# Abhishek Srivastava v. State of U.P

- **Citation:** (2020) 11 ILRA 417
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-25
- **Case number:** Bail No. 5384 of 2020
- **Bench:** Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhishek-srivastava-v-state-of-u-p-45415
- **Pages:** 10

## Headnote

Law
-
Code
of
Criminal
Procedure,1973 -Section 167(2) -In these
bail application involved an identical
question of law - on the ground of default on
the part of the prosecution to file the charge
sheet under section 167(2) Cr.P.C.

Once the charge sheet was filed under section
167(2) Cr.P.C. would become inapplicable and
the accused who failed to avail the right would
stand deprived of claiming the benefit of
default. (Para 19)

Investigation is complete with the filing of
charge
sheet,
therefore,
the
limitation
embodied under section 167(2) must be seen
418 INDIAN LAW REPORTS ALLAHABAD SERIES
on the date of filling of the charge sheet in the
court and any other date suggesting completion
of investigation is irrelevant and does not
satisfy the requirement of law. (Para 32)

The right was very much alive when the charge
sheet was filed in court on 05.05.2020 and
survived thereafter. The applicant is entitled to
be enlarged on bail. (Para 32) (E-2)

## Text

11 All. Abhishek Srivastava Vs. State of U.P.
417
Mahapalika, Allahabad. Along with the
said counter affidavit the lease deed of the
property executed on 25th June, 1910 has
been placed on record. The said lease deed
extends the benefit of a lease of 50 years
w.e.f. 4th November, 1908 till 3rd
November, 1958.

10. The terms of the lease do not
indicate any provision for extension of the
lease beyond the period of 50 years with a
power of reentry and a further rider that the
occupant shall not claim any compensation
or payment from the State in respect of any
building erection fixture or any of them
upon the said premises or any part thereof.

11. The stand, therefore, of the
respondents is that once the lease stood
determined with no extension after 1958,
then the petitioner or the predecessors of
the petitioner could not claim any right of
compensation over the land as the land
stood vested in the State free from all
encumbrances. It is for the said reason that
the
procedure
of
compensation
or
declaration of award has not been made in
the present case.

12. Having gone through the records
and having perused the rejoinder affidavit
filed by the petitioner to the aforesaid
counter affidavit, we do not find any
material that may establish a subsisting
right in favour of the petitioner for claiming
compensation or for even declaration of an
award under Section 11 of 1894 Act.
Consequently, in the absence of any right
title or interest surviving in favour of the
petitioner a mandamus as prayed for in the
background aforesaid cannot be issued.

13. Learned counsel has urged that an
application for renewal of the lease had
been filed which is pending consideration.
From the rejoinder affidavit, we find that
the said application for renewal is dated 1st
September, 1969, eleven years after the
expiry of the tenure of lease. There is no
order passed on the said application and
even otherwise no right subsisted to enable
the petitioner so as to claim renewal.

14. The writ petition, therefore being
devoid of merits, is hereby dismissed.
----------
(2020)11ILR A417
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.11.2020

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.

Bail No. 5384 of 2020

Abhishek Srivastava ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Pranjal Krishna, Pooja Mishra, Shivam
Pandey

Counsel for the Opposite Party:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,1973 -Section 167(2) -In these
bail application involved an identical
question of law - on the ground of default on
the part of the prosecution to file the charge
sheet under section 167(2) Cr.P.C.

Once the charge sheet was filed under section
167(2) Cr.P.C. would become inapplicable and
the accused who failed to avail the right would
stand deprived of claiming the benefit of
default. (Para 19)

Investigation is complete with the filing of
charge
sheet,
therefore,
the
limitation
embodied under section 167(2) must be seen
418 INDIAN LAW REPORTS ALLAHABAD SERIES
on the date of filling of the charge sheet in the
court and any other date suggesting completion
of investigation is irrelevant and does not
satisfy the requirement of law. (Para 32)

The right was very much alive when the charge
sheet was filed in court on 05.05.2020 and
survived thereafter. The applicant is entitled to
be enlarged on bail. (Para 32) (E-2)

(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

1. Heard Sri Pranjal Krishna, learned
counsel for the applicant in Bail No. 5384
of 2020, Sri Sushil Kumar Singh, learned
counsel for the applicant in Bail No. 5756
of 2020 and learned AGA for the State.
Perused the record.

