# 6 S.C.R. 148 UNION OF INDIA THROUGH CBI v. NIRALA Y,ADAV @ RAJA RAM YADAV @ DEEPAK YADAV

- **Citation:** [2014] 6 S.C.R. 148
- **Court:** Supreme Court of India
- **Decided:** 2014-06-30
- **Case number:** Criminal Appeal No. 786 of 2010
- **Bench:** Dipak Misra, N.V. Ramana
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/6-s-c-r-148-union-of-india-through-cbi-v-nirala-y-adav-raja-ram-yadav-deepak-30037
- **Pages:** 43

## Headnote

Code of Criminal Procedure, 1973 - s. 167(2) - Non
c filing of charge-sheet within the statutory period of 90 days of
arrest - Application u/s 167(2) for release on bail by accused
~ Subsequent application by CBI seeking extension of time
- Court not adverting to the application filed by accused for
grant of bail, rather asking defence to file rejoinder to
0
application for extension - Thereafter, filing charge-sheet and
rejection of application for grant of bail by the court - High
Court releasing the accused on baf/ holding that right had
already accrued to the respondent when he moved the
application for grant of bail - Justification of - Held: When the
E
charge-sheet is not filed, indefeasible right accrues to the
accused - Accused can avail his liberty only by filing
application u/s. 167(2) - It cannot be frustrated by the
prosecution on some pretext or the other - Once such an
application is filed, it is obligatory on the part of the court to
F
verify from the records as well as from the public prosecutor
whether the time has expired and the charge-sheet has been
filed or not or whether an application for extension which is
statutorily permissible, has been filed - On facts, the High
Court was justified in extending the benefit to the respondent
- The day the accused filed the application for benefit uls.
G
167, the Court required the accused to file a rejoinder affidavit
by the time the initial period provided under the statute had
expired -
There was no question of any contest as if the
application for extension had been filed prior to the expiry of
H
time - Adjournment by the Magistrate was misconceived -
148
U.0.1. THR. CBI v. NIRALA YADAV@ RAJA RAM
149
YADAV @ DEEPAK YADAV
He was obliged on that day to deal with the application filed
A
by the accused as required u/s. -167(2)- Such procrastination
frustrates the legislative mandate - Court cannot act to
extinguish the right of an accused if the law so confers on him
- Law has to prevail - Such act on the part of the prosecution
was not permissible.
B
The respondent was arraigned as an accused for the
offences punishable ulss. 302, 304, 353, 323, 149, 148 and
147 IPC, u/s. 27 of the Arms Act and u/s. 49(2)(b) of
Prevention of Terrorist Activities ActAor murder of 'SK',
Divisional Forest Officer. The local investigating agency
C
carried out the investigation. Thereafter, the investigation
was handed over to the Central Bureau of Investigation
(CBI). In course of investigation, the respondent was.
arrested and was sent to the judicial custody. The
statutory period of ninety days lapsed but the charge
D
sheet was not filed. The respondent filed an application
under .section 167(2) CrPC for release on bail on the
ground that in the absence of challan on record he was
entitled to be admitted to bail after completion of ninety
days from his date of arrest. The next day, CBI filed an
application u/s. 49(2)(b) of POTA seeking extension of
time for a periOd of thirty days, but on that day no order
was passed on that application and the Special Judge
asked the defence to file a reply in rejoinder to the
application for extension but did not pass any order on
E
F
the application for grant of bail. Thereafter, the Special
Judge extended the time for filing the charge-sheet. The
charge sheet was filed. The Special Judge rejected the
application of the respondent. The accused-respondent
approached the High Court. The High Court relying ·on
G
*Hitendra Vishnu Thakur's case **Uday Mohanlal
Acharya's case held that the right had already accrued
to the respondent when he had moved the application for
grant of bail and admitted him to bail on certain
conditions. Hence, the instant appeal.
H
150
SUPREME COURT REPORTS
[2014] 6 S.C.R.
A
Dismissing the appeal, the Court
HELD: 1.1. Prior to the date of expiry of 90 days which
is the initial period for filing the charge-sheet, the
prosecution neither had filed the charge-sheet nor had it
8 filed an application for extension. Had an applicati

## Text

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A.
B
[2014) 6 S.C.R. 148
UNION OF INDIA THROUGH CBI
v.
NIRALA Y,ADAV @ RAJA RAM YADAV @ DEEPAK
YADAV
(Criminal Appeal No. 786 of 2010)
JUNE 30, 2014
[DIPAK MISRA AND N.V. RAMANA, JJ.]
