# Prateek Shukla v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 400
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-21
- **Case number:** Application U/S 482 Cr.P.C. No.15360 of 2021
- **Bench:** Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prateek-shukla-v-state-of-u-p-ors-47695
- **Pages:** 17

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power -Indian Penal Code, 1860 - Sections
302,307
&
504
,
Criminal
Law
(Amendment) Act ,1932 - Section 7 -
when an application for default bail is
filed, the merits of the matter are not to
be gone into - It is the duty and
responsibility of a court on coming to
know that the accused person before it is
entitled to "default bail" to at least
apprise him or her of the indefeasible
right - while computing the period under
Section 167(2), the day on which accused
was remanded to judicial custody has to
be excluded and the day on which
challan/charge-sheet is filed in the court
has to be included.(Para -17,18 )

(B) Criminal Law - The Code of criminal
procedure, 1973
- Section 167(2)
-
indefeasible right cannot be exercised
after the charge-sheet has been submitted
and cognizance has been taken because in
that event the remand of the accused
concerned including one who is alleged to
have committed an offence is not under
Section 167(2) of the Code but under
other provisions of the Code. (Para - 21)

Applicant moved an application for default bail
under Section 167 (2) read with Section 209 of
Cr.P.C. - ground - charge sheet not filled
within 90 days - application rejected by
magistrate - instant application filed to set aside
1 All. Prateek Shukla Vs. State of U.P. & Ors.
401
order passed by magistrate - release the
applicant under section 167(2) of the code
.(Para -1 to 5 )

HELD:-Magistrate was justified in its conclusion
arrived through the order impugned that the
charge-sheet has been filed within time and
rightly rejected the application. Therefore, there
is no infringement of Section 167(2) of the
Code.(Para - 24)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

## Text

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400 INDIAN LAW REPORTS ALLAHABAD SERIES
the cognizance order and the proceedings,
on the ground that the weapon used in the
commission of offence could not be
described to be a "dangerous weapon" so as
to constitute an offence under Section 324
IPC, would be a question of fact to be
examined on the basis of evidence and the
same cannot be seen at this stage of
proceedings.

56. The facts of the present case
indicate that pursuant to the registration of
the FIR dated 09.11.2020, the matter was
investigated and a police report under
Section 173 of the Code was submitted.
The Magistrate having the advantage of
police report and material submitted along
with the same has taken cognizance in
exercise of powers under Section 190 (1)
(b) and the order taking cognizance clearly
states that the Magistrate had perused the
charge-sheet, the case diary and the
materials which had been submitted along
with the same and on the basis thereof had
held that there was sufficient material to
take cognizance and to register the case.
The order of cognizance having thereafter
been passed by the Magistrate after having
advantage of perusing the police report and
the materials therewith, the same therefore
cannot be assailed only on the ground that
it does not give detailed reasons.

57. Having regard to the aforestated,
this Court is not inclined to exercise its
inherent jurisdiction under Section 482
CrPC in the facts of the case.

58. The application thus fails and is
dismissed accordingly.
----------
(2022)01ILR A400
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.12.2021
BEFORE

THE HON'BLE SANJAY KUMAR PACHORI, J.

Application U/S 482 Cr.P.C. No.15360 of 2021

Prateek Shukla ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Sanjeev Kumar Shukla, Sri Hemant
Kumar
Sharma,
Sri
Prem
Prakash
Yadav(Senior Adv.), Sri Saghir Ahmad

Counsel for the Opposite Parties:
A.G.A., Sri Nirbhay Singh, Sri M.D. Shah

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power -Indian Penal Code, 1860 - Sections
302,307
&
504
,
Criminal
Law
(Amendment) Act ,1932 - Section 7 -
when an application for default bail is
filed, the merits of the matter are not to
be gone into - It is the duty and
responsibility of a court on coming to
know that the accused person before it is
entitled to "default bail" to at least
apprise him or her of the indefeasible
right - while computing the period under
Section 167(2), the day on which accused
was remanded to judicial custody has to
be excluded and the day on which
challan/charge-sheet is filed in the court
has to be included.(Para -17,18 )

(B) Criminal Law - The Code of criminal
procedure, 1973
- Section 167(2)
-
indefeasible right cannot be exercised
after the charge-sheet has been submitted
and cognizance has been taken because in
that event the remand of the accused
concerned including one who is alleged to
have committed an offence is not under
Section 167(2) of the Code but under
other provisions of the Code. (Para - 21)

