# Varun Tiwari v. State of U.P

- **Citation:** (2021) 11 ILRA 423
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-02
- **Case number:** U/S 482/378/407 . No. 4064 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/varun-tiwari-v-state-of-u-p-46571
- **Pages:** 6

## Headnote

Law
-
Code
of
Criminal
Procedure,1973 - Section 167 (2) - Application
for default bail rejected-despite expiry of 90
days
and
chargesheet
not
submittedchargesheet was submited on the same day but
subsequent to filing of the Application u/s 167
(2) of the Cr.P.C.-right of the Applicant accrued
immediately after filing such application -since
chargesheet not filed in time-impugned order
quashed-learned trial Court directed to release
the Applicant on bail.

Held, In view of the above, I find that the order
passed by the learned trial court dated 7.6.2021 is
patently illegal and unwarranted inasmuch as the
appropriate order in an application u/s 167(2) Cr.P.C.
must have been disposed of promptly and such
application should have not been treated as if ti is a
regular bail application filed by the applicant. Had it
been a regular bail application, such application
should have been presented before the learned
Sessions Court then it should be heard by the trial
court which is special court in the present case but so
far as the issue of default bail is concerned, it should
be decided by the learned trial court inasmuch as the
charge-sheet is presented by the prosecution before
the trial court. Further, the fact as to whether the
mandatory period of filing charge-sheet as per section
167(1) has expired or not can only be seen by the
learned trial court and if after expiry of such
mandatory period and till the filing of an appropriate
application u/s 167(2) Cr.P.C. the charge-sheet has
not been filed, even the learned trial court should not
extend the remaining period and if any request on
behalf of accusedapplicant is made by his counsel
even orally to the extent that he is ready to submit
sureties / bail bonds as per satisfaction of the court
seeking default bail, the learned trial court may not
refuse bail to the accused as the right of default bail
emanates from Article 21 of the Constitution of India
which guarantees right to life and personal liberty.
(para 14) (E-9)

List of Cases cited:

## Text

11 All. Varun Tiwari Vs. State of U.P.
423
----------
(2021)11ILR A423
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.11.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

U/S 482/378/407 . No. 4064 of 2021

Varun Tiwari ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Arun Sinha, Ram Chandra Singh, Umang Agarwal

Counsel for the Opposite Party:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,1973 - Section 167 (2) - Application
for default bail rejected-despite expiry of 90
days
and
chargesheet
not
submittedchargesheet was submited on the same day but
subsequent to filing of the Application u/s 167
(2) of the Cr.P.C.-right of the Applicant accrued
immediately after filing such application -since
chargesheet not filed in time-impugned order
quashed-learned trial Court directed to release
the Applicant on bail.

Held, In view of the above, I find that the order
passed by the learned trial court dated 7.6.2021 is
patently illegal and unwarranted inasmuch as the
appropriate order in an application u/s 167(2) Cr.P.C.
must have been disposed of promptly and such
application should have not been treated as if ti is a
regular bail application filed by the applicant. Had it
been a regular bail application, such application
should have been presented before the learned
Sessions Court then it should be heard by the trial
court which is special court in the present case but so
far as the issue of default bail is concerned, it should
be decided by the learned trial court inasmuch as the
charge-sheet is presented by the prosecution before
the trial court. Further, the fact as to whether the
mandatory period of filing charge-sheet as per section
167(1) has expired or not can only be seen by the
learned trial court and if after expiry of such
mandatory period and till the filing of an appropriate
application u/s 167(2) Cr.P.C. the charge-sheet has
not been filed, even the learned trial court should not
extend the remaining period and if any request on
behalf of accusedapplicant is made by his counsel
even orally to the extent that he is ready to submit
sureties / bail bonds as per satisfaction of the court
seeking default bail, the learned trial court may not
refuse bail to the accused as the right of default bail
emanates from Article 21 of the Constitution of India
which guarantees right to life and personal liberty.
(para 14) (E-9)

List of Cases cited:

1. Sanjay Dutta Vs St. reported in (1994) 5 SCC 410

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

3. Bikramjit Singh Vs St. of Punj. (2020) Supreme
Court Cases 616

4. M. Ravindran Vs The Intelligence Officer,
Directorate of Revenue Intelligence passed in Criminal
Appeal No. 699 of 2020 arising out of S.l.P. (Criminal)
No. 2333 of 2020 decided on 26.10.2020

(Delivered by Hon'ble Rajesh Singh Chauhan, J.)

