# UDAY MOHANLAL ACHARYA --< v. STATE OF MAHARASIITRA

- **Citation:** [2001] 2 S.C.R. 878
- **Court:** Supreme Court of India
- **Decided:** 2001
- **Case number:** Criminal Appeal No. 394 of 2001
- **Bench:** G.B. Paitanaik, U.C. Banerjee, B.N. Agrawal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/uday-mohanlal-acharya-v-state-of-maharasiitra-17939
- **Pages:** 34

## Headnote

Code of Criminal Procedure, 1973 :
...,..
Section 167(2), Proviso-Detention of an accused-Maximum periodc
Prescription of-Challan not filed within the stipulated time-Consequence
of-Held, an indefeasible right to be released on bail accrues to the accusedSuch indefeasible right not surviving or remaining enforceable on the challan
being filed, if already not availed of-Expression 'if already not availed ofMeaning of-Held, an accused can be said to have availed of his indefeasible
right if he is prepared to and furnish the bail, as directed by the MagistrateD
Filing of challan aJ this stage will not take away the indefeasible right of the
accused-However, if the accused is unable to furnish bail, as directed by the
Magistrale, he cannot be, held to have availed of his indefeasible rightDuring such period if challan is filed, the indefeasible right of the accused
would stand extinguished-Sections 56, 57, 154, 167, 173, 209(b), 309(2), 436,
E
437(5), 439-Constitution of India, 1950-Articles 21, 22(2)-Maharashtra
;..
Protection of Interest of Depositors (Financial Establishment) Act, 1999Sections 3, 13, 14-lndian Penal Code, 1860-Sections 406, 420-Terrorist
and Disruptive Activities Act-Section 20(4)(b).
Respondent-State filed a complaint in the Court of Special Judge for
F
prosecution of appellant for the offences under Sections 406 and 420 of the
Indian Penal Code read with Section 3 of the Maharashtra Protection of
Interest of Depositors (Financial Establishment) Act, 1999. Appellant sur-
~
rendered before the Special Judge and was remanded to judicial custody.
No challan was filed within the statutory period or sixty days. On the very
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next day or the completion or the period or sixty days, an application for
being released on ball was Ried on behalf of the appellant alleging that
non-ftllng of challan within 60 days entitled him to be released on ball
under proviso to S~tlon 167(2) of the Code or Criminal Procedure, 1973.
1'he said application was rejected by the Special Judge on the same day on ...
the ground that the provisions of Section 167(2) or the Code of Criminal
H
Procedure bad no application to cases pertaining to the Maharashtra
878
.
'>-
-\
~
_).
U.M. ACHARYA v. STATE
879
Protection of Interest of Depositors (Financial Establishment) Act. ThereA
after, appellant preferred a Criminal Application before the High Court
which was placed for bearing before a Division Bench. The Division Bench
adjourned the matter for conclusion of the arguments. In the meanwhile,
cballan was filed before the Special Judge. The Division Bench of the High
Court held that proviso to Section 167(2) of the Code of Criminal ProceB
dure was applicable even to cases filed for prosecution of an accused for
offences under the Maharashtra Protection of Interest of Depositors (Financial Establishment) Act. However, as cballan had already been filed,
the prayer for bail was rejected. Hence the present appeal.
On behalf of the appellant, it was contended that the legislative c
mandate conferring right on the accused to be released on bail on the
expiry of the period contemplated under Proviso to sub-section (2) of
Section 167 Cr.P.C. could not be nullified by keeping the matter pending
for passing of an order, allowing the prosecution to file a charge sheet; that
the expression 'shall be released on bail' in the said Proviso not only
D
conferred indefeasible right on the accused but also cast duty on the
Magistrate since the Magistrate would not be entitled to remand the accused any further, that if an accused had not made any application for
being released on bail, notwithstanding the fact, that charge sheet had not
been filed within the stipulated period, he would not be entitled to file the
same after filing of the challan; that if the accused had filed the application
E
for bail and was prepared to offer and furnish the bail, then subsequent
filing of challan would not take away the accrued right of the accused
merely because the Magistrate or

## Text

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)
A
UDAY MOHANLAL ACHARYA
--<
,.
v.
STATE OF MAHARASIITRA
MARCH, 29, 2001
B
[G.B. PAITANAIK, U.C. BANERJEE AND B.N. AGRAWAL, JJ.]
Code of Criminal Procedure, 1973 :
...,..