Code of Criminal Procedure, 1973 - s. 167(2) - Non
c filing of charge-sheet within the statutory period of 90 days of
arrest - Application u/s 167(2) for release on bail by accused
~ Subsequent application by CBI seeking extension of time
- Court not adverting to the application filed by accused for
grant of bail, rather asking defence to file rejoinder to
0
application for extension - Thereafter, filing charge-sheet and
rejection of application for grant of bail by the court - High
Court releasing the accused on baf/ holding that right had
already accrued to the respondent when he moved the
application for grant of bail - Justification of - Held: When the
E
charge-sheet is not filed, indefeasible right accrues to the
accused - Accused can avail his liberty only by filing
application u/s. 167(2) - It cannot be frustrated by the
prosecution on some pretext or the other - Once such an
application is filed, it is obligatory on the part of the court to
F
verify from the records as well as from the public prosecutor
whether the time has expired and the charge-sheet has been
filed or not or whether an application for extension which is
statutorily permissible, has been filed - On facts, the High
Court was justified in extending the benefit to the respondent
- The day the accused filed the application for benefit uls.
G
167, the Court required the accused to file a rejoinder affidavit
by the time the initial period provided under the statute had
expired -
There was no question of any contest as if the
application for extension had been filed prior to the expiry of
H
time - Adjournment by the Magistrate was misconceived -
148
U.0.1. THR. CBI v. NIRALA YADAV@ RAJA RAM
149
YADAV @ DEEPAK YADAV
He was obliged on that day to deal with the application filed
A
by the accused as required u/s. -167(2)- Such procrastination
frustrates the legislative mandate - Court cannot act to
extinguish the right of an accused if the law so confers on him
- Law has to prevail - Such act on the part of the prosecution
was not permissible.
B
The respondent was arraigned as an accused for the
offences punishable ulss. 302, 304, 353, 323, 149, 148 and
147 IPC, u/s. 27 of the Arms Act and u/s. 49(2)(b) of
Prevention of Terrorist Activities ActAor murder of 'SK',
Divisional Forest Officer. The local investigating agency
C
carried out the investigation. Thereafter, the investigation
was handed over to the Central Bureau of Investigation
(CBI). In course of investigation, the respondent was.
arrested and was sent to the judicial custody. The
statutory period of ninety days lapsed but the charge
D
sheet was not filed. The respondent filed an application
under .section 167(2) CrPC for release on bail on the
ground that in the absence of challan on record he was
entitled to be admitted to bail after completion of ninety
days from his date of arrest. The next day, CBI filed an
application u/s. 49(2)(b) of POTA seeking extension of
time for a periOd of thirty days, but on that day no order
was passed on that application and the Special Judge
asked the defence to file a reply in rejoinder to the
application for extension but did not pass any order on
E
F
the application for grant of bail. Thereafter, the Special
Judge extended the time for filing the charge-sheet. The
charge sheet was filed. The Special Judge rejected the
application of the respondent. The accused-respondent
approached the High Court. The High Court relying ·on
G
*Hitendra Vishnu Thakur's case **Uday Mohanlal
Acharya's case held that the right had already accrued
to the respondent when he had moved the application for
grant of bail and admitted him to bail on certain
conditions. Hence, the instant appeal.
H
150
SUPREME COURT REPORTS
[2014] 6 S.C.R.
A
Dismissing the appeal, the Court
HELD: 1.1. Prior to the date of expiry of 90 days which
is the initial period for filing the charge-sheet, the
prosecution neither had filed the charge-sheet nor had it
8 filed an application for extension. Had an application for
extension· been filed, then the matter would have been
totally different. After the accused respondent filed the
application, the prosecution submitted an application
seeking extension of time for filing of the charge-sheet.
The counsel for the appellant submitted that the same is
C permissible in view of the decision in ***Bipin Shanti/al
Panchal but on a studied scrutiny of the same it is found
that the said decision only dealt with whethe.r extension
could be sought from time to time till the completion of
period as provided in the Statute i.e., 180 days. It did not
D . address the issue what could be the effect of not filing
an application for extension prior to expiry of the period
because in the factual matrix it was not necessary to do
so. In the instant case, the day the accused filed the
application for benefit of the default provision as
E engrafted under proviso to sub-Section (2) of Section 167
CrPC the Court required the accused to file a rejoinder
affidavit by the time the initial period provided under the
statute had expired. There was no question of any
contest as if the application for extension had been filed
F prior to the expiry of time. The adjournment by the
Magistrate was misconceived. He was obliged on that day
to deal with the application filed by the accused as
required under section 167(2) CrPC. Such procrastinationfrustrates the legislative mandate. A Court cannot act to
G extinguish the right of an accused if the law so confers
on him. Law has to prevail. The prosecution cannot avail
such subterfuges to frustrate or destroy the legal right of
the accused. Such an act is not permissible. The
prosecution exhibited sheer negligence in not filing the
H application within the time which it was entitled to do so
U.0.1. THR. CBI v. NIRALA YADAV@ RAJA RAM
151
YADAV @ DEEPAK YADAV
in law but made all adroit attempts to redeem the cause
A
by its conduct. In view of the said premised reasons there
is no error in the order of the High Court in overturning
the order refusing bail and extending the benefit to the
respondent. [Para 41, 42] [189-A-H; 190-A-B]
1.2. In Uday Mohan/al Acharya's case it was clearly
laid down that if a case is adjourned by the court granting
time to the prosecution not adverting to the application
filed on behalf of the accused, it would be a violation of
B
the legislative mandate. The principle stated in Uday C
Mohan/al Acharya is a binding precedent. The counsel
appearing for the appellant, made a feeble endeavour that
it is a two-Judge Bench decision and it runs contrary to
the principle stated in ****Sanjay Dutt's case and hence,
it should be treated as per incuriam. Both the facets of
the submission are absolutely fallacious. It is a judgment D
rendered by a three-Judge Bench and not by a two-Judge
Bench simply because there is a dissenting opinion.
