Supreme Court of India
UNION OF INDIA THROUGH CBIversusNIRALA YADAV @ RAJA RAM YADAV @ DEEPAK YADAV
- Citation
- 2014 INSC 425
- Decided
- 30 June 2014
- Disposal
- Dismissed
- Bench
- DIPAK MISRA
Holding
An accused who files an application under s.167(2) CrPC after the statutory period expires, before any extension is granted, acquires an indefeasible right to bail that the court must grant, and this right is not extinguished by a subsequent charge‑sheet or extension application.
Summary
The accused, Nirala Yadav, was arrested for offences under the IPC, Arms Act and POTA. After the statutory 90‑day period for filing a charge‑sheet elapsed without a charge‑sheet or an extension application, he filed an application under s.167(2) CrPC for bail. The CBI then filed an application for a 30‑day extension, and the Special Judge adjourned the bail application, later extending the investigation period and eventually filing the charge‑sheet, rejecting bail. The High Court, relying on Hitendra Vishnu Thakur and Uday Mohanlal Acharya, granted bail, holding that the accused’s indefeasible right had accrued when he filed the bail application. The Supreme Court held that once an accused files a s.167(2) bail application after the default period and before any extension is granted, an indefeasible right to bail arises that the court must honor; the prosecution cannot defeat this right by later filing a charge‑sheet or seeking an extension. Consequently, the High Court’s order granting bail was correct and the appeal was dismissed.
Issues considered
- When does an indefeasible right to bail under the proviso to s.167(2) CrPC accrue?
- Can the prosecution defeat the accused's right to bail by filing an extension application after the bail application is filed?
- Does the filing of a charge‑sheet after the bail application extinguishes the accused's right to bail?
- Whether the trial court’s adjournment and failure to decide the bail application violated the legislative mandate.
Legislation cited
- Arms Act, 1955s. 27
- Code of Criminal Procedure, 1973s. 167(2)
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 304, s. 323, s. 353
- Prevention of Terrorist Activities Act, 2002s. 49(2)(b)
- Terrorist and Disruptive Activities (Prevention) Act, 1987s. 20(4)(bb)
- Unlawful Activities (Prevention) Act, 1967s. 43-D
Subjects
baildefault bailSection 167(2) CrPCcharge‑sheetextension of timeindefeasible rightprosecutionCBIcriminal procedure
Judgment
[2014) 6 S.C.R. 148
A. UNION OF INDIA THROUGH CBI
v.
NIRALA Y,ADAV @ RAJA RAM YADAV @ DEEPAK
YADAV
(Criminal Appeal No. 786 of 2010)
B 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
verify from the records as well as from the public prosecutor
F 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
time - Adjournment by the Magistrate was misconceived -
H 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 E
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 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
filed an application for extension. Had an application for
8
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 procrastination-
frustrates 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]
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
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 three-
Judge 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 charge-
sheet 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] (173-
D-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 CC 272; Mohammed Iqbal Madar Sheikh and others v.
1
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
1952 SCR 368 Referred to Para 19
8
2005 (2) Suppl. SCR 919 Referred to Para 24
'- !
1997 (1) Suppl. SCR 212 Referred to Para 26
2011 (11) SCR 778 Referred to Para 28, 3~
c
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 A
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
· 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 (POTA) 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. E
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 F
. 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,
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 Maharahstra 2 , 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 ., Bipin Shanti/a/ Panchal v. State of Gujarat6, Dinesh
Oalmia v. CB/6, Mustaq Ahmed Isak v. State of Maharashtra 7
and Pragyna Singh Thakur v. State of Maharashtra 8 . 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: -
" ... we find that once the period for filing the charge-sheet
has expired and either no extension under clause (bb) has
c 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
D 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
E 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
F 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
G 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
H 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
between the parties." 0
After so stating, the Court proceeded to observe as
follows: -
"We must as already noticed reiterate that the objection E
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
F
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
of the case, seriousness of the offence or character of the
offender etc. can weigh with the court at that stage to refuse G
ttie grant of bail to an accused under sub-section (4) of
Section 20 TADA on account of the 'default' of the
1
prosecution."
10. After the said decision was rendered, the interpretation H
160 SUPREME COURT REPORTS [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: -
"(2) The proper construction of clause (bb) of sub-
B section (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
c
(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: -
"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
F 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
G 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
H
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 C
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 D
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 E
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 F
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 G
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 H
162 SUPREME COURT REPORTS [2014] 6 S.C.R. ·
A paragraphs 48 and 49 of the said decision which we think
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
B
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
c 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
D 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
E 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
F 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
G 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
H Code of Criminal Procedure. It is settled by Cohstitution
U.0.1. THR. CBI v. NIRALA YADAV@ RAJA RAM 163
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 Punjab 9 ; Ram Narayan Singh v. B
State of Delhi 10 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 C
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."
D
[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:-
E
"(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 notice to the accused before granting extension F
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 G
requirement of such notice to the accused before
I 9. 1952 SCR 395.
10. 1953 SCR 652.
11. (1966) 2 SCR 427. H
164 SUPREME COURT REPORTS [2014] 6 S.C.R.
A 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
B 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
c 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
D 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
E 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,
F 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]
G
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 B
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 D
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
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
F
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:-
G
"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. H
166 SUPREME COURT REPORTS [2014] 6 S.C.R.
A 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.