1. Heard Sri Arun Sinha, learned counsel
for the applicant and Sri Anurag Verma, learned
AGA-I for the State.

2. The precise question for consideration in
this petition is as to whether the accused has an
indefeasible right to 'compulsive bail' i.e.
'default bail' under proviso to section 167(2)
Cr.P.C. on the expiry of the period of 90 days,
(or 60 days as the case may be), if the chargesheet has not been filed within aforesaid
stipulated time.

3. So as to answer this question some facts
in brief of the case are required to be considered.

4. The present applicant is an accused in
Sessions Trial No. 669/2021, Crime No.
23/2021, u/s 342, 376D, 372, 506 IPC, & section
424 INDIAN LAW REPORTS ALLAHABAD SERIES
5/6 POCSO Act, P.S. Mahanagar, District
Lucknow. He was sent to judicial custody on
14.1.2021.

5. As per learned counsel for the applicant
this is a case wherein the investigation should be
completed within a period of 90 days and
charge-sheet should have been filed within
aforesaid period under section 167 Cr.P.C.

6. The aforesaid 90 days period has
expired on 14.4.2021 but no charge sheet has
been filed before the learned trial court i.e.
Special Judge, POCSO Act, Lucknow.

7. On 22.4.2021 an application under
section 167(2) Cr.P.C. was filed before the
learned trial court through physical filing.
However, at that point of time filing of physical
application was not allowed in terms of
restriction being imposed by the High Court as a
Covid -19 Protocol. Thereafter, the petitioner
filed an online application. Learned counsel for
the applicant was appointed to file such
application before the learned Court of Sessions
Judge as this is a case relating to session trial.
Learned counsel for the applicant has filed the
certified copy of those applications with this
petition as Annexure no. 7 and Annexure no. 8.
Both the applications are of 22.4.2021. In both
the applications before the learned trial court and
before the learned sessions court it has been
indicated that after expiry of 90 days period no
charge-sheet has been filed, therefore, the
applicant may be granted bail under section
167(2) Cr.P.C. as 'default bail'.

8. Per contra, Sri Anurag Verma, learned
AGA-I has submitted that even if the applicant
has filed an application under section 167(2)
Cr.P.C. on 22.4.2021, he would not be entitled
for default bail under section 167(2) inasmuch as
the charge-sheet was filed before the learned
trial court on 22.4.2021 and the cognizance
thereof has been taken. Therefore, in view of the
decision of Apex Court in re: Sanjay Dutta vs.
State reported in (1994) 5 SCC 410 the benefit
of default bail may not be extended to the
present applicant. Replying to the aforesaid
objection being made by learned AGA -I, Sri
Sinha, learned counsel for the applicant has cited
some decisions of Apex Court i.e. Uday
Mohanlal Acharya vs. State of Maharashtra
(2001) 5 SCC 453, Bikramjit Singh vs. State of
Punjab (2020) 10 Supreme Court Cases 616
and M. Ravindran vs. The Intelligence Officer,
Directorate of Revenue Intelligence passed in
Criminal Appeal No. 699 of 2020 arising out of
S.l.P. (Criminal) No. 2333 of 2020 decided on
26.10.2020.

9. Sri Sinha has submitted that the
judgment of Apex Court in re: Sanjay Dutta
(supra) would not be applicable in the present
case inasmuch as in the case of Sanjay Dutta
(supra) the challan was presented by the
prosecution on 25.3.2019 and application u/s
167(2) was filed on the next date i.e. 26.3.2019.
Whereas in the present case the charge-sheet
was presented by the prosecution on 22.4.2021
subsequent to the application u/s 167(2) has
been filed on the same day i.e. 22.4.2021.
Therefore, the right of the present applicant
accrued immediately after filing such application
under section 167(2) since the charge-sheet was
not filed by that time.

10. It would be apt to consider some recent
cases of the Apex Court whrein the quashing of
default bail has been considered :

Saravanan vs State Rep. By The
Inspector Of ... on 15 October, 2020

CRIMINAL APPEAL NOS. 681682
OF 2020 (Arising from S.L.P. (Criminal)
Nos.43864387/2020)

Para 9. ".........................in the case of
Rakesh Kumar Paul (supra), where the
investigation is not completed within 60 days or
11 All. Varun Tiwari Vs. State of U.P.
425
90 days, as the case may be, and no chargesheet
is filed by 60 th or 90th day, accused gets an
"indefeasible right" to default bail, and the
accused becomes entitled to default bail once the
accused applies for default bail and furnish bail.
Therefore, the only requirement for getting the
default bail/statutory bail under Section 167(2),
Cr.P.C. is that the accused is in jail for more
than 60 or 90 days, as the case may be, and
within 60 or 90 days, as the case may be, the
investigation
is
not
completed
and
no
chargesheet is filed by 60th or 90th day and the
accused applies for default bail and is prepared
to furnish bail. No other condition of deposit of
the alleged amount involved can be imposed.
Imposing such a condition while releasing the
accused on default bail/statutory bail would
frustrate the very object and purpose of default
bail under Section 167(2), Cr.P.C. As observed
by this Court in the case of Rakesh Kumar Paul
(supra) and in other decisions, the accused is
entitled to default bail/statutory bail, subject to
the eventuality occurring in Section 167,
Cr.P.C., namely, investigation is not completed
within 60 days or 90 days, as the case may be,
and no chargesheet is filed by 60 th or 90th day
and the accused applies for default bail and is
prepared to furnish bail.

