# Vishu v. State of U.P. & Anr

- **Citation:** (2025) 1 ILRA 346
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-16
- **Case number:** Criminal Appeal No. 10939 of 2024
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishu-v-state-of-u-p-anr-52857
- **Pages:** 7

## Headnote

A. Criminal Law - The Scheduled Castes
and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 14-A(2) -
Appeal to the High Court against order
refusing bail - Right to default bail - Code
of Criminal Procedure, 1973 - Section
167(2)(a)(i)
-
No
Magistrate
shall
authorise the detention of the accused
person in custody for a total period
exceeding
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; and, on the expiry of the
said period of ninety days, the accused
person shall be released on bail if he is
prepared to and does furnish bail. Held: If
on either the 61st day or the 91st day, an
accused makes an application for being
released on bail in default of charge-sheet
having been filed, the court has no option
but to release the accused on bail.
However, once the charge-sheet is filed
within the stipulated period, the right of
the accused to statutory bail came to an
end and the accused would be entitled to
pray for regular bail on merits. Once the
charge-sheet is filed, the right to statutory
bail under proviso to Section 167(2)(a)
Cr.P.C. ceases and does not revive only
1 All. Vishu Vs. State of U.P. & Anr.
347
because a further investigation order is
pending or cognizance over the chargesheet has not been taken by the court
concerned. The statutory requirement
under Section 167 Cr.P.C. is only the filing
of the charge-sheet within the stipulated
time. There is no additional requirement
of cognizance having to be taken within
the period prescribed under proviso (a) to
Section 167(2) Cr.P.C., failing which the
accused would be entitled to default bail
even after filing of the charge-sheet
within the stipulated period.(Para 15, 16,
17)

B. Criminal Law - The Scheduled Castes
and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 14-A(2) -
Default bail - In the instant case, the
accused/appellant was detained in judicial
custody under Section 302 IPC and
Section 3(2)(v) of the SC/ST Act. First
remand was granted on 22.05.2024. On
submission of the charge-sheet, the court
passed an order for further investigation
vide order dated 03.08.2024. Application
for
statutory
bail
under
Section
167(2)(a)(i) Cr.P.C. dated 08.10.2024 was
moved before the court concerned, but
the same was rejected vide order dated
08.10.2024.Held: Once the charge-sheet is
filed within the stipulated period, the right
of the accused to statutory bail comes to
an end. Appeal dismissed. (Para 18)

Dismissed. (E-5)

List of Cases cited:

## Text

346 INDIAN LAW REPORTS ALLAHABAD SERIES
the other daughter was not sleeping with
him, whereas the P.W.2 had stated that, in
fact, she was sleeping on the cot in between
the P.W.1 and P.W.2. Normally, such a
contradiction could have been ignored, but
when P.W.1 was a lawyer and had a room
to himself to sleep in, he could not have
ignored the presence of a fully grown
daughter in his room. We are also
convinced that P.W.2 and P.W.3 were got
up witnesses, as they throughout stated that
they were present on the date of the
incident, but very irresponsibly, when they
were required to give their statements
before the police, they had disappeared.
This shows that the P.W.2 and P.W.3 were
in fact not there on the spot but
subsequently were brought into the picture.
It appears that in the FIR the name of
P.W.2 had not been mentioned because
P.W.1 was not confident that he would
appear on the scene and give his statement.
It was for a matter of fact that P.W.2 in fact
appeared only on 10.12.1982 and P.W. 3
appeared on 26.12.1982. In fact, the other
witness
on
whom
the
P.W.1
had
confidence, i.e., Jagat Veer etc., did not
appear in the witness box at all.

17. Under such circumstances, for all
the reasons we have given we are of the
view that the prosecution had not been able
to prove the charges as were framed against
the appellants. Also, we are of the view that
the presence of the P.W.2, was also very
doubtful. The appellant No. 1 has already
died; the appellant No. 2 is acquitted of the
charges as were leveled against him. The
appellant No. 2 is on bail; he need not to
surrender. Sureties be discharged.

18.
The
appeal
stands
allowed;
judgment and order dated 23.04.1984 are
set aside.
----------
(2025) 1 ILRA 346
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.01.2025

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 10939 of 2024

Vishu ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Atul Kumar

Counsel for the Respondents:
G.A.

