

on behalf of the appellants, there was no question of

their being released on ground of default in

completion of the investigation within the statutory

period. It is now settled that this right cannot be

exercised after the charge-sheet has been submitted

and cognizance has been taken, because in that

event the remand of the accused concerned

including one who is alleged to have committed an

offence under TADA, is not under Section 167(2) but

under other provisions of the Code. This has been

specifically considered by a Constitution Bench of

19

this Court in the case of Sanjay Dutt v. State

through CBI(II).”

After so stating the learned Judges reproduced a passage

from Sanjay Dutt (supra) and opined that it was not open to

the accused-appellants to claim bail under proviso (a) to

Section 167(2) CrPC inasmuch as the charge-sheet had been

submitted against them the benefit of default would not be

available. Though the three-Judge Bench rejected the prayer

for bail on facts, yet considering the submissions put forth at

the Bar, observed as follows: -

“During hearing of the appeal, it was pointed out by

the counsel appearing on behalf of the appellants

that some courts in order to defeat the right of the

accused to be released on bail under proviso (a) to

Section 167(2) after expiry of the statutory period for

completion of the investigation, keep the

applications for bail pending for some days so that in

the meantime, charge-sheets are submitted. Any

such act on the part of any court cannot be

approved. If an accused charged with any kind of

offence becomes entitled to be released on bail under

proviso (a) to Section 167(2), that statutory right

should not be defeated by keeping the applications

pending till the charge-sheets are submitted so that

the right which had accrued is extinguished and

defeated.”

[Emphasis supplied]

20

19. In Uday Mohanlal Acharya (supra) the majority, after

referring to the Constitution Bench decision in Sanjay Dutt’s

case, posed the question about the true meaning of the

expression of the following lines:-

“the indefeasible right accruing to the accused in

such a situation is enforceable only prior to the

filing of the challan and it does not survive or

remain enforceable on the challan being filed, if

already not availed or”

Answering the said question the court observed thus:-

“Does it mean that an accused files an application

for bail and offers his willingness for being released

on bail or does it mean that a bail order must be

passed, the accused must furnish the bail and get

him released on bail? In our considered opinion it

would be more in consonance with the legislative

mandate to hold that an accused must be held to

have availed of his indefeasible right, the moment

he files an application for being released on bail and

offers to abide by the terms and conditions of bail.

To interpret the expression “availed of” to mean

actually being released on bail after furnishing the

necessary bail required would cause great injustice

to the accused and would defeat the very purpose of

the proviso to Section 167(2) of the Criminal

Procedure Code and further would make an illegal

custody to be legal, inasmuch as after the expiry of

the stipulated period the Magistrate had no further

jurisdiction to remand and such custody of the

accused is without any valid order of remand. That

apart, when an accused files an application for bail

21

indicating his right to be released as no challan had

been filed within the specified period, there is no

discretion left in the Magistrate and the only thing

he is required to find out is whether the specified

period under the statute has elapsed or not, and

whether a challan has been filed or not. If the

expression “availed of” is interpreted to mean that

the accused must factually be released on bail, then

in a given case where the Magistrate illegally refuses

to pass an order notwithstanding the maximum

period stipulated in Section 167 had expired, and

yet no challan had been filed then the accused

could only move to the higher forum and while the

matter remains pending in the higher forum for

consideration, if the prosecution files a charge-sheet

then also the so-called right accruing to the accused

because of inaction on the part of the investigating

agency would get frustrated. Since the legislature

has given its mandate it would be the bounden duty

of the court to enforce the same and it would not be

in the interest of justice to negate the same by

interpreting the expression “if not availed of” in a

manner which is capable of being abused by the

prosecution. A two-Judge Bench decision of this

Court in State of M.P. v. Rustam setting aside the

order of grant of bail by the High Court on a

conclusion that on the date of the order the

prosecution had already submitted a police report

and, therefore, the right stood extinguished, in our

considered opinion, does not express the correct

position in law of the expression “if already not

availed of”, used by the Constitution Bench in

Sanjay Dutt .”

[Emphasis supplied]

22

After so stating the court referred to Makhan Singh

Tarsikka v. State of Punjab15, Ram Narayan Singh

(supra) and A.K. Gopalan (supra) and proceeded to state as

follows:-

“In interpreting the expression “if not availed of” in

the manner in which we have just interpreted we

are conscious of the fact that accused persons in

several serious cases would get themselves released

on bail, but that is what the law permits, and that is

what the legislature wanted and an indefeasible

right to an accused flowing from any legislative

provision ought not to be defeated by a court by

giving a strained interpretation of the provisions of

the Act. In the aforesaid premises, we are of the

considered opinion that an accused must be held to

have availed of his right flowing from the legislative

mandate engrafted in the proviso to sub-section (2)

of Section 167 of the Code if he has filed an

application after the expiry of the stipulated period

alleging that no challan has been filed and he is

prepared to offer the bail that is ordered, and it is

found as a fact that no challan has been filed within

the period prescribed from the date of the arrest of

the accused. In our view, such interpretation would

subserve the purpose and the object for which the

provision in question was brought on to the

statute-book. In such a case, therefore, even if the

application for consideration of an order of being

released on bail is posted before the court after

some length of time, or even if the Magistrate

refuses the application erroneously and the accused

moves the higher forum for getting a formal order of

being released on bail in enforcement of his

15 AIR 1952 SC 27

23

indefeasible right, then filing of challan at that stage

will not take away the right of the accused.”