Applicant moved an application for default bail
under Section 167 (2) read with Section 209 of
Cr.P.C. - ground - charge sheet not filled
within 90 days - application rejected by
magistrate - instant application filed to set aside
1 All. Prateek Shukla Vs. State of U.P. & Ors.
401
order passed by magistrate - release the
applicant under section 167(2) of the code
.(Para -1 to 5 )

HELD:-Magistrate was justified in its conclusion
arrived through the order impugned that the
charge-sheet has been filed within time and
rightly rejected the application. Therefore, there
is no infringement of Section 167(2) of the
Code.(Para - 24)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

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

2. Bikramjit Singh Vs St. of Punj., (2020) 10 SCC
616 (Three-Judge)

3.
M.
Ravindran
Vs
Intelligence
Officer,
Directorate of Revenue Intelligence, (2021) SCC
485 (Three-Judge)

4. Sanjay Dutt Vs St. Through CBI (STF)
Bombay, (1994) 5 SCC 410

5. Yadav Singh Vs St. of U.P. & 2 Ors. in
Application U/S 482 No. - 31498 of 2018 was
decided on 11.09.2018 by the Division Bench of
this Court

6. Rajendra Singh Yadav @ Raju Jahreela Vs St.
of U.P. in Criminal Misc. Bail Application No.-
24132 of 2021 was decided on 16.07.2021 by
the Coordinate Bench of this Court

7. Sanjay Dutt Vs St. Through CBI, Bombay,
(1994) 5 SCC 410.

8. Uday Mohanlal Acharya Vs St. of Mah.,
(2001) 5 SCC 453

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

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

11. Chaganti Satyanarayana Vs St. of A. P.,
(1986) 3 SCC 141

12. CBI Vs Anupam J. Kulkarni, (1992) 3 SCC
141

13. St. of Mohd. Vs Ashraft Bhat, (1996) 1 SCC
432

14. St. of Mah. Vs Bharati Chandmal Verma,
(2002) 2 SCC 121

15. St. of M.P. Vs Rustam,1995 Supp (3) SCC
221

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

17. U.O.I. Vs Thamisharasi, (1995) 4 SCC 190

18. M. Ravindran Vs Directorate of Revenue
Intelligence, (2021) 2 SCC 485

19. U.O.I. through CBI Vs Nirala Yadav, (2014)
9 SCC 457

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

21. Ravi Prakash Singh Vs St. of Bihar, (2015) 8
SCC 340

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

23. S. Kasi Vs St., (2021) 12 SCC 1

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

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

1. The instant application under
Section 482 of the Code of Criminal
Procedure (in short "Cr.P.C.") has been
filed for quashing the impugned order
402 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 13.7.2021 passed by Chief Judicial
Magistrate, Allahabad, whereby the said
court rejected the application under Section
167(2) of Cr.P.C. and enlarge on bail to the
applicant under Sections 302, 307, 504 of
The Indian Penal Code (hereinafter referred
to "IPC") and Section 7 Criminal Law
Amendment Act, under Section 167(2) of
Cr.P.C.

2. T he applicant has filed an
application for release on default bail on
7.7.2021 under proviso to Section 167(2) of
Cr.P.C.
before
the
Chief
Judicial
Magistrate, Allahabad, alleging that nonfiling of charge-sheet within 90 days, the
applicant/accused to be released on bail
under Sections 302, 307, 504 under proviso
to Section 167(2) of Cr.P.C.

BRIEF FACTS OF THE CASE:

3. The Prosecution case, in brief is
that the First Information Report dated
15.02.2021, has been registered against the
applicant under Section 302, 307, 504 of
IPC and Section 7 of the Criminal Law
(Amendment) Act, 1932 stating therein that
on 15.02.2021, at about 12:00 noon,
applicant came by his motorcycle bearing
registration no. U.P. - 70 FC 3683 (Bajaj
Pulsar Blue and Black) to the betel shop of
the first informant, which had been opened
by the son of the first informant Shobhit @
Bholu at 10:00 A.M. and he was working at
his shop, which is situated at Bajrang
crossing Allahpur, Police Station - George
Town, District Prayagraj. All of sudden, the
applicant abuses his son, when his son
Shobhit @ Bholu, Satyam, and Raju
Kesarwani,
who
were
present
there
obstructed the applicant, then the applicant
shot fired by his revolver to his son and the
fired shot hit on his stomach and the second
fire made by the applicant hit Satyam and
he has also injured, after that, the applicant
fled away from the incident place after
firing in the air. Raju Kesarwani informed
the first informant, the first informant took
Shobhit and Satyam to the Swarup Rani
Nehru Hospital, Prayagraj and on the way,
Shobhit @ Bholu has died and the
treatment of Satyam is going on.

