# Kamal K.P v. State of U.P. & Anr

- **Citation:** (2024) 9 ILRA 262
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-12
- **Case number:** Criminal Appeal No. 2217 of 2023
- **Bench:** Attau Rahman Masoodi, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamal-k-p-v-state-of-u-p-anr-52584
- **Pages:** 24

## Headnote

Law
-
The
National
Investigation Agency Act, 2008 - Section
21(4) - Appeal - Indian Penal Code, 1860 -
Sections 153-A, 295-A, 124-A & 120-B -
The Unlawful Activities (Prevention) Act,
1967 - Section 17 & 18 , The I.T.
(Amendment) Act, 2008 - Section 65 & 72,
The Code of Criminal Procedure, 1973 -
Section 167(2) - Default bail - Statutory
Right -Indefeasible Right - Article 21 -
Liberty - Right of default bail under
Section 167(2) of CrPC is not only a
statutory right but is a right that flows
from Article 21 of the Constitution of India
- It is an indefeasible right, nonetheless it
is enforceable only prior to the filing of
the challan or the charge-sheet and does
not survive or remain enforceable on the
challan being filed, if already not availed
of - Right to life & personal liberty can
only
be
confined
by
following
due
9 All. Kamal K.P. Vs. State of U.P. & Anr.
263
procedure
but
it
cannot
be
taken
away.(Para -19,40)

(B) The Code of Criminal Procedure, 1973
- Section 167(2) - Right of default bail - If
the right of default bail has been availed
by an accused by moving a bail application
and the period of 90 days has expired and
is not extended further and even if the
said
bail
application
has
not
been
disposed by the court and remained
pending for a long time and the litigation
travels to the higher forum and in
between charge-sheet has been filed by
the
investigation
agency
within
the
statutory time, the right of the accused to
be released on default bail will not be
extinguished or defeated.
(Para - 23)

Appellant arrested on March 3, 2023 various
IPC, UAPA, and IT Act sections - remanded to
judicial
custody
on
March
6,
2023
-
Investigation custodial remand was granted
from April 2-4, 2023 - subsequent judicial
custody remands until June 2, 2023 - Despite 90
days of custody expiring on June 1, 2023, the
investigating agency sought and received an
extension under Section 43-D(2) of the UAPA -
appellant filed a default bail application on June
2, 2023 - rejected on June 26, 2023 - charge
sheet was eventually filed on July 20, 2023,
within
the
extended
180-day
period
-
subsequent filing of the charge sheet nullified
his right to bail - hence appeal challenging the
rejection of default bail application.(Para - 2 to
8)

HELD: - Subsequent extension of time of
investigation after 02.06.2023 or filing of
charge-sheet on 30.07.2023 may not cure,
suppress, vitiate or extinguish the right of the
appellant/accused, to be released on default
bail, which had already accrued in favour of the
appellant in the midnight of 01/02.06.2023
when
the
same
has
also
been
acted
upon/availed by the appellant by filing a default
bail application on 02.06.2023. Special Court
committed material illegality in rejecting the
default bail application. Appellant entitled to
default bail. (Para -31 to 34)

Appeal allowed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,989 of 84,048. This is a partial read: ask again with offset=39989 for what follows._

262 INDIAN LAW REPORTS ALLAHABAD SERIES
PW-1 and PW-4, eye-witnesses present had
come to the witness box. We do find that
Mulayam Singh, Laxman Singh and the
first informant though were not of the same
family but definitely were close to each
other and, therefore, they had ganged
together to implicate the accused, Ram
Babu. Further, we are of the view that
when the investigation was being done and
it was alleged that gambling was done with
the help of playing cards then at least an
effort ought to have been made to recover
the playing cards and to keep them in
police custody. Neither the playing cards
had been taken into custody nor any of the
torches in the light of which the incident
was seen, were taken into custody.

16. We are definitely, therefore, of the
view that there are any number of lapses in
the prosecution story and the prosecution
case thus becomes doubtful. Also, we find
that nowhere was the currency etc., which
it was alleged was won in the gambling by
the deceased, recovered.

17. Under such circumstances, the
charges as were framed against the accused
appellant
were
not
proved
beyond
reasonable
doubt
and,
therefore,
the
accused cannot be held guilty and,
therefore, we acquit him of all the charges
levelled against him.

18. The appeal therefore, stands
allowed. The impugned judgment and order
dated 23.05.1983 passed by the Sessions
Judge, Jalaun at Orai is set-aside. The
appellant, Ram Babu, is on bail. He need
not surrender. The sureties and the bail
bonds are discharged.