Secondly, the judgment has not been rendered in
ignorance of a binding precedent but, on the contrary, it
has directly dealt with the decision in Sanjay Dutt E
appreciated, understood and analysed the principles
stated therein and culled out the conclusions and,
therefore, by no stretch of imagination it can be held to
be per incuriam. Even if a two-Judge Bench or a threeJudge Bench disagrees with the view expressed in Uday
F
Mohan/al Acharya, it has to be referred to a larger Bench.
As it is noticed, prior to the decision in Uday Mohari/al
· Acharya's case a three-Judge Bench in Mohamed Iqbal
Madar Sheikh had stat~d the principle in a different way.
This Court is disposed to think, that is the principle which
G
the Constitution Bench in Sanjay Dutt's case has laid .. ··
down. When the charge-sheet is not filed and the right
has ripened earning the status of indefeasibility, it cannot
be frustrated by the prosecution on some pretext or the
other. The accused can avail his liberty only by filing · H
152
SUPREME COURT REPORTS
[2014] 6 S.C.R.
A application stating that the statutory period for filing of
the challan has expired, the same has not yet been filed
and an indefeasible right has accrued in his favour and
further he is prepared to furnish the bail bond. Once such
an application is filed, it is obligatory on the part of the
B court to verify from the records as well as from the public
prosecutor whether the time has expired and the chargesheet has been filed or not or whether an application for
extension which is statutorily permissible, has been filed.
If an application for extension is filed, it is to be dealt with
c as has been stated in the case of Sanjay Dutt. That is the
duty of the Court. This is ttie position of law has been
stated in Uday Mohan/a/ Acharya's case. (Para 23] (173D-H; 174-A-E]
** Uday Mohan/al Acharya v. State of Maharahstra 2001
D (2) SCR 878:(2001) 5 sec 453 - affirmed.
Union of India and others v. Arviva Industries India
Limited and others (2014) 3 sec 159 - relied on.
E
***Bipin Shanti/al Panchal v. State of Gujarat 1996 (1)
SCR 193:(1996) 1 SCC 718 - distinguished.
Pragyna Singh Thakurv. State of Maharashtra 2011 (14)
SCR 617:(2011) 10 SCC 445 - held inapplicable.
F
*Hitendra Vishnu Thakur v. State of Maharahstra 1994
(1) Suppl. SCR 360:(1994) 4 SCC 602; ****Sanjay Dutt v.
State 1994 (3) Suppl. SCR 263:(1994) 5 SCC 410; State of
M.P. v. Rustam & ors.1995 Supp (3) SCC 221; Dinesh
Da/mia v. CBI 2007 (9) SCR 1124:(2007) 8 SCC 770;
G Mustaq Ahmed Isak v. State of Maharasfltra 2009 (8) SCR
465:(2009) 7 SCC 480; Naranjan Singh Nathawan v. State
of Punjab 1952 SCR 395; Ram Narayan Singh v. State of'
Delhi 1953 SCR 652 and A.K. Gopalan v. Government of
India (1966) 2 SCR 427; Union of India v. Thamisharasi 1995
H (3) SCR 905: (1995) 4 SCC 190; Aslam Baba/al Desai v.
1
U.0.1. THR. CBI v. NIRALA YADAV @ RAJA RAM
153
1
\
YADAV @ DEEPAK YADAV
State of Maharashtra 1992 (1) Suppl. SCR 545: (1992) 4
A
S
1CC 272; Mohammed Iqbal Madar Sheikh and others v.
State of Maharshtra 1996 (1) SCR 183: (1996) 1 SCC 722;
Makhan Singh Tarsikka v. State of Punjab 1952 SCR 368:
AIR 1952 SC 27; Ateef Nasir Mui/av. State of Maharashtra
2005 (2) Suppl. SCR 919: (2005) 7 SCC 29; State v. Dawood
B
Ibrahim Kaskar 1997 (1) Suppl. SCR 212 : (2000) 10 SCC
438; Union of India v. Hassan Ali Khan and another2011 (11)
SCR 778: (2011) 10 SCC 235; Sayed Mohd. Ahmad Kazmi
v. State (Government of NCT of Delhi) and others 2012 (9)
SCR 836: (2012) 12 SCC 1; Chaganti Satyanarayana v. State c
of A.P. 1986 (2) SCR 1128: (1986) 3 sec 141; CBI v.