B
17. In Mohammed Iqbal Madar Sheikh and others v.
State of Maharshtra 14, while interpreting the proviso (a) to sub-
section (2) of Section 167 CrPC in the context of TADA, the
three-Judge Bench opined thus: -
c "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
E 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,
F 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
G
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
B
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
on ground of default in completion of the investigation
within the statutory period. It is now settled that this right C
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 D
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 F
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 G
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 H
168 SUPREME COURT REPORTS [2014] 6 S.C.R.
A 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"
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
E 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
F 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
G
Criminal Procedure Code and further would make an illegal
custody to be legal. inasmuch as after the expirv of the
stipulated period the Magistrate had no further jurisdiction
to remand and such custody of the accused is without any
valid order of remand. That apart, when an accused files
H
U.0.1. THR. CBI v. NIRALA YADAV@ RAJA RAM 169
YADAV @ DEEPAK YADAV [DIPAK MISRA, J.]
an application for bail indicating his right to be released A
as no challan had been filed within the specified period.
there is no discretion left in the Magistrate and the only
thing he is required to find out is whether the specified
period under the statute has elapsed or not, and whether
a challan has been filed or not. If the expression "availed B
of' is interpreted to mean that the accused must factually
be released on bail, then in a given case where the
Magistrate illegally refuses to pass an order
. . . notwithstanding the maximum period stipulated in Section
167 had expired, and yet no challan had been filed then c
the accused could only move to the higher forum and while
the matter remains pending in the higher forum for
consideration, if the prosecution files a charge-sheet then
also the so-called right accruing to the accused because
of inaction on the part of the investigating agency would 0
get frustrated. Since the legislature has given its mandate
it would be the bounden duty of the court to enforce the
same and it would not be in the interest of justice to negate
the same by interpreting the expression "if not availed of'
in a manner which is capable of being abused by the
prosecution. A two-Judge Bench decision of this Court in
E
State of M.P. v. Rustam setting aside the order of grant of
bail by the High Court on a conclusion that on the date of
the order the prosecution had already submitted a police
report and, therefore. the right stood extinguished, in our
considered opinion. does not express the correct position F
in law of the expression "if already not availed of'. used
by the Constitution Bench in Sanjav Dutt."
[Emphasis supplied]
After so stating the court referred to Makhan Singh G
Tarsikka v. State of Punjab 15, Ram Narayan Singh (supra) and
A.K. Gopa/an (supra) and proceeded to state as follows:-
"ln interpreting the expression "if not availed of' in the
15. AIR 1952 SC 27'. H
170 SUPREME COURT REPORTS [2014] 6 S.C.R.
A manner in which we have just interpreted we are conscious
of the fact that accused persons in several serious cases
would get themselves released on bail, but that is what the
law permits, and that is what the legislature wanted and
an indefeasible right to an accused flowing from any
B legislative provision ought not to be defeated by a court
by giving a strained interpretation of the provisions of the
Act. In the aforesaid premises, we are of the considered
opinion that an accused must be held to have availed of
his right flowing from the legislative mandate engrafted in
c the proviso to sub-section (2) of Section 167 of the Code
if he has filed an application after the expiry of the
stipulated period alleging that no challan has been filed
and he is prepared to offer the bail that is ordered. and it
is found as a fact that no challan has been filed within the
period prescribed from the date of the arrest of the
D
accused. In our view, such interpretation would subserve
the purpose and the object for which the provision in
question was brought on to the statute-book. In such a
case, therefore, even if the application for consideration
of an order of being released on bail is posted before the
E court after some length of time, or even if the Magistrate
refuses the application erroneously and the accused
moves the higher forum for getting a formal order of being
released on bail in enforcement of his indefeasible right,
then filing of challan at that stage will not take away the right
F of the accused."
[Underlining is ours]
20. Thereafter the Court culled out six conclusions which
are necessitous•to be reproduced. They are: -
G "1. Under sub-section (2) of Section 167, a Magistrate
before whom an accused is produced while the police is
investigating into the offence can authorise detention of the
accused in such custody as the Magistrate thinks fit for a
term not exceeding 15 days on the whole.
H
U.0.1. THR. CBI v. NIRALA YADAV @ RAJA RAM 171
YADAV @ DEEPAK YADAV [DIPAK MISRA, J.]
2. Under the proviso to the aforesaid sub-section (2) of A
Section 167, the Magistrate may authorise detention of the
accused otherwise than in the custody of police for a total
period not exceeding 90 days where the investigation
relates to offence punishable with death, imprisonment for
life or imprisonment for a term of not less than 1O years, B
and 60 days where the investigation relates to any other
offence.
3. On the expiry of the said period of 90 days or 60 days,
as the case may be, an indefeasible right accrues in C
favour of the accused for being released on bail on account
of default by the investigating agency in the completion of
the investigation within the period prescribed and the
accused is entitled to be released on bail, if he is prepared
to and furnishes the bail as directed by the Magistrate.
D
4. When an application for bail is filed by an accused for
enforcement of his indefeasible right alleged to have been
accrued in his favour on account of default on the part of
the investigating agency in completion of the investigation
within the specified period, the Magistrate/court must E
· dispose of it forthwith, on being satisfied that in fact the
accused has been in custody for the period of 90 days or
60 days, as specified and no charge-sheet has been filed
by the investigating agency. Such prompt action on the part
of the Magistrate/court will not enable the prosecution to F
frustrate the object of the Act and the legislative mandate
of an accused being released on bail on account of the
default on the part of the investigating agency in
cClmpleting the investigation within the period stipulated.