4. The applicant Prateek Shukla was
produced
before
the
Chief
Judicial
Magistrate, Allahabad on 16.2.2021 in
connection with Crime No. 60 of 2021
registered at P.S. George Town, Prayagraj,
relating to the offences punishable under
Sections 302, 307, 504 I.P.C., and Section
7 of the Criminal Law (Amendment) Act.
He was remanded to judicial custody till
17.5.2021. His remand was extended under
Section 167 of the Code from time to time,
and the last remand under the said
provision was granted till 17.5.2021. On
17.5.2021, Police Report under Section
173(2) of the Code had been submitted by
the
Investigating
Officer
before
the
concerned Magistrate and cognizance has
been taken by the concerned Magistrate.
On 7.7.2021, the applicant moved an
application under Section 167 (2) read with
Section 209 of Cr.P.C. for setting aside the
order dated 17.5.2021 before the Chief
Judicial Magistrate, Allahabad, and seeking
bail on the ground that he was entitled to be
released on bail under Section 167(2) of the
Code.

5. On 13.7.2021, the aforesaid
application has been rejected by the Chief
Judicial Magistrate and the case was
committed to the Court of Sessions Judge,
which is pending in the court of Additional
Sessions Judge Court No. 16 Allahabad.
Hence, the instant application has been
filed to set aside the order dated 13.7.2021
passed by the Chief Judicial Magistrate and
1 All. Prateek Shukla Vs. State of U.P. & Ors.
403
release the applicant under Section 167(2)
of the Code.

6. Heard, Sri Prem Prakash Yadav,
learned Senior Counsel assisted by Sri
Hemant
Kumar
Srivastava
for
the
applicant, learned counsel for the opp.
party no. 2 Sri Nirbhay Singh and Sri
Manoj Kumar Dwivedi learned A.G.A. for
the State and perused the material on
record.

SUBMISSIONS
OF
THE
PARTIES:

7. Learned counsel for the applicant
submits that the charge-sheet has been
submitted
on
17.05.2021
by
the
Investigating Officer after the expiry of 90
days and the investigation could not be
completed in time. It has been further
submitted that the period of 90 days for
filing of charge-sheet was completed on
16.5.2021 on the next day i.e. 17.5.2021 the
charge-sheet was filed before the concerned
Magistrate. The cognizance order dated
17.5.2021
has
been
passed
by
the
concerned Magistrate without considering
the provision of Section 167(2) of Cr.P.C..
The
concerned
Magistrate
illegally
condoned one day delay under Section 471
of Cr.P.C. The judicial custody/remand of
the applicant after 16.5.2021 is illegal.

8. Learned counsel for the applicant
further submitted that the cognizance order
dated 17.5.2021 has been passed without
considering the provision of Section 167(2)
of Cr.P.C. which is beyond his jurisdiction
and also in violation of Article 21 of the
Constitution of India and rejected the
application of the applicant dated 7.7.2021
vide order dated 13.7.2021 and wrongly
calculated the time and condoned of one
day delay under Section 471 of Cr.P.C.
illegally. The judicial custody/remand of
the applicant after 17.5.2021 is illegal.
According to the learned counsel for the
applicant, the expression "shall be released
on bail" in the proviso to sub-section (2) of
Section 167 of the Code not only confers
an indefeasible right on the accused but
also
casts
duty/obligation
on
the
Magistrate, since the Magistrate will not be
entitled to remand the accused any further.
In support of his submission he has placed
reliance upon the following judgments of
the Apex Court as well as This Court:

1. Rakesh Kumar Paul v. State of
Assam, (2017) 15 SCC 67 (Three-Judge).

2. Bikramjit Singh v. State of
Punjab, (2020) 10 SCC 616 (Three-Judge).

3. M. Ravindran v. Intelligence
Officer,
Directorate
of
Revenue
Intelligence, (2021) SCC 485 (ThreeJudge).

4. Sanjay Dutt v. State Through
CBI (STF) Bombay, (1994) 5 SCC 410.

5. Yadav Singh v. State of U.P.
And 2 Others in Application U/S 482 No. -
31498 of 2018 was decided on 11.09.2018
by the Division Bench of this Court.