Anupan J. Kulkarni 1992 (3) SCR 158: (1992) 3 SCC 141;
State v. Mohd. Ashraft Bhat 1995 (6) Suppl. SCR 300: (1996)
1 SCC 432; State of Maharashtra v. Bharati Chandmal Varma
2001 (5) Suppl. SCR 422: (2002) 2 SCC 121; Union of India
D
v. Thamisharasi 1995 (3) SCR 905: (1995) 4 SCC 190 -
referred to.
Case Law Reference:
1994 (1 )Suppl. SCR 360 Referred to
Para 5,9,
E
11, 12, 13
2001 .(2) SCR 878
Affirmed
Para 23
1994 (3) Suppl. SCR 263 Referred to
Para 7,10
1995 Supp (3) sec 221
Referred to
Para 7,15,
F
37
2007 (9) SCR 1124
Referred to
Para 7,26
2009 (8) SCR 465
Referred to
Para 7,38
G
1952 SCR 395
Referred to
Para 12
1953 SCR 652
Referred to
Para 12, 19
{1966) 2 SCR 427
Referred to
Para 12, 19
H
154
SUPREME COURT REPORTS
[2014] 6 S.C.R. -
A
1995 (3) SCR 905
Referred to
Para 14
1992 (1) Suppl. SCR 545 Referred to
Para 14
1996 (1) SCR 183
Referred to
Para 17, 22
8
1952 SCR 368
Referred to
Para 19
2005 (2) Suppl. SCR 919 Referred to
Para 24
'-
!
1997 (1) Suppl. SCR 212 Referred to
Para 26
2011 (11) SCR 778
c
Referred to
Para 28, 3~
2012 (9) SCR 836
Referred to
Para30,
38,40
1986 (2) SCR 1128
Referred to
Para 33
D
1992 (3) SCR 158
Referred to
Para 34
1995 (6) Suppl. SCR 300 Referred to
Para 34
2001 (5) Suppl. SCR 422 Referred to
Para 34
1995 (3) SCR 905
Referred to
Para 36
E
2011 (14) SCR 617
Held
Para 40
inapplicable
(2014) 3 sec 159
Relied on
. Para 40
F
1996 (1) SCR 193
Distinguished Para 41
CRIMINAL APPELLATE JURISDIGTION : Criminal Appeal
No. 786 of 2010.
From the judgment ana Order dated 04.03.2008 passed
G in Criminal Misc. No. 44042 of 2007 by the High Court of the
Judicature at Patna.
. ·-
P. K. Dey, S. Wardkumar and 8. Krishna Prasad for the
Appellant.
·
H
Ms. Prerna Singh and T. Mahipal for the Respondent.
U.0.1. THR. CBI v. NIRALA YADAV@ RAJA RAM
155
YADAV @ DEEPAK YADAV
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. The present appeal, by special leave,
is directed against the order dated 4.3.2008 passed by the
learned Single Judge of the High Court of Judicature at Patna
in Criminal Misc. No. 44042 of 2007 enlarging the respondent
A
· on bail solely on the ground that he was entitled to the benefit
B.
under the proviso appended to Section 167(2) CrPC of
Criminal Procedure (for short "the CrPC").
2. The antecedent essential facts are that the respondent
was arraigned as an accused in Nauhatta P.S. case No. 4/02
· for the offences punishable under Sections 302, 304, 353, 323,
C
149, 148 and 147 of the Indian Penal Code (IPC), under
Section 27 of the Arms Act and under Section 49(2)(b) of
Prevention of Terrorist Activities Act (POT A) for murder of
Sanjay Kumar Singh, Divisional Forest Officer. Initially the
investigatiqn was carried out by the local investigating agency
D
and thereafter, the Government of India, Ministry of Personnel,
New Delhi, issued a notification No. 228/9/02-AVD/ll dated
21.3.2002 handing over the investigation to the Central Bureau
of Investigation (CBI) after obtaining the consent of the
Government of Bihar.
3. As per the allegations of the prosecution, on 15.2.2002
the deceased Sanjay Kumar Singh, Divisional Forest Officer,
Shahabad Division with Headquarter at Sasaram, was on a
_ s11rprise check in village Rehal, District Rohtas along with his
subordinate staff and, at that juncture, he was surrounded by a
. group of 25-30 unknown naxalites and was taken outside the
village and when he declined to comply with the illegal demand
of the naxalites for payment of rup~es five lakhs for his release,
E
F
he was taken inside the forest vyhere he was shot dead. After
the criminal law was set in motion on the basis of an FIR, the
G
investigation commenced.
4. In course of investigation, the respondent was arrested
and was sent to the judicial custody on 5.12.2006. As the
charge-sheet was not filed after lapse of the statutory period
of ninety days, on 14.3.2007 the respondent filed an application
H
156
SUPREME COURT REPORTS
[2014] 6 S.C.R.