[Underlining is ours]

20. Thereafter the Court culled out six conclusions which are

necessitous to be reproduced. They are: -

“1. Under sub-section (2) of Section 167, a

Magistrate before whom an accused is produced

while the police is investigating into the offence can

authorise detention of the accused in such custody

as the Magistrate thinks fit for a term not exceeding

15 days on the whole.

2. Under the proviso to the aforesaid sub-section (2)

of Section 167, the Magistrate may authorise

detention of the accused otherwise than in the

custody of police for a total period not exceeding 90

days where the investigation relates to offence

punishable with death, imprisonment for life or

imprisonment for a term of not less than 10 years,

and 60 days where the investigation relates to any

other offence.

3. On the expiry of the said period of 90 days or 60

days, as the case may be, an indefeasible right

accrues in favour of the accused for being released

on bail on account of default by the investigating

agency in the completion of the investigation within

the period prescribed and the accused is entitled to

be released on bail, if he is prepared to and

furnishes the bail as directed by the Magistrate.

4. When an application for bail is filed by an

accused for enforcement of his indefeasible right

alleged to have been accrued in his favour on

account of default on the part of the investigating

agency in completion of the investigation within the

24

specified period, the Magistrate/court must dispose

of it forthwith, on being satisfied that in fact the

accused has been in custody for the period of 90

days or 60 days, as specified and no charge-sheet

has been filed by the investigating agency. Such

prompt action on the part of the Magistrate/court

will not enable the prosecution to frustrate the

object of the Act and the legislative mandate of an

accused being released on bail on account of the

default on the part of the investigating agency in

completing the investigation within the period

stipulated.

5. If the accused is unable to furnish the bail as

directed by the Magistrate, then on a conjoint

reading of Explanation I and the proviso to

sub-section (2) of Section 167, the continued

custody of the accused even beyond the specified

period in para (a) will not be unauthorised, and

therefore, if during that period the investigation is

complete and the charge-sheet is filed then the

so-called indefeasible right of the accused would

stand extinguished.

6. The expression “if not already availed of” used by

this Court in Sanjay Dutt case3 must be

understood to mean when the accused files an

application and is prepared to offer bail on being

directed. In other words, on expiry of the period

specified in para (a) of the proviso to sub-section (2)

of Section 167 if the accused files an application for

bail and offers also to furnish the bail on being

directed, then it has to be held that the accused has

availed of his indefeasible right even though the

court has not considered the said application and

has not indicated the terms and conditions of bail,

and the accused has not furnished the same.”

Reportable

21. Elaborating further, the Court held that if the

charge-sheet is filed subsequent to the availing of the

indefeasible right by the accused then that right would not

stand frustrated or extinguished and, therefore, if an accused

is entitled to be released on bail by application of the proviso

to sub-section (2) of Section 167 CrPC, makes the application

before the Magistrate, but the Magistrate erroneously refuses

the same and rejects the application and then the accused

moves the higher forum and while the matter remains pending

before the higher forum for consideration a charge-sheet is

filed, the so-called indefeasible right of the accused would not

stand extinguished thereby, and on the other hand, the

accused has to be released on bail. The Court further

proceeded to say that such an accused, thus is entitled to be

released on bail in enforcement of his indefeasible right will,

however, have to be produced before the Magistrate on a

charge-sheet being filed in accordance with Section 209 and

the Magistrate must deal with him in the matter of remand to

custody subject to the provisions of the Code relating to bail

26

and subject to the provisions of cancellation of bail, already

granted in accordance with the law laid down by the Court in

the case of Mohd. Iqbal (supra).

22. Before we proceed to deal with the subsequent decisions,

we should pause here to deliberate. In Mohamed Iqbal

Madar Sheikh (supra) it has been expressed with anguish

that the Court should not keep an application filed under

Section 167(2) after expiry of the statutory period pending to

enable the investigation to file the charge-sheet to defeat the

indefeasible right of an accused. It has been clearly stated

therein that the statutory right should not be defeated by

keeping the application pending so that the right which had

accrued is extinguished. The aforesaid decision was rendered

after pronouncement by the Constitution Bench in Sanjay

Dutt’s case and, in fact, it has been referred to therein.