2. These two bail applications involve
an identical question of law. In both the
applications, the right of personal liberty
embodied
under
Article
21
of
the
Constitution of India is pressed on the
ground of default on the part of the
prosecution to file the charge sheet within
the statutory period as provided under
Section 167(2) of Code of Criminal
Procedure (Cr.P.C.).

3. Learned counsel for the applicants
would contend that personal liberty of a
citizen is fundamental and the same cannot
be
curtailed
without
following
due
procedure prescribed under law.

4. In the case of Abhishek Srivastava
i.e. in Bail Application No. 5384 of 2020,
the accused after arrest by the police was
taken in judicial custody with the passing
of remand order on 16.1.2020 whereafter
the judicial custody continued from time to
time and lastly the remand was extended on
11/12.3.2020 for a period of fourteen days
i.e. upto 25.3.2020. Before the said date,
nationwide lock-down was imposed and the
functioning of the Courts stood obstructed
rather completely closed except for the
urgent work regulated as per the directives
issued by Hon'ble the Chief Justice from
time to time.

5. Due to closure of courts from
24.3.2020, the first/fresh remand cases
were done and no remand orders could be
passed from 25.3.2020 to 26.6.2020. This
position was brought to the notice of this
Court by the District Judge, Lucknow on
29.9.2020 pursuant to an order passed by
this Court on 18.9.2020 which reads as
under:

"This
matter
was
heard
at
considerable length.

Having heard the learned counsel
for the parties, it is desirable that a report
may be called for from the District Judge,
Lucknow clarifying the position of remand
in case crime no. 368 of 2018 from
11/12.3.2020 to 16.6.2020.

The District Judge, Lucknow is
expected to forward a clear report within
ten days for the reason that the matter
pertains to the freedom of life and personal
liberty of the accused applicant.

List for further hearing on
30.9.2020."

6. The effect of lock-down was
equally harsh on the litigants or detenues in
jail who could not assert their rights of
personal liberty through the process of law.
The period of 90 days in Bail Application
No. 5756 of 2020 expired on 14.4.2020 and
in absence of any remand order since
25.3.2020,
the
applicant
(Abhishek
Srivastava) continued in jail till the filing of
charge sheet on 1.5.2020 and thereafter
until the rejection of default bail on
18.6.2020. The personal liberty of the
11 All. Abhishek Srivastava Vs. State of U.P.
419
accused applicant oscillated without any
attention either by prosecution or the
guardian of justice i.e. courts. The duty on
the part of the State to set the applicant free
by apprising the court was given a
complete go by to legitimize the default.
Non performance of the judicial duty also
owes its failure to the nationwide lockdown due to Pandemic Covid-19.

7. The magistrate notwithstanding the
filing of charge sheet beyond the period of
limitation, has nevertheless rejected the bail
application treating the right of default bail
to have extinguished on filing of the charge
sheet and this position is evident from the
order
passed
by
the
magistrate
on
18.6.2020.

8. In the connected matter i.e. Bail
Application No. 5384 of 2020, the initial
remand order was passed on 31.1.2020 and
the period of limitation for filing of charge
sheet lapsed on 29.4.2020 whereafter the
police report was filed on 5.5.2020. The
order sheet merely endorsed ''remand' on
several dates and lastly on 29.4.2020. The
default bail application was filed in the
month of June which was rejected on
20.6.2020. In the counter affidavit filed by
the State, a plea has been taken that the
police report was ready on 29.4.2020 but
the same could not be filed before the
deadline i.e. 29.4.2020 due to the closure of
court on account of lock-down.

9. The argument put forth by learned
counsel for the applicants in both the cases
is that the indefeasible right of default bail
could not be denied to them by the State
once the limitation for filing the police
report ran out, therefore, irrespective of the
fact whether the prayer for release was
made or not, the duty had shifted upon the
magistrate who ought to have streamlined
and secured the personal liberty of the
applicants in accordance with the mandate
of Article 21 of the Constitution of India on
suitable conditions as were necessary in the
criminal administration of justice. It is also
submitted that the personal liberty of the
applicants could not be weighed any less
than those cases where accused persons on
executing personal bonds were enlarged on
bail pursuant to the general directions
issued by the apex court in suo motu case.
Moreover, even the imposition of lockdown on account of which the courts were
closed, cannot be allowed to legitimize the
judicial custody in contravention of Article
21 of the Constitution of India read with
the procedure prescribed in Section 167(2)
Cr.P.C.