5. If the accused is unable to furnish the bail as directed G
by the Magistrate, then on a conjoint reading of Explanation
I and the proviso to sub-section (2) of Section 167, the
continued custody of the accused even beyond the
specified period in para (a) will not be unauthorised, and
H
172 SUPREME COURT REPORTS [2014] 6 S.C.R.
A therefore, if during that period the investigation is complete
and the charge-sheet is filed then the so-called indefeasible
right of the accused would stand extinguished.
6. The expression "if not already availed of' used by this
B Court in Sanjay Dutt case3 must be understood to mean
when the accused files an application and is prepared to
offer bail on being directed. In other words, on expiry of
the period specified in para (a) of the proviso to sub-
section (2) of Section 167 if the accused files an
application for bail and offers also to furnish the bail on
c being directed, then it has to be held that the accused has
availed of his indefeasible right even though the court has
not considered the said application and has not indicated
the terms and conditions of bail, and the accused has not
furnished the same."
D
21. Elaborating further, the Court held that if the charge-
sheet is filed subsequent to the availing of the indefeasible right
by the accused then that right would not stand frustrated or
extinguished and, therefore, if an accused is entitled to be
E released on bail by application of the proviso to sub-section
(2) of Section 167 CrPC, makes the application before the
Magistrate, but the Magistrate erroneously refuses the same
and rejects the application and then the accused moves the
higher forum and while the matter remains pending before the
F htgher forum for consideration a charge-sheet is filed, the so-
called indefeasible right of the accused would not stand
extinguished thereby, and on the other hand, the accused has
to be released on bail. The Court further proceeded to say that
such an accused, thus is entitled to be released on bail in
G enforcement of his indefeasible right will, however, have to be
produced before the Magistrate on a charge-sheet being filed
in accordance with Section 209 and the Magistrate must deal
with him in the matter of remand to custody subject to the
provisions of the Code relating to bail and subject to the
H
'l.J.0.1. THR. CBI v. NIRALA YADAV @ RAJA RAM 173
YADAV @ DEEPAK YADAV [DIPAK MISRA, J.]
provisions of cancellation of bail, already granted in accordance A
with the law laid down by the Court in the case of Mohd. Iqbal
(supra).
22. Before we proceed to deal with the subsequent
decisions, we should pause here to deliberate. In Mohamed 8
Iqbal Madar Sheikh (supra) it has been expressed with anguish
that the Court should not keep an application filed under Section
167(2) after expiry of the statutory period pending to enable the
investigation to file the charge-sheet to defeat the indefeasible
right of an accused. It has been clearly stated therein that the C
statutory right should not be defeated by keeping the application
pending so that the right which had accrued is extinguished.
The aforesaid decision was rendered after pronouncement by
the Constitution Bench in Sanjay Dutt's case and, in fact, it has
been referred to therein.
D
23. In Uday Mohan/al Acharya (supra) the principle has
been further elaborated to hightlight the ratio laid down in
Sanjay Dutt's c:ase. It has been clearly laid down that if a case
rs adjourned by the court granting time to the prosecution not
adverting to the application filed on behalf of the accused, it E
would be a violation of the legislative mandate. The principle
stated in Uday Mohan/al Acharya (supra) is a binding
precedent on us. Mr. Dey, learned 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 F
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 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 G
rendered in ignorance of a binding precedent but, on the
contrary, it has directly dealt with the decision in Sanjay Dutt
(supra), 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
H
174 SUPREME COURT REPORTS [2014] 6 S.C.R.
A if a two-Judge Bench or a three-Judge Bench disagrees with
the view expressed in Uday Mohan/a/ Acharya (supra), it has
to be referred to a larger Bench. As we notice, prior to the
decision in Uday Mohan/al Acharya's case a three-Judge
Bench in Mohamed Iqbal Madar Sheikh (supra) had stated the
B principle in a different way. We are disposed to think, that is
the principle which the Constitution Bench in Sanjay Duff'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
c accused can avail his liberty only by filing 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 court to verify from the records as well as from
0
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. If
an application for extension is filed, it is to be dealt with as has
E been stated in the case of Sanjay Dutt (supra). That is the duty
of the Court. This is the position of law as has been stated in
Uday Mohan/a/ Acharya (supra).
