# Chhotu v. State of U.P

- **Citation:** (2020) 12 ILRA 174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-09
- **Case number:** Application U/S 482 No. 12474 of 2020
- **Bench:** Shamin Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhotu-v-state-of-u-p-45454
- **Pages:** 18

## Headnote

Criminal Law- Code of Criminal Procedure,
1973- Section 167 (2) - Right to default
bail- It is evident from the record itself
that the applicant was taken custody in
alleged crime on 02.02.2020 and till
expiry of 90 days i.e. 02.05.2020 the
investigating agency failed to submit any
charge
sheet/challan
against
the
applicant within the meaning of Section
173(2) CrPC before the court of learned
Special
Judge,
POCSO
Act/Additional
Sessions Judge, Etah and the same was
filed on 01.06.2020 much after expiry of
90 days, thus the trial court ought to have
allowed applicant's application moved
under Section 167(2) CrPC and released
the applicant on default bail, but the
learned
court
below
had
committed
manifest
error
of
law
in
rejecting
applicant's application vide order dated
3.6.2020.

Where the prosecution fails to submit the
Chargesheet/ Police Report u/s 173 (2) within
90 days, an indefeasible right to default bail
accrues to the accused.

Criminal Application allowed. (Para 9) (E-3)

Case law/ Judgements relied upon:-

## Text

_Characters 0–39,967 of 61,506. This is a partial read: ask again with offset=39967 for what follows._

174 INDIAN LAW REPORTS ALLAHABAD SERIES
the earlier orders passed by this Court
referred to above, in the considered opinion
of this Court, no prejudice is likely to be
caused either to the prosecution or the
defence in case the injured witness P.W.-5
Nitin is recalled for his re-examination on
the point of aforesaid video clip. The trial
court has not dealt with the merits of the
case and proceeded to reject the application
on irrelevant grounds.

22. Consequently, the order dated
14.2.2020 passed by Additional Session
Judge, Hapur in Special Session Trial No.
89 of 2018 (State Vs. Amarjeet @ Kaluwa
and others) cannot be sustained in the eyes
of law and the same is hereby set aside.

23. The application stands allowed.
The trial court is directed to recall the
injured witness PW-5 Nitin under section
311 Cr.P.C. for the said purpose at an early
date.
----------
(2020)12ILR A174
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.12.2020

BEFORE

THE HON'BLE SHAMIN AHMED, J.

Application U/S 482 No. 12474 of 2020

Chhotu ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Amit Saran, Sri Niklank Kumar Jain

Counsel for the Opposite Party:
A.G.A.

Criminal Law- Code of Criminal Procedure,
1973- Section 167 (2) - Right to default
bail- It is evident from the record itself
that the applicant was taken custody in
alleged crime on 02.02.2020 and till
expiry of 90 days i.e. 02.05.2020 the
investigating agency failed to submit any
charge
sheet/challan
against
the
applicant within the meaning of Section
173(2) CrPC before the court of learned
Special
Judge,
POCSO
Act/Additional
Sessions Judge, Etah and the same was
filed on 01.06.2020 much after expiry of
90 days, thus the trial court ought to have
allowed applicant's application moved
under Section 167(2) CrPC and released
the applicant on default bail, but the
learned
court
below
had
committed
manifest
error
of
law
in
rejecting
applicant's application vide order dated
3.6.2020.

Where the prosecution fails to submit the
Chargesheet/ Police Report u/s 173 (2) within
90 days, an indefeasible right to default bail
accrues to the accused.

Criminal Application allowed. (Para 9) (E-3)

Case law/ Judgements relied upon:-

1. Rakesh Kumar Paul Vs St. of Assam, (2017)
15 SCC 67

2. Bikramjit Singh Vs The State of Punj. in Criminal
Appeal No.667 of 2020 arising out of SLP (Crl.)
No.2933 of 2020, decided on 12.10.2020

3. Pragya Singh Thakur Vs St. of Maha. (2011)
10 SCC 445

4. U.O.I Vs Nirala Yadav (2014) 9 SCC 457

5. Syed Mohd. Ahmad Kazmi Vs. State (Govt. of
NCT of Delhi) (2012) 12 SCC 1

6. Saravanan Vs State rep. by the Inspr, of Police
(Criminal Appeal Nos.681-682 of 2020, arising from
S.L.P. (Criminal) Nos.4386/4387/2020)

(Delivered by Hon'ble Shamim Ahmed, J.)