Section 167(2), Proviso-Detention of an accused-Maximum periodc
Prescription of-Challan not filed within the stipulated time-Consequence
of-Held, an indefeasible right to be released on bail accrues to the accusedSuch indefeasible right not surviving or remaining enforceable on the challan
being filed, if already not availed of-Expression 'if already not availed ofMeaning of-Held, an accused can be said to have availed of his indefeasible
right if he is prepared to and furnish the bail, as directed by the MagistrateD
Filing of challan aJ this stage will not take away the indefeasible right of the
accused-However, if the accused is unable to furnish bail, as directed by the
Magistrale, he cannot be, held to have availed of his indefeasible rightDuring such period if challan is filed, the indefeasible right of the accused
would stand extinguished-Sections 56, 57, 154, 167, 173, 209(b), 309(2), 436,
E
437(5), 439-Constitution of India, 1950-Articles 21, 22(2)-Maharashtra
;..
Protection of Interest of Depositors (Financial Establishment) Act, 1999Sections 3, 13, 14-lndian Penal Code, 1860-Sections 406, 420-Terrorist
and Disruptive Activities Act-Section 20(4)(b).
Respondent-State filed a complaint in the Court of Special Judge for
F
prosecution of appellant for the offences under Sections 406 and 420 of the
Indian Penal Code read with Section 3 of the Maharashtra Protection of
Interest of Depositors (Financial Establishment) Act, 1999. Appellant sur-
~
rendered before the Special Judge and was remanded to judicial custody.
No challan was filed within the statutory period or sixty days. On the very
G
next day or the completion or the period or sixty days, an application for
being released on ball was Ried on behalf of the appellant alleging that
non-ftllng of challan within 60 days entitled him to be released on ball
under proviso to S~tlon 167(2) of the Code or Criminal Procedure, 1973.
1'he said application was rejected by the Special Judge on the same day on ...
the ground that the provisions of Section 167(2) or the Code of Criminal
H
Procedure bad no application to cases pertaining to the Maharashtra
878
.
'>-
-\
~
_).
U.M. ACHARYA v. STATE
879
Protection of Interest of Depositors (Financial Establishment) Act. ThereA
after, appellant preferred a Criminal Application before the High Court
which was placed for bearing before a Division Bench. The Division Bench
adjourned the matter for conclusion of the arguments. In the meanwhile,
cballan was filed before the Special Judge. The Division Bench of the High
Court held that proviso to Section 167(2) of the Code of Criminal ProceB
dure was applicable even to cases filed for prosecution of an accused for
offences under the Maharashtra Protection of Interest of Depositors (Financial Establishment) Act. However, as cballan had already been filed,
the prayer for bail was rejected. Hence the present appeal.
On behalf of the appellant, it was contended that the legislative c
mandate conferring right on the accused to be released on bail on the
expiry of the period contemplated under Proviso to sub-section (2) of
Section 167 Cr.P.C. could not be nullified by keeping the matter pending
for passing of an order, allowing the prosecution to file a charge sheet; that
the expression 'shall be released on bail' in the said Proviso not only
D
conferred indefeasible right on the accused but also cast duty on the
Magistrate since the Magistrate would not be entitled to remand the accused any further, that if an accused had not made any application for
being released on bail, notwithstanding the fact, that charge sheet had not
been filed within the stipulated period, he would not be entitled to file the
same after filing of the challan; that if the accused had filed the application
E
for bail and was prepared to offer and furnish the bail, then subsequent
filing of challan would not take away the accrued right of the accused
merely because the Magistrate or any other Court bad not passed the
order, or the accused had not been factually released; and that the passing
of an order of bail under Proviso to sub·Section (2) of Section 167 was
F
merely a clerical act of the concerned Magistrate or the Court in imple·
mentation of the legislative mandate.
On behalf of the State, it was contended that the indefeasible right
accruing to the accused remained enforceable from the time of default till
the filing of the challan and did not survive or remain enforceable on the
G
challan bclna filed; that once a challan was filed, the provisions o~ S~tlon
167 would have no application and the custody of the accused thereancr'
was under the orders of the Magistrate where the case was pcndlngl that ·
unless the provision of Section 167 was so construed the hard core crlml·
nals would be allowed to be released on ball even If a challan was filedj~st H
880
SUPREME COURT REPORTS
[2001] 2 S.C.R.
A
the next day after the completion of the time provided under the Act, and
such an interpretation would not sub-serve the interest of the society at
large.
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Allowing the appeal, the Court
Held : (Per Pattanaik, J. for himself and Banerjee, J.)