A. Criminal Law - The Scheduled Castes
and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 14-A(2) -
Appeal to the High Court against order
refusing bail - Right to default bail - Code
of Criminal Procedure, 1973 - Section
167(2)(a)(i)
-
No
Magistrate
shall
authorise the detention of the accused
person in custody for a total period
exceeding
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; and, on the expiry of the
said period of ninety days, the accused
person shall be released on bail if he is
prepared to and does furnish bail. Held: If
on either the 61st day or the 91st day, an
accused makes an application for being
released on bail in default of charge-sheet
having been filed, the court has no option
but to release the accused on bail.
However, once the charge-sheet is filed
within the stipulated period, the right of
the accused to statutory bail came to an
end and the accused would be entitled to
pray for regular bail on merits. Once the
charge-sheet is filed, the right to statutory
bail under proviso to Section 167(2)(a)
Cr.P.C. ceases and does not revive only
1 All. Vishu Vs. State of U.P. & Anr.
347
because a further investigation order is
pending or cognizance over the chargesheet has not been taken by the court
concerned. The statutory requirement
under Section 167 Cr.P.C. is only the filing
of the charge-sheet within the stipulated
time. There is no additional requirement
of cognizance having to be taken within
the period prescribed under proviso (a) to
Section 167(2) Cr.P.C., failing which the
accused would be entitled to default bail
even after filing of the charge-sheet
within the stipulated period.(Para 15, 16,
17)

B. Criminal Law - The Scheduled Castes
and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 14-A(2) -
Default bail - In the instant case, the
accused/appellant was detained in judicial
custody under Section 302 IPC and
Section 3(2)(v) of the SC/ST Act. First
remand was granted on 22.05.2024. On
submission of the charge-sheet, the court
passed an order for further investigation
vide order dated 03.08.2024. Application
for
statutory
bail
under
Section
167(2)(a)(i) Cr.P.C. dated 08.10.2024 was
moved before the court concerned, but
the same was rejected vide order dated
08.10.2024.Held: Once the charge-sheet is
filed within the stipulated period, the right
of the accused to statutory bail comes to
an end. Appeal dismissed. (Para 18)

Dismissed. (E-5)

List of Cases cited:

1. Ritu Chhabaria Vs U.O.I., Writ Petition
(Criminal) No. 60 of 2023, dated 26.04.2023

2. Dinesh Dalmia Vs CBI, (2007) 8 SCC 770

3. Suresh Kumar Bhikamchand Jain Vs St of
Mah. & anr., (2013) 3 SCC 77

4. Serious Fraud Investigation Office Vs
Rahul Modi & ors., (2023) 15 SCC 311; 2022
SCC OnLine SC 153 (Criminal Appeal Nos.
185-186 of 2022, decided on 7th February,
2022)
(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Heard learned counsel for the
appellant, learned A.G.A. for the State and
perused the material available on record.

2. This criminal appeal under Section
14-A (2) of The Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act hereinafter referred as the SC/ST Act
has been preferred by the appellant- Vishu
against the order dated 08.10.2024 passed
by the learned Additional District &
Sessions Judge/Special Judge, SC/ST Act,
Muzaffarnagar whereby the application
under section 167 (2) (a) (i) Cr.P.C. moved
by the accused/appellant was rejected.

3. The matter as brought before this
Court, is that in a case under section 302
IPC which provides the punishment for
imprisonment for life or death sentence
alongwith fine, the first remand of the
accused was granted on 22.05.2024 which
was extended from time to time and nonsubmission
of
charge-sheet
within
a
statutory period of 90 days resulted into
accrual of right to statutory bail in favour
of the accused/appellant.

4. It is submitted by the learned
counsel for the accused/appellant that the
accused/appellant is detained in judicial
custody in case crime no. 117 of 2024
under section 302 IPC and section 3(2)(v)
of the SC/ST Act, Police Station Titavi,
District Muzaffar Nagar. His first remand
was granted by the court under section 167
Cr.P.C. on 22.05.2024 and since then he is
detained in jail. The Investigating Officer
of this case did not file charge-sheet even
after the lapse of 90 days and by virtue of
the provisions of section 167 (2) Cr.P.C. a
right to default bail accrued in favour of the
348 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant. On this ground an application for
statutory bail under section 167(2)(a)(i)
Cr.P.C dated 08.10.2024 was moved before
the court concerned but the same was
rejected vide order dated 08.10.2024 and it
was observed that since after submission of
charge-sheet the court had passed an order
for further investigation in the matter vide
order dated 03.08.2024 and regular bail
application of the accused/appellant was
pending before the High Court, his
application for default bail was liable to be
rejected. Resting on the aforesaid facts it is
vehemently submitted that the impugned
order is illegal and not sustainable and it
was passed in an arbitrary manner. The
accused/appellant is entitled for default bail
under the proviso to section 167(2) Cr.P.C.

