TMI Blog2001 (3) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. There was mushroom growth of financial establishments in the State of Maharashtra in the recent past. The sole object of these establishments was of grabbing money received as deposits from public, mostly middle class and poor on the promises of unprecedented highly attractive rates of interest or rewards and without any obligation to refund the deposit to the investors on maturity or without any provision for ensuring rendering of the services in kind in return, as assured. Many of these financial establishments had defaulted to return the deposits on maturity or to pay interest or render the services in kind, in return, as assured to the public. As such deposits run into crores of rupees it had resulted in great public resentment and uproar, creating law and order problem in the State of Maharashtra, specially in the city like Mumbai. With a view to curb such unscrupulous activities of such financial establishments in the State of Maharashtra, it was found expedient to make suitable s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 167(2) of the Code were not applicable to the case on hand as the prosecution was for an offence under Section 3 of the MPID Act as well to which the provisions of Section 167(2) of the Code had no application. Thereafter the appellant preferred an application before the Bombay High Court which was placed for hearing before a Division Bench on 29.8.2000 on which date argument on behalf of the appellant was concluded and the case was adjourned to 31.8.2000 for hearing learned Additional Advocate General representing the State. In the meantime, challan was filed before the Special Judge on 30.8.2000. The High Court by its judgment dated 4.9.2000 came to the conclusion that proviso to Section 167(2) of the Code was applicable even to cases filed for prosecution of an accused for offences under MPID Act, but as the challan had already been filed, in view of the Constitution Bench judgment of this Court in the case of Sanjay Dutt, it was not possible to consider the prayer for bail made on behalf of the accused on the ground of non submission of challan within the period prescribed under proviso to Section 167(2) of the Code. The High Court also placed reliance upon other judgments of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gments of this Court in the last 25 years that framers of the Code conceived and desired that after expiry of the period prescribed in proviso to Section 167(2) of the Code, an accused has to be released on bail if no challan is filed because after the expiry of the statutory period prescribed therein, there is no power in Magistrate to remand for further custody, but the same proviso prescribes in clause (a)(ii) that `the accused person shall be released on bail if he is prepared to and does furnish bail. To be released on bail because of the default of submission of challan within the statutory period is a valuable right of the accused, but the framers of the Code have prescribed a condition in that very proviso referred to above that this right to be released on bail can be exercised only on furnishing of bail. Clause (a)(ii) of proviso to Section 167(2) of the Code not only says that the accused `is prepared to, but also says that the `accused does furnish bail and Explanation I to Section 167(2) of the Code clearly mandates that notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail . Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. State of Punjab, AIR 1952 SC 106; Ram Narayan Singh v. State of Delhi, AIR 1953 SC 277 and A.K. Gopalan v. Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of remand has been passed by the court concerned then the right of an accused claiming relief on the ground that he has a statutory right under proviso to Section 167(2) cannot be put on a higher footing than the constitutional right. Out of the three Constitution Bench decisions of this Court referred to above and relied upon in the case of Sanjay Dutt, in the case of Naranjan Singh Nathawan Ors. vs. State of Punjab, AIR 1952 SC 106, Patanjali Sastri, C.J., as he then was, speaking for himself, M.C.Mahajan, B.K. Mukherjea, S.R. Das and Chandrasekhara Aiyar, JJ., while considering an application for issuance of writ of habeas corpus whereby order of detention issued under Section 3 of the Preventive Detention Act, 1950 was challenged, laid down the law at page 108 as follows:- This is undoubtedly true and this Court had occasion in the recent case of Makhan Singh v. State of Punjab, Petn. No. 308 of 1951: (AIR (39) 1952 S.C.27) to observe `it cannot too often be emphasised that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of filing of the writ a person was under detention without there being any valid order, but if on the date of hearing a person was in detention under a valid order, merely because the detention on the date of the filing of the petition was invalid, the same cannot be a ground for issuance of writ of habeas corpus. It is true that the right of an accused to be released on bail for default in submission of challan is a valuable and indefeasible right, but by the time the court is considering the exercise of the said right if a challan is filed then the question of grant of bail has to be considered only with reference to merits of the case under the provisions of the Code relating to grant of bail after filing of the challan which view is consistent with the view expressed by different Constitution Benches of this Court in several decades in connection with the issuance of writ of habeas corpus as well as for grant of bail. My learned Brother has referred to the expression `if not already availed of referred to in the judgment in Sanjay Dutts case for arriving at conclusion no. 6. According to me, the expression `availed of does not mean mere filing of application for bail e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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