Bikramjit Singh vs The State Of
Punjab on 12 October, 2020

CRIMINAL APPEAL NO. 667 OF
2020 (@ Special Leave Petition (Crl.) No. 2933 of
2020)

Para 11. Section 167 of the Code makes
it clear that whenever a person is arrested and
detained in custody, the time for investigation
relating to an offence punishable with death,
imprisonment for life or imprisonment for a term
of not less than 10 years, cannot ordinarily be
beyond the period of 15 days, but is extendable, on
the Magistrate being satisfied that adequate
grounds exist for so doing, to a maximum period of
90 days - See first proviso (a)(i) to Section 167(2)
of the Code. The said proviso goes on to state that
the accused person shall be released on bail if he
is prepared to and does furnish bail on expiry of
the maximum period of 90 days, and every person
so released on bail be deemed to be so released
under the provisions of Chapter XXXIII for the
purposes of that Chapter.

Para 24. ".............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 chargesheet 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.

Para 29"..........The right to default
bail, as has been correctly held by the judgments
of this Court, are not mere statutory rights
under the first proviso to Section 167(2) of the
Code, but is part of the procedure established by
law under Article 21 of the Constitution of India,
which is, therefore, a fundamental right granted
to an accused person to be released on bail once
the conditions of the first proviso to Section
167(2) are fulfilled."

S. Kasi vs State Through The
Inspector Of ... 19 June, 2020

CRIMINAL APPEAL NO. 452 OF
2020 (ARISING OUT OF SLP (CRL.)
NO.2433/2020)
426 INDIAN LAW REPORTS ALLAHABAD SERIES

Para 12. ".........there has been very
detailed consideration of Section 167 by a
Three-Judge Bench of this Court in Rakesh
Kumar Paul versus State of Assam, (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 emptice 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 or challan expires and the
submission of the charge-sheet or challan in
court."hasised 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 right for default bail is an indefeasible
right which cannot be allowed to be frustrated
by the prosecution. Following was laid down in
paragraphs 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, (2014) 9 SCC
457. In that decision, reference was made to
Uday
Mohanlal
Acharya
v.
State
of
Maharashtra, (2001) 5 SCC 453 and the
conclusions arrived at in that decision. We are
concerned with Conclusion (3) which reads as
follows:

"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, (1994) 5 SCC
410 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.tice 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
or challan expires and the submission of the
charge-sheet or challan in court."

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, (1996) 1 SCC 722 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
or challan expires and the submission of the
charge-sheet or challan in court."
11 All. Varun Tiwari Vs. State of U.P.
427

11. Having heard learned counsel for the
parties and having perused the material available
on record as well as the aforesaid decisions of
the Apex Court, I am of the considered opinion
that the right of the accused under section 167(2)
if by that time the charge-sheet has not been
filed by the prosecution within stipulated period
so indicated under section 167(1). The Apex
Court in Bikramjit Singh (supra) has held vide
para 29 that an accused must be held to have
availed all his right flowing from the legislative
mandate engrafted in the proviso to sub-section
(2) of Section 167 Cr.P.C. 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. Such
interpretation would sub-serve the purpose and
the object for which the provision in question
was brought on to the statutory-book. In the
same para the Apex Court has also held that
even if the application for consideration of an
order of being released on bail is posted before
the court after some length of time, or even if the
Magistrate refuses the application erroneously
and the accused moves the higher forum for
getting a formal order of being released on bail
in enforcement of his indefeasible right, then
filing of challan at that stage will not take away
the right of the accused.

12. The ratio of judgment of Apex Court in
re: Sanjay Dutta (supra) would not be
applicable in the present case inasmuch as the
application under section 167(2) was filed on the
next day after filing the challan by the
prosecution, whereas in the instant case the
application under section 167(2) was filed on the
same day i.e. 22.4.2021, by that time the chargesheet was not presented by the prosecution
before the learned trial court. However, it was
presented on the same day i.e. 22.4.2021 and the
learned trial court took cognizance thereof.