5. Per contra, learned AGA has
opposed the prayer for default/statutory bail
and it has been contended that charge-sheet
in this matter was submitted by the
Investigating Officer on 03.08.2024 i.e.
before the expiry of statutory period. The
court concerned after perusing the entire
case diary and applying its judicial mind,
sent the matter for further investigation
with certain directions and the further
investigation is now completed. The first
remand of the accused/appellant was
granted on 22.05.2024 u/s. 302 IPC and
section 3(2)(v) of the SC/ST Act and since
charge-sheet was submitted on 03.08.2024
well within the period prescribed for an
offence
punishable
with
death,
imprisonment for life or imprisonment for a
term of not less then ten years as provided
under section 167 (2) (a) (i) of Cr.P.C, the
application for statutory bail was rightly
rejected by the court.

6. It is further submitted by learned
counsel for the State that since first remand
of accused/appellant was granted on
22.05.2024 and the charge-sheet was
submitted on 03.08.2024, no right for
default bail accrued in favour of the
accused/appellant in the light of the
provisions of section 167(2) Cr.P.C.

7. For the purpose of disposal of
instant appeal a perusal of provisions
envisaged under section 167(2) Cr.P.C. is
required which reads as under:-

"Section 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 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;

(i)
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
1 All. Vishu Vs. State of U.P. & Anr.
349
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."..............."

8.
Learned
counsel
for
the
accused/appellant has relied upon the
judgment of Hon'ble Apex Court in Ritu
Chhabaria Vs. Union of India, Writ
Petition (Criminal) No. 60 of 2023 decided
on 26th April, 2023.

9. In Ritu Chhabaria (Supra) the
Hon'ble
Supreme
Court
found
an
opportunity to deal with the issue which is
under consideration in the instant matter.
The Hon'ble Apex Court emphasized upon
protection of civil liberty of individuals in
the society at large and held that the relief
of statutory bail under section 167 (2)
Cr.P.C. is a fundamental right directly
flowing from Article 21 of the Constitution
of India. It was further observed that the
grant of remand beyond the statutory
period fixed under section 167 can lead to
serious abuse, as an arrested person can in
this manner be kept in custody indefinitely
while the investigation can go on in a
leisurely manner. The Hon'ble Apex Court
further observed that it is thus axiomatic
that first investigation is to be completed
and only then a chargesheet or a complaint
can be filed within the stipulated period and
failure to do so would trigger the statutory
right of default bail under Section 167(2) of
Cr.PC. In the case of Union Of India vs
Thamisharasi & Ors. (1995) 4 SCC 190,
which was a case under the Narcotic Drugs
and Psychotropic Substances Act, 1985, on
finding that the investigation was not
complete and a chargesheet was not filed
within the prescribed period, denial of
default bail was held to be in violation of
Article 21 of the Constitution of India and
it was further held that even the twin
limitations on grant of bail would not
apply.

10. A perusal of aforesaid decision of
Hon'ble Apex Court in Ritu Chhabaria
(Supra) reveals that the issue in that matter
was quite different from the present case.
The Hon'ble Apex Court in the said writ
reiterated the law over the subject that if
the charge-sheet is filed within the
stipulated period valuable right of statutory
bail is extinguished. At the same time it
was also noticed that the practice of filing
preliminary reports has now taken the form
of filing chargesheets without actually
completing the investigation, only to scuttle
the right of default bail and resultantly in
effect negates the purpose of introducing
provisions regarding default bail. In the
above mentioned matter before the Hon'ble
Apex
Court
some
supplementary
chargesheets were filed without completing
the investigation and in consequence
thereof the remand of the accused was
continued and he was not released on
default bail. This fact was also taken
cognizance of that investigation was still
pending as mentioned in the supplementary
350 INDIAN LAW REPORTS ALLAHABAD SERIES
chargesheet. It was in this backdrop of such
events the writ petition was allowed by the
Hon'ble Apex Court.