1.1. Under the proviso to sub-Section (2) of Section 167 Cr.P.C., a
Magistrate before whom an accused is produced may authorise detention
of the accused otherwise than the custody of police for a total period not
exceeding 90 days where the investigation relates to offence punishable
with death, imprisonment for life or imprisonment for a term or not less
than 10 years, and 60 days where the investigation relates to any other
offence. 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 furnish the
bail, as directed by the Magistrate. That indefeasible right does not survive
or remain enforceable on the challan being filed, if already not availed of.
[899-F-G]
Hitendra Vishnu Thakur & Ors. v. State of Maharashtra & Ors., [1994]
4 SCC 602; State through CBI v. Mohd. Ashraft Bhat and Another, [1996] 1
SCC 432; Dr. Bipin Shanti/al Panchal v. State of Gujarat, [1996] 1SCC718;
Mohamed Iqbal Madac Sheikh and Others v. State of Maharashtra, [1996] 1
SCC 722 and Abdul Latif Abdul Wahab Sheikh v. B.K. Jha and Another,
[1987] 2 sec 22, relied on.
Union of India v. Thamisharasi & Ors., (1995] 4 SCC 190, referred to.
1.2. On expiry of the period specified in paragraph (a) of proviso to
sub-Section (2) of Section 167 Cr.P.C. if the accused files an application for
bail and offers also to furnish the bail, on being directed, then it has to be
held that the accused has availed of his indefeasible right even though the
Court has not considered the said application and has not indicated the
terms and conditions of hail, and the accused has not furnished the same.
To interpret the expression 'availed of' to mean actually being released on
bail after furnishing the necessary bail required would defeat the very
purpose of the proviso to Section 167(2) Cr.P.C. and further would make
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U.M. ACHARYA v. STATE
881
an illegal custody to be legal, inasmuch as after the expiry of the stipulated
period the Magistrate had no Curther jurisdiction to remand and such
custody of the accused is without any valid order of remand. That apart,
when accused files an application for bail indicating his right to be released
as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is
whether the specified period under the statute has elapsed or not, and
whether a challan has been filed or not. [895-G-H]
Sanjay Dutt v. State through CB.I. Bombay (II), [1994] 5 SCC 410,
clarified.
State of M.P v. Rustam and Others., [1995] Supp. 3 SCC 221, impliedly
overruled.
Babubhai Parshottamdas Patel v. State of Gujarat, (1982) Crl.LJ. 284,
referred to.
1.3. If the application for consideration of an order of being released
on bail under Section 167(2) of the Code of Criminal Procedure 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 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. Personal liberty is one of the cherished objects of
the Indian Constitution and deprivation of the same can be only in accordance with law and in conformity with the provisions thereof, as stipulated
under Article 21 of the Constitution. [898-E-F)
A.K. Gopalan v. The Govt. of India, (1966] 2 SCR 427, approved.
Makhan Singh Tarsikka v. State of Punjab, [1952) SCR 368 and Ram
Narayan Singh v. The State of Delhi and Ors., [1953) SCR 652, held
inapplicable.
1.4. There is no provision in the Criminal Procedure Code authorising detention of an accused in custody after the expiry of the period
indicated in the proviso to sub-section (2) of Section 167 excepting the
contingency indicated in Explanation I, namely, if the accused does not
furnish the bail. In such a case, where the accused is unable to furnish bail,
as directed by the Magistrate, the continued custody of the accused will not
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882
SUPREME COURT REPORTS
(2001] 2 S.C.R.
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be unauthorised. Therefore, if during that period the investigation is complete and charge sheet is filed then the so called indefeasible right of the
accused would stand extinguished. (900-C]
Per Agrawal, J. (Partly dissenting)
B
1.1. The present case, where the prosecution was for an offence
under the Maharashtra Protection or Interest or Depositors (Financial
Establishment) Act, 1999 being a case of first impression, the Court con-
'!'..
cerned was of bona fide opinion that the provisions of Section 167(2)
Cr.P.C. were not applicable. That view of the Special Judge was reversed
C
by the High Court, but before it could fully apply its mind, the challan was
filed. In this background, the right of the accused to be enlarged on bail
under proviso to Section 167(2) of the Code cannot be said to have been
'availed of' in the present case. (910-H]
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1.2. Framers of the Code conceived and desired that after expiry of
the period prescribed in proviso to Section 167(2) Cr.P.C., an accused has to
be released on bail if no challan is filed because after the expiry of the
statutory period prescribed therein, there is no power in Magistrate to
remand for further custody. However, by the time the court is considering
the exercise of the said rightif a challan is filed then the question of grant of
bail has to be considered only with reference to merits of the case under the
provisions of the Code relating to grant of bail after filing of the cballan.
