Keeping in view the
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 others (2014) 3 SCC 159
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
the same is permissible in view of the decision in Bipin
Shantilal Panchal 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.
A Court cannot act to extinguish the right of an
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.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPEALLATE JURISDICTION
CRIMINAL APPEAL NO. 786 OF 2010
Union of India through C.B.I. …
V
Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav
Citation;2014 CR.L.J 3952 SC
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.
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
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 others (2014) 3 SCC 159
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
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
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.
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 others (2014) 3 SCC 159
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
the same is permissible in view of the decision in Bipin
Shantilal Panchal 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.
A Court cannot act to extinguish the right of an
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.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPEALLATE JURISDICTION
CRIMINAL APPEAL NO. 786 OF 2010
Union of India through C.B.I. …
V
Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav
Citation;2014 CR.L.J 3952 SC
Dipak Misra, J.
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.
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
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 others (2014) 3 SCC 159
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
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
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.
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