24. In Ateef Nasir Mui/a v. State of Maharashtra 16, the
accused was arrested on 15.4.2003 and the period of ninety
F days for completing the investigation was to expire on
13.7.2003. On 11.7.2003 an application was moved for
extension of time to complete the investigation under Section
49(2)(b) of Prevention of Terrorism Act, 2002. The Special
Judge, after hearing the counsel for the accused, allowed the
G application and extended the period for completing the
investigation till 14.8.2003 and, accordingly, the accused was
remanded to custody. The order of granting extension was
challenged before the High Court. On 14.7.2003, after expiry
H 16. (2005) 7 sec 29. ,
U.0.1. THR. CBI v. NIRALA YADAV @ RAJA RAM 175
YADAV @ DEEPAK YADAV [DIPAK MISRA, J.].
of ninety days, an application for release of accused was filed A
stating that the period of ninety days had expired and hence,
he was entitled to bail in terms of Section 49(2)(b) read with
the provisions of Section 167(2) CrPC. The charge-sheet was
filed by the investigating agency on 19.7.2003 before expiration
of the extended time. The learned Special Judge rejected the B
application for grant of bail by order dated 25.7.2003 which was
affirmed by the High Court. Noting various contentions
advanced at the Bar, this Court held thus:-
"17. It was then contended on behalf of the appellant that
the appellant having acquired an indefeasible right to be C
released on bail on the expiry of 90 days from the date of
his arrest, Jhe Special Judge was not justified in rejecting
the application for grant of bail which was filed on 14-7-
2003. By then the charge-sheet had not been submitted
by the police and, hence, there was no reason to continue D
the detention of the appellant.
18. This submission overlooks the fact that by an order
dated 11-7-2003 the Court had granted extension of time
to the investigating agency to complete the investigation. E
Thus on 14-7-2003 when an application was filed for grant
of bail under Section 167(2) of the Code of Criminal
Procedure, there was already an order extending the time
for completion of the investigation, and consequently the
Court was empowered to remand the accused to judicial F
or police custody during the said extended period."
25. The purpose of citing the aforesaid decision is that an
application for grant of extension was filed .prior to the expiry
of ninety days and the same was granted and, therefore, the
indefeasible right vested in the accused stood extinguished. G
26. Presently, we shall refer to certain later decisions. In
the case of Dinesh Dalmia (supra), which has been placed
reliance upon by Mr. Dey, the CBI lodged the First Information
Report against the appellant and three companies on a H
176 SUPREME COURT REPORTS [2014] 6 S.C.R.
A complaint made by the Securities and Exchange Board of
India. As the appellant was away, the learned Magistrate, by
an order dated 14.2.2005, issued a non-bailable warrant of
arrest against him. In the meantime, after the completion of
investigation a charge-sheet was submitted before the learned
B Magistrate in terms of sub-section (2) of Section 173 CrPC.
The name of the appellant featured in the charge-sheet along
with the companies. Eventually, after following the process the
appellant was sent to police custody on 14.2.2006 till 24.2.2006.
The accused was handed over to the police for conducting
c investigation till 8.3.2006. He, however, was remanded to
judicial custody till 14.3.2006 by order dated 9.3.2006 on the
plea that further investigation was pending. CBI prayed for and
obtained orders of remand to judicial custody from the learned
Magistrate on 14.3.2006, 28.3.2006, 10.4.2006 and 28.4.2006.
0 The appellant, on expiry of sixty days from the date of his arrest,
filed an application for statutory bail purported to be in terms
of the proviso appended to sub-section (2) of Section 167
CrPC on the premise that no further charge-sheet in respect
of the investigation under sub-section (8) of Section 173 CrPC
E had been filed. When the said application was pending
consideration, CBI sought for his remand into judicial custody
under sub-section (2) of Section 309 thereof. The application
for statutory bail was rejected by the learned Magistrate
basically on the ground that the accused was arrested on the
basis of non-bailable warrant issued by the court after taking
F cognizance of the offences in the charge-sheet. In revision, the
learned Sessions Judge allowed the revision placing reliance
on State v. Dawood Ibrahim Kaskar17 • The CBI moved the High
Court which overturned the decision of the learned Sessions
Judge. This Court took note of the fact that the charge-sheet
G was submitted on 24.10.2005 and the applicant was arrested
only on 12.2.2006. To the contentions raised before this Court,
namely, (i) the charge-sheet filed against the appellant and the
cognizance taken thereupon was illegal and invalid and by to
H 11. (2000) 10 sec 438.
_ U.0.L. THR. CBI v. NIRALA YADAV@ RAJA RAM 177
YADAV @ DEEPAK YADAV [DIPAK MISRA, J.]
'
be released on bail had been taken away; and (ii) even if the A
charge-sheet was legal, the right of the appellant under sub-
section (2) of Section 167 CrPC continued to remain available
in the facts and circumstances of the case. Noting the
contentions, the Court adverted to the power conferred under
the statute under Section 173 CrPC and, eventually, opined as B
follows: -
"24. Concededly, the investigating agency is required to
complete investigation within a reasonable time. The ideal
period therefor would be 24 hours, but, in some cases, it C
may not be practically possible to do so. Parliament,
therefore, thought it fit that remand of the accused can be
sought for in the event investigation is not completed within
60 or 90 days, as the case may be. But, if the same is not
done within the stipulated period, the same would not be
detrimental to the accused and, thus, he, on the expiry D
thereof would be entitled to apply for bail, subject to fulfilling
the conditions prescribed therefor.
25. Such a right of bail although is a valuable right but the
same is a conditional one; the condition precedent being E
pendency of the investigation. Whether an investigation in
fact has remained pending and the investigating officer has
submitted the charge-sheet only with a view to curtail the
right of the accused would essentially be a question of fact.
Such a question strictly does not arise in this case F·
inasmuch as, according to CBI, sufficient materials are
already available for prosecution of the appellant.
According to it, further investigation would be inter alia
necessary on certain vital points including end use of the
funds.