23. In Uday Mohanlal Acharya (supra) the principle has

been further elaborated to hightlight the ratio laid down in

Sanjay Dutt’s case. It has been clearly laid down that if a

case is adjourned by the court granting time to the

27

prosecution not adverting to the application filed on behalf of

the accused, it would be a violation of the legislative mandate.

The principle stated in Uday Mohanlal Acharya (supra) is a

binding precedent on us. Mr. Dey, learned counsel appearing

for the appellant, made a feeble endeavour that it is a

two-Judge Bench decision and it runs contrary to the principle

stated in Sanjay Dutt’s case and hence, it should be treated

as per incuriam. Both the facets of the submission are

absolutely fallacious. It is a judgment rendered by a

three-Judge Bench and not by a two-Judge Bench simply

because there is a dissenting opinion. Secondly, the judgment

has not been rendered in ignorance of a binding precedent

but, on the contrary, it has directly dealt with the decision in

Sanjay Dutt (supra), appreciated, understood and analysed

the principles stated therein and culled out the conclusions

and, therefore, by no stretch of imagination it can be held to

be per incuriam. Even if a two-Judge Bench or a three-Judge

Bench disagrees with the view expressed in Uday Mohanlal

Acharya (supra), it has to be referred to a larger Bench. As

we notice, prior to the decision in Uday Mohanlal Acharya’s

28

case a three-Judge Bench in Mohamed Iqbal Madar Sheikh

(supra) had stated the principle in a different way. We are

disposed to think, that is the principle which the Constitution

Bench in Sanjay Dutt’s case has laid down. When the

charge-sheet is not filed and the right has ripened earning the

status of indefeasibility, it cannot be frustrated by the

prosecution on some pretext or the other. The accused can

avail his liberty only by filing application stating that the

statutory period for filing of the challan has expired, the same

has not yet been filed and an indefeasible right has accrued in

his favour and further he is prepared to furnish the bail bond.

Once such an application is filed, it is obligatory on the part of

the court to verify from the records as well as from the public

prosecutor whether the time has expired and the charge-sheet

has been filed or not or whether an application for extension

which is statutorily permissible, has been filed. If an

application for extension is filed, it is to be dealt with as has

been stated in the case of Sanjay Dutt (supra). That is the

duty of the Court. This is the position of law as has been

stated in Uday Mohanlal Acharya (supra).

29

24. In Ateef Nasir Mulla v. State of Maharashtra16, the

accused was arrested on 15.4.2003 and the period of ninety

days for completing the investigation was to expire on

13.7.2003. On 11.7.2003 an application was moved for

extension of time to complete the investigation under Section

49(2)(b) of Prevention of Terrorism Act, 2002. The Special

Judge, after hearing the counsel for the accused, allowed the

application and extended the period for completing the

investigation till 14.8.2003 and, accordingly, the accused was

remanded to custody. The order of granting extension was

challenged before the High Court. On 14.7.2003, after expiry

of ninety days, an application for release of accused was filed

stating that the period of ninety days had expired and hence,

he was entitled to bail in terms of Section 49(2)(b) read with

the provisions of Section 167(2) CrPC. The charge-sheet was

filed by the investigating agency on 19.7.2003 before

expiration of the extended time. The learned Special Judge

rejected the application for grant of bail by order dated

25.7.2003 which was affirmed by the High Court. Noting

16 (2005) 7 SCC 29

30

various contentions advanced at the Bar, this Court held

thus:-

“17. It was then contended on behalf of the

appellant that the appellant having acquired an

indefeasible right to be released on bail on the

expiry of 90 days from the date of his arrest, the

Special Judge was not justified in rejecting the

application for grant of bail which was filed on

14-7-2003. By then the charge-sheet had not been

submitted by the police and, hence, there was no

reason to continue the detention of the appellant.

18. This submission overlooks the fact that by an

order dated 11-7-2003 the Court had granted

extension of time to the investigating agency to

complete the investigation. Thus on 14-7-2003

when an application was filed for grant of bail under

Section 167(2) of the Code of Criminal Procedure,

there was already an order extending the time for

completion of the investigation, and consequently

the Court was empowered to remand the accused to

judicial or police custody during the said extended

period.”

25. The purpose of citing the aforesaid decision is that an

application for grant of extension was filed prior to the expiry

of ninety days and the same was granted and, therefore, the

indefeasible right vested in the accused stood extinguished.

26. Presently, we shall refer to certain later decisions. In the

case of Dinesh Dalmia (supra), which has been placed

31

reliance upon by Mr. Dey, the CBI lodged the First Information

Report against the appellant and three companies on a

complaint made by the Securities and Exchange Board of

India. As the appellant was away, the learned Magistrate, by

an order dated 14.2.2005, issued a non-bailable warrant of

arrest against him. In the meantime, after the completion of

investigation a charge-sheet was submitted before the learned

Magistrate in terms of sub-section (2) of Section 173 CrPC.