The expression 'availed of' does not mean mere filing of the application for
bail expressing thereunder willingness to furnish bail bond, but the stage
for actual furnishing of bail bond must reach. If challan is filed before that,
then there is no question of enforcing the right, howsoever valuable or
indefeasible it may be, after filing of the challan because thereafter the right
under default clause cannot be exercised. (905-C; 910-C]
Sanjay Dutt v. Stat• through CBI Bombay (JI), [1994) 5 SCC 410, relied
on.
Hittndra Vishnu Thakur & Ors. v. Stat• of Maharashtra & Ors., [1994]
4 sec 602, referred to.
1.3. If the writ petition ftled either under Article 32 or Article 226 of
the Constitution, as the case may be, for Issuance of a writ of habeas
corpus on the ground that accused was under custody without a valid
f
U.M. ACHARYA v. STATE [PATTANAIK, J.]
883
order of remand has to be dismissed if during the pendency of such
petition a valid order of remand has been passed by the court concerned
then the right of an accused claiming relief on the ground that he has a
statutory right under proviso to Section 167(2) Cr.P.C. cannot be put on a
higher footing than the constitutional right. [907-G-H]
Naranjan SingMVathawan & Ors. v. Stale of Punjab, Am (1952) SC
106; Ram Narayan Singh v. The State of Delhi & Ors., Am (1953) SC 277
and A.K. Gopalan v. Government of India, Am (1966) SC 816, relied on.
1.4. In case the court concerned has adopted any dilatory tactics or
an attitude to defeat the right of the accused to be released on bail on the
ground of default, the accused should immediately move the superior
court for appropriate direction. But if the delay is bona fide and uninten·
tional and iu the meantime challan is filed then such a petition has to be
dismissed and it cannot be said that the accused has already availed of the
right accruing under proviso to Section 167 of the Code. [910-D·El
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 394
of 2001.
From the Judgment and Order dated 4.9.2000 of the Bombay High
Court in Crl.A. No. 2701 of 2000.
K.T.S. Tulsi, Ashok M. Saroagi, Subhash Jha, Vijay Kumar, Ms.
Sangeeta Kumar, Sanjay Maan and Ms. Karnlesh Jain for the Appellant.
P. Janardhan, Addi. General and S. V. Deshpande for the Respondent.
The Judgments of the Court were delivered by
PATTANAIK, J. Leave granted.
In this Appeal by grant of Special Leave the question that arises for
consideration is when can an accused be said to have availed of his
indefeasible right for being released on bail under the Proviso to Section
167(2) of the Code of Criminal Procedure, if a challan is not filed within the
period stipulated thereunder. In the case in hand, the accused after surren·
dering himself in the Court was remanded to judicial custody by order of the
Magistrate on 17 .6.2000. A case has been instituted against him under
Sections 406 and 420 of the Indian Penal Code read with Maharashtra
Protection of Interest of Depositors (Financial Establishment) Act, 1999 (for
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884
SUPREME COURT REPORTS
[2001] 2 S.C.R.
short "MPID Act"). The period of 60 days for filing of charge sheet was
completed on 16.8.2000. On the next day i.e. 17.8.2000, an application for
being released on bail was filed before the Magistrate alleging that non-filing
of challan within 60 days entitles the accused to be released on bail under
proviso to Section 167(2) of the Code of Criminal Procedure. The Magistrate
rejected the prayer on the same day on a conclusion that the provisions of
Section 167 (2) Cr.P.C. has no application to cases pertaining to MPID Act.