11. But the position in the case in hand
is different and the simple reason behind it
is that admittedly charge-sheet in this
matter was filed within statutory period and
it was not a preliminary or supplementary
charge-sheet.
The
charge-sheet
dated
12.07.2024 was filed under section 306 IPC
and section 3 (2) (v) of the SC/ST Act
before the court on 03.08.2024 after
concluding the investigation and no offence
under section 302 IPC was found to be
made out as mentioned in the charge-sheet
itself. It reveals from the perusal of record
that the trial court after examining the
charge-sheet without taking cognizance
over the same passed an order dated
03.08.2024 for further investigation in the
matter after noticing some lacunas and
omissions
in
the
investigation
and
subsequently further investigation was
culminated into charge-sheet. It is apparent
from the perusal of record that although
trial court found some slip and laxity on the
part of the Investigating Officer and for that
reason order for further investigation was
passed but in the charge-sheet itself it was
nowhere
mentioned
that
it
was
a
preliminary or supplementary charge-sheet
and any investigation was still pending
after submission of the charge-sheet. In
view of that it was the final outcome of
investigation which was now completed.

12. As noticed earlier the first remand
of the accused under section 167 Cr.P.C.
was granted by the court on 22.05.2024 and
since then the accused had been detained in
jail and the court used to grant further
remand to the accused on the request of the
Investigating Officer of the case. Since the
matter was pertaining to a case under
section 302 IPC and section 3(2)(v) of the
SC/ST Act wherein sentence of life
imprisonment/death sentence could be
passed the charge-sheet ought to have been
filed within 90 days from 22.05.2024. A
perusal of the record explicitly reveals that
charge-sheet was filed on 03.08.2024 under
section 306 IPC which was punishable with
imprisonment for a maximum period of ten
years alongwith section 3(2)(v) of the
SC/ST Act which was punishable with
imprisonment for life and with fine
meaning thereby that it was submitted well
before the stipulated period of 90 days.

13. From the submissions/contentions
raised by the rival sides particularly in the
given facts and circumstances of the instant
matter, two legal issues emerge out to be
examined by this Court firstly, as to
whether the charge-sheet will be presumed
as not to be submitted before the Court if
cognizance over the same was not taken
and secondly, what would be the effect of
the order of the Court for further
investigation into the matter after receiving
the charge-sheet with reference to the
instant matter.

14. The answer of the aforesaid
questions is found in Dinesh Dalmia Vs.
CBI (2007) 8 Supreme Court Cases 770
which reads as under:

"39. The statutory scheme does
not lead to a conclusion in regard to an
investigation leading to filing of final form
under Sub-section (2) of Section 173 and
further investigation contemplated under
Sub-section (8) thereof. Whereas only
when a charge sheet is not filed and
investigation is kept pending, benefit of
proviso appended to Sub-section (2) of
Section 167 of the Code would be available
to an offender. Once, however, a charge
1 All. Vishu Vs. State of U.P. & Anr.
351
sheet is filed, the said right ceases. Such a
right does not revive only because a further
investigation remains pending within the
meaning of Sub-section (8) of Section 173
of the Code."

15. Also, referring to an earlier
judgment
passed
in
Suresh
Kumar
Bhikamchand
Jain
Vs.
State
of
Maharashtra and Another (2013) 3 SCC
77 in Serious Fraud Investigation Office
Vs. Rahul Modi & Others (2023) 15 SCC
311, 2022 SCC Online SC 153 (Criminal
Appeal Nos. 185-186 of 2022, decided on
7th February, 2022) it has been expressly
held by the Hon'ble Supreme Court as
extracted below-

"9. The issue is squarely covered
by
a
judgment
of
this
Court
in
Bhikamchand Jain (supra), as contended by
the Appellant. It is necessary to closely
examine
the
judgment
passed
in
Bhikamchand Jain (supra). The petitioner
in the said case was arrested on 11.03.2012
on the allegation of misappropriation of
amounts meant for development of slums
in Jalgaon City. The petitioner therein was
accused of committing offences punishable
under Sections 120-B, 409, 411, 406, 408,
465, 466, 468, 471, 177 and 109 read with
Section 34, IPC and also under Sections
13(1)(c), 13(1)(d) and 13(2) of the
Prevention of Corruption Act, 1988. The
contention of the petitioner therein was that
he could not have been remanded to
custody in view of cognizance not being
taken for want of sanction within the
statutory period of 90 days. The scheme of
the provisions relating to remand of an
accused
first
during
the
stage
of
investigation
and
thereafter,
after
cognizance is taken, indicates that the
legislature intended investigation of certain
crimes to be completed within the period
prescribed therein, according to this Court
in Bhikamchand Jain (supra). This Court
held that in the event of investigation not
being completed by the investigating
authorities within the prescribed period, the
accused acquires an indefeasible right to be
granted bail, if he offers to furnish bail.
This Court was of the firm opinion that if
on either the 61st day or the 91st day, an
accused makes an application for being
released on bail in default of charge-sheet
having been filed, the court has no option
but to release the accused on bail.
However, once the charge- sheet was filed
within the stipulated period, the right of the
accused to statutory bail came to an end
and the accused would be entitled to pray
for regular bail on merits. It was held by
this Court that the filing of charge-sheet is
sufficient compliance with the provisions
of proviso (a) to Section 167(2), CrPC and
that taking of cognizance is not material to
Section 167."