The name of the appellant featured in the charge-sheet along

with the companies. Eventually, after following the process

the appellant was sent to police custody on 14.2.2006 till

24.2.2006. The accused was handed over to the police for

conducting investigation till 8.3.2006. He, however, was

remanded to judicial custody till 14.3.2006 by order dated

9.3.2006 on the plea that further investigation was pending.

CBI prayed for and obtained orders of remand to judicial

custody from the learned Magistrate on 14.3.2006, 28.3.2006,

10.4.2006 and 28.4.2006. The appellant, on expiry of sixty

days from the date of his arrest, filed an application for

statutory bail purported to be in terms of the proviso

32

appended to sub-section (2) of Section 167 CrPC on the

premise that no further charge-sheet in respect of the

investigation under sub-section (8) of Section 173 CrPC had

been filed. When the said application was pending

consideration, CBI sought for his remand into judicial custody

under sub-section (2) of Section 309 thereof. The application

for statutory bail was rejected by the learned Magistrate

basically on the ground that the accused was arrested on the

basis of non-bailable warrant issued by the court after taking

cognizance of the offences in the charge-sheet. In revision, the

learned Sessions Judge allowed the revision placing reliance

on State v. Dawood Ibrahim Kaskar17. The CBI moved the

High Court which overturned the decision of the learned

Sessions Judge. This Court took note of the fact that the

charge-sheet was submitted on 24.10.2005 and the applicant

was arrested only on 12.2.2006. To the contentions raised

before this Court, namely, (i) the charge-sheet filed against the

appellant and the cognizance taken thereupon was illegal and

invalid and by reason thereof, the valuable right of the

17 (2000) 10 SCC 438

33

appellant to be released on bail had been taken away; and (ii)

even if the charge-sheet was legal, the right of the appellant

under sub-section (2) of Section 167 CrPC continued to

remain available in the facts and circumstances of the case.

Noting the contentions, the Court adverted to the power

conferred under the statute under Section 173 CrPC and,

eventually, opined as follows: -

“24. Concededly, the investigating agency is

required to complete investigation within a

reasonable time. The ideal period therefor would be

24 hours, but, in some cases, it may not be

practically possible to do so. Parliament, therefore,

thought it fit that remand of the accused can be

sought for in the event investigation is not

completed within 60 or 90 days, as the case may be.

But, if the same is not done within the stipulated

period, the same would not be detrimental to the

accused and, thus, he, on the expiry thereof would

be entitled to apply for bail, subject to fulfilling the

conditions prescribed therefor.

25. Such a right of bail although is a valuable right

but the same is a conditional one; the condition

precedent being pendency of the investigation.

Whether an investigation in fact has remained

pending and the investigating officer has submitted

the charge-sheet only with a view to curtail the right

of the accused would essentially be a question of

fact. Such a question strictly does not arise in this

case inasmuch as, according to CBI, sufficient

materials are already available for prosecution of

34

the appellant. According to it, further investigation

would be inter alia necessary on certain vital points

including end use of the funds.

xxx xxx xxx

27. It is also not a case of the appellant that he had

been arrested in course of further investigation. A

warrant of arrest had already been issued against

him. The learned Magistrate was conscious of the

said fact while taking cognizance of the offence.”

Thereafter, the Court proceeded to the concept of remand

as contemplated under the Code. We may profitably quote the

same: -

“38. It is a well-settled principle of interpretation of

statute that it is to be read in its entirety.

Construction of a statute should be made in a

manner so as to give effect to all the provisions

thereof. Remand of an accused is contemplated by

Parliament at two stages; pre-cognizance and

post-cognizance. Even in the same case, depending

upon the nature of charge-sheet filed by the

investigating officer in terms of Section 173 of the

Code, a cognizance may be taken as against the

person against whom an offence is said to have

been made out and against whom no such offence

has been made out even when investigation is

pending. So long a charge-sheet is not filed within

the meaning of sub-section (2) of Section 173 of the

Code, investigation remains pending. It, however,

does not preclude an investigating officer, as noticed

hereinbefore, to carry on further investigation

35

despite filing of a police report, in terms of

sub-section (8) of Section 173 of the Code.

39. The statutory scheme does not lead to a

conclusion in regard to an investigation leading to

filing of final form under sub-section (2) of Section

173 and further investigation contemplated under

sub-section (8) thereof. Whereas only when a

charge-sheet is not filed and investigation is kept

pending, benefit of proviso appended to sub-section

(2) of Section 167 of the Code would be available to

an offender; once, however, a charge-sheet is filed,

the said right ceases. Such a right does not revive

only because a further investigation remains

pending within the meaning of sub-section (8) of

Section 173 of the Code.”