1. This application under Section 482
CrPC has been filed by the applicant for
12 All. Chhotu Vs. State of U.P.
175
quashing the order dated 3.6.2020 passed
by Special Judge POCSO Act/Additional
Sessions Judge, Etah in Bail Application
No.545 of 2020 (CNR No. UPET01002463-2020) Chhotu vs. State of U.P., in
relation to Case Crime No.26 of 2020,
under Sections 363, 366, 342, 328, 376,
506 IPC and Section 4 POCSO Act, Police
Station Nidhauli Kalan District Etah.
Further, prayer has been made to release
the accused applicant on default bail in
Case Crime No.26 of 2020, under Sections
363, 366, 342, 328, 376, 506 IPC and
Section 4 POCSO Act, Police Station
Nidhauli Kalan District Etah exercising
power under Section 167(2) CrPC so that
justice be done.

2. Heard Sri Amit Daga, learned
counsel for the applicant as well as learned
AGA for the State and perused the record.

3. The facts of the case as argued by
the learned counsel for the applicant are as
under:

(i) In regard to an incident which
is said to have taken place on 8.12.2019 at
some unknown time one First Information
Report was registered at Police Station
Nidhauli Kalan, District Etah on 29.1.2020
at
about
16.00
hrs
under
the
orders/direction of SSP, Etah passed on the
application
of
Km.
Preeti
with
the
allegations that the informant is minor girl
aged about 16 years and she is the student
of Intermediate class. It is further alleged
that
on
8.12.2019
the
informant
(prosecutrix) had gone to her relative's
home located in Mohalla Kila, Nidhauli
Kalan, District Etah where resident of her
village namely Chhotu (applicant) and
Shyamveer reached and on call of Chhotu
she came out from home and on the pretext
of accident of her brother, aforesaid
persons took her into Max vehicle and on
reaching Sikandrabad, Shyamveer left their
company and therefore Chhotu (applicant)
took her to Delhi at some unknown place
and
committed
rape
with
her
till
14.12.2019 after administering some drugs
to her. It is further alleged that somehow
the informant (prosecutrix) informed her
family members about the incident and
despite various efforts the police of
concerned police station neither reported
the incident nor sent the informant
(prosecutrix) for medical examination. On
the basis of the aforesaid FIR, one criminal
case as Case Crime No. 26 of 2020 for the
offence punishable under Sections 363,
366, 342, 328, 376, 506 IPC and Section 4
POCSO Act was registered against the
applicant and co-accused Shyamveer at
Police Station Nidhauli Kalan District Etah.

(ii) After registration of the
aforesaid
FIR,
the
police
started
investigation. During the course of the
investigation,
the
investigating
officer
recorded the statement of the informant
(prosecutrix) under Section 161 CrPC in
which she has allegedly reiterated the
allegations of the FIR in refined manner
and further alleged that she was forcibly
taken to Delhi and subjected to rape till
14.12.2019 and she came out from the
clutches of the accused then she made
efforts to lodge the FIR. It is further alleged
that she is minor and her date of birth is
15.10.2004.

(iii)
It
is
alleged
by
the
prosecution that prior to recording the
aforesaid
statement,
the
informant
(prosecutrix) was put up for medical
examination at District Women Hospital,
Etah on 30.1.2020 and on the same day she
was allegedly medically examined at
aforesaid hospital. As per the medical
176 INDIAN LAW REPORTS ALLAHABAD SERIES
examination
report
of
the
informant
(prosecutrix), in the opinion of the doctor,
no injury was seen at any body part
including the genital part of the informant
(prosecutrix).

(iv) After showing the aforesaid
statement of the informant (prosecutrix),
the Investigating Officer has shown arrest
of the accused applicant in the instant
criminal case on 2.2.2020 and on the same
day he was put up before the court of
learned Magistrate for judicial custody
remand.