6. Rajendra Singh Yadav @ Raju
Jahreela v. State of U.P. in Criminal Misc.
Bail Application No.- 24132 of 2021 was
decided on 16.07.2021 by the Coordinate
Bench of this Court.

9. Learned A.G.A. has vehemently
opposed the prayer of the applicant and
submitted that on 16.05.2021 was Sunday,
the court was closed due to Covid -19
404 INDIAN LAW REPORTS ALLAHABAD SERIES
pandemic therefore the charge sheet has
been submitted by the investigating officer
before
the
concerned
Magistrate
on
17.5.2021, the charge-sheet has been
submitted within 90 days, the concerned
Magistrate has rightly refused the bail
application under Section 167(2) of Cr.P.C.
In support of his submission learned
A.G.A. has placed reliance upon the Apex
Court judgment in the case of Sanjay Dutt
v. State Through CBI, Bombay, (1994) 5
SCC 410.

10. Admittedly, in the present case the
applicant is taken into judicial custody on
16.2.2021 by the Chief Judicial Magistrate.
On 17.5.2021, Police Report under Section
173(2) of the Code has been submitted by
the
investigating
officer
before
the
concerned Magistrate, and cognizance has
been taken. On 7.7.2021, the applicant
moved an application under Section 167(2)
of Cr.P.C. for set-aside the order dated
17.5.2021
before
the
Chief
Judicial
Magistrate, Allahabad and seeking bail
under Section 167(2) of the Code.

11. Thus the foremost questions to be
decided in the present case are:

(a) Whether the charge sheet
dated 17.5.2021 has been filed by the
investigating officer against the applicant
after the prescribed period of ninety days?

(b) Whether the applicant filed an
application for grant of default bail on
expiry of the period of ninety days before a
charge-sheet is filed?

12. The Code of Criminal Procedure
deals with the investigation of offence by
the police under Chapter XII. Section
167(2) Cr.P.C. under Chapter XII. It will be
useful to refer the section 167(2) of
Cr.P.C., which provides:

"Section 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
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, 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 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,-
1 All. Prateek Shukla Vs. State of U.P. & Ors.
405

(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.

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.

Explanation II.- If any question
arises whether an accused person was
produced before the Magistrate as
required under clause (b), the production of
the accused person may be proved by his
signature on the order authorising detention
or by the order certified by the Magistrate
as to production of the accused person
through the medium of electronic video
linkage, as the case may be.

Provided further that in case of a
woman under eighteen years of age, the
detention shall be authorised to be in the
custody of a remand home or recognised
social institution."

(Sub- Sections 2A, 3, 4, 5 and 6,
Sub-clauses (b) and (c) of the proviso are
not relevant now and hence they are not
mentioned)

13. The proviso (a) (i) to sub-section
(2) of Section 167 of the Code provides
that the Magistrate shall not authorise the
detention of an accused in custody in which
the investigation relates to the offence
punishable with death, imprisonment for
life or imprisonment for a term of not less
than ten years and if the investigation is not
completed within ninety days, the accused
shall be entitled to be released on bail.
Proviso (a) further provides that the
accused person shall be released on bail if
he is prepared to and does furnish bail.
There cannot be any dispute that on expiry
of the period indicated in the proviso (a) to
sub-section (2) of Section 167 of the Code
the accused has to be released on bail if he
is prepared to and does furnish the bail.

14. The Constitution Bench of the
Supreme Court explained the meaning of
the expression "indefeasible right" of the
accused and considered the scope of
Section 167(2) of the Code in Sanjay Dutt
v. State through CBI, Bombay, (1994) 5
406 INDIAN LAW REPORTS ALLAHABAD SERIES
SCC 410, has observed as under: [SCC p.
442 - 444 para 48, 53, 53(2)(b)]

