# Anwar Ali v. State of U.P

- **Citation:** (2022) 7 ILRA 500
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-05
- **Case number:** Application U/S 482 No. 29733 of 2021
- **Bench:** Syed Aftab Huasain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anwar-ali-v-state-of-u-p-48904
- **Pages:** 14

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code,1860-Sections 302, 397/34rejection of default bail application-The
Chief Judicial Magistrate awaited for
second report submitted by APP and after
receiving thereof, heard and rejected the
default bail application, whereas the Chief
Judicial Magistrate ought to heard and
decide the default bail application on the
basis of first report-The Chief Judicial
Magistrate only in order to anyhow
extinguish statutory/ fundamental right of
the applicant for default bail has awaited
for a second report, whereas the applicant
had already availed the remedy and made
out a case of default bail prior to the
submission of the charge-sheet-Thus, the
right of default bail of the applicant
cannot be extinguished but even though
the
CJM
denied
the
applicant,
his
7 All. Anwar Ali Vs. State of U.P.
501
statutory as well as fundamental right as
provided in Section 167(2) Cr.P.C. and
Article 21 of the Constitution of India
respectively-The impugned order is not
sustainable in the eye of law-Subsequent
filing of charge-sheet will not defeat the
indefeasible
right
accrued
to
the
applicant.(Para 1 to 11)

The application is allowed. (E-6)
List of Cases cited:

## Text

_Characters 0–39,946 of 47,786. This is a partial read: ask again with offset=39946 for what follows._

500 INDIAN LAW REPORTS ALLAHABAD SERIES
for a term which may extend to one month
or until payment if sooner made:

Provided that no warrant shall be
issued for the recovery of any amount due
under this section unless application be
made to the court to levy such amount
within a period of one year from the date
on which it became due."

7. From the aforesaid provisions, it is
clear that for recovery of arrears the
application is maintainable only to the
extent of one year prior to the filing of
application. The maintenance holder cannot
be
permitted
to
accumulate
the
maintenance for a period more than 12
months and as such no application for
execution of maintenance order can be
entertained for a period exceeding 12
months immediately preceding the date of
application.

8. Considering the aforesaid provision
of law, the learned Magistrate vide his
order dated 12.02.2015 has allowed the
application in part only for recovery of
arrears of maintenance for one year i.e.
from
06.01.2012
to
06.01.2013
and
Rs.36,000/-
was
recovered
and
the
application was dismissed for recovery of
arrears of maintenance from 06.01.2011 to
06.01.2012. The learned Principal Judge
Family Court has failed to consider the
legal provisions in this respect and has
misinterpreted the previous orders and the
law. The arrears of maintenance from
06.01.2011 to 06.01.2012 has become
irrecoverable. So the impugned order
suffers
from
manifest
illegality,
no
recovery warrant could have been issued
against the applicant for recovery of arrears
of maintenance which has become time
barred. The impugned order is not
sustainable and is liable to be set aside.

9. Accordingly, the application is
hereby allowed and the impugned order
dated 05.08.2021 passed by Principal
Judge, Family Court in case no.868 of 2019
(Sudha Devi vs. Law Kumar) under Section
128 Cr.P.C. is hereby quashed.
----------
(2022)07ILR A500
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.07.2022

BEFORE

THE HON'BLE SYED AFTAB HUASAIN RIZVI, J.

Application U/S 482 No. 29733 of 2021

Anwar Ali ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Mohd. Raghib Ali, Sri Saghir Ahmad
(Senior Adv.)

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code,1860-Sections 302, 397/34rejection of default bail application-The
Chief Judicial Magistrate awaited for
second report submitted by APP and after
receiving thereof, heard and rejected the
default bail application, whereas the Chief
Judicial Magistrate ought to heard and
decide the default bail application on the
basis of first report-The Chief Judicial
Magistrate only in order to anyhow
extinguish statutory/ fundamental right of
the applicant for default bail has awaited
for a second report, whereas the applicant
had already availed the remedy and made
out a case of default bail prior to the
submission of the charge-sheet-Thus, the
right of default bail of the applicant
cannot be extinguished but even though
the
CJM
denied
the
applicant,
his
7 All. Anwar Ali Vs. State of U.P.
501
statutory as well as fundamental right as
provided in Section 167(2) Cr.P.C. and
Article 21 of the Constitution of India
respectively-The impugned order is not
sustainable in the eye of law-Subsequent
filing of charge-sheet will not defeat the
indefeasible
right
accrued
to
the
applicant.(Para 1 to 11)