27. As the aforesaid decision has been assiduously relied

upon by Mr. Dey to pyramid his submission of statutory

interpretation, the right of the accused and concept of remand,

we have dealt with the same in detail. The ultimate

conclusion, as we perceive, is that once a charge-sheet is filed

the benefit of proviso appended to sub-section (2) of Section

167 CrPC ceases and it does not revive solely because the

further investigation remains pending. In the said case the

Court declined to interfere as the benefit was denied to the

accused as the charge-sheet was filed and cognizance had

been taken on which basis a non-bailable warrant of arrest

36

was issued. Thus, the said decision does not render any

assistance to the learned counsel for the appellant.

28. In Union of India v. Hassan Ali Khan and another18,

a two-Judge Bench, while adverting to the submission of the

learned counsel for the Union of India pertaining to the

three-Judge Bench decision in Uday Mohanlal Acharya

(supra), has understood the said decision in the following

manner: -

25. Reference was also made to the decision of a

three-Judge Bench of this Court in Uday Mohanlal

Acharya v. State of Maharashtra wherein the scope

of Section 167(2) CrPC and the proviso thereto fell

for consideration and it was the majority view that

an accused had an indefeasible right to be released

on bail when the investigation is not completed

within the specified period and that for availing of

such right the accused was only required to file an

application before the Magistrate seeking release on

bail alleging that no challan had been filed within

the period prescribed and if he was prepared to offer

bail on being directed by the Magistrate, the

Magistrate was under an obligation to dispose of the

said application and even if in the meantime a

charge-sheet had been filed, the right to statutory

bail would not be affected. It was, however, clarified

that if despite the direction to furnish bail, the

accused failed to do so, his right to be released on

bail would stand extinguished.”

18 (2011) 10 SCC 235

37

29. From the aforesaid analysis, it is graphically clear that

the learned Judges laid emphasis how an accused avails the

benefit of compulsive bail and what is the obligation cast on

the Magistrate in law.

30. We may presently refer to a recent three-Judge Bench

decision in Sayed Mohd. Ahmad Kazmi v. State

(Government of NCT of Delhi) and others19. In the said

case, the accused had filed an application for grant of bail on

2.6.2012 since his ninety days’ period of custody was to expire

on 3.6.2012 and further custody was sought for by the

prosecution. The learned Magistrate, by his order dated

2.6.2012, extended the period of investigation and the custody

of the appellant by another ninety days. The said order was

assailed by the appellant in a revision which came for

consideration before the learned Additional Sessions Judge,

who, on 8.6.2012, held that it was only the Sessions Court

and not the Chief Metropolitan Magistrate which had the

competence to extend the judicial custody of the accused and

to entertain cases of such nature. On 22.6.2012, the

19 (2012) 12 SCC 1

38

accused-appellant was produced before the learned Chief

Judicial Magistrate for extension of his custody. On

17.7.2012 an application was filed under Section 167(2) CrPC

seeking default bail as no charge-sheet had been filed within

ninety days period of the appellant’s custody. The said

application was dismissed by the learned Magistrate.

Thereafter, the matter was referred by the learned Chief

Metropolitan Magistrate to the learned District and Sessions

Judge, who directed that judicial custody of the

accused-appellant be extended. The aforesaid order of the

learned Sessions Judge was assailed before the High Court

under Section 482 CrPC and the High Court stayed the

operation of the order passed by the learned Additional

Sessions Judge dated 28.6.2012 and, therefore, the

application for grant of statutory bail could not be taken up by

the learned Additional Sessions Judge till the High Court

vacated the order of stay on 13.7.2012. As has been stated

earlier, the accused moved an application for grant of bail

under Section 167(4) and the same was listed for

consideration on 17.7.2012. In the meantime, revision

39

petition came before the learned Additional and Sessions

Judge, who allowed the application and opined that the

custody of the accused was illegal. In view of the order passed

by the learned Additional Sessions Judge declaring the

custody of the accused to be illegal, on the same day an

application under Section 167(2) CrPC was filed before the

learned Chief Metropolitan Magistrate, but he, instead of

hearing the application on the sad date, notified the hearing

for 18.7.2012. On the adjourned date, i.e., 18.7.2012 the

State filed a fresh application seeking further extension of

appellant’s custody and the investigation period. The learned

Chief Metropolitan Magistrate directed a copy of the said

application to be served on the counsel for the accused and

notified the matter for hearing on 20.7.2012. On that day he

took up the matter for extension of custody and, instead of

considering the application, extended the time of interrogation

and custody of the appellant for ninety days with retrospective

effect from 2.6.2012. The aforesaid order was challenged

before the learned Sessions Judge who adjourned the matter

to 12.10.2012 and on 31.7.2013 the prosecution filed the

40

charge-sheet. When the matter travelled to this Court, a

question arose with regard to getting the benefit of the default

bail. Be it stated, the Court was considering the provisions

contained in Section 43-D of Unlawful Activities (Prevention)