A under Section 167(2) CrPC for release on bail on the
foundation that in the absence of challan on record he was
entitled to be admitted to bail after completion of ninety days
from his date of arrest. On 15.3.2007, an application was filed
by the CBI under Section 49(2)(b) of POTA seeking extension
B of time for a period of thirty days, but on that day no order was
passed on that application and the learned Special Judge
asked the defence to file a reply in rejoinder to the application
for extension but did not pass any order on the application for
grant of bail.
c
5. As the factual matrix would unfurl, charge-sheet was filed
on 26.3.2007. On 3.4.2007 the learned Special Judge
extended the time for filing the charge-sheet till the date of such
filing, i.e., '26.3.2007 and rejected the application of the
respondent.·Being unsuccessful in getting admitted to bail, the
0
accused-respondent approached the High Court in Criminal
Misc. No. 44042 of 2007 and the learned single Judge who
dealt with the application, after referring to the decision in
Hitendra Vishnu Thakur v. State of Maharahstra 1 and placing
reliance on the dictum in Uday Mohan/al Acharya v. State of
E Maharahstra2, came to hold that the right had already accrued
to the respondent on 14.3.2007 when he had moved the
application for grant of bail and1, accordingly, admitted him to
bail on certain conditions.
I
6. We have heard Mr. P.1{ Dey, learned counsel for the
F appellant and Ms . .Prerna Singh, learned counsel for the
respondent.
·
7. Calling in question the legal acceptability of the order,
it is submitted by Mr. Day that the High Court has been totally
misguided by placing reliance upon the law laid down in
G Harindra Vishnu. Thakur (supra) without apprising itself about
the Constitution Bench decision in Sanjay Dutt v. State3 which
makes the order unsustai~able. It is urged by him that when the [
1.
(1994) 4 sec 602.
2.
c2001) s sec 453.
H 3.
(1994) s sec 410.
U.0.1. THR. CBI v. NIRALA YADAV @ RAJA RAM
157
YADAV @ DEEPAK YADAV [DIPAK MISRA, J.]
application for bail was filed on the ground that the charge-sheet
A
was not filed within ninety days, and the said application was
not considered and no order was passed by the learned trial
Judge before the charge-sheet was filed, the indefeasible right
that vested in an accused, got. totally destroyed, but,
unfortunately, the High Court has failed to appreciate the said
B
legal principle which makes the impugned order sensitively
untenable. It is his further submission that the learned single
Ju"dge has failed to apply the correct principle on the right of
"compulsive bail" inasmuch as such a right should be available
on the date the bail application is taken up for consideration c
but not on the date of its presentation. He has commended us
to the decisions in Sanjay Dutt (supra}, State of M.P. v. Rustam
& ors4., Bi pin Shanti/a/ Panchal v. State of Gujarat6, Dinesh
Oalmia v. CB/6, Mustaq Ahmed Isak v. State of Maharashtra7
and Pragyna Singh Thakur v. State of Maharashtra8.
0
8. Ms. Prerna Singh, learned counsel appearing for the
respondent, per contra, has contended that the controversy is
squarely covered by the decision in Uday Mohan/a/ Acharya
(supra) and as the High Court has based its decision on the
same in the backdrop of the factual scenario, the order is
E
absolutely defensible and does not suffer from any infirmity
warranting interference. She would further submit that the
indefeasible right available to the accused cannot be
extinguished by filing an application for extension of time to file
the charge-sheet after expiry of the initial period and filing the
F
same after certain period, for if such kind of allowance is
conferred, the purpose of the provision engrafted under Section
167(2) CrPC would be frustrated.
9. At the outset it is necessary to state that the facts are
G
4.
1995 Supp (3) sec 221.
5.
(1996) 1 sec 718.
6.
(2007) 8 sec no.
7.
(2009) 7 sec. 480.
8.
(2011 l 10 sec 445.
H
1sa·
SUPREME COURT REPORTS
[2014] 6 S.C.R.
A
not in dispute and, therefor~ we are obliged to advert to the
law and adjudge whether th~ High Court has correctly applied
the legal principles. As we notice from the impugned order the
learned single Judge has referred to the decision in Hatindra
Vishnu Thakur (supra). In the said case the Court had dwelled
B U;Jolr the import of Section 20(4) of Terrorist and Disruptive
Activities (Prevention) Act, 1987 read with Section 167 CrPC
and came to hold that: -
c
D
E
F
G
H
" ... we find that once the period for filing the charge-sheet
has expired and either no extension under clause (bb) has
been granted by the Designated Court or the period of
extension has also expired, the accused person would be
entitled to move an application for being admitted to bail
under sub-section (4) of Section 20 TADA read with
Section 167 of the Code and the Designated Court shall
release him on bail, if the accused seeks to be so
released and furnishes the requisite bail. We are not
impressed with the argument of the learned counsel for the
appellant that on the expiry of the period during which
investigation is required to be completed under Section
20(4) TADA read with Section 167 of the Code, the court
must release the accused on bail on its own motion even
without any application from an accused person on his
offering to furnish bail. In our opinion an accused is required
.