19. We do appreciate the hard work
done by the learned Amicus Curiae Sri
Rajiv Nayan Singh and provide that he
would be paid a fee of Rs.25,000/- by the
High Court Legal Services Authority. The
Registrar General of this Court to see that
this order for the payment of the fee to the
learned Amicus Curiae is complied with.
----------
(2024) 9 ILRA 262
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.09.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 2217 of 2023

Kamal K.P. ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sheeran Mohiuddin Alavi, Harsh Vardhan
Kediya

Counsel for the Respondents:
G.A.

(A)
Criminal
Law
-
The
National
Investigation Agency Act, 2008 - Section
21(4) - Appeal - Indian Penal Code, 1860 -
Sections 153-A, 295-A, 124-A & 120-B -
The Unlawful Activities (Prevention) Act,
1967 - Section 17 & 18 , The I.T.
(Amendment) Act, 2008 - Section 65 & 72,
The Code of Criminal Procedure, 1973 -
Section 167(2) - Default bail - Statutory
Right -Indefeasible Right - Article 21 -
Liberty - Right of default bail under
Section 167(2) of CrPC is not only a
statutory right but is a right that flows
from Article 21 of the Constitution of India
- It is an indefeasible right, nonetheless it
is enforceable only prior to the filing of
the challan or the charge-sheet and does
not survive or remain enforceable on the
challan being filed, if already not availed
of - Right to life & personal liberty can
only
be
confined
by
following
due
9 All. Kamal K.P. Vs. State of U.P. & Anr.
263
procedure
but
it
cannot
be
taken
away.(Para -19,40)

(B) The Code of Criminal Procedure, 1973
- Section 167(2) - Right of default bail - If
the right of default bail has been availed
by an accused by moving a bail application
and the period of 90 days has expired and
is not extended further and even if the
said
bail
application
has
not
been
disposed by the court and remained
pending for a long time and the litigation
travels to the higher forum and in
between charge-sheet has been filed by
the
investigation
agency
within
the
statutory time, the right of the accused to
be released on default bail will not be
extinguished or defeated.
(Para - 23)

Appellant arrested on March 3, 2023 various
IPC, UAPA, and IT Act sections - remanded to
judicial
custody
on
March
6,
2023
-
Investigation custodial remand was granted
from April 2-4, 2023 - subsequent judicial
custody remands until June 2, 2023 - Despite 90
days of custody expiring on June 1, 2023, the
investigating agency sought and received an
extension under Section 43-D(2) of the UAPA -
appellant filed a default bail application on June
2, 2023 - rejected on June 26, 2023 - charge
sheet was eventually filed on July 20, 2023,
within
the
extended
180-day
period
-
subsequent filing of the charge sheet nullified
his right to bail - hence appeal challenging the
rejection of default bail application.(Para - 2 to
8)

HELD: - Subsequent extension of time of
investigation after 02.06.2023 or filing of
charge-sheet on 30.07.2023 may not cure,
suppress, vitiate or extinguish the right of the
appellant/accused, to be released on default
bail, which had already accrued in favour of the
appellant in the midnight of 01/02.06.2023
when
the
same
has
also
been
acted
upon/availed by the appellant by filing a default
bail application on 02.06.2023. Special Court
committed material illegality in rejecting the
default bail application. Appellant entitled to
default bail. (Para -31 to 34)

Appeal allowed. (E-7)

List of Cases cited:
1. Enforcement Directorate, G.O.I. Vs Kapil
Wadhwan & anr., 2023 SCC OnLine SC 972
2. Gautam Navlakha Vs N.I.A., (2022) 13 SCC
542
3. Judgebir Singh @ Jasbir Singh Samra @
Jasbir & ors. Vs N.I.A., 2023 SCC Online SC 543
4.
Judgebir
Singh
&
ors.
Vs
N.I.A.,
MANU/SC/0501/2023,
5.
C.B.I.
Vs
Kapil
Wadhawan
&
ors.,
MANU/SC/0058/2024
6. Hitendra Vishnu Thakur & ors. Vs St. of
Maha. & ors. , (1994) 4 SCC 602
7. Sanjay Dutt Vs St. through C.B.I., Bom.,
(09.09.1994 - SC) : MANU/SC/0554/1994
8. Uday Mohanlal Acharya Vs St. of Maha.,
MANU/SC/0222/2001
9. RITU CHHABARIA Vs U.O.I. & ORS.2023
LiveLaw (SC) 352

(Delivered by Hon'ble Mohd. Faiz Alam
Khan, J.)