Act, 1967 and Section 167(2) CrPC. In that context, it

observed thus: -

“18. By virtue of the aforesaid modification to the

provisions of Section 167(2) CrPC, the period of 90

days stipulated for completion of investigation and

filing of charge-sheet was modified by virtue of the

amended proviso, which indicated that if the

investigation could not be completed within 90 days

and if the court was satisfied with the report of the

Public Prosecutor indicating the progress of the

investigation and the specific reasons for detention

of the accused beyond the period of 90 days, extend

the said period up to 180 days. In other words, the

custody of an accused could be directed initially for

a period of 90 days and, thereafter, for a further

period of 90 days, in all a total of 180 days, for the

purpose of filing charge-sheet. In the event the

charge-sheet was not filed even within the extended

period of 180 days, the conditions directing that the

accused person shall be released on bail if he is

prepared to do and does furnish bail, would become

operative.”

31. Thereafter, the three-Judge Bench referred to the

decision in Sanjay Dutt (supra), Uday Mohanlal Acharya

41

(supra) and Bipin Shantilal Panchal (supra) and taking note

of the fact situation held that: -

“Not only is the retrospectivity of the order of the

Chief Metropolitan Magistrate untenable, it could

not also defeat the statutory right which had

accrued to the appellant on the expiry of 90 days

from the date when the appellant was taken into

custody. Such right, as has been commented upon

by this Court in Sanjay Dutt and the other cases

cited by the learned Additional Solicitor General,

could only be distinguished (sic extinguished) once

the charge-sheet had been filed in the case and no

application has been made prior thereto for grant of

statutory bail. It is well-established that if an

accused does not exercise his right to grant of

statutory bail before the charge-sheet is filed, he

loses his right to such benefit once such

charge-sheet is filed and can, thereafter, only apply

for regular bail.”

Thereafter, the Court opined thus: -

“26. The circumstances in this case, however, are

different in that the appellant had exercised his

right to statutory bail on the very same day on

which his custody was held to be illegal and such

an application was left undecided by the Chief

Metropolitan Magistrate till after the application

filed by the prosecution for extension of time to

complete investigation was taken up and orders

were passed thereupon.”

32. Thus, the aforesaid decision, as we find, has placed

reliance on Uday Mohanlal Acharya’s case and, therefore,

42

the principle with regard to the time and manner of availability

of the proviso appended to sub-section (2) of Section 167 CrPC

has been further crystallized.

33. Learned counsel for the appellant has commended us,

with immense perseverance, the authority in Pragyna Singh

Thakur (supra). In the said cae a contention was raised that

judgment rendered by the High Court declining to enlarge the

accused on bail was violative of the mandate of Articles 22(1)

and 22(2) of the Constitution and also violative of the statutory

provisions engrafted under Section 167(2) CrPC. In the said

case, the accused was under detention from 10.10.2008 and

ninety days expired on 9.1.2009 and the charge-sheet was

filed on 20.1.2009. The accused-appellant filed an application

under Section 167(2) CrPC read with Section 21(4) of

Maharashtra Control of Organized Crime Act, 1999 (MOCA)

and also under Section 439 CrPC. The said application was

resisted by the prosecution on the ground that the

charge-sheet was filed on 20.1.2009 which was the

eighty-ninth day from the date of his remand order, i.e.,

43

24.10.2008. The learned Special Judge rejected the

application vide order dated 9.7.2009. The High Court being

moved, dismissed the application vide order dated 12.3.2010.

Before this Court a question arose whether the appellant was

in police custody from 10.10.2008 to 22.10.2008, for the High

Court had returned a finding that the accused was arrested on

23.10.2008. This Court, on a scrutiny of the facts, held that

the accused was arrested on 23.10.2008 and, accordingly,

came to hold thus: -

“49. As far as Section 167(2) of the Criminal

Procedure Code is concerned this Court is of the

firm opinion that no case for grant of bail has been

made out under the said provision as charge-sheet

was filed before the expiry of 90 days from the date

of first remand. In any event, right in this regard of

default bail is lost once the charge-sheet is filed.

This Court finds that there is no violation of Article

22(2) of the Constitution, because on being arrested

on 23-10-2008, the appellant was produced before

the Chief Judicial Magistrate, Nasik on 24-10-2008

and subsequent detention in custody is pursuant to

the order of remand by the Court, which orders are

not being challenged, apart from the fact that

Article 22(2) is not available against a court i.e.

detention pursuant to an order passed by the court.

xxx xxx xxx

44

51. Though this Court has come to the conclusion

that the appellant has not been able to establish

that she was arrested on 10-10-2008, even if it is

assumed for the sake of argument that the

appellant was arrested on 10-10-2008 as claimed

by her and not on 23-10-2008 as stated by the

prosecution, she is not entitled to grant of default

bail because this Court finds that the charge-sheet

was filed within 90 days from the date of first order

of remand. In other words, the relevant date of

counting 90 days for filing the charge-sheet is the

date of first order of the remand and not the date of

arrest. This proposition has been clearly stated in

Chaganti Satyanarayana v. State of A.P.20”

34. To arrive at the said conclusion, reliance was also placed

on Chaganti Satyanarayana (supra), CBI v. Anupan J.