to make an application if he wishes to be released on bail
on account of the 'default' of the investigating/prosecuting
agency and once such an application is made, the court
should issue a notice to the public prosecutor who may
either show that the prosecution has obtained the order for~ ·.
extension for completion of investigation from the court
under clause (bb} or that the challan has been filed in the
- Designated Court before the expiry of the prescribed
period or even that the prescribed period has actually not
expired and thus resist the grant of bail on the alleged
ground of 'default'. The issuance of notice would avoid the
possibility of an accused obtaining an order of bail under
U.0.1. THR. CBI v. NIRALA YADAV @ RAJA RAM
159
YADAV @ DEEPAK YADAV [DIPAK MISRA, J.]
the 'default' clause by either deliberately or inadvertently
A
concealing certain facts and would avoid multiplicity of
proceedings. It would, therefore, serve the ends of justice
if both sides are heard on a petition for grant of bail on
account of the prosecution's 'default'. Similarly, when a
report is submitted by the public prosecutor to the
8
Designated Court for grant of extension under clause (bb),
its notice should be issued to the accused before granting
' such an extension so that an accused may have an
opportunity to oppose the extension on all legitimate and
legal grounds available to him. It is true that neither clause
C
(b) nor clause (bb) of sub-section (4) of Section 20 TADA
specifically provide for the issuance of such a notice but
in our opinion the issuance of such a notice must be read
into these provisions both .in the interest of the accused
and the prosecution as well as for doing complete justice
0
between the parties."
After so stating, the Court proceeded to observe as
follows: -
"We must as already noticed reiterate that the objection
to the grant of bail to an accused on account of the 'default'
of the prosecution to complete the investigation and file the
challan within the maximum period prescribed under
clause (b) of sub-section (4) of Section 20 TADA or within
the extended period as envisaged by clause (bb) has to
be limited to cases where either the factual basis for
invoking the 'default' clause is not available or the period
for completion of investigation has been extended under
clause (bb) and the like. No other condition like the gravity
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of the case, seriousness of the offence or character of the
offender etc. can weigh with the court at that stage to refuse
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ttie grant of bail to an accused under sub-section (4) of
Section 20 TADA on account of the 'default' of the
prosecution."
1
10. After the said decision was rendered, the interpretation
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[201~] 6 S.C.R.
A of clause (bb) of sub-section (4) of Section 20 of TADA was
referred to the Constitution Bench. In Sanjay Dutt (supra) the
two questions that were posed by the Constitution Bench are
as follows: -
B
c
"(2)
The proper construction of clause (bb) of subsection (4) of Section 20 of the TADA Act
indicating the nature of right of an' accused to be
released on bail thereunder, on the default to
complete investigation within the time allowed
therein; and
(3)
The proper construction and ambit of sub-section
(8) of Section 20 of the TADA Act indicating the
scope for bail thereunder."
D
11 . A contention was raised before the Constitution Bench
that the two-Judge Bench decision in Hitendra Vishnu Thakur
(supra) read in the context of final order made therein raised
some ambiguity about the meaning and effect of Section
20(4)(bb) of the TADA Act. Adverting to the interpretation of
the said provision and scanning the anatomy, the larger Bench
E observed thus: -
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"43. Section 20 of the TADA Act prescribes the modified
application of the Code of Criminal Procedure indicated
therein. The effect of sub-section (4) of Section 20 is to
apply Section 167 of the Code of Criminal Procedure in
relation to a case involving an offence punishable under
the TADA Act subject to the modifications indicated
therein. One of the modifications made in Section 167 of
the Code by Section 20(4) of the TADA Act is to require
the investigation in any offence under the TADA Act to be
completed within a period of 180 days with the further
pr9viso that the Designated Court is empowered to extend
that period up to one year if it is satisfied that it is not
possible to complete the investigation within the said
period of 180 days, on the report of the public prosecutor
U.0.1. THR. CBI v. NIRALA YADAV@ RAJA RAM.
161
YADAV @ DEEPAK YADAV [DIPAK MISRA, J.]
indicating the progress of the investigation and the specific
A
reasons for the detention of the accused beyond the said
period of 180 days. This gives rise to the right of the
accused to be released on bail on expiry of the said period
of 180 days or the extended period on default to complete
the investigation within the time allowed."