The application is allowed. (E-6)
List of Cases cited:

1. Pragyna Singh Thakur Vs St. of Mah. (2011)
10 SCC 445

2. Bikramjit Singh Vs St. of Punj. (2020) 10 SCC 616

3. M. Ravindran Vs The Intelligence Officer,
Directorate of Revenue Intelligence, (2021) 2
SCC 485

4. Rajendra Singh Yadav @ Raju Jahreela Vs St.
of U.P., Crl.Misc. Appl. u/s 482 Cr.P.C. No.
10247 of 2021

5. Chhotu Vs St. of U.P. (2020) 5 ADJ 572

6. Harendra Vs St. of U.P. (2020) 5 LLJ 170

7. Gayasuddin @ Gayasuddin Mian Vs St. of
Jharkhand (2005) Cr.LJ 4230

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard learned counsel for the
applicant and learned AGA for the State and
perused the material on record.

2. This application U/s 482 Cr.P.C. is
filed to quash/ set aside the order dated
25.11.2021 passed in connection with default
bail application filed under Section 167(2)
Cr.P.C. in case crime no. 327 of 2019 under
Section 302, 397/34 IPC, P.S. Mauaima,
District Prayagraj by the court of CJM
Allahabad. It is further prayed that applicant
be released on bail in the aforesaid case
crime.

3. On 19.07.2019 at 13:40 hrs, an FIR
was lodged by informant Naveen Kumar
Jaiswal against three unknown motorcycle
riders registered as case crime no.327 of 2019
under Section 397 and 302 IPC at P.S.
Mauaima, Prayagraj with respect to the
incident dated 19.07.2019 at 9:40 am with
regard to loot and murder of Anil Dohre,
Branch Manager, Allahabad Bank. During
the course of investigation, the name of the
applicant came into the light. He moved an
application for surrender and on the basis of
police report, the applicant surrendered on
26.08.2021 and taken into judicial custody
and sent to jail.

4. Learned counsel for the applicant
submitted that even after completion of 90
days on 24.11.2021 from the first date of
judicial remand, the Investigating Officer
has not filed a police report under Section
173(2) Cr.P.C. against the applicant. On
25.11.2021 at 10:00 am the applicant has
applied for default bail under Section 167
(2) Cr.P.C. The Chief Judicial Magistrate
passed an order and called a report from the
Additional Public Prosecutor vide order
dated 25.11.2021. In compliance of the
aforesaid order, the Additional Public
prosecutor submitted its report, thereafter
he submitted another report before the
Chief Judicial Magistrate, Allahabad. In the
intervening time of two reports of the
Additional
Public
Prosecutor,
the
Investigating Officer has enough time to
submit a charge-sheet in the case against
the applicant. The Chief Judicial Magistrate
after receiving the copy of police report/
charge-sheet registered it as case no.13041
of 2021 and taken cognizance but the
reference of the offence is not mentioned
therein. So this cognizance order is illegal.
The
Chief
Judicial
Magistrate
has
authorized the detention of the applicant
against the procedure established by law in
502 INDIAN LAW REPORTS ALLAHABAD SERIES
violation of Article 21 of the Constitution
of India. On 25.11.2021, the Chief Judicial
Magistrate after receiving the second
report, submitted by Additional Public
Prosecutor, heard and rejected the default
bail application of the applicant-accused.
Learned counsel further contended that till
the filing of the default bail application and
inasmuch as also the first report submitted
by Additional Public Prosecutor, the
Investigating Officer has not submitted the
charge-sheet, whereas according to Section
167 (2) Cr.P.C. the prescribed time limit
i.e. 90 days has already expired on
24.11.2021. The second report dated
25.11.2021 submitted by Additional Public
Prosecutor reveals that the Investigating
Officer was called to submit chargesheet. The Chief Judicial Magistrate has
awaited for second report submitted by
Additional Public Prosecutor and after
receiving thereof, heard and rejected the
default bail application, whereas the
Chief Judicial Magistrate ought to heard
and decide the default bail application on
the basis of first report dated 25.11.2021
submitted
by
Additional
Public
Prosecutor. The Chief Judicial Magistrate
only in order to anyhow extinguish
statutory/
fundamental
right
of
the
applicant for default bail has awaited for
a second report, whereas the applicant
has already availed the remedy and make
out a case of default bail prior to the
submission of the charge-sheet. Thus, the
right of default bail of the applicant
cannot be extinguished but even though
the Chief Judicial Magistrate has denied
the applicant, his statutory as well as
fundamental right as provided in Section
167(2) Cr.P.C. and article 21 of the
Constitution of India respectively. The
impugned order dated 25.11.2021 is
against the procedure established by law
and is sans of merit and not sustainable in
the eye of law. Applicant undertakes that
if he is released on bail, he will neither
abscond nor tamper the prosecution case
and not misuse the liberty of bail and will
abide by the terms and conditions if so
imposed by the Court. It is also submitted
that reliance placed upon the judgment in
Pragyna Singh Thakur vs. State of
Maharashtra (2011) 10SCC 445 and
Constitution Bench Judgment in Sanjay
Dutt's case by learned Magistrate for
rejecting the application for default bail is
misconceived. The Pragyna Singh Thakur
case has been observed as per incuriam
by subsequent judgment of Hon'ble
Supreme Court in Bikramjit Singh vs.
State of Punjab 2020 (10) SCC 616.
Learned counsel placed reliance on the
following citations:

I) Bikramjit Singh vs. State of
Punjab, 2020 (10) SCC 616

ii)
M.
Ravindran
vs.
The
Intelligence
Officer,
Directorate
of
Revenue intellegence, 2021 (2) SCC 485

iii) Criminal Misc. Application
U/s 482 Cr.P.C. No.10247 of 2021
(Rajendra Singh Yadav alias Raju Jahreela
vs. State of U.P.) decided on 15.11.2021

iv) Chhotu vs. State of U.P., 2020
(5) ADJ 572.

v) Harendra vs. State of U.P.
2020 (5) LLJ 170

vi) Gayasuddin alias Gayasuddin
Mian vs. State of Jharkhand, 2005 (Cr.LJ
4230).

Learned
counsel
further
submitted that an indefeasible right has
accrued to the applicant. Charge-sheet has
7 All. Anwar Ali Vs. State of U.P.
503
been filed after moving of the bail
application. Hence impugned order is
perverse and against the law.

5. Learned AGA opposing the
application submitted that impugned order
is perfectly just and legal. Learned
Magistrate ha not committed any illegality
in rejecting the default bail application. The
reasoning
recorded
by
the
learned
Magistrate cannot be said to be illegal,
perverse or erroneous which is based on a
judgment in Pragyna Singh Thakur's case
(Supra) and Constitution Bench Judgment
of Sanjay Dutt's case. No jurisdictional
error has been committed by the learned
Magistrate in exercising his jurisdiction.

6. The provision of Section 167 (2)
Cr.P.C. provides as follows:

"Section 167(2) in The Code Of
Criminal Procedure, 1973

(2) The Magistrate to whom an
accused person is forwarded under this
section may, whether he has or has not
jurisdiction to try the case, from time to
time, authorise the detention of the accused
in such custody as such Magistrate thinks
fit, for a term not exceeding fifteen days in
the whole; and if he has no jurisdiction to
try the case or commit it for trial, and
considers further detention unnecessary, he
may order the accused to be forwarded to a
Magistrate
having
such
jurisdiction:
Provided that-

(a)
1
the
Magistrate
may
authorise the detention of the accused
person, otherwise than in the custody of the
police, beyond the period of fifteen days; if
he is satisfied that adequate grounds exist
for doing so, but no Magistrate shall
authorise the detention of the accused
person in custody under this paragraph for
a total period exceeding,-

(i)
ninety
days,
where
the
investigation
relates
to
an
offence
punishable with death, imprisonment for
life or imprisonment for a term of not less
than ten years;

(ii)
sixty
days,
where
the
investigation relates to any other offence,
and, on the expiry of the said period of
ninety days, or sixty days, as the case may
be, the accused person shall be released on
bail if he is prepared to and does furnish
bail, and every person released on bail
under this sub- section shall be deemed to
be so released under the provisions of
Chapter XXXIII for the purposes of that
Chapter;]