G
)()()( )()()( )()()(
27. It is also not a case of the appellant that he had been
arrested in course of further investigation. A warrant of
arrest had already been issued against him. The learned H
178 SUPREME COURT REPORTS [2014] 6 S.C.R. ,
A Magistrate was conscious of the said fact while taking
cognizance of the offence."
Thereafter, the Court proceeded to the concept of remand
as contemplated under the Code. We may profitably quote the
same: -
8
"38. It is a well-settled principle of interpretation of statute
that it is to be read in its entirety. Construction of a statute
should be made in a manner so as to give effect to all the
provisions thereof. Remand of an accused is contemplated
c by Parliament at two stages; pre-cognizance and post-
cognizance. Even in the same case, depending upon the
nature of charge-sheet filed by the investigating officer in
terms of Section 173 of the Code, a cognizance may be
taken as against the person against whom an offence is
D said to have been made out and against whom no such
offence has been made out even when investigation is
pending. So long a charge-sheet is not filed within the
meaning of sub-section (2) of Section 173 of the Code,
investigation remains pending. It, however, does not
E preclude an investigating officer, as noticed hereinbefore,
to carry on further investigation despite filing of a police
report, in terms of sub-section (8) of Section 173 of the
Code.
39. The statutory scheme does not lead to a conclusion in
F regard to an investig.ation leading to filing of final form
under sub-section (2) of Section 173 and further 1
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
G to sub-section (2) of Section 167 of the Code would be
available to an offender; once, however, a charge-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
H Code."
U.0.1. THR. CBI v. NIRALA YADAV@ RAJA RAM 179
YADAV @ DEEPAK YADAV ·[DIPAK MISRA, J.]
27. As the aforesaid decision has been assiduously relied A
upon by Mr. Dey to pyramid his submission of statutory
interpretation, the right of the accused and concept of remand,
we have dealt with the same in detail. The ultimate conclusion,
as we perceive, is that once a charge-sheet is filed the benefit
of proviso appended to sub-section (2) of Section 167 CrPC B
ceases and it does not revive solely because the further
investigation remains pending. In the said case the Court
declined to interfere as the benefit was denied to the accused
as the charge-sheet was filed and cognizance had been taken
on which basis a non-bailable warrant of arrest was issued. c
Thus, the said decision does not render any assistance to the
learned counsel for the appellant.
28. In Union of India v. Hassan Ali Khan and another18 ,
a two-Judge Bench, while adverting to the submission of the
learned counsel for the Union of India pertaining to the three- D
Judge Bench decision in Uday Mohan/al Acharya (supra), has
understood the said decision in the following manner: -
25. Reference was also made to the decision of a three-
Judge Bench of this Court in Uday Mohan/al Acharya v. E
State of Maharashtra wherein the scope of Section 167(2)
CrPC and the proviso thereto fell for consideration and it
was the majority view that an accused had an indefeasible
right to be released on bail when the investigation is not
completed within the specified period and that for availing F
of such right the accused was only required to file an
application before the Magistrate seeking release on bail
alleging that no challan had been filed within the period
prescribed and if he was prepared to offer bail on being
directed by the Magistrate, the Magistrate was under an G
obligation to dispose of the said application and even if
in the meantime a charge-sheet had been filed, the right
to statutory bail would not be affected. It was, however,
clarified that if despite the direction to furnish bail, the
1a. (2011) 10 sec 235. H
180 SUPREME COURT REPORTS [2.014] 6 S.C.R.
A accused failed to do so, his right to be released on bail
would stand extinguished."
29. From the aforesaid analysis, it is graphically clear that
the learned Judges laid emphasis how an accused avails the
benefit of compulsive bail and what is the obligation cast on
8
the Magistrate in law.
30. We may presently refer to a recent three-Judge Bench
decision in Sayed Mohd. Ahmad Kazmi v. State (Government
of NCT of Delhi) and others 19 • In the said case, the accused
C had filed an application for grant of bail on 2.6.2012 since his
ninety days' period of custody was to expire on 3.6.2012 and
further custody was sought for by the prosecution. The learned
..Magistrate, by his order dated 2.6.2012, extended the period
·of investigation and the custody of the appellant by another
D ninety days. The said order was assailed by the appellant in a
revision which came for consideration before the learned
Additional Sessions Judge, who, on 8.6.2012, held that it was
only the Sessions Court and not the Chief Metropolitan
Magistrate which had the competence to extend the judicial
E custody of the accused and to entertain cases of such nature.
On 22.6.2012, the accused-appellant was produced before the
learned Chief Judicial Magistrate for extension of his custody.
On 17.7.2012 an application was filed under Section 167(2)
CrPC seeking default bail as no charge-sheet had been filed
F within ninety days period of the appellant's custody. The said
application was dismissed by the learned Magistrate.
Thereafter, the matter was referred by the learned Chief
Metropolitan Magistrate to the learned District and Sessions
Judge, who directed that judicial custody of the accused-
G appellant be extended. The aforesaid order of the learned
Sessions Judge was assailed before the High Court under
Section 482 CrPC and the High Court stayed the operation of
the order passed by the learned Additional Sessions Judge
dated 28.6.2012 and, therefore, the application for grant of
H 19. c2012) 12 sec 1.