The accused, therefore, preferred a Criminal Application before the Bombay
High Court. A learned Single Judge after hearing the contentions raised by
the accused and by the State referred the matter to the Division Bench on
23rd August, 2000 and the matter was listed before a Division Bench on 29th
August, 2000. On that date the Division Bench adjourned the matter for
argument to 31st August, 2000 and in the meanwhile a charge sheet was filed
before the Trial Judge on 30th August, 2000. The Division Bench of Bombay
High Court, on examination of the relevant provisions of the MPID Act, more
particularly, Sections 13 and 14 thereof, and relying upon the judgment of
this Court in Union of India v. Thamisharasi & Ors., [1995] 4 Supreme Court
Cases 190, Hitendra Thakur & Ors. v. The State of Maharashtra, [1994] 4
Supreme Court Cases, 602 as well as the Constitution Bench decision in
Sanjay Dutt v. State through C.B.l. Bombay (II), [1994] 5 Supreme Court
Cases 410, came to hold that there is no interdiction in the Mal1arashtra Act
of 1999 against the applicability of section 167(2) proviso of the Criminal
Procedure Code and, therefore, an accused arrested for commission of an
offence under Section 3 of the MPID Act is entitled lo claim release on bail
on expiry of total period specified in Section 167 if the challan is not filed
within that period. Having held so, on the entertainability of the claim of the
accused invoking provisions of Section 167 of Criminal Procedure Code the
High Court ultimately refused to grant relief on the ground that by the time
the application for bail before the Division Bench came to be considered on
31st August, 2000, a charge sheet had been filed before the Magistrate on
30th August, 2000 and, therefore, the so called enforceable right did not
survive or remain enforceable. In coming to the aforesaid conclusion, the
High Court relied upon the Constitution Bench decision of this Court in
Sanjay Dutt's case (supra) as well as the case of State of M.P. v. Rustom &
Ors., [1995] Supp. 3 Supreme Court Cases, 221, and further held that the full
Bench decision of Gujarat High Court in Babubhai Patel's case (1982) Crl.
L.J. 284, is contrary to the decision of the Supreme Court in Ruslom's case
(supra). On dismissal of an application filed by the accused the present appeal
has been preferred to this Court.
,
U.M. ACHARYA v. STATE [PATTANAIK, J.]
885
Mr. K.T.S. Tulsi, learned senior counsel appearing for the accused/
appellant contended that the legislative mandate conferring right on the
accused to be released on bail on the expiry of the period contemplated under
the Proviso to sub-section (2) of Section 167, if the accused is prepared to
furnish bail, cannot be nullified by taking recourse to subterfuge and keeping
the matter pending for passing of an order, allowing the prosecution to file
a charge sheet. According to Mr. Tulsi, the expression "shall be released on
bail" in the Proviso to sub-section (2) of Section 167 not only confers
indefeasible right on the accused but also casts duty/obligation on the
Magistrate, since the Magistrate will not be entitled to remand the accused
any further. In this view of the matter, if an accused files an application on
the expiry of the period contemplated under the Proviso to sub-section (2)
of Section 167 and offers to furnish the bail on being ordered and by the date
of filing of the application no charge sheet had been filed by the prosecution
then the accused has to be released on bail and the right conferred upon him
under the aforesaid provision of the Code must be enforced and subsequent
filing of charge sheet will not alter the position. Mr. Tulsi further contended
that in paragraph 48 of the judgment in Sanjay Dutt's case (supra), when it
has been indicated "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 cballan being filed, if already not
availed of'. would obviously mean, if application for being released on bail
had not been made before the filing of challan. In other words, according to
Mr. Tutsi if an accused had not made any application for being released O'l
bail, notwithstanding the fact, that charge sheet had not been filed within the
stipulated period he will not be entitled to file the same after filing of the
challan, but if the accus.ed has filed the application for bail and was prepared
to offer and furnish the bail, as required by the Court, then subsequent filing
of challan will not take away the accrued right of the accused merely because
the Magistrate or any other Court had not passed the order, or the accused
had not been factually released. According to Mr. Tutsi if the observations
of this Court in Sanjay Dutt's case (supra) is interpreted in the manner, as
it has been interpreted by the High Court in the impugned judgment then the
prosecution can always frustrate the right of the accused accrued in his favour
under the Mandates of the Statute by several dialectic tactics or even in
contingency, like, absence of the Presiding Officer of the Court or nonavailability of the Court to take up application of bail and passing orders
thereon. Mr. Tulsi contends that the passing of an order of bail under Proviso
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to sub-section (2) of Section 167 is merely a clerical act of the concerned
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886
SUPREME COURT REPORTS
(2001] 2 S.C.R.
Magistrate or the Court in implementation of the Legislative Mandate,
and at that stage, no adjudication is required to be made and in this view of
the Matter the provisions of the Code should be so construed so as not to
frustrate the Legislative Mandate but it must be so construed which should
be in aid of fulfilling the intention of the legislature. This being the position,
Mr. Tulsi contends that the impugned order is wholly erroneous and should
be set aside.