(1) Heard Shri Sheeran Mohiuddin
Alavi & Shri Harsh Vardhan Kediya,
learned
counsels
appearing
for
the
appellant and Shri Shiv Nath Tilhari,
learned Additional Government Advocate
for respondents and perused the record.

(2) The instant criminal appeal under
Section 21(4) of the N.I.A. Act, 2008 has
been filed by the appellant- Kamal K.P.
against
the
impugned
order
dated
26.06.2023 passed by the Additional
District
and
Sessions
Judge-5/Special
Judge,
NIA/ATS,
Lucknow,
in
Bail
Application No. 5048 of 2023, arising out
of Case Crime No. 199 of 2020, under
264 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 153-A, 295-A, 124-A, 120-B
I.P.C. & Section 17 and 18 of the Unlawful
Activities (Prevention) Act, 1967 [here-inafter referred to as 'UAPA' and Section 65
& 72 of the I.T. (Amendment) Act, 2008,
Police Station Manth, District Mathura,
Uttar Pradesh, whereby his application for
default bail moved under Section 167(2) of
the Code of Criminal Procedure, 1973
(hereafter referred as 'Cr.P.C.') read with
Section 43-D(2) of the UAPA has been
rejected.

(3) Learned counsel for the appellant
submits that appellant was arrested on
03.03.2023 and was produced before the
learned Magistrate at Kerala on 04.03.2023
whereon his transit remand was granted
and thereafter he was produced before the
Special Judge, (NIA/ATS), at Lucknow on
06.03.2023 and was remanded to judicial
custody for 14 days.

(4) It is further submitted that
appellant was also taken on Police Custody
Remand (P.C.R.) for three days from
02.04.2023 to 04.04.2023 where after he
was again remanded to judicial custody.

(5) It is further submitted that the
investigation of the case remained pending
even after completion of 90 days and in this
regard
the
appellant
preferred
an
application under Section 167 (2) Cr.P.C.
on 02.06.2023 for his release on statutory
bail and the same was fixed for 05.06.2023
and the same was ultimately rejected vide
impugned order dated 26.06.2023 on the
ground that the period of investigation has
already been extended by means of order
dated 05.06.2023 and the charge-sheet has
already been filed within 180 days of first
remand of the appellant.

(6) It is vehemently submitted that the
reasoning given by the Special Court in
rejecting the prayer of default bail of the
appellant is not tenable in the eyes of law
as the period of investigation was extended
on 05.06.2023 after expiry of 90 days while
the application under Section 167 (2)
Cr.P.C. for grant of default bail had already
been moved on 02.06.2023, thus an
indefeasible right had accrued in favour of
appellant, which could not be defeated by
filing the charge- sheet subsequently.

(7) It is further submitted that the
Special Court has committed manifest
illegality in rejecting the default bail
application of the appellant as the appellant
had become entitled to the default bail
when
the
period
of
extension
of
investigation period was extended only on
05.06.2023 while the same had expired in
the midnight of 01/02.06.2023.

(8) It is further submitted that since an
indefeasible right to be released on bail had
accrued in favour of the appellant by nonfiling of charge-sheet by the Investigating
Agency within 90 days and as the period of
90 days had expired on 02.06.2023 and the
period of extension of investigation has
been enlarged on 05.06.2023 and the
application for statutory bail was moved on
02.06.2023, the appellant should have been
released on default bail and, thus, the
Special
Court
has
committed
patent
illegality in rejecting the bail application of
applicant, therefore, the impugned order
passed by the Special Court is required to
be set-aside and the appellant is entitled to
be released on default bail.

(9) Learned counsel for the appellant
has relied on the following case laws:-
9 All. Kamal K.P. Vs. State of U.P. & Anr.
265

(i)
Enforcement
Directorate,
Government of India Vs. Kapil Wadhwan
and Another reported in 2023 SCC OnLine
SC 972

(ii)
Gautam
Navlakha
Vs.
National Investigation Agency reported in
(2022) 13 SCC 542; and

(iii) Judgebir Singh alias Jasbir
Singh Samra alias Jasbir and others Vs.
National Investigating Agency reported in
2023 SCC Online SC 543

(10) Shri S. N. Tilhari, learned
A.G.A. relying on the short counter affidavit
as well as the supplementary counter affidavit
filed by the State vehemently opposes the
prayer of default bail of the appellant and
submits that the appellant was arrested on
03.03.2023 from Malappuram, Police Station
Melattur, Kerala in connection with this case
and by producing him before the local
Magistrate, a transit remand was obtained on
04.03.2023 and on 06.03.2023 the appellant
was again produced before the Special Judge,
(NIA/ATS), Lucknow and his judicial
custody remand was allowed for 14 days and
which was subsequently extended vide order
20.03.2023 till 03.04.2023.