U.0.1. THR. CBI v. NIRALA YADAV@ RAJA RAM 181
YADAV @ DEEPAK YADAV [DIPAK MISRA, J.]
statutory bail could not be taken up by the learned Additional A
Sessions Judge till the High Court vacated the order of stay
on 13.7.2012. As has been stated earlier, the accused moved
an application for grant of bail under Section 167(4) and the
same was listed for consideration on 17. 7 .2012. In the
meantime, revision petition came before the learned Additional B
and Sessions Judge, who allowed the application and opined
that the custody of the accused was illegal. In view of the order
passed by the learned Additional Sessions Judge declaring the
custody of the accused to be illegal, on the same day an
application under Section 167(2) CrPC was filed before the c
learned Chief Metropolitan Magistrate, but he, instead of
hearing the application on the sad date, notified the hearing for
18.7.2012. On the adjourned date, i.e., 18.7.2012 the State filed
a fresh application seeking further extension of appellant's
custody and the investigation period. The learned Chief 0
Metropolitan Magistrate directed a copy of the said application
to be served on the counsel for the accused and notified the
matter for hearing on 20.7.2012. On that day he took up the
matter for extension of custody and, instead of considering the
application, extended the time of interrogation and custody of E
the appellant for ninety days· with retrospective effect from
2.6.2012. The aforesaid order was challenged before the
learned Sessions Judge who adjourned the matter to
12.10.2012 and on 31. 7.2013 the prosecution filed the charge-
sheet. When the matter travelled to this Court, a question arose
with regard to getting the benefit of the default bail. Be it stated, F
the Court was considering the provisions contained in Section
43-D of Unlawful Activities (Prevention) Act, 1967 and Section
167(2) CrPC. In that context, it observed thus: -
"18. By virtue of the aforesaid modification to the provisions G
of Section 167(2) CrPC, the period of 90 days stipulated
for completion of investigation and filing of charge-sheet
was modified by virtue of the amended proviso, which
indicated that if the investigation could not"be completed
within 90 days and if the court was satisfied with the report H
182 SUPREME COURT REPORTS [2014] 6 S.C.R.
A of the Public Prosecutor indicating the progress of the
investigation and the specific reasons for detention of the
accused beyond the period of 90 days, extend the said
period up to 180 days. In other words, the custody of an
accused could be directed initially for a period of 90 days
B and, thereafter, for a further period of 90 days, in all a total
of 180 days, for the purpose of filing charge-sheet. In the
event the charge-sheet was not filed even within the
extended period of 180 days, the conditions directing that
the accused person shall be released on bail if he is
c prepared to do and does furnish bail, would become
operative."
31. Thereafter, the three-Judge Bench referred to the
decision in Sanjay Dutt (supra}, Uday Mohan/al Acharya
(supra) and Bipin Shanti/al Panchal (supra) and taking note
D of the fact situation held that: -
"Not only is the retrospectivity of the order of the Chief
Metropolitan Magistrate untenable, it could not also defeat
the statutory right which had accrued to the appellant on
E the expiry of 90 days from the date when the appellant was
tal<en into custody. Such right, as has been commented
upon by this Court in Sanjay Dutt and the other cases cited
by the learned Additional Solicitor General, could only be
distinguished (sic extinguished) once the charge-sheet had
F ·been filed in the case and no application has been made
prior thereto for grant of statutory bail. It is well-established
that Lf an accused does not exercise his right to grant of
statutory bail before the charge-sheet is filed, he loses his
right to such benefit once such charge-sheet is filed and
can, thereafter, only apply for regular bail."
G
Thereafter, the Court opined thus: -
"26. The circumstances in this case, however, are different
in that the appellant had exercised his right to statutory bail
H on the very same day on which his custody was held to
U.0.1. THR. CBI v. NIRALA YADAV @ RAJA RAM 183
YADAV @ DEEPAK YADAV [DIPAK MISRA, J.)
be illegal and such an application was left undecided by A
the Chief Metropolitan Magistrate till after the application
filed by the prosecution for extension of time to complete
investigation was taken up and orders were passed
thereupon."
32. Thus, the aforesaid decision, as we find, has placed B
reliance on Uday Mohan/al Acharya's case and, therefore,
the principle with regard to the time and manner of availability
of the proviso appended to sub~section (2) of Section 167
CrPC has been further crystallized.
c
33. Learned counsel for the appellant has commended us,
with immense perseverance, the authority in Pragyna Singh
Thakur (supra). In the said· cae a contention was raised that
judgment rendered by the High Court declining to enlarge the
accused on bail was violative of the mandate of Articles 22(1)
