VARUN TIWARI VS STATE OF U.P.

Hon’ble Rajesh Singh Chauhan, J.

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

The applicant was an accused u/a 342, 376D, 372, 506 IPC, & section 5/6 POCSO Act. He was sent to judicial custody on 14.1.2021.

As per learned counsel for the applicant, the investigation should be completed within 90 days and charge-sheet should have been filed within aforesaid period under section 167 Cr.P.C. The 90 days period expired on 14.4.2021 and no charge-sheet had been filed.

The petitioner filed applications on 22.4.2021 before the learned trial court and before the learned sessions court and indicated that after expiry of 90 days period no charge-sheet has been filed, therefore, the applicant may be granted bail under section 167(2) Cr.P.C. as ‘default bail’.

The counsel for opposite party submitted that the applicant would not be entitled for default bail as the charge-sheet was filed before the learned trial court on 22.4.2021 and the cognizance thereof had been taken.

The counsel for opposite party mentioned that in view of the decision of Apex Court in re: Sanjay Dutta vs. State reported in (1994) 5 SCC 410 the benefit of default bail may not be extended to the applicant.

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

Court mentioned para 9 of Saravanan vs State (2020), para 11, 24 & 29 of Bikramjit Singh vs The State of Punjab (2020), and para 12 of S. Kavi vs The State of (2020).

Having heard learned counsel for the parties and having perused the material available on record as well as the aforesaid decisions of the Apex Court, the Court was of the considered opinion that the right of the accused under section 167(2) if by that time the charge-sheet has not been filed by the prosecution within stipulated period so indicated under section 167(1).

The Apex Court in Bikramjit Singh (supra) has held vide para 29 that an accused must be held to have availed all his right flowing from the legislative mandate engrafted in the proviso to sub-section (2) of Section 167 Cr.P.C. if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused.

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

The Court found that the order passed by the learned trial court dated 7.6.2021 is patently illegal and unwarranted inasmuch as the appropriate order in an application u/s 167(2) Cr.P.C. must have been disposed of promptly and such application should have not been treated as if it is a regular bail application filed by the applicant.

Accordingly  the petition u/a 482 Cr.P.C. was allowed.

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

The learned trial court was directed to release the present applicant on default bail u/s 167(2) Cr.P.C.

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