TMI Blog2021 (11) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... the failure on the part of the investigating agency/prosecution. Such right having been recognized as a Fundamental Right in a plethora of judgments, cannot be equated with the discretionary right of the Court, wherein the Court in its discretion may impose any condition, as may be deemed fit so as to enlarge the accused on bail. The Hon ble Apex Court in Saravanan s case [ 2020 (10) TMI 1249 - SUPREME COURT] , has held that default bail under Section 167(2) Cr.P.C. is an indefeasible right and no condition of deposit of the alleged amount involved in the alleged crime can be imposed by the Court while granting default bail/statutory bail to the accused. The default bail under Section 167(2) Cr.P.C. cannot be equated with the discreti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while granting default bail to the petitioner under Section 167(2) Cr.P.C., was declined. The petitioner is an accused in a complaint under Section 132(1)(b)(c) and (I) punishable under Section 132(1)(i) of the CGST Act, 2017 read with corresponding Sections of Punjab SGST Act, 2017 and IGST Act, 2017. When the prosecution did not produce the challan within the prescribed period of 60 days, the petitioner had filed an application for grant of default bail under Section 167(2) Cr.P.C. Said application was allowed by the learned Chief Judicial Magistrate, Ludhiana, vide order dated 22.02.2021. The relevant part of the said order would read as under:- .So, in view of the legal provisions, facts and pronouncement discussed above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the grant of bail under Section 167(2) Cr.P.C. is not a discretionary relief and rather the same flows from the statutory provisions and such statutory right cannot be impeached by imposition of the conditions, much less the stringent ones, as have been imposed vide the impugned order. In support of his arguments, learned Senior Counsel for the petitioner relies upon various judgment of the Hon ble Apex Court i.e. Saravanan Vs. State, (2020) 9 SCC 101; Bikramjit Singh Vs. The State of Punjab, 2020(4) RCR (Criminal) 713; Fakhrey Alam Vs. State of Uttar Pradesh, 2021(1) ALT (Crl.) 404; Sheikh Ayub Vs. State of M.P., (2004) 13 SCC 457 and Sandeep Jain Vs. National Capital Territory Delhi, (2000)2 SCC 66. Still further, it is argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the respondent submits that the present petition being similar in nature and involving similar controversy, is liable to be dismissed. I have heard learned counsel for the parties. The right to default bail arises when the investigating agency is not able to complete the investigation and put up the challan within the stipulated period, as the case may be. As has been held in catena of judgments by the Hon ble Apex Court as also this Court, such a right is an indefeasible right. The accused, thus, does derive such a benefit due to the failure on the part of the investigating agency/prosecution. Such right having been recognized as a Fundamental Right in a plethora of judgments, cannot be equated with the discretionary rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/. However, as observed by this Court in catena of decisions and more particularly in the case of Rakesh Kumar Paul (supra), where the investigation is not completed within 60 days or 90 days, as the case may be, and no charge-sheet is filed by 60th or 90th day, accused gets an indefeasible right to default bail, and the accused becomes entitled to default bail once the accused applies for default bail and furnish bail. Therefore, the only requirement for getting the default bail/statutory bail under Section 167(2), Cr.P.C. is that the accused is in jail for more than 60 or 90 days, as the case may be, and within 60 or 90 days, as the case may be, the investigation is not completed and no charge-sheet is filed by 60th or 90th day and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il. Under the circumstances, the condition imposed by the High Court to deposit ₹ 8,00,000/, while releasing the appellant on default bail/ statutory bail is unsustainable and deserves to be quashed and set aside Thus, in view of the judgment of the Hon ble Supreme Court in Saravanan s case (supra), I am of the considered opinion that the default bail under Section 167(2) Cr.P.C. cannot be equated with the discretion of the Court under Sections 437, 438 or 439 Cr.P.C., wherein the Court has got ample power to impose any condition as would be deemed fit on the facts and in the circumstances of the case. The indefeasible right under Section 167(2) Cr.P.C., accrued due to the failure on the part of the investigating agency to com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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