(b)
no
Magistrate
shall
authorise detention in any custody under
this section unless the accused is produced
before him;

(c)no Magistrate of the second
class, not specially empowered in this
behalf by the High Court, shall authorise
detention in the custody of the police. 1
Explanation I.- For the avoidance of
doubts,
it
is
hereby
declared
that,
notwithstanding the expiry of the period
specified in paragraph (a), the accused
shall be detained in custody so long as he
does not furnish bail;]. 2 Explanation II.- If
any question arises whether an accused
person was produced before the Magistrate
as required under paragraph (b), the
production of the accused person may be
proved by his signature on the order
authorising detention.]"

7. It is undisputed that accused has
surrendered
on
26.08.2020
and
was
remanded to judicial custody on the same
504 INDIAN LAW REPORTS ALLAHABAD SERIES
date while charge-sheet has been filed on
25.11.2021. A three Judge Bench in M.
Ravindran (Supra) has observed that while
computing the period of 90 days under
Section 167(2) Cr.P.C. the date on which
the accused was remanded to judicial
custody has to be excluded and the date on
which charge-sheet is filed has to be
included. According to this period of 90
days will expire on 24.11.2021. The
charge-sheet
has
been
submitted
on
25.11.2021. It is also established from the
record that on 25.11.02021 before filing of
charge-sheet, the accused-applicant has
moved the bail application on which report
was called by the learned Magistrate from
the Public Prosecutor. He submitted his
report. Thereafter a second report was
submitted and meanwhile, charge-sheet
was filed. So it is established that accusedapplicant has availed his right of bail before
filing of charge-sheet. It does not matter
whether any order has been passed on the
aforesaid application or not.

8. A three Judges Bench of Hon'ble
Supreme Court in Bikramjit Singh Vs.
State of Punjab, 2020 (10) SCC 616 after
considering almost the entire gamut of case
law on the point including Sanjay Dutt
(supra)
has
observed
as
follows
in
paragraphs- 27 to 31 and 36.

"27. The second vexed question
which arises on the facts of this case is the
question of grant of default bail. It has
already been seen that once the maximum
period for investigation of an offence is
over, under the first proviso (a) to Section
167(2), the accused shall be released on
bail, this being an indefeasible right
granted by the Code. The extent of this
indefeasible right has been the subject
matter of a number of judgements. A
beginning may be made with the judgment
in Hitendra Vishnu Thakur v. State of
Maharashtra (1994) 4 SCC 602, which
spoke of "default bail" under the provisions
of the Terrorist and Disruptive Activities
(Prevention)
Act,
1987
(hereinafter
referred to as "TADA") read with Section
167 of the Code as follows:

"19. Section 20(4) of TADA
makes Section 167 of Cr.P.C. applicable in
relation to case involving an offence
punishable under TADA, subject to the
modifications
specified
therein...while
clause (b) provided that reference in subsection (2) of Section 167 to ''15 days', ''90
days' and ''60 days' wherever they occur
shall be construed as reference to ''60 days',
''one year' and ''one year' respectively. This
section was amended in 1993 by the
Amendment Act 43 of 1993 with effect
from 22-5-1993 and the period of ''one
year' and ''one year' in clause (b) was
reduced to ''180 days' and ''180 days'
respectively, by modification of sub-section
(2) of Section 167. After clause (b) of subsection (4) of Section 20 of TADA, another
clause (bb) was inserted which reads:

"20. (4)(bb) in sub-section (2),
after the proviso, the following proviso
shall be inserted, namely:--

''Provided further that, if it is not
possible to complete the investigation
within the said period of one hundred and
eighty days, the Designated Court shall
extend the said period up to one year, 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 one
hundred and eighty days; and"'