(v) During the course of the
investigation, the Investigating Officer put
up the informant (prosecutrix) before the
court of lernaed Magistrate for the purposes
of recording her statement under Section
164 CrPC.

(vi) Thereafter the Investigating
Officer recorded the statements of some
independent witnesses namely Sukhbeer
Singh, Mohar Singh, Brijesh Sharma and
Durveen Singh under Section 161 CrPC, in
which they have allegedly stated that coaccused Shyamveer, who is named in the
FIR, happens to be the uncle of accused
applicant Chhotu and since the applicant
and Km. Preeti were having love affairs,
thus the informant (prosecutrix) was
enticed away by applicant Chhotu on
8.12.2019.

(vii)
After
recording
the
statements of the aforesaid independent
witnesses the Investigating officer came to
the conclusion that co-accused Shyamveer
has nothing to do with the allegations
levelled in the FIR and he has been falsely
roped in the instant criminal case. With the
said
observation/conclusion,
the
Investigating Officer gave clean chit to coaccused Shyamveer from all the charges
and further investigated the crime in
question only against the accused applicant.

(viii) After conclusion of the
investigation, the Investigating Officer
prepared the charge sheet/challan with the
observation
that
the
applicant
had
committed an offence and liable to be
prosecuted for the offence punishable under
Sections 363, 366, 342, 376, 506 IPC and
Section 4 POCSO Act and submitted the
same before the court of learned Special
Judge (POCSO Act) on 1.6.2020, much
after expiry of 90 days. On the same day
learned trial court (Special Judge POCSO
Act/Additional Sessions Judge, Etah) was
pleased to take cognizance on the charge
sheet/challan so submitted against the
accused applicant.

(ix) Learned counsel for the
applicant further submits that on careful and
exhaustive perusal of the charge sheet/challan,
it reveals that the same was prepared by the
Investigating Officer on 2.3.2020 and the same
has been marked as submitted on 15.5.2020
whereupon cognizance was taken by the court
below on 1.6.2020.

(x) Since the accused applicant
was challaned and taken into custody in the
instant criminal case on 2.2.2020 and
despite expiry of 90 days no charge
sheet/challan was submitted against him
before the learned Special Judge, POCSO
Act, Etah, thus the applicant sought default
bail under Section 167(2) CrPC by moving
an application dated 25.5.2020. Accused
applicant is also ready to furnish adequate
sureties
and
personal
bond
to
the
satisfaction of the court concerned.

(xi) It is categorically submitted
by the learned counsel for the applicant that
12 All. Chhotu Vs. State of U.P.
177
till 25.5.2020 the date on which the
applicant moved an application under
Section 167(2) CrPC for grant of default
bail, no charge sheet/challan was available
before the court below and the same was
filed/submitted
by
the
concerned
investigating agency before the court below
after moving the said application only on
1.6.2020 and whereupon cognizance was
taken by the court below on 1.6.2020.

4. Learned counsel for the applicant
submits that despite the undisputed fact on
record that the applicant was taken into
custody in the instant criminal case on
2.2.2020 and despite expiry of 90 days no
charge sheet/challan was submitted by the
investigating agency before the court
below, the court below vide order dated
3.6.2020 rejected the application of the
applicant for default bail. Hence the present
application under Section 482 CrPC before
this Court challenging the validity of the
aforesaid impugned order.

5. On the other hand, learned AGA
appearing for the State has filed counter
affidavit with the contention that from the
report of D.C.R.B. there is only one case
pending against the applicant except the
present case. It is further contended in
paragraph 6 and 7 of the counter affidavit
that during the course of the investigation
credible evidence has been collected
against the accused applicant and thereafter
the Investigating Officer has submitted
charge sheet against him for the offence
punishable under Sections 363, 366, 342,
376, 506 IPC and Section 4 POCSO Act
before the Special Judge POCSO Act on
1.6.2020 whereby the court below has
taken
cognizance
after
perusing
the
material available on record. It is further
contended that the learned Special Judge
after perusing the material evidence on
record as well as otherevidences has rightly
rejected the bail application of the applicant
vide order dated 3.6.2020. Further in
paragraph 13 of the counter affidavit it was
stated that the learned trial court has not
committed any manifest error of law in
misinterpreting the observation/order of the
Hon'ble Apex Court. The learned court
below
after
considering
the
legal
proposition of law laid down by the
Hon'ble Madras High Coiurt in the case of
Settu vs. The State represented by the
Inspector of Police, while deciding the
applicant's
application
moved
under
Section 167(2) CrPC.