and 22(2) of the Constitution and also violative of the statutory D
provisions engrafted under Section 167(2) CrPC. In the said
case, the accused was under detention from 10.10.2008 and
ninety days expired on 9.1.2009 and the charge-sheet was filed
on 20.1.2009. The accused-appellant filed an application under
Section 167(2) CrPC read with Section 21 (4) of Maharashtra E
Control of Organized Crime Act, 1999 (MOCA) and also under
Section 439 CrPC. The said application was resisted by the
prosecution on the ground that the charge-sheet was filed on
20.1.2009 which was the eighty-ninth day from the date of his
remand order, i.e., 24.10.2008. The learned Special Judge F
rejected the application vide order dated 9.7.2009. The High
Court being moved, dismissed the application vide order dated
12.3.2010. Before this Court a question arose whether the
appellant was in police custody from 10.10.2008 to 22.10.2008,
fat the High Court had returned a finding that the accused was G
arrested on 23.10.2008. This Court, on a scrutiny of the facts,
held that the accused was arrested on 23.10.2008 and,
accordingly, came to hold thus: -
"49. As far as Section 167(2) of the Criminal Procedure
Code is concerned this Court is of the firm opinion that no H
184 SUPREME COURT REPORTS [2014] 6 S.C.R.
A case for grant of bail has been made out under the said
provision as charge-sheet was filed before the expiry of
90 days from the date of first remand. In any event, right
in this regard of default bail is lost once the charge-sheet
is filed. This Court finds that there is no violation of Article
B 22(2) of the Constitution, because on being arrested on
23-10-2008, the appellant was produced before the Chief
Judicial Magistrate, Nasik on 24-10-2008 and subsequent
detention in custody is pursuant to the order of remand by
the Court, which orders are not being challenged, apart
c from the fact that Article 22(2) is not available against a
court i.e. detention pursuant to an order passed by the
court.
xxx xxx xxx
51. Though this Court has come to the conclusion that the
D appellant has not been able to establish that she was
arrested on 10-10-2008, even if it is assumed for the sake
of argument that the appellant was arrested on 10-10-2008
as claimed by her and not on 23-10-2008 as stated by the
prosecution, she is not entitled to grant of default bail
E because this Court finds that the charge-sheet was filed
within 90 days from the date of first order of remand. In
other words, the relevant date of counting 90 days for filing
the charge-sheet is the date of first order of the remand
and not the date of arrest. This proposition has been
F clearly stated in Chaganti Satyanarayana v. State of
A.P.20"
34. To arrive at the said conclusion, reliance was also
placed on Chaganti Satyanarayana (supra), CBI v. Anupan J.
Kulkarni2 1, State v. Mohd. Ashraft Bhat22, State of Maharashtra
G v. Bharati Chandmal Varma 23 and Rustam (supra).
20. (1986) 3 sec 141.
21. (1992) 3 sec 141.
22. (1996) 1 sec 432.
H 23. (2002) 2 sec 121.
U.0.1. THR. CBI v. NIRALA YADAV @ RAJA RAM 185
YADAV @ DEEPAK YADAV [DIPAK MISRA, J.]
35. After so stating, the Court addressed to the entitlement A
of bail under Section 167(2) CrPC and, in that context, stated
thus: -
"54. There is yet another aspect of the matter. The right
under Section 167(2) CrPC to be released on bail on B
default if charge-sheet is not filed within 90 days from the
date of first remand is not an absolute or indefeasible right.
The said right would be lost if charge-sheet is filed and
would not survive after the filing of the charge-sheet. In
other words. even if an application for bail is filed on the C
ground that charge-sheet was not filed within 90 days, but
before the consideration of the same and before being
released on bail, if charge-sheet is filed. the said right to
be released on bail would be lost. After the filing of the
charge-sheet, if the accused is to be released on bail, it
can be only on merits. This is quite evident from the D
Constitution Bench decision of this Court in Sanjay Dutt
(2) v. State [paras 48 and 53(2)(b)]. The reasoning is to
be found in paras 33 to 49."
[Underlining is ours] E
36. Be it noted, to say so, the learned Judges drew support
from the decisions in Rustam (supra), Bipin Shanti/al Panchal
(supra), Dinesh Dalmia (supra) and Mustaq Ahmed
Mohammed Isak (supra). Thereafter they adverted to Uday
F
Mohan/a/ Acharya's case in following terms: -
"56. In Uday Mohan/a/ Acharya v. State of Maharashtra
a three-Judge Bench of this Court considered the meaning
of the expression "if already not availed of' used by this
Court in the decision rendered in Sanjay Dutt in para 48 G
and held that if an application for bail is filed before the
charg~-sheet is filed, the accused could be said to have
availed of his right under Section 167(2) even though the
court has not considered the said application and granted
him bail under Section 167(2) CrPC. This is quite evident H
186 SUPREME COURT REPORTS [2014] 6 S.C.R.
A if one refers to para 13 of the reported decision as well
as the conclusion of the Court at p. 747.
57. ft is well settled that when an application for default bail
is filed, the merits of the matter are not to be gone into.
This is quite evident from the principle laid down in Union
B
of India v. Thamisharasi2 4 , SCC para 10, placita.c-d.
58. From the discussion made above, it is quite clear that
even if an application for bail is fifed on the ground that
charge-sheet was not fifed within 90 days, before the
c consideration of the same and before being released on
bail if charge-sheet is fifed, the said right to be released
on bail. can be only on merits. So far as merits are
concerned the learned counsel for the appellant has not
addressed this Court at all and in fact bail is not claimed
D on merits in the present appeal at all."
[Emphasis added]
37. At this juncture, it is absolutely essential to delve into
what were the precise principles stated in Uday Mohan/al
E Acharya's case and how the two-Judge Bench has understood '
the same in Pragyna Singh Thakur (supra). We have already
reproduced the paragraphs in extenso from Uday Mohan/al
Acharya's case and the relevant paragraphs from Pragyna
Singh Thakur (supra). Pragyna Singh Thakur (supra) has
F drawn support from Rustam and others case to buttress the
principle it has laid down though in Uday Mohan/al Acharya's
case the said decision has been held not to have stated the
correct position of law and, therefore, the same could not have
been placed reliance upon. The Division Bench in paragraph
G 56 which have been reproduced hereinabove, as referred to
paragraph 13 and the conclusions of Uday Mohan/al Acharya's
case. We ha'!e already quoted from paragraph 13 and the
conclusions.
