9911796707
TMI Blog2018 (6) TMI 1810X X X X Extracts X X X X X X X X Extracts X X X X ..... in judicial custody since 9-1-2018. 2. The petitioners/A-5 and A-8 and A-10 moved default bail applications before the learned Special Judge-cum-Principal District Judge, Kadapa by filing Crl.P.M.P. No. 984 of 2018, 1035 of 2018 and 1064 of 2018, which ended in dismissal on 15-5-2018 and the petitioners/A-6, A-9 and A-12 moved default bail applications before the learned Special Judge-cum-Principal District Judge, Kadapa by filing Crl.P.M.P. Nos. 1001 of 2018, 1000 of 2018 and 1002 of 2018, which ended in dismissal on 7-5-2018, respectively. 3. It is impugning the said dismissal orders with the contention of they got indefeasible right to bail, statutorily provided under Section 167 of Cr.P.C, that was not properly considered by the learned Special Jude-cum-Principal District Judge supra, in passing the respective orders, these Petitions are filed. They reiterated the contentions only in relation to the law on the aspect covered by the 'default bail' and in saying there is no necessity to go into the merits of the matters as per the settled expressions but for to consider the indefeasible right, and the learned Special Jude-cum-Principal District Judge in passing the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te before whom an Accused is produced while the police is investigating into the offence can authorize detention of the Accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole. 2. Under the proviso to the aforesaid subsection (2) of Section 167, the Magistrate may authorize 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 10 years, 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 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. 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued 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 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 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 completing the investigation within the period stipulated. After that expression, the Apex Court again in Union of India v. Nirala Yadav (2014) 9 SCC 457 : 2015 (4) ALT 4.1 (DN SC) reviewed the entire case law and reiterated the law laid down in Uday Mohanlal Acharya (2001) 5 SCC 453 : 2001 (3) ALT 20.1 (DN SC) (supra) by referring to the Condition No. 3 supra. 9. From the above, it is the duty of the Court if charge-sheet not filed within the statutory period, to release the detenu on bail. For that even an oral application is enough if at all accused wants to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail as a part of duty of the Court to grant even otherwise once applied the Court must grant. Law is also very clear from the expressions that so far as the default bail concerned, Court has no right to go into the merits of the meritorious entitlement or not of the bail, but for the concession to be availed, once opted of the statutory right. The issue again came in the recent past for consideration before another three Judge Bench of the Apex Court in Rakesh Kumar Paul v. State of Assam 2017 (3) ALT (Crl.) 141 (SC). A perusal of the lengthy judgment reiterating the law shows that Hon'ble 3 Justices Madan B. Lokur, Prafulla C. Pant and Deepak Gupta written the different judgments, particularly in relation to the offence punishable with imprisonment to the maximum of ten years, the period to be reckoned is 60 days or 90 days. Two of the Hon'ble Justices Madan B. Lokur and Deepak Gupta held in majority the period to be reckoned is 60 days and not 90 days. 11. In the judgment of Hon'ble Justice Madan B. Lokur, it was observed in the very 1st and 2nd Paragraphs of the beginning of the Judgment as follows: "1. In Measure for Measure the Duke complains (in the given situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n merit. We also make it clear that this will not impact on the arrest of the petitioner in any other case." 12. Coming to the separate judgment written by another Judge, Hon'ble Justice Prafulla C. Pant, referring to the expressions supra, particularly, from Paragraphs 21 to 31, on the issue of entitlement of the default bail, it is observed referring to the provisions and at Para 22 of the legal position regarding bail under Section 167(2) of the Cr.P.C. was cemented by the Constitution Bench of this Court which has inter alia held in the case of Sanjay Dutt (1994) 5 SCC 410 (supra) of the same is indefeasible right of the accused to be released on bail in accordance with the provisions, in default of completion of investigation and filing of the challan within the time allowed, as held in Hintendra Vishnu Thakur (1994) 4 SCC 602 (supra) and it is a right which enures to and is enforceable by the accused only from the time of default till filing of the challan and it does not survive or remain enforceable on the challan being filed. If he applies for bail under the provision after expiry of the period, he has to be released on bail forthwith. The accused, so released on bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even making application he entitled to the default bail, leave about any oral request is enough, and answered the same from Paragraph Nos. 1 to 30, in particular, at Para No. 27 by referring to the expressions referred supra that a reading of the aforesaid judgments leaves no manner of doubt that if the accused files an application for grant of default bail and is willing to furnish bail, then he is deemed to have exercised his right to avail the bail and his right cannot be defeated by filing the charge sheet thereafter. 14. Thus, the law is clear from the said expression that once an application is made by the accused, after expiry of the statutory period of remand from non-filing of the charge sheet, he is entitled to the default bail and such a right cannot even be defeated by filing of charge sheet thereafter. So, the filing of the application either orally or in writing is a prerequisite, if not the Court chosen to grant the default bail, and once such an application is there, in recognition of his indefeasible right, he is entitled to the default bail, and that can no way be delayed even in its disposal, as referred supra. 15. This Court in Singamala Shankarnar v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory bail to the petitioners accused supra, subject to the following conditions: 1. Petitioners shall execute a self-bond for Rs. 25,000/- [Rupees twenty five thousand only] with two sureties each for the like sum each to the satisfaction of the learned Judge (concerned Court). The bonds to be obtained are not only to appear before the Court for enquiry or trial and even after trial to appear before revisional or appellate Court or other superior Court - vide decision in Pre-Legal Aid Committee, Jamshedpar v. State of Delhi 1982 (2) APLJ (43) SC; so that at stage of committal or other proceedings obtaining of fresh bonds from accused and even affidavits of sureties of bonds and solvencies earlier produced are ratifying and in existence and enforceable, without even insisting their further presence, such recourse quickens the proceedings at other stages before that Court or other Court without loss of time and it also to some extent complies with the requirement of Section 437A Cr.P.C. 2. Petitioners shall report before the investigating officer on every Sunday between 5.00 p.m. to 6.0 p.m. after filing of charge sheet and later once in a month on every first Sunday, for a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