6. Sri Amit Daga, learned counsel for
the applicant submits that as his argument
has already been accepted by the State in
paragraph 7 of their counter affidavit that
charge sheet was filed in the present case
on 1.6.2020 whereupon the court below has
taken cognizance, he does not want to file
rejoinder affidavit.

7.
I
have
considered
the
rival
submissions of the learned counsel for the
parties and perused the record.

8. Section 167 of CrPC lays down the
procedure
to
be
followed
when
investigation cannot be completed in 24
hours. Section 167(1) and (2) of the Code is
reproduced as under:

"167.
Procedure
when
investigation cannot be completed in
twenty-four
hours.-(1)
Whenever
any
person is arrested and detained in custody
and it appears that the investigation cannot
be completed within the period of twentyfour hours fixed by Section 57, and there
are
grounds
for
believing
that
the
accusation or information is well-founded,
the officer in charge of the police station or
178 INDIAN LAW REPORTS ALLAHABAD SERIES
the police officer making the investigation,
if he is not below the rank of sub-
inspector, shall forthwith transmit to the
nearest Judicial Magistrate a copy of the
entries in the diary hereinafter prescribed
relating to the case, and shall at the same
time
forward
the
Accused
to
such
Magistrate.

(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, authorize 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) 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 in person for the first
time and subsequently every time till the
accused remains in the custody of the
police, but the Magistrate may extend
further detention in judicial custody on
production of the accused either in person
or through the medium of electronic video
linkage; (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."
Sub-section
(2)
stipulates
that
the
magistrate cannot authorise detention of the
accused in custody on expiry of such period
of 90 days or 60 days as the case may be
and shall release him on bail, if the accused
person is prepared to and furnishes bail."

9. It is evident from the record itself
that the applicant was taken custody in
alleged crime on 02.02.2020 and till expiry
of 90 days i.e. 02.05.2020 the investigating
agency failed to submit any charge
sheet/challan against the applicant within
the meaning of Section 173(2) CrPC before
the court of learned Special Judge, POCSO
Act/Additional Sessions Judge, Etah and
the same was filed on 01.06.2020 much
after expiry of 90 days, thus the trial court
ought
to
have
allowed
applicant's
application moved under Section 167(2)
CrPC and released the applicant on default
bail, but the learned court below had
committed manifest error of law in
rejecting applicant's application vide order
dated 3.6.2020.

10. Even though in the counter
affidavit filed by the State, the State has
also admitted this fact in paragraph 6 and 7
of the counter affidavit that during the
course of investigation credible evidence
12 All. Chhotu Vs. State of U.P.
179
has been collected against the accused
applicant and the investigating officer
during investigation has collected specific
allegation and thereafter has submitted
charge sheet for the offence punishable
under Section 363, 366, 342, 376, 506 IPC
and Section 4 POCSO Act before the
learned Special Judge, POCSO Act on
1.6.2020 whereby the court has taken
cognizance after perusing the material
available on record, therefore it is beyond
doubt to say that the charge sheet was filed
after the expiry of 90 days from the date of
the arrest of the applicant and the
application for default bail was filed by the
applicant much prior i.e. on 25.5.2020.
Accordingly, in view of the provisions
contained under Section 167(2) CrPC the
applicant is entitled to get the benefit for
grant of default bail by the court below and
the impugned order passed by the court
below dated 3.6.2020 was against the
provisions of Section 167(2) CrPC.