H 24. (1995) 4 sec 190.
U.0.1. THR. CBI v. NIRALA YADAV @ RAJA RAM 187
YADAV @ DEEPAK YADAV [DIPAK MISRA, J.]
38. The opinion expressed in paragraph 54 and 58 in A
Pragyna Singh Thakur (supra) which we have underlined, as
it seems to us, runs counter to the principles stated i.n Uday
Mohan/al Acharya (supra) which has been followed in Hassan
Ali Khan and andther (supra) and Sayed Mohd. Ahmad
Kazmi. The decision in Sayed Mohd. Ahmad Kazmi's case has B
been rendered by a three-Judge Bench. We may hasten to
state, though in Pragyna Singh Thakur's case the learned
Judges have referred to Uday Mohan/al Acharya's case but
as stated the principle that even if an application for bail is filed
on the ground that the charge-sheet was not filed within 90 days, c
but before the consideration of the same and before being
released on bail, if charge-sheet is filed the said right to be
enlarged on bail is lost. This opinion is contrary to the earlier
larger Bench decisions and also runs counter to the
subsequent three-Judge Bench decision in Mustaq Ahmed 0
Mohammed Isak's case. We are disposed to think so, as the
two-Judge Bench has used the words "before consideration of
the same and before being released on bail", the said principle
specifically strikes a discordant note with the proposition stated
in the decisions rendered by the larger Benches.
E
39. At this juncture, it will be appropriate to refer to the
dissenting opinion by B.N. Agarwal, J. in Uday Mohan/al
Acharya's case. The learned Judge dissented with the majority
as far as interpretation of the expression "if not already availed
of' by stating so:- F
"29. My learned brother has referred to the expression "if
not already availed of' referred to in the judgment in Sanjay
Dutt case for arriving at Conclusion 6. According to me,
the expression "availed of' does not mean mere filing of G
application for bail expressing therein willingness of the
accused to furnish the bail bond. What will happen if on
the 61 st day an application for bail is filed for being
released on bail on the ground of default by not filing the
challan by the 60th day and on the 61 st day the challan is
H
188 SUPREME COURT REPORTS [2014] 6 S.C.R.
A · also filed by the time the Magistrate is called upon to apply
his mind to the challan as well as the petition for grant of
bail? In view of the several decisions referred to above and
the requirements prescribed by clause (a)(il) of the proviso
read with Explanation I to Section 167(2) of the Code, as
B no bail bond has been furnished, such an application for
bail has to be dismissed because the stage of proviso to
Section 167(2) is over, as such right is extinguished the
moment the challan is filed.
30. In this background, the expression "availed of does
c 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 the ch all an
is filed before that, then there is no question of enforcing
the right, howsoever valuable or indefeasible it may be,
D after filing of the challan because thereafter the right under
default clause cannot be exercised."
40. On a careful reading of the aforesaid two paragraphs,
we think, the two-Judge Bench in Pragyna Singh Thakur's case
E has somewhat in a similar matter stated the same. As long as·
the majority view occupies the field it is a binding precedent.
That apart, it has been followed by a three-Judge Bench in
Sayed Mohd. Ahmad Kazmi's case. Keeping in view the
principle stated in Sayed Mohd. Ahmad Kazmi's case which
F has based on three-Judge Bench decision in Uday Mohan/al
Acharys's case, we are obliged to conclude and hold the
principle laid down in Paragraph 54 and 58 of Pragyna Singh
Thakur's case(which have been underlined by us) do not state
the correct principle of law. It can clearly be stated that in view
G of the subsequent decision of a larger Bench that cannot be
treated to be a good law. Our view finds support from the
decision in Union of India and others v. Arviva Industries India
Limited and others25.
H 25. (2014) 3 sec 159.
U. 0. I. THR. CBI v. NIRALA YADAV@ RAJA RAM 189
YADAV @ DEEPAK YADAV [DIPAK MISRA, J.]
41. Coming to the facts of the instant case, we find that A
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 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 B
the application, the prosecution submitted an application
seeking extension of time for filing of the charge-sheet. Mr. P.K.
Dey, learned counsel for the appellant would submit that the
same is permissible in view of the decision in Bipin Shanti/al
Panchal (supra) but on a studied scrutiny of the same we find c
the said decision only dealt with whether 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 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 D
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 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 E
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 time. The adjournment by the learned 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. We have no hesitation in saying that such
F
procrastination frustrates the legislative mandate. A Court
cannot act to 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. If we permit G
ourselves to say so, the prosecution exhibited sheer
negligence in not filing the application within the time which it
was entitled to do so in law but made all adroit attempts to
redeem the cause by its conduct.
H
190 SUPREME COURT REPORTS [2014] 6 S.C.R.
A 42. In view of our aforesaid premised reasons we do not
find any error in the order of the High Court in overturning the
order refusing bail and extending the benefit to the respondent
and, accordingly, the appeal fails and is hereby dismissed.
Nldhi Jain Appeal dismissed.
8
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