(11) It is further submitted that on
31.03.2023 an application was filed for
taking the accused on Police Custody
Remand which was allowed from 02.04.2023
to
04.04.2023
and
vide
order
dated
04.04.2023 remand was further allowed till
03.05.2023.

(12) It is also submitted that vide order
dated 03.05.2023 the judicial remand of the
appellant was further allowed till 17.05.2023
and the same was again extended to
02.06.2023 vide order dated 17.05.2023.

(13) It is vehemently submitted that
before expiring of 90 days' time i.e. on
01.06.2023 Public Prosecutor had moved
an application before the learned Special
Judge, (NIA/ATS), Lucknow for extension
of time of investigation from 90 days to
180 days, as provided under Section 43D(2) of the UAPA and vide order dated
01.06.2023 the application was directed to
be
listed
on
02.06.2023
and
the
appellant/accused was summoned from
District Jail and on 02.06.2023 the remand
period was extended till 05.06.2023. The
Public Prosecutor filed another application
before the Special Court on 05.06.2023 for
extension of time for investigation for
further 60 days and vide order dated
05.06.2023 the period of investigation was
extended for 50 more days and the remand
of the appellant was granted up to
03.07.2023
and
vide
order
dated
03.07.2023 the remand was further allowed
till 20.07.2023 and ultimately the chargesheet against the appellant/accused was
filed on 20.07.2023 i.e. within 180 days, as
provided under Section 43-D(2) of the
U.A.P.A. Thus,it is submitted that the
extension of time to complete investigation
was extended by the Special Court within
90 days i.e. on 02.06.2023 and 05.06.2023
and charge-sheet has also been filed within
180 days of the first remand of the
appellant and, therefore, no indefeasible
right for release on default bail had ever
occurred in favour of the appellant/accused.
Thus, it is submitted that there is no
illegality in the order passed by the Special
Court and appeal is liable to be dismissed.

(14) Having heard learned counsel for
the parties and having perused the record it
appears to be appropriate that before
considering the rival submissions of the
learned counsels for the parties, it will be
useful to look into the relevant statutory
provisions and legal precedents pertaining
to the matter in issue.
266 INDIAN LAW REPORTS ALLAHABAD SERIES

(15) Section 167(2) of Code of 1973
which is relevant for the disposal of present
case, existing as of now is being
reproduced as under:

"167(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) 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 of the Accused in custody of the
police 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."

(16) Section 43-D of the UAPA
operates as a special provision vis-a-vis the
applicability of rights granted Under
Section 167(2)(a) of the Code of Criminal
Procedure. Section 43D is also reproduced
here-in-below:

"43D. Modified application of
certain
provisions
of
the
Code.-(1)
Notwithstanding anything contained in the
Code or any other law, every offence
punishable under this Act shall be deemed
to be a cognizable offence within the
meaning of Clause (c) of Section 2 of the
Code, and "cognizable case" as defined in
that Clause shall be construed accordingly.

(2) Section 167 of the Code shall
apply in relation to a case involving an
offence punishable under this Act subject to
the modification that in Sub-section (2),-

(a) the references to "fifteen
days", "ninety days" and "sixty days",
wherever they occur, shall be construed as
references to "thirty days", "ninety days"
and "ninety days" respectively; and

(b)
after
the
proviso,
the
following provisos shall be inserted,
namely:

Provided further that if it is not
possible to complete the investigation
within the said period of ninety days, the
9 All. Kamal K.P. Vs. State of U.P. & Anr.
267
Court may if it is satisfied with 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 ninety
days, extend the said period up to one
hundred and eighty days:

Provided also that if the police
officer making the investigation under this
Act,
requests,
for
the
purposes
of
investigation, for police custody from
judicial custody of any person in judicial
custody, he shall file an affidavit stating the
reasons for doing so and shall also explain
the delay, if any, for requesting such police
custody.