Kulkarni21, State v. Mohd. Ashraft Bhat22, State of

Maharashtra v. Bharati Chandmal Varma23 and Rustam

(supra).

35. After so stating, the Court addressed to the entitlement of

bail under Section 167(2) CrPC and, in that context, stated

thus: -

“54. There is yet another aspect of the matter. The

right under Section 167(2) CrPC to be released on

bail on default if charge-sheet is not filed within 90

20 (1986) 3 SCC 141

21 (1992) 3 SCC 141

22 (1996) 1 SCC 432

23 (2002) 2 SCC 121

45

days from the date of first remand is not an

absolute or indefeasible right. The said right would

be lost if charge-sheet is filed and would not survive

after the filing of the charge-sheet. In other words,

even if an application for bail is filed on the ground

that charge-sheet was not filed within 90 days, but

before the consideration of the same and before

being released on bail, if charge-sheet is filed, the

said right to be released on bail would be lost. After

the filing of the charge-sheet, if the accused is to be

released on bail, it can be only on merits. This is

quite evident from the Constitution Bench decision

of this Court in Sanjay Dutt (2) v. State [paras 48

and 53(2)(b)]. The reasoning is to be found in paras

33 to 49.”

[Underlining is ours]

36. Be it noted, to say so, the learned Judges drew support

from the decisions in Rustam (supra), Bipin Shantilal

Panchal (supra), Dinesh Dalmia (supra) and Mustaq Ahmed

Mohammed Isak (supra). Thereafter they adverted to Uday

Mohanlal Acharya’s case in following terms: -

“56. In Uday Mohanlal Acharya v. State of

Maharashtra a three-Judge Bench of this Court

considered the meaning of the expression “if already

not availed of” used by this Court in the decision

rendered in Sanjay Dutt in para 48 and held that if

an application for bail is filed before the

charge-sheet is filed, the accused could be said to

have availed of his right under Section 167(2) even

though the court has not considered the said

application and granted him bail under Section

167(2) CrPC. This is quite evident if one refers to

46

para 13 of the reported decision as well as the

conclusion of the Court at p. 747.

57. It is well settled that when an application for

default bail is filed, the merits of the matter are not

to be gone into. This is quite evident from the

principle laid down in Union of India v.

Thamisharasi24, SCC para 10, placita c-d.

58. From the discussion made above, it is quite

clear that even if an application for bail is filed on

the ground that charge-sheet was not filed within

90 days, before the consideration of the same and

before being released on bail if charge-sheet is filed,

the said right to be released on bail, can be only on

merits. So far as merits are concerned the learned

counsel for the appellant has not addressed this

Court at all and in fact bail is not claimed on merits

in the present appeal at all.”

[Emphasis added]

37. At this juncture, it is absolutely essential to delve into

what were the precise principles stated in Uday Mohanlal

Acharya’s case and how the two-Judge Bench has

understood the same in Pragyna Singh Thakur (supra). We

have already reproduced the paragraphs in extenso from Uday

Mohanlal Acharya’s case and the relevant paragraphs from

Pragyna Singh Thakur (supra). Pragyna Singh Thakur

(supra) has drawn support from Rustam and others case to

24 (1995) 4 SCC 190

47

buttress the principle it has laid down though in Uday

Mohanlal Acharya’s case the said decision has been held not

to have stated the correct position of law and, therefore, the

same could not have been placed reliance upon. The Division

Bench in paragraph 56 which have been reproduced

hereinabove, as referred to paragraph 13 and the conclusions

of Uday Mohanlal Acharya’s case. We have already quoted

from paragraph 13 and the conclusions.

38. The opinion expressed in paragraph 54 and 58 in

Pragyna Singh Thakur (supra) which we have underlined, as

it seems to us, runs counter to the principles stated in Uday

Mohanlal Acharya (supra) which has been followed in

Hassan Ali Khan and another (supra) and Sayed Mohd.

Ahmad Kazmi. The decision in Sayed Mohd. Ahmad

Kazmi’s case has been rendered by a three-Judge Bench. We

may hasten to state, though in Pragyna Singh Thakur’s case

the learned Judges have referred to Uday Mohanlal

Acharya’s case but as stated the principle that even if an

application for bail is filed on the ground that the charge-sheet

48

was not filed within 90 days, but before the consideration of

the same and before being released on bail, if charge-sheet is

filed the said right to be enlarged on bail is lost. This opinion

is contrary to the earlier larger Bench decisions and also runs

counter to the subsequent three-Judge Bench decision in

Mustaq Ahmed Mohammed Isak’s case. We are disposed to

think so, as the two-Judge Bench has used the words “before

consideration of the same and before being released on bail”,

the said principle specifically strikes a discordant note with

the proposition stated in the decisions rendered by the larger

Benches.