Mr. Janardhan, learned Additional Advocate General, appearing for the
State of Maharashtra, on the other hand contended, that in several decisions
of this Court including the Constitution Bench decision in Sanjay Dutt's case
(supra) it has been unequivocally held that so called indefeasible right
accruing to the accused remains enforceable from the time of default till the
filing of the challan and does not survive or remain enforceable on the challan
being filed. According to Mr. Janardhan, if an accused has not been released
on bail and by the time the Court finally considers the application and passes
an order and accused furnishes the bail, challan is filed then the right of being
released stands extinguished since once a challan is filed the provisions of
Section 167 will have no application and the custody of the accused thereafter
is under the orders of the Magistrate where the case is pending. According
to the learned counsel for the State, unless the provisions of Section 167 is
so construed then hardcore criminals will be allowed to be released on bail
even if a challan is filed just the next day after the completion of the time
provided under the Act, and such an interpretation would not subservc the
interest of the society at large. Mr. Janardhan further contended, that the
dictum of the Constitution Bench in Sanjay Dutt's case (supra) has been reaffirmed by a subsequent judgment of the Court in Rustom's case (supra) as
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well as by a three judge Bench judgment in Mohammed Iqbal Madar Sheikh
& Ors. v. State of Maharashtra, [1996] I Supreme Court Cases 722, and
therefore the question no longer remains res integra and the High Court was
fully justified in rejecting the application of the accused.
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Before examining the correctness of the rival submissions and find out
as to when the right accrues to the accused for being released on bail under
the Proviso to sub-section (2) of Section 167 and when that right gets
extinguished, it will be appropriate to notice the very scheme of the Code.
Under Section 56 of the Code of Criminal Procedure it is the bounden duty
of the police officer arresting a person to produce before a Magistrate having
jurisdiction without unnecessary delay. Under Section 57 of the Code there
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U.M. ACHARYA v. STATE [PATTANAIK, J.]
887
is an embargo on the police officer to detain in custody a person arrested
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beyond 24 hours excluding the time necessary for the journey from the place
of arrest to the Court of the Magistrate. The object behind the aforesaid two
provisions which are required to be read together is that the accused should
be brought before a Magistrate without much delay and that the Magistrate
will have succinct of the matter within 24 hours. The aforesaid provision in
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fact is in consonance with the constitutional mandate engrafted under Article
22(2). The continuance of detention for the purpose of investigation beyond
'°I
·24 hours has to be authorised by the Magistrate from time to time and without
such special order from the Magistrate the detention may be illegal. Under
Criminal Procedure Code of 1878 a Magistrate was not entitled to allow
detention of an accused in custody for a term exceeding 15 days on the whole. c
It was also found that the investigation could not ordinarily be completed
within 15 days. The Law Commission, therefore, suggested that an accused
could be denied to remain in custody for more than 60 days which got
engrafted in Section 167 of the present Code (Criminal Procedure Code
1973). The Legislature, however, felt that a drastic change was called for to
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alter the tardy pace of investigation and, therefore, by Criminal Procedure
Code (Amendment) Act, 1978, (Act 45 of 1978) Proviso (a) to sub-section
2 of Section 167 has been added. Under the amended provision, therefore a
Magistrate is empowered to authorise detention of the accused in custody,
pending investigation for an aggregate period of 90 days in cases where the
investigation relate to offence punishable with death, imprisonment for life
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or imprisonment for not less than 10 years or more and in other cases the
period of 60 days has been kept. The extended period of 90 days was brought
into Criminal Procedure Code by amendment as it was found that in several
cases of serious nature it was not possible to conclude the investigation. This
provision of Section 167 is in fact supplementary to Section 57, in consoF
nance with the principle that the accused is c.1titled to demand that justice
~
is not delayed. The object of requiring the accused to be produced before a
Magistrate is to enable tl1e Magistrate to
that remand is necessary and
also to enable the accused to n1ake a representation which he may wish to
make. The power under Section 167 is given to detain a person in custody
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while the police goes on with the investigation and before the Magistrate
starts the enquiry. Section 167, therefore, is the provision which authorises
the Magistrate permitting detention of an accused in custody and prescribing
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the maximum period for which such detention could be ordered. Having
prescribed the maximum period, as stated above, what would be the consequences thereafter has been indicated in the Proviso to sub-section 2 of
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Section 167. The Proviso is unambiguous and clear and stipulates that the
accused shall be released on bail if he is prepared to and does furnish the
bail which has been termed by judicial pronouncement to be 'compulsive
bail' and such bail would be deemed to be a bail under Chapter XXXIII. The
right of an accused to be released on bail after expiry of the maximum period
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of detention provided under Section 167 can be denied only when an accused
does not furnish bail, as is apparent from Explanation I to the said Section.