20. ... Sub-section (2) Section 167
of the Code lays down that the Magistrate to
7 All. Anwar Ali Vs. State of U.P.
505
whom the accused is forwarded may
authorise his detention in such custody, as he
may think fit, for a term specified in that
section. The proviso to sub- section (2) fixes
the outer limit within which the investigation
must be completed and in case the same is
not completed within the said prescribed
period, the accused would acquire a right to
seek to be released on bail and if he is
prepared to and does furnish bail, the
Magistrate shall release him on bail and such
release shall be deemed to be grant of bail
under Chapter XXXIII of the Code of
Criminal Procedure...Section 167 read with
Section 20(4) of TADA, thus, strictly
speaking is not a provision for "grant of bail"
but deals with the maximum period during
which a person accused of an offence may be
kept in custody and detention to enable the
investigating
agency
to
complete
the
investigation and file the charge-sheet , if
necessary, in the court. The proviso to
Section 167(2) of the Code read with Section
20(4)(b) of TADA, therefore, creates an
indefeasible right in an accused person on
account of the ''default' by the investigating
agency in the completion of the investigation
within the maximum period prescribed or
extended, as the case may be, to seek an order
for his release on bail. It is for this reason that
an order for release on bail under proviso (a)
of Section 167(2) of the Code read with
Section 20(4) of TADA is generally termed
as an "order-on-default" as it is granted on
account of the default of the prosecution to
complete the investigation and file the challan
within
the
prescribed
period.
As
a
consequence of the amendment, an accused
after the expiry of 180 days from the date of
his arrest becomes entitled to bail irrespective
of the nature of the offence with which he is
charged where the prosecution fails to put up
challan against him on completion of the
investigation. With the amendment of clause
(b) of sub- section (4) of Section 20 read with
the proviso to sub- section (2) of Section 167
of CrPC an indefeasible right to be enlarged
on bail accrues in favour of the accused if the
police fails to complete the investigation and
put up a challan against him in accordance
with law under Section 173 Cr.PC. An
obligation, in such a case, is cast upon the
court, when after the expiry of the maximum
period during which an accused could be kept
in custody, to decline the police request for
further remand except in cases governed by
clause (bb) of Section 20(4). There is yet
another obligation also which is cast on the
court and that is to inform the accused of his
right of being released on bail and enable him
to make an application in that behalf.
(Hussainara Khatoon case. This legal position
has been very ably stated in Aslam Babalal
Desai v. State of Maharashtra where speaking
for the majority, Ahmadi, J. referred with
approval to the law laid down in Rajnikant
Jivanlal Patel v. Intelligence Officer, Narcotic
Control Bureau, New Delhi wherein it was
held that :

'9. ... "13. ... The right to bail
under Section 167(2) proviso (a) thereto is
absolute. It is a legislative command and
not court's discretion. If the investigating
agency fails to file charge-sheet before the
expiry of 90/60 days, as the case may be,
the accused in custody should be released
on bail. But at that stage, merits of the case
are not to be examined. Not at all. In fact,
the Magistrate has no power to remand a
person beyond the stipulated period of
90/60 days. He must pass an order of bail
and communicate the same to the accused
to furnish the requisite bail bonds."

21. Thus, 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
506 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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'... 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 subsection (4) of Section 20 TADA on account
of the ''default' of the prosecution."

28. In the Constitution Bench
judgement in Sanjay Dutt v. State through
CBI (1994) 5 SCC 410, one of the
questions to be decided by the Constitution
Bench was the correct interpretation of
Section 20(4)(bb) of TADA indicating the
nature of right of an accused to be released
on default bail. The enigmatic expression
"if already not availed of" is contained in
paragraphs 48 of the aforesaid judgment as
follows:

"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 Section
167CrPC 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
7 All. Anwar Ali Vs. State of U.P.
507
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.

53. As a result of the above
discussion, our answers to the three
questions of law referred for our decision
are as under:

(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 enures 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. 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."

29. The question as to whether
default bail can be granted once a charge
sheet is filed was authoritatively dealt with
in a decision of a three-Judge Bench of this
Court in Uday Mohanlal Acharya v. State
of Maharashtra (2001) 5 SCC 453. The
majority judgment of G.B. Pattanaik, J.
reviewed the decisions of this Court and in
particular the enigmatic expression "if
already not availed of" in Sanjay Dutt. The
Court then held :