39. At this juncture, it will be appropriate to refer to the

dissenting opinion by B.N. Agarwal, J. in Uday Mohanlal

Acharya’s case. The learned Judge dissented with the

majority as far as interpretation of the expression “if not

already availed of” by stating so:-

“29. My learned brother has referred to the

expression “if not already availed of” referred to in

the judgment in Sanjay Dutt case for arriving at

Conclusion 6. According to me, the expression

“availed of” does not mean mere filing of application

49

for bail expressing therein willingness of the

accused to furnish the bail bond. What will happen

if on the 61st day an application for bail is filed for

being released on bail on the ground of default by

not filing the challan by the 60th day and on the

61st day the challan is also filed by the time the

Magistrate is called upon to apply his mind to the

challan as well as the petition for grant of bail? In

view of the several decisions referred to above and

the requirements prescribed by clause (a)(ii) of the

proviso read with Explanation I to Section 167(2) of

the Code, as no bail bond has been furnished, such

an application for bail has to be dismissed because

the stage of proviso to Section 167(2) is over, as

such right is extinguished the moment the challan

is filed.

30. In this background, the expression “availed of”

does not mean mere filing of the application for bail

expressing thereunder willingness to furnish bail

bond, but the stage for actual furnishing of bail

bond must reach. If the challan is filed before that,

then there is no question of enforcing the right,

howsoever valuable or indefeasible it may be, after

filing of the challan because thereafter the right

under default clause cannot be exercised.”

40. On a careful reading of the aforesaid two paragraphs, we

think, the two-Judge Bench in Pragyna Singh Thakur’s case

has somewhat in a similar matter stated the same. As long as

the majority view occupies the field it is a binding precedent.

That apart, it has been followed by a three-Judge Bench in

Sayed Mohd. Ahmad Kazmi’s case. Keeping in view the

50

principle stated in Sayed Mohd. Ahmad Kazmi’s case which

has based on three-Judge Bench decision in Uday Mohanlal

Acharys’s case, we are obliged to conclude and hold the

principle laid down in Paragraph 54 and 58 of Pragyna Singh

Thakur’s case(which have been underlined by us) do not state

the correct principle of law. It can clearly be stated that in

view of the subsequent decision of a larger Bench that cannot

be treated to be a good law. Our view finds support from the

decision in Union of India and others v. Arviva Industries

India Limited and others25.

41. Coming to the facts of the instant case, we find that prior

to the date of expiry of 90 days which is the initial period for

filing the charge-sheet, the prosecution neither had filed the

charge-sheet nor had it filed an application for extension. Had

an application for extension been filed, then the matter would

have been totally different. After the accused respondent filed

the application, the prosecution submitted an application

seeking extension of time for filing of the charge-sheet. Mr.

P.K. Dey, learned counsel for the appellant would submit that

25 (2014) 3 SCC 159

51

the same is permissible in view of the decision in Bipin

Shantilal Panchal (supra) but on a studied scrutiny of the

same we find the said decision only dealt with whether

extension could be sought from time to time till the completion

of period as provided in the Statute i.e., 180 days. It did not

address the issue what could be the effect of not filing an

application for extension prior to expiry of the period because

in the factual matrix it was not necessary to do so. In the

instant case, the day the accused filed the application for

benefit of the default provision as engrafted under proviso to

sub-Section (2) of Section 167 CrPC the Court required the

accused to file a rejoinder affidavit by the time the initial

period provided under the statute had expired. There was no

question of any contest as if the application for extension had

been filed prior to the expiry of time. The adjournment by the

learned Magistrate was misconceived. He was obliged on that

day to deal with the application filed by the accused as

required under Section 167(2) CrPC. We have no hesitation in

saying that such procrastination frustrates the legislative

mandate. A Court cannot act to extinguish the right of an

52

accused if the law so confers on him. Law has to prevail. The

prosecution cannot avail such subterfuges to frustrate or

destroy the legal right of the accused. Such an act is not

permissible. If we permit ourselves to say so, the prosecution

exhibited sheer negligence in not filing the application within

the time which it was entitled to do so in law but made all

adroit attempts to redeem the cause by its conduct.

42. In view of our aforesaid premised reasons we do not find

any error in the order of the High Court in overturning the

order refusing bail and extending the benefit to the respondent

and, accordingly, the appeal fails and is hereby dismissed.

……………………………….J.

[Dipak Misra]

……………………………….J.

[N. V. Ramana]

New Delhi;

June 30, 2014.