16. The Hon'ble Apex Court further
proceeded to hold that in respect of the
issue of default bail under Section 167(2)
Cr.P.C there is no additional requirement of
cognizance having to be taken within the
period prescribed under Proviso (a) to
section 167(2) Cr.P.C., failing which the
accused would be entitled to default bail
even after filing of the charge-sheet within
the stipulated period.

17.
The
aforesaid
discussion
is
connotative to the fact that once the chargesheet is filed, the right to statutory bail
under Proviso to Section 167(a)(2) Cr.P.C.
ceases and does not revive only because a
further investigation order is pending or
cognizance over the charge-sheet has not
been taken by the court concerned. The
decisions of Hon'ble Apex Court in Dinesh
Dalmia (Supra) and Serious Fraud
352 INDIAN LAW REPORTS ALLAHABAD SERIES
Investigation Office (Supra) directly
apply to the facts and circumstances of the
case in hand. Charge-sheet in this matter as
a final outcome of investigation was
submitted
by
the
police
within
the
stipulated period of 90 days for the purpose
of the provisions of Proviso to Section
167(2) (a) (I) Cr.P.C. If the court did not
take cognizance over the same or the matter
was ordered for further investigation it does
not falsify the factum of submission of
charge-sheet within stipulated time. It is
avowed in the judicial dictums as narrated
above that it is never necessary for a court
to take cognizance of charge-sheet in any
condition because it is not a statutory
requirement under section 167 Cr.P.C. and
in fact the litmus test is only the filing of
charge-sheet within stipulated time and
nothing further. The questions formulated
above are answered accordingly.

18.
In
the
given
facts
and
circumstances of this case and also relying
upon the dictum of law promulgated by the
Hon'ble Apex Court in the judgments
referred hereinabove, this Court is of
considered view that the law submitted by
the learned counsel for the appellant in
Ritu Chhabaria (Supra) case does not
offer any help to the appellant. The appeal
is devoid of merit and deserves to be
dismissed. Hence, the appeal is accordingly
dismissed.
----------
(2025) 1 ILRA 352
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2024

BEFORE

THE HON'BLE VINOD DIWAKAR, J.

Criminal Revision Defective No. 753 of 2024

Shabana Bano ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Mujeeb Khan, Naveen Kumar

Counsel for the Opposite Parties:
G.A., M.A. Siddiqui

Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 125 & 397(1) -
Constitution of India, 1950 - Article 19 -
Enhancement of maintenance amount -
After
marriage,
respondent-husband
demanded
additional
dowry
-
When
demand not met, she was subjected to
cruelty, threats of divorce, etc. - Later on
revisionist served with Talaknama along
with copy of Mufti's decision. (Para 3, 5)

Revisionist filed complaint against her
husband and other family members under
sections of IPC and Domestic Violence Act,
thereafter
learned
Chief
Judicial
Magistrate
issued
summons
-
Order
challenged, matter stayed and referred to
Mediation with directions, proceedings
pending. (Para 6, 8, 9)

Maintenance Application dismissed for
want of prosecution - Revisionist filed
restoration
application,
dismissed
-
Second application filed, dismissed on
grounds of res judicata - Challenged
before
High
Court,
allowed
with
directions. (Para 10)

Family
Court issued
fresh
notice to
respondent, not appeared - Application
partly
allowed
ex-parte
granting
maintenance amount of Rs.20,000/- p.m,
not complied by respondent - Execution
Application
filed
-
Simultaneously,
revisionist challenged impugned order
through
present
petition
on
various
grounds. (Para 11, 12)

Held, learned Family Judge ascertained
respondent's income based on letter dated
30.6.2023,
concerning
Second
Pay
Commission's implementation report and
not
on
St.ment
of
revisionist
and