10. To buttress the submission put
forth by learned counsel for the applicants,
they have placed reliance upon a catena of
judgements taken note of hereinafter.

11. Per contra, learned AGA who has
appeared on behalf of the State has
submitted that the right claimed by the
applicants though guaranteed under Article
21 of the Constitution of India, can be
curtailed by following due procedure of
law
and
drawing
support
from
the
judgment rendered by the apex court in the
case of Sanjay Dutt v. State through CBI,
Bombay reported in (1994) 5 SCC 410, it is
argued that upon filing of the police report
before the court concerned, the right of
default bail stands eclipsed and thus, the
order passed by the trial court is wholly
tenable in the eye of law and does not
suffer from any illegality.

12. It is also submitted that the
magistrate in the present case, had no
occasion to offer the accused any suitable
conditions for being set free on bail during
420 INDIAN LAW REPORTS ALLAHABAD SERIES
the lock-down period when the court was
closed, therefore, there is no lapse on the
part of the magistrate to grant default bail
particularly when the police report in one
of the present cases was ready on the
deadline i.e. 29.4.2020 but could not be
filed in the court due to closure.

13. The larger question that arises
for consideration before this Court is as
to the sanctity of the right of personal
liberty and whether such a right
guaranteed under Article 21 of the
Constitution
of
India
would
stand
eclipsed under the lock-down directives
issued by the Government or any
directives issued by the High Court
applicable on holidays contrary to the
mandate embodied under Section 167(2)
Cr.P.C.

14. Before coming to the merits of the
case, it would be apt to refer to the report of
District Judge, Lucknow which was called
for in Bail Application No. 5384 of 2020 so
as to clarify the position of remand in
relation to one of the applicants and the
same is extracted below:

"......................... In this regard, I
called report from learned Special Chief
Judicial Magistrate, Lucknow who has
submitted
report
dated
24.09.2020
apprising the first remand of accused
Abhishek Srivastava was granted on
16.01.2020 and thereafter same was
extended
on
29.01.2020,
12.02.2020,
26.02.2020 fixing 11.03.2020 but under
Administrative Order of the District
Judge, 11.03.2020 was declared holiday
hence,
the
accused
persons
whose
remands were due on 11.03.2020 were
brought before the learned Magistrate on
12.03.2020
and
on
said
date
i.e.
12.03.2020, said accused was remanded
up to 25.03.2020 and that is why on the
last remand, date 11/12.03.2020 was
written.

From 25.03.2020 onwards, there
was complete lock-down throughout India
consequently, Courts remained closed and
due to above, no remand order could be
passed till 16.06.2020. Meanwhile, on
01.05.2020, police submitted chargesheet
before the Remand Magistrate.

It is worth to mention that
Hon'ble High Court issued notice dated
25.03.2020 communicating the order of
his lordship Hon'ble the Chief justice of
High Court of Judicature at Allahabad
informing that all the Courts subordinate
to the Hon'ble High Court, Commercial
Courts,
Motor
Accidental
Claims
Tribunals
and
Land
Acquisition
Rehabilitation
and
Resettlement
Authoriteis across the State of Uttar
Pradesh shall remain closed till further
orders and remand and bails of accused
persons shall be done as per holiday
practice.

The said notice dated 25.03.2020
was followed by letter of Hon'ble Court
bearing No. PS(RG)/52/2020: Allahabad
dated May 02, 2020 referring notice dated
25.03.2020 apprising that Hon'ble Court
has reiterated its previous Order dated
25.03.2020.

It is further submitted that as per
holiday practice only first/fresh remand
use to be done and that is why further
remand of accused person Abhishek
Srivastava could not carried out till
16.06.2020..........."

15. The District Judge in his report
has submitted that the last remand order
was passed on 11/12.3.2020 and there was
no remand from 25.3.2020 to 16.6.2020
due to closure of the courts pursuant to
complete
lock-down
order
of
the
11 All. Abhishek Srivastava Vs. State of U.P.
421
government. It is secondly mentioned that
the charge sheet was filed on 1.5.2020
before the remand magistrate. It is thirdly
mentioned that the courts were closed till
further orders, therefore, remand and bails
of accused persons were directed to be
done as per holiday practice. It is lastly
mentioned that as per holiday practice only
first/fresh remand used to be done.