11. In this regard, reference may be
made to the law as laid down by the
Hon'ble Apex Court in the case of Rakesh
Kumar Paul vs State of Assam, (2017) 15
SCC 67. The relevant extract of the
aforesaid judgment is given in paragraph
40 which is being quoted hereinbelow:

"40. In the present case, it was
also argued by learned counsel for the State
that the petitioner did not apply for ''default
bail' on or after 4-1-2017 till 24-1-2017 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 111-2017 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 11-12017 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."

12. Further, the Hon'ble Apex Court in
the case of Bikramjit Singh vs The State
of Punjab in Criminal Appeal No.667 of
2020 arising out of Special Leave Petition
(Crl.) No.2933 of 2020, decided on
12.10.2020, was pleased to observe in
paragraph 24 to 30 as under:

"24. 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
180 INDIAN LAW REPORTS ALLAHABAD SERIES
already not availed of" in Sanjay Dutt
(supra). 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
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 [1995 Supp (3) SCC 221 : 1995
SCC (Cri) 830] 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 [(1994) 5 SCC 410 : 1994 SCC
(Cri) 1433]...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 statutebook. In such a case, therefore, even if the
12 All. Chhotu Vs. State of U.P.
181
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, 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:

xxx xxx xxx

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.

xxx xxx xxx

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."
182 INDIAN LAW REPORTS ALLAHABAD SERIES

[Emphasis Supplied]

B.N.
Agrawal
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.

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."

25. The law laid down by the
majority judgment in this case was
however not followed in Pragya Singh
Thakur v. State of Maharashtra (2011)
10 SCC 445. This hiccup in the law was
then cleared by the judgment in Union of
India v. Nirala Yadav (2014) 9 SCC 457,
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 [(2001) 5 SCC 453 :
2001 SCC (Cri) 760] and how the two-Judge
Bench has understood the same in Pragyna
Singh Thakur [(2011) 10 SCC 445 : (2012) 1
SCC (Cri) 311] . We have already
reproduced the paragraphs in extenso from
Uday Mohanlal Acharya case [(2001) 5 SCC
453 : 2001 SCC (Cri) 760] and the relevant
paragraphs from Pragyna Singh Thakur
[(2011) 10 SCC 445 : (2012) 1 SCC (Cri)
311] . Pragyna Singh Thakur [(2011) 10 SCC
445 : (2012) 1 SCC (Cri) 311] has drawn
support from Rustam [1995 Supp (3) SCC
221 :1995 SCC (Cri) 830] case to buttress the
principle it has laid down though in Uday
Mohanlal Acharya case [(2001) 5 SCC 453 :
2001 SCC (Cri) 760] 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 [(2001) 5 SCC 453 : 2001 SCC
(Cri) 760] . We have already quoted from
para 13 and the conclusions.

45. The opinion expressed in
paras 54 and 58 in Pragyna Singh Thakur
12 All. Chhotu Vs. State of U.P.
183
[(2011) 10 SCC 445 : (2012) 1 SCC (Cri)
311] which we have emphasised, as it
seems to us, runs counter to the principles
stated in Uday Mohanlal Acharya [(2001) 5
SCC 453 : 2001 SCC (Cri) 760] which has
been followed in Hassan Ali Khan [(2011)
10 SCC 235 : (2012) 1 SCC (Cri) 256] and
Sayed Mohd. Ahmad Kazmi [(2012) 12
SCC 1 : (2013) 2 SCC (Cri) 488] . The
decision in Sayed Mohd. Ahmad Kazmi
case [(2012) 12 SCC 1 : (2013) 2 SCC
(Cri) 488] has been rendered by a threeJudge Bench. We may hasten to state,
though in Pragyna Singh Thakur case
[(2011) 10 SCC 445 : (2012) 1 SCC (Cri)
311] the learned Judges have referred to
Uday Mohanlal Acharya case [(2001) 5
SCC 453 : 2001 SCC (Cri) 760] 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
[(2009) 7 SCC 480 : (2009) 3 SCC (Cri)
449] . 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 [(2001) 5 SCC 453
: 2001 SCC (Cri) 760] . The learned Judge
dissented with the majority as far as
interpretation of the expression "if not
already availed of" by stating so: (SCC p.
481, paras 29-30)

"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.