(3) Section 268 of the Code shall
apply in relation to a case involving an
offence punishable under this Act subject to
the modification that-

(a) the reference in Sub-section
(1) thereof

(i) to "the State Government"
shall be construed as a reference to "the
Central
Government
or
the
State
Government.";

(ii) to "order of the State
Government" shall be construed as a
reference
to
"order
of
the
Central
Government or the State Government, as
the case may be"; and

(b) the reference in Sub-section
(2) thereof, to "the State Government" shall
be construed as a reference to "the Central
Government or the State Government, as
the case may be".

(4) Nothing in Section 438 of the
Code shall apply in relation to any case
involving the arrest of any person Accused
of having committed an offence punishable
under this Act.

(5)
Notwithstanding
anything
contained in the Code, no person Accused
of an offence punishable under Chapters IV
and VI of this Act shall, if in custody, be
released on bail or on his own bond unless
the Public Prosecutor has been given an
opportunity
of
being
heard
on
the
application for such release:

Provided
that
such
Accused
person shall not be released on bail or on
his own bond if the Court, on a perusal of
the case diary or the report made Under
Section 173 of the Code is of the opinion
that there are reasonable grounds for
believing that the accusation against such
person is prima facie true.

(6) The restrictions on granting
of bail specified in Sub-section (5) is in
addition to the restrictions under the Code
or any other law for the time being in force
on granting of bail.

(7)
Notwithstanding
anything
contained in Sub-sections (5) and (6), no
bail shall be granted to a person Accused
of an offence punishable under this Act, if
he is not an Indian citizen and has entered
the country unauthorisedly or illegally
except in very exceptional circumstances
and for reasons to be recorded in writing."

(17) Hon'ble Supreme Court in
Judgebir Singh and Ors. vs. National
Investigation
Agency,
MANU/SC/0501/2023, explained the law
with regard to section 167 CrPc in
following words:-

"A three-Judge Bench of this
Court in Uday Mohanlal Acharya v. State
of
Maharashtra
reported
in
MANU/SC/0222/2001 : (2001) 5 SCC 453,
has noticed the object of enacting the
provisions of Section 167 of the Code of
Criminal Procedure. Section 57 of the
Code of Criminal Procedure contains the
embargo on the police officers to detain in
custody, a person arrested beyond 24
hours. The object is that the Accused
should be brought before a Magistrate
268 INDIAN LAW REPORTS ALLAHABAD SERIES
without delay within 24 hours, which
provision is, in fact, in consonance with the
constitutional mandate engrafted Under
Article 22(2) of the Constitution. The
provision of Section 167 is supplementary
to Section 57. The power Under Section
167 is given to detain a person in custody
while police goes on with the investigation.
Section 167 is, therefore, a provision which
authorises the Magistrate permitting the
detention of the Accused in custody
prescribing the maximum period. In Uday
Mohanlal Acharya (supra) this Court while
dealing with Section 167 laid down the
following:

5. ...This provision of Section 167
is in fact supplementary to Section 57, in
consonance with the principle that the
Accused is entitled to demand that justice is
not delayed. The object of requiring the
Accused
to
be
produced
before
a
Magistrate is to enable the Magistrate to
see that remand is necessary and also to
enable
the
Accused
to
make
a
representation which he may wish to make.
The power Under Section 167 is given to
detain a person in custody while the police
goes on with the investigation and before
the Magistrate starts the enquiry. Section
167, therefore, is the provision which
authorises
the
Magistrate
permitting
detention of an Accused in custody and
prescribing the maximum period for which
such detention could be ordered. Having
prescribed the maximum period, as stated
above, what would be the consequences
thereafter has been indicated in the proviso
to Sub-section (2) of Section 167. The
proviso is unambiguous and clear and
stipulates that the Accused shall be
released on bail if he is prepared to and
does furnish the bail which has been
termed by judicial pronouncement to be
"compulsive bail" and such bail would be
deemed to be a bail under Chapter 33. The
right of an Accused to be released on bail
after expiry of the maximum period of
detention provided Under Section 167 can
be denied only when an Accused does not
furnish
bail,
as
is
apparent
from
Explanation I to the said section. The
proviso to Sub-section (2) of Section 167 is
a beneficial provision for curing the
mischief of indefinitely prolonging the
investigation and thereby affecting the
liberty of a citizen....