Proviso to sub-section 2 of Section 167 is a beneficial provision for curing
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the mischief of indefinitely prolonging the investigation and thereby affecting
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the liberty of a citizen Section 167 occurs in Chapter XII dealing with the
powers of the police to investigate in criminal offence which starts with
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lodging of information in cognizable cases under Section 154, and ultimately
culminating in submission of report on completion of investigation under
Section I 73. Soon after completion of investigation the officer in charge of
Police Station has to forward to the Magistrate, empowered to take cognizance of the offence, a report in the prescribed form and once such report
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is filed before the Magistrate which is commonly termed as "challan" then
the custody of the accused is no longer required to be dealt with under Section
167 of the Code, but under Section 209. On submission of Challan under
Section 173 in a case instituted on a police report or otherwise, when it
appears to the Magistrate that offence is exclusively triable by the Court of
Session, the moment the accused is brought before the Magistrate or he
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himself appears then the Magistrate commits the case to the Court of Session
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and subject to the provisions of the Code relating to bail, remand the accused
to custody until such commitment has been made. The procedure for commitrnent to the Court of Sessions, as provided in Section 209 of the present
Code is radically different from the commitment proceedings under the 1898
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Code. No enquiry is contemplated by the Magistrate under the present
Scheme. All that the Magistrate is required to do is, to grant copies, preparing
the records, notify the public prosecutor and formally commit the case to the
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Court of Sessions. Section 209(b) provides that the Magistrate shall remand
the accused to custody subject to the provisions of the Code relating to bail,
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necessarily, therefore, subject to the provisions in Sections 436, 437 and 439.
Thus, under clause (b) of Section 209 the committing Magistrate has the
power to remand the accused to custody during and until the conclusion of
the trial, subject to the provisions relating to bail. When the committing
Magistrate passes an order of commitment and the accused, at that stage is
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found to be on bail, the committing Magistrate has the power to cancel the
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bail and commit him to custody, if he consider it necessary to do so. But such
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U.M. ACHARYA v. STATE [PATTANAIK, J.]
889
a cancellation would be in accordance with sub-section (5) Section 437 of
the Code and there must be proper grounds for cancellation and not that the
Magistrate would cancel the bail ipso facto on challan being filed and accused
being produced for the purpose of passing an order of committal. Any order
a Magistrate passes under Section 209(b) to remand an accused io custody
would also obviously be subject to the provisions of the Code relating to bail.
In a case where the committing Magistrate while passing an order of
committal remands the accuse.d to custody in exercise of power under Section
209(b), the power of the learned Sessions Judge under sub-section (2) of
Section 309 is not whittled down in any manner at any time after commencement of trial, but ordinarily if the committing Magistrate has already passed
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an order remanding the accused to custody while passing an order of
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commitment no further order is required to be passed by the Sessions Judge
in exercise of power under sub-section (2) of Section 309. Bearing in mind
the aforesaid scheme in the Code of Criminal Procedure we would now
examine the point in issue.
There cannot be any dispute that on expiry of the period indicated in
the proviso to sub-section (2) of Section 167 of the Code of criminal
Procedure the accused has to be released on bail, if he is prepared to and
does furnish the bail. Even though a Magistrate does not possess any
jurisdiction to refuse bail when no charge sheet is filed after expiry of the
period stipulated under the proviso to sub-section (2) of Section 167 and even
though the accused may be prepared to furnish the bail required, but such
furnishing of bail has to be in accordance with the order passed by the
Magistrate. In other words, without an order of the Magistrate the legislative
mandate engrafted in the proviso to sub-section (2) of Section 167 cannot be
given effect to and there lies the rub. The grievance of the accused is that
for a variety of reasons the Magistrate or even the superior Court would
refuse to pass au order releasing the accused on bail, notwithstanding the preconditions required under the proviso are satisfied and then when the accused
moves the High Court or the Supreme Court during the interregnum the police
files a challan. It was also contended by Mr. Tulsi that a Public Prosecutor
may take adjournment from the Court when the bail application was being
moved and then would persuade the investigating agency to file a challan and
then contend that the Court would not be entitled to release the accused on
bail under the proviso to sub-section (2) of Section 167, and in that situation
not only the positive command of the legislature is flouted but also an
unauthorised period of custody is being legalised and thi.s would be an
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infraction of the constitutional provision within the meaning of Article 22.