"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 filling 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 CrPC ceases to apply. The Division
Bench also indicated that if there be such
an application of the accused for release on
bail and also a prayer for extension of time
to complete the investigation according to
the proviso in Section 20(4)(bb), both of
them should be considered together. It is
obvious that no bail can be given even in
such a case unless the prayer for extension
of the period is rejected. In short, the grant
of bail in such a situation is also subject to
refusal of the prayer for extension of time,
if such a prayer is made. If the accused
applies for bail under this provision on
expiry of the period of 180 days or the
extended period, as the case may be, then
he has to be released on bail forthwith. The
accused, so released on bail may be
arrested
and
committed
to
custody
according to the provisions of the Code of
Criminal Procedure. It is settled by
Constitution Bench decisions that a petition
seeking the writ of habeas corpus on the
ground of absence of a valid order of
remand or detention of the accused, has to
be dismissed, if on the date of return of the
rule, the custody or detention is on the
basis of a valid order. (See Naranjan Singh
Nathawan v. State of Punjab1, Ram
Narayan Singh v. State of Delhi2 and A.K.
Gopalan v. Government of India3)

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

53.2(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 Thakur4 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
1 All. Prateek Shukla Vs. State of U.P. & Ors.
407
the time of filing of the challan only by the
provisions relating to the grant of bail
applicable at that stage."

(Emphasis added)

15. Majority opinion of a three Judge
Bench of the Supreme Court in the case of
Uday Mohanlal Acharya v. State of
Maharashtra, (2001) 5 SCC 453 by
observing thus: (SCC p. 469 para 13)

"13.....A
conspectus
of
the
aforesaid
decisions
of
this
Court
unequivocally
indicates
that
an
indefeasible right accrues to the accused
on the failure of the prosecution to file the
challan within the period specified under
sub-section (2) of Section 167 and right can
be availed of by the accused if he is
prepared to offer the bail and abide by the
terms
and
conditions
of
the
bail,
necessarily, therefore, an order of the court
has to be passed. It is also further clear
that the indefeasible right does not survive
or remain enforceable on the challan being
filed, if already not availed of, as has been
held by the Constitution Bench in Sanjay
Dutt case5. 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.
Rustom6 setting aside the order of grant of
408 INDIAN LAW REPORTS ALLAHABAD SERIES
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 Dutt7. We
would be failing in our duty if we do not
notice the decisions mentioned by the
Constitution Bench in Sanjay Dutt case
which decisions according to the learned
counsel, appearing for the State, clinch the
issue......

.....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 authoring 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. It is in this sense it can be stated that
if after expiry of the period, an application
for being released on bail is filed, and the
accused offers to furnish the bail and
thereby avail of his indefeasible right and
then an order of bail is passed on certain
terms and conditions but the accused fails
to furnish the bail, and at that point of time
a challan is filed, then possibly it can be
said that the right of the accused stood
extinguished. 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:

1. Under sub-section (2) of
Section 167, a Magistrate before whom an
accused is produced while the police is
investigating into the offence can authorise
detention of the accused in such custody as
the Magistrate thinks fit for a term not
exceeding 15 days on the whole.

2. Under the proviso to the
aforesaid sub-section (2) of Section 167,
the Magistrate may authorise detention of
the accused otherwise than in the custody
of police for a total period not exceeding
90 days where the investigation relates to
offence
punishable
with
death,
imprisonment for life or imprisonment for a
term of not less than 10 years, and 60 days
1 All. Prateek Shukla Vs. State of U.P. & Ors.
409
where the investigation relates to any other
offence.

3. On the expiry of the said
period of 90 days or 60 days, as the case
may be, an indefeasible right accrues in
favour of the accused for being released on
bail on account of default by the
investigating agency in the completion of
the
investigation
within
the
period
prescribed and the accused is entitled to be
released on bail, if he is prepared to and
furnishes the bail as directed by the
Magistrate.

4. When an application for bail is
filed by an accused for enforcement of his
indefeasible right alleged to have been
accrued in his favour on account of default
on the part of the investigating agency in
completion of the investigation within the
specified period, the Magistrate/court must
dispose of it forthwith, on being satisfied
that in fact the accused has been in custody
for the period of 90 days or 60 days, as
specified and no charge-sheet has been
filed by the investigating agency. Such
prompt action
on
the
part
of
the
Magistrate/court will not enable the
prosecution to frustrate the object of the
Act and the legislative mandate of an
accused being released on bail on account
of the default on the part of the
investigating agency in completing the
investigation within the period stipulated.

5. If the accused is unable to
furnish the bail as directed by the
Magistrate, then on a conjoint reading of
Explanation I and the proviso to subsection (2) of Section 167, the continued
custody of the accused even beyond the
specified period in para (a) will not be
unauthorised, and therefore, if during that
period the investigation is complete and
the charge-sheet is filed then the so-called
indefeasible right of the accused would
stand extinguished.