29. Again, there has been a very
detailed consideration of Section 167 by a
three-Judge Bench of this Court in Rakesh
Kumar Paul v. State of Assam, reported in
MANU/SC/0993/2017 : (2017) 15 SCC 67.
This Court in the above case has traced the
legislative history of the provision of
Section 167. This Court in the above case
emphasised that the debate on Section 167
must also be looked at from the perspective
of expeditious conclusion of investigation
and from the angle of personal liberty. This
Court also held that the right of default bail
is an indefeasible right which cannot be
allowed to be frustrated by the prosecution.
Following was laid down in paras 37, 38
and 39:

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,
MANU/SC/0580/2014 : (2014) 9 SCC 457:
(2014) 5 SCC (Cri) 212]. In that decision,
reference was made to Uday Mohanlal
Acharya v. State of Maharashtra [Uday
Mohanlal Acharya v. State of Maharashtra,
MANU/SC/0222/2001 : (2001) 5 SCC 453:
2001 SCC (Cri) 760] and the conclusions
arrived at in that decision. We are
concerned with Conclusion (3) which reads
as follows: (Uday Mohanlal Acharya case
[Uday Mohanlal Acharya v. State of
Maharashtra,
MANU/SC/0222/2001
:
9 All. Kamal K.P. Vs. State of U.P. & Anr.
269
(2001) 5 SCC 453: 2001 SCC (Cri) 760],
SCC p. 473, para 13)

13. ... (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.

38. This Court also dealt with the
decision rendered in Sanjay Dutt [Sanjay
Dutt v. State, MANU/SC/0554/1994 :
(1994) 5 SCC 410: 1994 SCC (Cri) 1433]
and noted that the principle laid down by
the Constitution Bench is to the effect that
if the charge-sheet is not filed and the right
for "default bail" has ripened into the
status of indefeasibility, it cannot be
frustrated by the prosecution on any
pretext. The Accused can avail his liberty
by filing an application stating that the
statutory period for filing the charge-sheet
or challan has expired and the same has
not yet been filed and therefore the
indefeasible right has accrued in his or her
favour and further the Accused is prepared
to furnish the bail bond.

39. This Court also noted that
apart
from
the
possibility
of
the
prosecution frustrating the indefeasible
right, there are occasions when even the
court frustrates the indefeasible right.
Reference was made to Mohd. Iqbal Madar
Sheikh v. State of Maharashtra [Mohd.
Iqbal
Madar
Sheikh
v.
State
of
Maharashtra,
MANU/SC/1045/1996
:
(1996) 1 SCC 722: 1996 SCC (Cri) 202]
wherein it was observed that some courts
keep the application for "default bail"
pending for some days so that in the
meantime a charge-sheet is submitted.
While such a practice both on the part of
the prosecution as well as some courts must
be
very
strongly
and
vehemently
discouraged,
we
reiterate
that
no
subterfuge should be resorted to, to defeat
the indefeasible right of the Accused for
"default bail" during the interregnum when
the statutory period for filing the chargesheet or challan expires and the submission
of the charge-sheet or challan in court.

30. One more judgment of this
Court on Section 167 of the Code of
Criminal Procedure be noticed i.e., Achpal
alias Ramswaroop and Anr. v. State of
Rajasthan,
reported
in
MANU/SC/1035/2018 : (2019) 14 SCC
599. After referring to several earlier
judgments of this Court including the
judgments of this Court in Uday Mohanlal
Acharya (supra) and Rakesh Kumar Paul
(supra), this Court had laid down that the
provisions of the Code of Criminal
Procedure do not empower anyone to
extend the period within which the
investigation must be completed. This
Court held that no court either directly or
indirectly
can
extend
such
period.
Following are the observations of this
Court in para 20 of Achpal (supra):

20. We now turn to the subsidiary
issue, namely, whether the High Court
could have extended the period. The
provisions of the Code do not empower
anyone to extend the period within which
the investigation must be completed nor
does it admit of any such eventuality. There
are enactments such as the Terrorist and
Disruptive Activities (Prevention) Act, 1985
and the Maharashtra Control of Organised
Crime Act, 1999 which clearly contemplate
extension of period and to that extent those
enactments have modified the provisions of
the Code including Section 167. In the
absence of any such similar provision
empowering the Court to extend the period,
270 INDIAN LAW REPORTS ALLAHABAD SERIES
no court could either directly or indirectly
extend such period. In any event of the
matter all that the High Court had
recorded in its order dated 3-7-2018
[Mahaveer
v.
State
of
Rajasthan,
MANU/RH/0391/2018] was the submission
that the investigation would be completed
within two months by a gazetted police
officer. The order does not indicate that it
was brought to the notice of the High Court
that
the
period
for
completing
the
investigation was coming to an end. Mere
recording of submission of the Public
Prosecutor could not be taken to be an
order granting extension. We thus reject
the submissions in that behalf advanced by
the learned Counsel for the State and the
complainant.