"13....The crucial question that
arises for consideration, therefore, is what
is the true meaning of the expression "if
already not availed of"? 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
508 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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. 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 indefeasible right, then
filing of challan at that stage will not take
away the right of the accused. Personal
liberty is one of the cherished objects of the
Indian Constitution and deprivation of the
same can only be in accordance with law
and in conformity with the provisions
thereof, as stipulated under Article 21 of
the Constitution. When the law provides
that the Magistrate could authorise the
detention of the accused in custody up to a
maximum period as indicated in the
proviso to sub-section (2) of Section 167,
any further detention beyond the period
without filing of a challan by the
investigating agency would be a subterfuge
and would not be in accordance with law
and in conformity with the provisions of
the Criminal Procedure Code, and as such,
7 All. Anwar Ali Vs. State of U.P.
509
could be violative of Article 21 of the
Constitution. There is no provision in the
Criminal
Procedure
Code
authorising
detention of an accused in custody after the
expiry of the period indicated in proviso to
sub-section (2) of Section 167 excepting
the contingency indicated in Explanation I,
namely, if the accused does not furnish the
bail...But so long as the accused files an
application and indicates in the application
to offer bail on being released by
appropriate orders of the court then the
right of the accused on being released on
bail cannot be frustrated on the off chance
of the Magistrate not being available and
the matter not being moved, or that the
Magistrate erroneously refuses to pass an
order and the matter is moved to the higher
forum and a challan is filed in interregnum.
This is the only way how a balance can be
struck between the so-called indefeasible
right of the accused on failure on the part of
the prosecution to file a challan within the
specified period and the interest of the
society, at large, in lawfully preventing an
accused from being released on bail on
account of inaction on the part of the
prosecuting agency. On the aforesaid
premises, we would record our conclusions
as follows:

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.

6. The expression "if not already
availed of" used by this Court in Sanjay
Dutt case [(1994) 5 SCC 410 : 1994 SCC
(Cri) 1433] 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 subsection (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."

30. B.N. Agrawala, J. dissented,
holding:

"29. My learned brother has
referred to the expression "if not already
availed of" referred to in the judgment in
Sanjay Dutt case [(1994) 5 SCC 410 : 1994
SCC (Cri) 1433] for arriving at Conclusion
6. According to me, the expression "availed
of" does not mean mere filing of
application 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.
510 INDIAN LAW REPORTS ALLAHABAD SERIES

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."

31. The law laid down by the
majority judgment in this case was
however not followed in Pragya Singh
Thakur v. State of Maharashtra. This
hiccup in the law was then cleared by the
judgment in Union of India v. Nirala
Yadav, which exhaustively discussed the
entire case law on the subject. In this
judgment, a Two-Judge Bench of this Court
referred to all the relevant authorities on the
subject including the majority judgment of
Uday Mohanlal Acharya (supra) and then
concluded:

"44. At this juncture, it is
absolutely essential to delve into what were
the precise principles stated in Uday
Mohanlal Acharya case and how the twoJudge Bench has understood the same in
Pragyna Singh Thakur. We have already
reproduced the paragraphs in extenso from
Uday Mohanlal Acharya case and the
relevant paragraphs from Pragyna Singh
Thakur. Pragyna Singh Thakur has drawn
support from Rustam case to buttress the
principle it has laid down though in Uday
Mohanlal Acharya 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 para 56 which has
been reproduced hereinabove, has referred
to para 13 and the conclusions of Uday
Mohanlal Acharya case. We have already
quoted from para 13 and the conclusions.

45. The opinion expressed in
paras 54 and 58 in Pragyna Singh Thakur
which we have emphasised, as it seems to
us, runs counter to the principles stated in
Uday Mohanlal Acharya which has been
followed in Hassan Ali Khan and Sayed
Mohd. Ahmad Kazmi. The decision in
Sayed Mohd. Ahmad Kazmi case has been
rendered by a three-Judge Bench. We may
hasten to state, though in Pragyna Singh
Thakur case the learned Judges have
referred to Uday Mohanlal Acharya case
but have stated the principle that even if an
application for bail is filed on the ground
that the charge- sheet was not filed within
90 days, but before the consideration of the
same and before being released on bail, if
the 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 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.

46. At this juncture, it will be
appropriate to refer to the dissenting
opinion by B.N. Agarwal, J. in Uday
Mohanlal Acharya 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
7 All. Anwar Ali Vs. State of U.P.
511
Sanjay Dutt case for arriving at Conclusion
6. According to me, the expression ''availed
of' does not mean mere filing of application
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."

On a careful reading of the
aforesaid two paragraphs, we think, the
two-Judge Bench in Pragyna Singh Thakur
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 case. Keeping in view the
principle stated in Sayed Mohd.