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In Hitendra Vishnu Thakur. v. State of Maharashtra, [1994] 4 Supreme Court
Cases 602, two learned Judge of this Court construed the provisions of
Section 167 of the Code of Criminal Procedure Code read with sub-section
4 of Section 20 of TADA. After examining in detail the object behind the
enactment of Section 167 of the Code of Criminal Procedure and the object
of the Parliament introducing the proviso to sub-section (2) of Section 167
prescribing the outer limit within which the investigation must be completed
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the Court expressed that the proviso to sub-section (2) of Section 167 read
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with Section 20(4)(h) of TADA creates an indefeasible right in an accused
person on account of the default by the Investigating Agency in the
completion of the investigation within the maximum period prescribed or
extended, as the case may be, to seek an order for his release on bail
and such order is· generally termed as an "order on default". The Court
also held that an obligation is cast upon the Court to inform the accused
of his right of being released on bail and enable him to make an application
in that behalf. It was also further held that the accused would be entitled
to move an application for being admitted on bail and the Designated
Court shall release him on bail if the accused seeks to be so released
and furnishes the requisite bail. The Court declined to agree with the
contention of the accused that the Magistrate 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 Sanjay Dutt's case (supra) the Constitution Bench examined this
question also alongwith some other questions and the Constitution Bench
-explained the meaning of the expression "indefeasible right" of the accused
made in Hitendra Vishnu Thakur (supra). It appears that the counsel for the
accused in Sanjay Dutt's case conceded before the Court that indefeasible
right for grant of bail on expiry of the initial period of 180 days for
completing the investigation or the extended period prescribed by Section 20
(4)(bb), as held in Hitendra Vishnu Thakur, (supra) is a 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. In fact
Mr. Sibbal, learned senior counsel appearing for the accused had submitted,
that the decision of the Division Bench in Hitendra Vishnu Thakur cannot
be read to confer on tl1e accused an indefeasible rigllt to be relcasl:d on bail
under this provision once the challan has been filed if the accused continues
in custody. The Constitution Bench in paragraph 48 stated thus :
U.M. ACHARYA v. STATE[PATTANAIK, J.]
891
"'i'he indefeasible right accruing to the accused in such a situation is
enforceable only prior to the filing of the challan and docs not survive
orrelnain 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 be.en filed is not governed by Section 167 but different provisions
of t1Jei Code of Criminal Procedure. If that right had accrued to the
accus~d but il remained unenforced till the filing of the challan, then
theie is no question of its enforcement thereafter since it is extinguisttcd the moment challan is filed because Section 167 Cr.PC.
ceases lo 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
pro~iso 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
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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
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and committed to custody according to the provisions of the Code of
Criminal Proc"dure. It is settled by Constitution Bench decisions that
a petition seeking the writ of habeas corpus on the ground of absence
of a valid order of remand or detention of the accused, has to be
dismissed, if on the date of retum of the rule, the custody or detention
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is on the basis of a valid order. (See Naranjan Singh Nathawan v.
State of Punjab, [1952] SCR 395, Ram Narayan Singh v. State of
Delhi, [1953] SCR 652 and A.K Copa/on v. Government of India,
[1966] 2 SCR 427."
The Court then answered in paragraph 53 as under :
"(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 of
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notice to the accused before granting extension beyond the prescribed
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SUPREME COURT REPORTS
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period of 180 days in accordance with die further proviso to clause
(bb) of sub-section (4) of Section 20 of the TADA Act has to be
understood in the judgment of die Division Bench of this Court in
Hitendra Vishnu 11iakur. The requirement of such notice to the
accused before 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 accused to be released on bail
in accordance with Section 20(4)(bb) of the TADA Act read with
Section 167(2) of the Code of Criminal Procedure in default of
completion of the investigation and filing of the challan within the
time allowed, as held in Hitendra Vishnu 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 die 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."
In State through CBI v. Mohd. Ashraft Bhat and Another, [1996)
Supreme Court Cases 432, The Presiding Officer of the Designated Court
granted bail to the accused on a finding that the prosecution had failed to
submit the police report within the period prescribed. This Court set aside the
order on a conclusion that on the date the Designated Court granted bail to
the respondent/accused, the prosecution had already submitted the Police
Report and, therefore, as held by the Constitution Bench in Sanjay Dutt
(supra) the right of the accused stood extinguished.
Jn Dr. Bipin Shanti/al Panchal v. State of Gujarat, [ 1996) 1 Supreme
Court Cases 718, a three Judge Bench decision, this Court referred to the
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U.M. ACHARYA v.