31. The scheme of the Code of
Criminal Procedure as noticed above
clearly delineates that the provisions of
Section 167 of the Code of Criminal
Procedure give due regard to the personal
liberty of a person. Without submission of
chargesheet within 60 days or 90 days as
may be applicable, an Accused cannot be
detained by the police. The provision gives
due recognition to the personal liberty.
However, as explained by this Court in
Dinesh
Dalmia
v.
CBI
reported
in
MANU/SC/7924/2007 : (2007) 8 SCC 770,
such a right of default bail although a
valuable right, yet the same is a conditional
one,
the
condition
precedent
being
pendency of the investigation. Therefore,
once the investigation is complete with the
filing of the police report, containing the
details specified Under Section 173(2) of
the Code of Criminal Procedure, the
question of a claim or grant for default bail
does not arise."

(18) Thus, a plain reading of the
above mentioned provisions makes it clear
that the benefit of default bail shall be
available to the accused for the offences
alleged to have been committed under the
UAPA also where the investigation has not
concluded within 90 days of arrest of the
accused irrespective of the punishment of
the
offences
alleged
to
have
been
committed by him, unless the period has
been extended within or upto maximum
period of 180 days to complete the
investigation on or before the due date
following due procedure under the Statute.

(19)

In
Central
Bureau
of
Investigation vs. Kapil Wadhawan and
Ors., MANU/SC/0058/2024, though the
Apex Court found the accused person not
entitled for default bail by holding that
once the charge-sheet 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 the
accused after the filing of the charge-sheet,
but also highlighted that the right of default
bail under Section 167(2) of CrPC is not
only a statutory right but is a right that
flows from Article 21 of the Constitution of
India.
It
is
an
indefeasible
right,
nonetheless it is enforceable only prior to
the filing of the challan or the charge-sheet,
and does not survive or remain enforceable
on the challan being filed, if already not
availed of, in following words:-

"15.
There
cannot
be
any
disagreement with the well settled legal
position that the right of default bail Under
Section 167(2) Code of Criminal Procedure
is not only a statutory right but is a right
that
flows
from
Article
21
of
the
Constitution of India. It is an indefeasible
right, nonetheless it is enforceable only
prior to the filing of the challan or the
chargesheet, and does not survive or
remain enforceable on the challan being
9 All. Kamal K.P. Vs. State of U.P. & Anr.
271
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 the Accused after the filing
of the challan. The Constitution Bench in
Sanjay Dutt v. State through CBI,
Bombay
(II)
MANU/SC/0554/1994
:
(1994) 5 SCC 410, while considering the
provisions of Section 20(4)(bb) of the
Terrorist
and
Disruptive
Activities
(Prevention) Act, 1987 read with Section
167(2) Code of Criminal Procedure had
very pertinently held that:

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
167 Code of Criminal Procedure ceases to
apply. The Division Bench also indicated
that if there be such an application of the
Accused for release on bail and also a
prayer for extension of time to complete the
investigation according to the proviso in
Section 20(4)(bb), both of them should be
considered together. It is obvious that no
bail can be given even in such a case unless
the prayer for extension of the period is
rejected. In short, the grant of bail in such
a situation is also subject to refusal of the
prayer for extension of time, if such a
prayer is made. If the Accused applies for
bail under this provision on expiry of the
period of 180 days or the extended period,
as the case may be, then he has to be
released on bail forthwith. The Accused, so
released on bail may be arrested and
committed to custody according to the
provisions of the Code of Criminal
Procedure. It is settled by Constitution
Bench decisions that a petition seeking the
writ of habeas corpus on the ground of
absence of a valid order of remand or
detention of the Accused, has to be
dismissed, if on the date of return of the
rule, the custody or detention is on the
basis of a valid order. (See Naranjan Singh
Nathawan
v.
State
of
Punjab
[MANU/SC/0073/1952 : (1952) 1 SCC
118: 1952 SCR 395: AIR 1952 SC 106:
1952 Cri LJ 656]; Ram Narayan Singh v.
State of Delhi [MANU/SC/0035/1953 :
1953 SCR 652: AIR 1953 SC 277 : 1953
Cri LJ 1113] and A.K. Gopalan v.
Government
of
India
[MANU/SC/0091/1965 : (1966) 2 SCR 427:
AIR 1966 SC 816: 1966 Cri LJ 602].)"
(Emphasis Given)