6. The expression "if not already
availed of" used by this Court in Sanjay
Dutt case 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."

(Emphasis added)

16. In the decision rendered by threeJudge Bench of the Supreme Court in the
case of Bikramjit Singh v. State of
Punjab, (2020) 10 SCC 616, after
extensively referring to Rakesh Kumar
Paul v. State of Assam8, majority opinion
of a three Judge Bench it is held as under:
(SCC p. 648-51, para 33, 36, 37)

"33. In a fairly recent judgment
reported as Rakesh Kumar Paul v. State of
Assam9, a three-Judge 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
410 INDIAN LAW REPORTS ALLAHABAD SERIES
granted. This was stated in Lokur, J.'s
judgment as follows: (SCC pp. 98-99 and
101-102, paras 37-41,45-47 & 49)

"37. This Court had occasion to
review the entire case law on the subject
in Union of India v. Nirala Yadav10. In
that decision, reference was made to
Uday Mohanlal Acharaya v. State of
Maharashtra11
and
the
conclusion
arrived at in that decision. We are
concerned with Conclusion (3) which
reads as follows: (Nirala Yadav case,
SCC p. 472, para 24)

'24..."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
Magistrate." (Uday Mohanlal case12, SCC,
p. 473, para 13)

38. This Court also dealt with
the decision rendered in Sanjay Dutt13
and noted that the principle laid down
by 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 Maharashtra14 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 charge-sheet of challan expires
and the submission of the charge-sheet or
challan in court.

Procedure for obtaining default
bail

40. In the present case, it was
also argued by the 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 11.1.2017 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 11.1.2017 did
advert to the statutory period for filing a
charge-sheet having expired and that
perhaps no charge-sheet had in fact being
filed. In any event, this issue was argued by
the learned counsel for the petitioner in the
High Court and it was considered but not
accepted by the High Court. The High
1 All. Prateek Shukla Vs. State of U.P. & Ors.
411
Court15 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 can not 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 on no
consequence. The court concerned 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.

41. We take this view, keeping in
mind that in matters of personal liberty and
Article 21 of the Constitution, it is not
always advisable to be formalistic or
technical. The history of the personal
liberty jurisprudence of this Court and
other
constitutional
courts
includes
petitions for a writ of habeas corpus and
for other writs being entertained even on
the basis of a letter addressed to the Chief
Justice or the Court.

Application of the law to the
petitioner

45. On 11.1.2017 Rakesh Kumar
Paul v. State of Assam16, when the High
Court dismissed the application for bail
filed by the petitioner, he had an
indefeasible right to the grant of "default
bail" since the statutory period of 60 days
for filing a charge-sheet had expired, no
charge-sheet or challan had been filed
against him (it was filed only on 24.1.2017)
and the petitioner had orally applied for
"default bail". Under these circumstances,
the only course open to the High Court on
11.1.2017 was to enquire from the
petitioner whether he was prepared to
furnish bail and if so then to grant him
"default bail" on reasonable conditions.
Unfortunately,
this
was
completely
overlooked by the High Court.

46. It was submitted that as of
today, a charge-sheet having been filed
against the petitioner, he is not entitled to
"default bail" but must apply for regular
bail - the "default bail" chapter being now
closed. We cannot agree for the simple
reason that we are concerned with the
interregnum
between
4.1.2017
and
24.1.2017 when no charge-sheet had been
filed, during which period he had availed
of his indefeasible right of "default bail". It
would have been another matter altogether
if the petitioner had not applied for "default
bail" for whatever reason during this
interregnum. There could be a situation
(however rare) where an accused is not
prepared to be bailed out perhaps for his
personal security since he or she might be
facing some threat outside the correction
home or for any other reason. But then in
such an event, the accused voluntarily gives
up the indefeasible right for default bail
and having forfeited that right the accused
cannot, after the charge-sheet or challan
has been filed, claim a resuscitation of the
indefeasible right. But that it is not the case
insofar as the petitioner is concerned, since
he did not give up his indefeasible right for
"default bail" during the interregnum
between 4.1.2017 and 24.1.2017 as is
evident from the decision of the High Court
412 INDIAN LAW REPORTS ALLAHABAD SERIES
rendered on 11.1.2017. On the contrary, he
had availed of his right to "default bail"
which could not have been defeated on
11.1.2017 and which we are today
compelled to acknowledge and enforce.

47.