16. In view of the report extracted
above, it is desirable to understand the
holiday practice for dealing with the
remand and bail matters. A direction was
issued by the High Court, Allahabad on
25.3.2020 and the same is extracted below:

"As
resolved
by
the
Administrative Committee (telephonically),
in supersession of all administrative
notifications, circular etc., issued earlier,
the Court work in the Allahabad High
Court
shall
remain
suspended
with
immediate
effect
till
further
orders.
However, imminently emergent and urgent
cases would be heard by the designated
Division Bench/single Judge with prior
approval of the Chief Justice. For Lucknow
Bench, necessary approval for hearing of
urgent cases shall be obtained from
Hon'ble Senior Judge, Lucknow.

All the courts subordinate to the
High Court to the High Court of Judicature
at Allahabad and all commercial courts,
Motor Accident Claims Tribunal and Land
Acquisition
Rehabilitation
and
Resettlement Authorities across the State of
U.P. shall also remain closed till further
orders. The remands and bails of arrested
person shall be done as per holiday
practice."

17. The procedure on holidays is
further gathered from Rule-186 of the
General Rules (Criminal), 1977 as well as
from a circular of the High Court,
Allahabad i.e. C.L. No. 102/VIIb-47 dated
5th August, 1975 and the same are
reproduced below:

"186. Work on holiday.

On a holiday a criminal court
may dispose of such work of urgent nature
like granting of bail or remand or do such
other work that may with propriety be done
out of court and it will not be proper to
refuse to do any act or make any order
urgently required merely on the ground of
the day being a gazetted holiday."

"Circular
No.
102/VIIb-47
dated 5th August, 1975

"I am directed to say that the
Judicial Magistrates who are detained on
duty for granting bails and remands and
for the disposal of other urgent matters
during holiday or on Sundays may kindly
be asked to do this work in court at a fixed
time duly notified and intimated to all
concerned, including the Public Prosecutor.
This will not only ensure the presence of the
Public Prosecutor at the time of the orders
are passed but will also facilitate the work
of Judicial Magistrates concerned."

18. What is surprising is that the
whole procedure seems to have been
misinterpreted and misunderstood by the
District-Session Judges/magistrates in the
matter of remand and bail. The directive
issued by the High Court on 25.3.2020 as
reproduced above was clear enough, yet the
Session Judges/magistrates do not appear to
have proceeded as per the mandate of Rule186 or the earlier circular issued on
5.8.1975 whereby the procedure applicable
on holidays was succinctly defined. The
District Judges were under a bounden duty
to assign the remand duty to the courts of
magistrate/Session Judge during the lockdown period and irrespective of the fact
422 INDIAN LAW REPORTS ALLAHABAD SERIES
that the courts were closed, the remand
matters were bound to be taken up and
wherever the indefeasible right of personal
liberty accrued to an accused incarcerated
in jail, he ought to have been offered
default bail in the manner prescribed under
Section 167(2) of the Cr.P.C.

19. Personal liberty of a person is an
indefeasible right and this is what the apex
court has opined in the case of Sanjay Dutt
(supra) in paragraph 48 of the judgement.
The rider which the apex court read was
that the accused must avail the right before
it stood eclipsed by filing of the police
report. As per the apex court judgement,
once the charge sheet was filed, Section
167 Cr.P.C. would become inapplicable and
the accused who failed to avail the right
would stand deprived of claiming the
benefit of default.

20. The apex court yet in another
decision reported in (2001) 5 SCC 453
(Uday Mohanlal Acharya v. State of
Maharashtra), further propounded that
once the application was filed by the
accused in jail for the grant of default bail,
mere filing of the police report would not
frustrate the right and the ground of default
would remain available for release. This
judgement,
however,
reiterated
the
requirement
of
filing
an
application
consequent upon the accrual of indefeasible
right before the charge sheet was filed. The
apex court in the case reported in (2017) 15
SCC 67 (Rakesh Kumar Paul v. State of
Assam) dealing with the earlier decisions
has further enlarged the scope of default
bail in paragraph 40 as under:

"40. In the present case, it was
also argued by learned counsel for the
State (1996) 1 SCC 722 that the petitioner
did not apply for ''default bail' on or after
4th January, 2017 till 24th January, 2017
on which date his indefeasible right got
extinguished on the filing of the charge
sheet. Strictly speaking this is correct since
the petitioner applied for regular bail on
11th January, 2017 in the Gauhati High
Court - he made no specific application for
grant of ''default bail'. However, the
application for regular bail filed by the
accused on 11th January, 2017 did advert
to the statutory period for filing a charge
sheet having expired and that perhaps no
charge sheet had in fact being filed. In any
event, this issue was argued by learned
counsel for the petitioner in the High Court
and it was considered but not accepted by
the High Court. The High Court did not
reject the submission on the ground of
maintainability but on merits. Therefore it
is not as if the petitioner did not make any
application for default bail - such an
application was definitely made (if not in
writing) then at least orally before the High
Court. In our opinion, in matters of
personal liberty, we cannot and should not
be too technical and must lean in favour of
personal liberty. Consequently, whether the
accused makes a written application for
''default bail' or an oral application for
''default bail' is of no consequence. The
concerned court must deal with such an
application by considering the statutory
requirements namely, whether the statutory
period for filing a charge sheet or challan
has expired, whether the charge sheet or
challan has been filed and whether the
accused is prepared to and does furnish
bail."

21. The position of law is reiterated
by the apex court in the case of M.
Ravindran
v.
Intelligence
Officer,
Directorate
of
Revenue,
2020
SCC
OnLine SC 867. The apex court in S. Kasi
v. State through the Inspector of Police,
11 All. Abhishek Srivastava Vs. State of U.P.
423
2020 SCC OnLine SC 529, taking note of
the lock-down situation during Pandemic
Covid-19 has made certain observations in
paragraphs 25 and 26 which may profitably
be extracted as under:

"25. We, thus, are of the clear
opinion that the learned Single Judge in the
impugned judgment erred in holding that
the
lockdown
announced
by
the
Government of India is akin to the
proclamation of Emergency. The view of
the
learned
Single
Judge
that
the
restrictions, which have been imposed
during
period
of
lockdown
by
the
Government of India should not give right
to an accused to pray for grant of default
bail even though charge sheet has not been
filed within the time prescribed under
Section 167(2) of the Code of Criminal
Procedure, is clearly erroneous and not in
accordance with law.

26. We, thus, are of the view that
neither this Court in its order dated
23.03.2020 can be held to have eclipsed the
time prescribed under Section 167(2) of
Cr.P.C. nor the restrictions which have
been
imposed
during
the
lockdown
announced by the Government shall
operate as any restriction on the rights of
an accused as protected by Section 167(2)
regarding his indefeasible right to get a
default bail on non-submission of charge
sheet within the time prescribed. The
learned Single Judge committed serious
error in reading such restriction in the
order of this Court dated 23.03.2020."

22. This Court may also take note of a
judgement rendered by the Delhi High
Court in the case of Subhash Bahadur @
Upender vs The State (NCT Of Delhi)
decided on 6 November, 2020 where the
position of law has elaborately been
considered and it is observed that the duty
of the courts to offer default bail does not
stand mitigated even when a regular bail
application is under consideration.

23. In the light of decisions noted
above, it is clear that the right of personal
liberty is an indefeasible right which for the
purposes of its enforcement remained
unaffected during the lock-down period and
the courts of law on account of closure
pursuant to the directives issued by the
Government or the High Court were
nevertheless duty bound to deal with the
remand matters as per the provisions of
General Rules (Criminal), 1977 or circulars
regulating holiday practice.

24. This Court is constrained to
observe that non performance of duty
owing to holidays is firstly a serious
dereliction of duty on the part of the
Session Judges/magistrates and secondly
the remand matters could not be ignored
selectively by attaching preference or
priority to fresh/first remand cases in
derogation of the procedure applicable on
holidays. The report forwarded by the
District Judge, Lucknow, extracted above,
is alarming and the selective role which the
courts have played from 25.3.2020 to
16.6.2020 deserves to be condemned.

25. There is a famous saying that
injustice anywhere is a threat to justice
everywhere. It is for this reason that the
civil liberty movement worldwide changed
the very ethos of the concept of justice to
secure the right of personal liberty. The
saying seeks to liberate the personal liberty
of a citizen clamped in isolation and pain. It
appeals and awakens the justice delivery
system for the cause of freedom of life and
personal liberty. A mass disaster or
Pandemic may severely obstruct our life
and governing systems in many ways but
424 INDIAN LAW REPORTS ALLAHABAD SERIES
the doors of the courts of law must remain
open for the protection of Article 21 of the
Constitution of India.