(20) In Hitendra Vishnu Thakur and
others v. State of Maharashtra and others
reported in (1994) 4 SCC 602, while
interpreting Section 20(4) of Terrorist and
Disruptive Activities (Prevention) Act,
1987 (hereinafter referred to as 'TADA
Act') read with Section 167 Cr.P.C., the
Supreme Court held that once the period
272 INDIAN LAW REPORTS ALLAHABAD SERIES
for filing the charge-sheet has expired and
either no extension under Clause (bb) of
Section 20 (4) of TADA Act has been
granted by the Designated Court or the
period of extension has also expired, the
accused person would be entitled to move
an application for being admitted to bail
under Sub-Section (4) of Section 20 of
TADA Act read with Section 167 of
Cr.P.C. and the Designated Court shall
release him on bail, if the accused seeks to
be released and furnishes the requisite bail
bonds but that does not mean that on expiry
of the period, during which investigation is
required to be completed under Section 24
of TADA Act read with Section 167 of
Cr.P.C., the court must release the accused
on bail on its own motion even without
moving any application from the accused
person on his offering to furnish bail. The
accused will be 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
notices
to
the
Public
Prosecutor who may either show that
prosecution has obtained the order for
completing the investigation from the court
under Clause (bb) of Section 20 (4) of
TADA Act or that the charge-sheet has
been filed in the Designated Court before
the expiry of prescribed period or even that
the prescribed period has actually not
expired and thus, resists 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 a multiplicity
of proceedings. It would, therefore, serve
the ends of justice, if both sides are heard
on the petition for bail on account of
prosecution 'default'. It has been further
held by the Supreme Court that when a
report submitted by the Public Prosecutor
to the Designated Court, for grant of
extension for Clause (bb) of Section 20 (4)
of TADA Act, its notice should be issued to
the accused, before granting such an
extension so that an accused may have an
opportunity to oppose the extension on all
legitimate and legal grounds available to
him. Even though neither Clause (b) nor
Clause (bb) of Section 20 (4) of the TADA
Act provides for issuance of such notice
but, the issuance of such notice must be
read into these provisions both in the
interest of the accused and the prosecution
as well as for doing complete justice
between the parties. This is a requirement
of the principles of natural justice, and
issuance of notice to the accused or the
Public Prosecutor, as the case may be,
would accord with fair play in action,
which the courts have always encouraged
and even insisted upon. It would also strike
a just balance between the interest of the
liberty of an accused on the one hand and
the society at large through the prosecuting
agency on the other hand. There is no
prohibition to the issuance of such a notice
to the accused or Public Prosecutor in the
scheme of the Act, and no prejudice
whatsoever can be caused by the issuance
of such a notice to any party. (para 21 of
Judgment on pages 627 to 628)

(21) In Sanjay Dutt vs. State through
C.B.I., Bombay (09.09.1994 - SC) :
MANU/SC/0554/1994, while considering
Hitendra Vishnu Thakur (supra) Apex
Court opined as under:-

"52. 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
9 All. Kamal K.P. Vs. State of U.P. & Anr.
273
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 CrPC. 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 167 Cr.P.C. ceases to
apply. The Division Bench also indicated
that if there be such an application of the
accused for release on bail and also a
prayer for extension of time to complete the
investigation according to the proviso in
Section 20(4)(bb), both of them should be
considered together. It is obvious that no
bail can be given even in such a case unless
the prayer for extension of the period is
rejected. In short, the grant of bail in such
a situation is also subject to refusal of the
prayer for extension of time, if such a
prayer is made. If the accused applies for
bail under this provision on expiry of the
period of 180 days or the extended period,
as the case may be, then he has to be
released on bail forthwith. The accused, so
released on bail may be arrested and
committed to custody according to the
provisions of the CrPC. It is settled by
Constitution Bench decisions that a petition
seeking the writ of habeas corpus on the
ground of absence of a valid order of
remand or detention of the accused, has to
be dismissed, if on the date of return of the
rule, the custody or detention is on the
basis of a valid order. (See Naranjan Sigh
Nathawan v. The State of Punjab MANU/
SC/ 0073/ 1952 : 1952CriLJ656 ; Ram
Narayan Singh v. The State of Delhi and
Ors.
MANU/
SC/
0035/
1953
:
1953CriLJ113; and A.K. Gopalan v. The
Government of India MANU/SC/0091/1965
: 1966CriLJ602 .

53.