2021 (5) TMI 603 - ALLAHABAD HIGH COURT

Grant of Bail - in-action on part of the Court in taking cognizance - Contention is that provision of Section 167 Cr.P.C. itself is ample clear and default bail can only be granted in case charge sheet/complaint was not filed within the stipulated period - sum and substance of the investigation conducted in the matter and the facts mentioned in the complaint for prosecution are that concerned Companies were engaged in fraudulent merchantine trade and caused wrongful loss to the Public Sector Banks to the tune of ₹ 7820 Crores approximately applying different modus operandi including siphoning of Bank funds through merchantine trade.

HELD THAT:- It is admitted fact in the present matter that the applicant has not moved regular bail application before the court below.

Only default bail application was moved and same was rejected by the court below. Thereafter present bail application has been moved before this Court taking recourse to the provisions of Section 439 and 167 Cr.P.C. It is true that provision of Section 212 Cr.P.C. has not been mentioned in the bail application but on this technical ground alone prayer made by the applicant to consider the bail application on regular side cannot be rejected - preliminary objection raised on behalf of the S.F.I.O. cannot be accepted, particularly, keeping in view the pandemic situation arose in the country and non regular functioning of the subordinate courts.

Submissions made by the learned counsel appearing for the applicant and disclosed in the written submission regarding the application of provisions of Section 167 (1), Section 167 (2) and Section 309 Cr.P.C. are not liable to be accepted. If the prosecution had filed complaint/police report within the period of sixty days, the right of default bail would not accrue in favour of the accused person as has been held by the Apex Court consistently in several cases and is being followed by the Courts till today. Construction of provisions of Section 167(2) Cr.P.C. in the manner submitted by learned counsel appearing for the applicant is not permissible and is not akin to the settled legal proposition. Remand could continue under Section 167(2) Cr.P.C. even after filing of complaint / charge-sheet despite this fact that cognizance had not been taken on the complaint. It is admitted case of the applicant that he moved default bail application on 18.05.2020. Since complaint had already been filed on 15.05.2020 and sixty days period was to be expired on 17.05.2020, therefore, default bail was not liable to be allowed.

The amount involved in the matter which has become N.P.A., the court is of the view that no case for regular bail is made out - prayer for regular bail is also hereby rejected.