13. The Apex Court in re: M. Ravindran
(supra) has held in para 18 and 18.1 as under :

"18. Therefore, in conclusion

18.1 Once the accused files an
application for bail under the Proviso to Section
167(2) he is deemed to have 'availed of or
enforced his right to be released on default bail,
accruing after expiry of the stipulated time limit
for investigation. Thus, if the accused applies for
bail under Section 167(2), Cr.P.C. read with
Section 35A (4), NDPS Act upon expiry of 180
days or the extended period, as the case may be,
the Court must release him on bail forthwith
without any unnecessary delay after getting
necessary
information
from
the
public
prosecutor, as mentioned supra. Such prompt
action will restrict the prosecution from
frustrating the legislative mandate to release the
accused on bail in case of default by the
investigative agency."

14. In view of the above, I find that the order
passed by the learned trial court dated 7.6.2021 is
patently illegal and unwarranted inasmuch as the
appropriate order in an application u/s 167(2)
Cr.P.C. must have been disposed of promptly and
such application should have not been treated as if
ti is a regular bail application filed by the
applicant. Had it been a regular bail application,
such application should have been presented
before the learned Sessions Court then it should be
heard by the trial court which is special court in the
present case but so far as the issue of default bail is
concerned, it should be decided by the learned trial
court inasmuch as the charge-sheet is presented by
the prosecution before the trial court. Further, the
fact as to whether the mandatory period of filing
charge-sheet as per section 167(1) has expired or
not can only be seen by the learned trial court and
if after expiry of such mandatory period and till the
filing of an appropriate application u/s 167(2)
Cr.P.C. the charge-sheet has not been filed, even
the learned trial court should not extend the
428 INDIAN LAW REPORTS ALLAHABAD SERIES
remaining period and if any request on behalf of
accused-applicant is made by his counsel even
orally to the extent that he is ready to submit
sureties / bail bonds as per satisfaction of the court
seeking default bail, the learned trial court may not
refuse bail to the accused as the right of default
bail emanates from Article 21 of the Constitution
of India which guarantees right to life and personal
liberty. Such liberty guaranteed under chapter 3 of
the Constitution of India may not be circumvented,
ignored or violated by the learned trial court.

15. Accordingly, the petition u/s 482 Cr.P.C.
is allowed.

16. The order dated 7.6.2021 passed by the
Special Judge, POCSO Act / Additional Sessions
Judge, Lucknow rejecting the bail application of
the applicant u/s 167(2) Cr.P.C. is hereby
quashed.

17. The learned trial court is directed to
release the present applicant on default bail u/s
167(2) Cr.P.C. in S.T. No. 669/2021, Crime No.
23/2021, u/s 342, 376D, 372, 506 IPC & Section
5/6 POCSO Act, P.S. Mahanagar, District
Lucknow in the case 'The State vs. Upreta Kumar
Rasail & others, pending in the court of Special
Judge, POCSO Act, Lucknow on on his furnishing
a personal bond and two sureties each in the like
amount to the satisfaction of the court concerned
with the following conditions which are being
imposed in the interest of justice:-

(i)
The
applicant
shall
file
an
undertaking to the effect that he shall not seek any
adjournment on the dates fixed for evidence when
the witnesses are present in court. In case of
default of this condition, it shall be open for the
trial court to treat it as abuse of liberty of bail and
pass orders in accordance with law.

(ii) The applicant shall remain present
before the trial court on each date fixed, either
personally or through his counsel. In case of his
absence, without sufficient cause, the trial court
may proceed against him under Section 229-A of
the Indian Penal Code.

(iii) In case, the applicant misuses the
liberty of bail during trial and in order to secure his
presence proclamation under Section 82 Cr.P.C. is
issued and the applicant fails to appear before the
court on the date fixed in such proclamation, then,
the trial court shall initiate proceedings against
him, in accordance with law, under Section 174-A
of the Indian Penal Code.

(iv) The applicant shall remain present,
in person, before the trial court on the dates fixed
for (i) opening of the case, (ii) framing of charge
and (iii) recording of statement under Section 313
Cr.P.C. If in the opinion of the trial court absence
of the applicant is deliberate or without sufficient
cause, then it shall be open for the trial court to
treat such default as abuse of liberty of bail and
proceed against him in accordance with law.

18. Before parting with it is to mention that
useful assistance has been provided by Ms. Shama
Parveen, Law Clerk and Mr. Vaibhav Srivastava,
Law Intern.
----------

(2021)11ILR A428
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2021

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No.9361 of 2021

Yogendra Goswami ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Vineet Kumar Singh, Sri H.N. Singh(Sr.
Advocate), Sri Abhishek Dwivedi