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
184 INDIAN LAW REPORTS ALLAHABAD SERIES
case [(2011) 10 SCC 445 : (2012) 1 SCC
(Cri) 311] 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 [(2012) 12 SCC 1 :
(2013) 2 SCC (Cri) 488] . Keeping in view
the principle stated in Sayed Mohd. Ahmad
Kazmi case [(2012) 12 SCC 1 : (2013) 2
SCC (Cri) 488] which is based on threeJudge Bench decision in Uday Mohanlal
Acharya case [(2001) 5 SCC 453 : 2001
SCC (Cri) 760] , we are obliged to
conclude and hold that the principle laid
down in paras 54 and 58 of Pragyna Singh
Thakur case [(2011) 10 SCC 445 : (2012) 1
SCC
(Cri)
311]
(which
has
been
emphasised by us: see paras 42 and 43
above) does 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 good
law. Our view finds support from the
decision in Union of India v. Arviva
Industries India Ltd. [(2014) 3 SCC 159]."

26. Also, in Syed Mohd. Ahmad
Kazmi v. State (Govt. of NCT of Delhi)
(2012) 12 SCC 1, Section 43-D of the
UAPA came up for consideration before
the Court, in particular the proviso which
extends the period for investigation beyond
90 days up to a period of 180 days. An
application for default bail had been made
on 17.07.2012, as no charge sheet was filed
within a period of 90 days of the appellant's
custody. The charge sheet in the aforesaid
case was filed thereafter on 31.07.2012.
Despite the fact that this application was
not taken up for hearing before the filing of
the charge sheet, this Court held that this
since an application for default bail had
been filed prior to the filing of the charge
sheet the "indefeasible right" spoken of
earlier had sprung into action, as a result of
which default bail had to be granted.

The Court held:

"25. Having carefully considered
the submissions made on behalf of the
respective parties, the relevant provisions
of law and the decision cited, we are unable
to accept the submissions advanced on
behalf of the State by the learned
Additional Solicitor General Mr Raval.
There is no denying the fact that on 17-72012, when CR No. 86 of 2012 was
allowed by the Additional Sessions Judge
and the custody of the appellant was held to
be illegal and an application under Section
167(2) CrPC was made on behalf of the
appellant for grant of statutory bail which
was listed for hearing. Instead of hearing
the application, the Chief Metropolitan
Magistrate adjourned the same till the next
day when the Public Prosecutor filed an
application for extension of the period of
custody and investigation and on 20-7-2012
extended the time of investigation and the
custody of the appellant for a further period
of 90 days with retrospective effect from 26-2012. 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 [(1994) 5 SCC 410 : 1994 SCC (Cri)
1433] 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
12 All. Chhotu Vs. State of U.P.
185
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.

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.

27. We are unable to appreciate
the procedure adopted by the Chief
Metropolitan Magistrate, which has been
endorsed by the High Court and we are of
the view that the appellant acquired the
right for grant of statutory bail on 17- 72012, when his custody was held to be
illegal by the Additional Sessions Judge
since his application for statutory bail was
pending at the time when the application
for extension of time for continuing the
investigation was filed by the prosecution.
In our view, the right of the appellant to
grant of statutory bail remained unaffected
by the subsequent application and both the
Chief Metropolitan Magistrate and the
High Court erred in holding otherwise."

27. In a fairly recent judgment
reported as Rakesh Kumar Paul v. State
of Assam (2017) 15 SCC 67, a ThreeJudge Bench of this Court referred to the
earlier decisions of this Court and went one
step further. It was held by the majority
judgment of Madan B. Lokur, J. and
Deepak Gupta, J. that even an oral
application for grant of default bail would
suffice, and so long as such application is
made before the charge sheet is filed by the
police, default bail must be granted. This
was stated in Lokur, J.'s judgment as
follows:

"37. This Court had occasion to
review the entire case law on the subject in
Union of India v. Nirala Yadav [Union of
India v. Nirala Yadav, (2014) 9 SCC 457 :
(2014) 5 SCC (Cri) 212] . In that decision,
reference was made to Uday Mohanlal
Acharya v.