B
12. Thereafter, the Court referred to Hitendra Vishnu
Thakur (supra) wherein it has been held that the Designated
Court would have "no jurisdiction to _deny Jo an accused his
indefeasible right to be released on bail on account of the
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default of the prosecution to file the challan within the prEiscribed
time if an accused seeks and is prepared to furnish the bail
bond as directed by the court"; and that a 'notice; to the
accused is required to be given by the Designated Court
before it grants any extension under the further proviso.beyond
the prescribed period for completing the investigation. It is apt
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to state th13t learned counsel for the petitioner therein conceded
the legal position that the right of the accused which is
enforceable only upto the filing of the challan and does not
survive for enforcement on the challan being filed in the court
against him. It was further contended that the decision in
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Hitendra Vishnu Thakur (supra) could not be read to confer
on the accused an indefeasible right to be released on bail
under Section 20(4)(bb) once the challan has been filed if the
accused continues in custody. Such a concession was given
by stating that Section 167 CrPC has relevance only to the
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period of investigation. The said position of law was accepted
by the learned Additional Solicitor General. However, it was
contended by him that direction for grant of bail in Hitendra
Vishnu Thakur (supra) was not in consonance with such
reading of the decision and indicates that the indefeasible right
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of the accused to be released on bail on expiry of the time
allowed for completing the investigation survives and is
enforceable ~ven after the challan has been filed, without
reference to the merits of the case or the material produced in
the court with the challan. Mr. Dey has drawn inspiration from
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[2014] 6 S.C.R. ·
A paragraphs 48 and 49 of the said decision which we think
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should be reproduced: -
"48. We have no doubt that the common stance before us
of the nature of indefeasible right of the accused to be
released. on bail by virtue of Section 20(4)(bb) is based
on a correct reading of the principle indicated in that
decision. The indefeasible right accruing to the accused
in such a situation is enforceable only prior to the filing of
the challan and it does not survive or remain enforceable
on the challan being filed, if already not availed of. Once
the challan has been filed, the question of grant of bail has
to be considered and decided only with reference to the
merits of the case under the provisions relating to grant of
bail to an accused after the filing of the challan. The custody
of the accused after the challan has been filed is not
governed by Section 167 but different provisions of the
Code of Criminal Procedure. If that right had accrued to
the accused but it remained unenforced till the filing of the
challan. then there is no question of its enforcement
thereafter since it is extinguished the moment challan is
filed because Section 167 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 Cohstitution
U.0.1. THR. CBI v. NIRALA YADAV@ RAJA RAM
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YADAV @ DEEPAK YADAV [DIPAK MISRA, J.]
Bench decisions that a petition seeking the writ of habeas
A
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 Punjab9 ; Ram Narayan Singh v.
B
State of Delhi10 and A.K. Gopalan v. Government of
lndia 11 .)
49. This is the nature and extent of the right of the accused
to be released on bail under Section 20(4)(bb) of the TADA
Act read with Section 167 CrPC in such a situation. We clarify
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the decision of the Division Bench in Hitendra Vishnu Thakur,
.accordingly, and if it gives a different indication because of the
final order made therein, we regret our inability to subscribe to
that view."
[Emphasis supplied]
After laying down the principles, the Constitution Bench
,recorded its conclusions of which conclusions (2)(a) and (2)(b),
being relevant for the present purpose, are reproduced below:-
"(2)(a)
Section 20(4)(bb) of the TADA Act only
requires production of the accused before the court
in accordance with Section 167(1) of the Code of
Criminal Procedure and this is how the requirement
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of notice to the accused before granting extension
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beyond the prescribed period of 180 days in
accordance with the further proviso to clause (bb)
of sub-section (4) of Section 20 of the TADA Act
has to be understood in the judgment of the Division
Bench of this Court in Hitendra Vishnu Thakur. The
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requirement of such notice to the accused before
I 9.
1952 SCR 395.
10. 1953 SCR 652.
11. (1966) 2 SCR 427.
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granting the extension for completing the
investigation is not a written notice to the accused
giving reasons therein. Production of the accused
at that time in the court informing him that the
question of extension of the period for completing
the investigation is being considered, is alone
sufficient for the purpose.
(2)(b) The "indefeasible right" of the ~ccused 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 Thakur is a right which ensures 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 the time of filing of the
challan only by the provisions relating to the grant
of bail applicable at that stage."
[Emphasis added]
13. Thus, the decision in Hitendra Narain Thakur (supra)
has been explained by the Constitution Bench and it has .laid
down the principles pertaining to grant of bail on default.;
H
14. In Dr. Bipin Shanti/al Panchal (supra) the Court was.
U.0.1. THR. CBI v. NIRALA YADAV@ RAJA RAM
165
YADAV @ DEEPAK YADAV [DIPAK MISRA, J.]
dealing with a controversy whereby the High Court had rejected
A
the prayer for bail to the appellant who was an accused for
offences under the Narcotic Drugs and Psychotropic
Substances Act, 1985. A contention was advanced that the
statutory period prescribed under the proviso (a) to sub-section
(2) of Section 167 CrPC providing for completion of
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investigation, had expired and, therefore, the accused-appellant
therein should have been released on bail. The three-Judge
Bench referred to the decision in Union of India v.