26. In order to serve the civil rights of
the citizens, the Indian Parliament enacted
two important legislations in the year 1981
and
1987
viz.
Essential
Services
Maintenance Act, 1981 and Legal Services
Authority Act, 1987. This Court may note
that these legislations were made in the
pursuit of objects embodied under Article
39 and 39A of the Constitution of India.
The policy of the State having trammelled
into law is binding upon the State and must
offer adequate safeguards. Section 12(e)
and 13(1) of the Legal Services Authority
Act being relevant are reproduced below:

"12. Criteria for giving legal
services.--Every person who has to file or
defend a case shall be entitled to legal
services under this Act if that person, is--

(a) ..................;

(b) ................;

(c) .................

(d) ................

(e) a person under circumstances
of undeserved want such as being a victim
of a mass disaster, ethnic violence, caste
atrocity, flood, drought, earthquake or
industrial disaster;"

"Section
13.
Entitlement
to
Legal Services

(1) Persons who satisfy all or any
of the criteria specified in Section 12 shall
be entitled to receive legal services
provided that the concerned Authority is
satisfied that such person has a prima-facie
case to prosecute or to defend."

27. It is unfortunate to note that the
legal services which the law contemplates
as an essential service for victims was
rendered inadequately by the State as well
as by the legal services authorities during
the Pandemic Covid-19. In absence of the
services of legal practitioners, the State was
under a bounden duty to activate legal aid
authorities to deal with the situation and the
benefit of default bail accruing anywhere
ought to have been effectively taken up
before the courts. The protection of rights
within the ambit of Article 21 of the
Constitution of India fully fell within the
scope of Section 12(e) of the Act, therefore,
no discrimination could be practiced
between the accused persons entitled to be
released on default bail as compared to the
other accused persons released on personal
bonds keeping in view the general
directions of the apex court coupled with
the satisfaction of the State. It is immaterial
whether such persons during the lock-down
period had applied for help under Section
13(2) of the Legal Services Authority Act
or not.

28. It is also true that the default bail
may at times become a futile plea when an
accused is involved in more than one or a
series of offences, yet he may claim the
benefit of default in one case but the actual
release for his involvement in some other
offence may not bring, such a person, the
benefit of setting him free.

29. The above situation is also
experienced invariably besides the fact of
delayed
justice. This
Court
has
no
hesitation to put on record that the right
under Article 21 of the Constitution of
India is an enjoyable right for which the
plea of default bail unfettered by procedure
must
yield
immediate
release.
The
procedural law has left a grey area which
deserves to be dealt with in appropriate
cases. However, the question framed in the
present case for the reasons recorded
above, obliges the courts to guard the rights
11 All. Abhishek Srivastava Vs. State of U.P.
425
embodied
under
Article
21
of
the
Constitution of India in all circumstances.

30. Now coming to the two cases at
hand, there is a clear dereliction of duty in
Bail Application No. 5384 of 2020
(Abhishek Srivastava v. State of U.P.) and
the position is amply evident from the
report of the District Judge extracted above,
hence a case for default bail is made out.
The court of magistrate is accordingly
directed to release the applicant Abhishek
Srivastava involved in Crime No. 0368 of
2018, under Section 420, 467, 468 and
471
IPC,
Police
Station
Aliganj,
Lucknow, on furnishing bail bonds to the
satisfaction of the court and it shall be open
to the prosecution to act in accordance with
law, provided the filing of charge warrants
the accused applicant to be detained in
judicial custody. The magistrate shall also
satisfy himself that the plea of default bail
was enforceable prior to the date of filing
the charge sheet and being available is
enforceable on the date of release which in
the present case seems doubtless.

31. In the other Bail Application No.
5756 of 2020 (Sanjeev Yadav v. State), the
prosecution has adopted a peculiar stand to
justify the default. It is stated that the
closure of court prevented them to file the
charge sheet before the deadline i.e.
29.4.2020. The prosecution has taken a
bald plea without showing any steps having
been taken to file the charge sheet by
approaching the court or through online
service. The plea advanced is misleading
and cannot be accepted particularly when
the date of filing itself is shown during the
lock-down period i.e. 5.5.2020. Moreover,
as per the periodic guidelines during
Pandemic, the courts were open for filing
the reports under Section 173 Cr.P.C. The
position emerging as a result of failure to
sanction prosecution, in absence whereof
cognizance cannot be taken, has been
clarified in the case reported in (2013) 3
SCC 77 (Suresh Kumar Bhikamchand
Jain
v. State
of
Maharashtra
and
another), wherein failure to file the charge
sheet has been laid down as the rule for
default bail.