Thamisharasi 12, reproduced a passage from Sanjay Dutt
(supra) and came to hold as follows: -
c
" ... if an accused person fails to exercise his right to be
released on bail for the failure of the prosecution to file the
charge-sheet within the maximum time allowed by law. he
cannot contend that he had an indefeasible right to
exercise it at any time notwithstanding the fact that in the
meantime the charge-sheet is filed. But on the other hand
if he exercises the right within the time allowed by law and
is released on bail under such circumstances, he cannot
D
be -rearrested on the mere filing of the charge-sheet, as
pointed out in As/am Baba/al Desai v. State of E
Maharashtra 13 .
[Emphasis added]
15. In Rustam and others (supra) the two-Judge Bench
was addressing to the controversy where the High Court had
entertained the bail petition after the challan was filed. After
stating that the controversy had been covered by the decision
in Sanjay Dutt (supra) wherein Hitendra Vishnu Thakur (supra)
had been explained, the Court proceeded to state as follows:-
"The court is required to examine the availability of the right
of compulsive bail on the date it is considering the question
of bail and not barely on the date of the presentation of
the petition for bail."
12. (1995) 4 sec 190.
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16. After so stating the Court proceeded to state that when
the High Court entertained the petition for bail and granted it
tc the respondents therein, undeniably the challan stood filed
in the court and, therefore, the indefeasible right for getting bail
was not available.
17. In Mohammed Iqbal Madar Sheikh and others v.
State of Maharshtra 14, while interpreting the proviso (a) to subsection (2) of Section 167 CrPC in the context of TADA, the
three-Judge Bench opined thus: -
"It need not be pointed out or impressed that in view of a
series of judgments of this Court, this right cannot be
defeated by any court, if the accused concerned is
prepared and does furnish bail bonds to the satisfaction
of the court concerned. Any accused released on bail
under proviso (a) to Section 167(2) of the Code read with
Section 20(4)(b) or Section 20(4)(bb), because of the
default on the part of the investigating agency to conclude
the investigation, within the period prescribed, in view of
proviso (a) to Section 167(2) itself, shall be deemed to
have been so released under the provisions of Chapter
XXXlll of the Code. It cannot be held that an accused
charged of any offence, including offences under TADA,
if released on bail because of the default in completion of
the investigation, then no sooner the charge-sheet is filed,
the order granting bail to such accused is to be cancelled.
The bail of such accused who has been released, because
of the default on the part of the investigating officer to
complete the investigation, can be cancelled, but not only
on the ground that after the release, charge-sheet has been
submitted against such accused for an offence under
TADA. For cancelling the bail, the well-settled principles
in respect ~f cancellation of bail have to be made out."
18. Be it noted, in the said case, the accused-appellants
H 14. (1996) 1 sec 722.
U.0.1. THR. CBI v. NIRALA YADAV@ RAJA RAM
167
YADAV @ DEEPAK YADAV [DIPAK MISRA, J.]
were taken into custody on 16.1.1993 and the charge-sheet
A
was submitted on 30.8.1993, obviously beyond the statutory
period provided under Section 20(4}(b). However, the Court
proceeded to opine thus: -
"But it is an admitted position that no application for bail
on the said ground was made on behalf of the appellants.
Unless applications had been made on behalf of the
appellants, there was no question of their being released
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on ground of default in completion of the investigation
within the statutory period. It is now settled that this right
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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 under TADA,
is not under Section 167(2) but under other provisions of
the Code. This has been specifically considered by a
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Constitution Bench of this Court in the case of Sanjay Dutt
v. State through CBI(//)."
After so stating the learned Judges reproduced a passage
from Sanjay Dutt (supra) and opined that it was not open to
E
the accused-appellants to claim bail under proviso (a) to
Section 167(2) CrPC inasmuch as the charge-sheet had been
submitted against them the benefit of default would not be
available. Though the three-Judge Bench rejected the prayer
for bail on facts, yet considering the submissions put forth at
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the Bar, observed as follows: -
"During hearing of the appeal, it was pointed out by the
counsel appearing on behalf of the appellants that some
courts in order to defeat the right of the accused to be
released on bail under proviso (a) to Section 167(2) after
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expiry of the statutory period for completion of the
investigation. keep the applications for bail pending for
some days so that in the meantime. charge-sheets are
submitted. Any such act on the part of any court cannot be
approved. If an accused charged with any kind of offence
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[2014] 6 S.C.R.
becomes entitled to be released on bail under proviso (a)
to Section 167(2), that statutory right should not be
defeated by keeping the applications pending till the
charge-sheets are submitted so that the right which had
accrued is extinguished and defeated."
B
[Emphasis supplied]
19. In Uday Mohan/al Acharya (supra) the majority, after
referring to the Constitution Bench decision in Sanjay Duff's
case, posed the question about the true meaning of the
C expression of the following lines:-
"the indefeasible right accruing to the accused in such a
situation is enforceable only prior to the filing of the challan
and it does not survive or remain enforceable on the challan
0
being filed, if already not availed or"
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Answering the said question the court observed thus:-
"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 necessarv 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.