32. It is well settled that investigation
is complete with the filing of charge sheet,
therefore, the limitation embodied under
Section 167(2) must be seen on the date of
filing of the charge sheet in the court and
any other date suggesting completion of
investigation is irrelevant and does not
satisfy the requirement of law. The right of
default bail which undoubtedly accrued to
the applicant became enforceable on
29.4.2020. This right was very much alive
when the charge sheet was filed in the court
on 5.5.2020 and survived thereafter. The
applicant Sanjeev Yadav is thus entitled to
be enlarged on bail at par with the case of
Abhishek Srivastava.

33. Let the applicant Sanjeev Yadav
involved in Case Crime No. 78 of 2020,
under Section 406, 409, 419, 420, 467,
468, 471 IPC, Section 67 Information
Technology Act and Section 7/13(1)(c)
Prevention of Corruption Act, Police
Station Gola, District Lakhimpur Kheri,
be enlarged on bail on the same conditions
and satisfaction of the court concerned as
provided
in
the
case
of
Abhishek
Srivastava.

34. Since the mass disaster of
Pandemic Covid-19 covered the meaning
of Section 2(d) of the Disaster Management
Act, 2005 is not over, therefore, it is
desirable to issue notice to the National
Legal Service Authority as well as the State
Legal Services Authority through their
426 INDIAN LAW REPORTS ALLAHABAD SERIES
Member Secretaries who may apprise the
Court as to how the applicants or like
victims of mass disaster were or are being
helped during Pandemic Covid-19. The
Member Secretary, U.P. State Legal
Services Authority shall appear before
this Court in person on the next date of
listing with all relevant details from the
respective districts. Before any further
order is passed on the dereliction of duty
on
the
part
of
respective
magistrates/Session Judges, the Senior
Registrar of this Court, in the light of
report forwarded to this Court on
29.9.2020
by
the
District
Judge,
Lucknow, is hereby directed to obtain the
relevant details of magistrates/Session
Judges from district Lucknow/Hardoi
who have failed to pass remand orders
from 25.3.2020 to 16.6.2020. The Senior
Registrar of this Court shall also remain
present in the Court when the case is
listed next.

35. List on 10.12.2020.
----------
(2020)11ILR A426
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2020

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Appeal No. 66 of 1987

Rajendra Singh ...Appellant (In Jail)
Versus
State ...Opposite Party

Counsel for the Appellant:
Sri Y.S. Saxena, Sri Vinod Kr. Srivastava,
Sri Vinod Kumar Sharma

Counsel for the Opposite Party:
A.G.A.
Criminal Law - Indian Penal Code,1860 -
Sections 363, 366, 368 and 376 - Criminal
Appeal has been filed against the conviction.

QUANTUM OF SENTENCES :
Appellant is an old man, aged about 62 years.
The fact and circumstances of the case and
the substantive period already undergone by
the appellant in this case and he has realized
that the mistake committed by him and is
remorseful of his conduct to the society to
which he belongs and now he wants to
transform himself. (Para 31)
The conviction of the appellant stands
affirmed. The sentence is modified and the
period already undergone by the appellant.
(Para 32)

Appeal Partly allowed. (E-2)

List of Cases cited :-

1. B.G. Goswami Vs Delhi Administration,

2. Sattan Sahani Vs St. of Bihar & ors.

3. Bankat & anr. Vs St. of Mah.

4. Uthem Rajanna Vs St. of Andh. P.

5. Neelam Bahal & ors. Vs St. of U.P.

(Delivered by Hon'ble Sanjay Kumar Singh, J.)

1. This criminal appeal has been
preferred
by
the
appellant,
namely,
Rajendra Singh against the judgment and
order dated 16.12.1986 passed by Special
Judge (E.C. Act), Budaun in Sessions Trial
No. 24 of 1985 (State vs Rajendra and
others) arising out of Case Crime No. 4 of
1984, under sections 363, 366, 368 and 376
IPC, police station Ughaiti, district Budaun,
whereby the accused appellant-Rajendra
Singh has been convicted and sentenced to
four years' rigorous imprisonment under
section 366 IPC.