TMI Blog2022 (3) TMI 1429X X X X Extracts X X X X X X X X Extracts X X X X ..... time, the question of grant of statutory bail or default does not arise. The issue being discussed herein has further been laid to rest in Serious Fraud Investigation Office v. Rahul Modi [ 2022 (2) TMI 403 - SUPREME COURT ] wherein the Supreme Court has comprehensively dealt with multiple decisions pertaining to whether filing of the chargesheet is sufficient compliance with the provisions of Section 167 Cr.P.C. and whether the accused can demand release on default bail under Section 167(2) Cr.P.C. on the ground that cognizance has not been taken before the expiry of the stipulated period - It was held that the indefeasible right of an accused to seek statutory bail under Section 167(2) Cr.P.C. arises only if the chargesheet has not been filed before the expiry of the statutory period. In the instant case, the Petitioner was arrested on 20.08.2021. Chargesheet was filed on 14.10.2021, i.e. within the period prescribed by the statutory provision. The material on record indicates that cognizance had not been taken by the Ld. Trial Court on the ground that certain clarifications were required with respect to an FSL report which was pending as well as a video recording of the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ild filed a complaint, dictated his statement and an MLC of the victim child was conducted, and on the basis of this, FIR No. 312/2021 under Sections 377/34 IPC read with Section 6 POCSO Act was registered on 20.08.2021 d) Both the accused, including the Petitioner herein, were arrested on 20.04.2021 and were remanded for 14 days to judicial custody by the Ld. Trial Court vide Order dated 21.08.2021. This judicial custody of the Petitioner was extended by the Ld. Trial Court vide Orders dated 04.09.2021 and 17.09.2021. Vide Order dated 29.09.2021, regular bail application of the Petitioner was dismissed. e) A second bail application was filed under Section 167(2) Cr.P.C. on the ground that, despite chargesheet having been filed, as cognizance of the offences had not been taken by the Ld. Trial Court, the Petitioner was entitled to default bail under Section 167(2) Cr.P.C. This application was dismissed vide Order dated 20.12.2021. f) The Petitioner has now approached this seeking default bail under Section 167(2) Cr.P.C. 3. Mr. Adit S. Pujari, assisted by Mr. Chaitanya Sundriyal, learned Counsel for the Petitioner, submits that the Petitioner is a 22-year-old who has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7(2) Cr.P.C. bail application of the Petitioner herein. 7. Heard Mr. Adit S. Pujari, assisted by Mr. Chaitanya Sundriyal, learned Counsel for the Petitioner, Ms. Meenakshi Dahiya, learned APP for the State, and perused the material on record. 8. The issue that arises before this Court is whether an accused is entitled to default bail under Section 167(2) Cr.P.C. when chargesheet has been filed, but cognizance has not been taken by the Court of the offences. For this purpose, Section 167 Cr.P.C. has been reproduced hereunder for ease of comprehension: 167. Procedure when investigation cannot be completed in twenty four hours. (1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Supreme Court had in detail considered the question as to whether cognizance of the chargesheet was necessary to prevent the accused from seeking default bail or whether mere filing of the chargesheet would suffice for the investigation to be deemed complete. The relevant portion of the said judgement has been referenced as follows: 16. At this juncture, we may refer to certain dates which are relevant to the facts of this case, namely: xxx From the above dates, it would be evident that both the charge-sheet as also the supplementary charge-sheet were filed within 90 days from the date of the petitioner's arrest and remand to police custody. It is true that cognizance was not taken by the Special Court on account of failure of the prosecution to obtain sanction to prosecute the accused under the provisions of the PC Act, but does such failure amount to non-compliance with the provisions of Section 167(2) CrPC is the question with which we are confronted. 17. In our view, grant of sanction is nowhere contemplated under Section 167 CrPC. What the said section contemplates is the completion of investigation in respect of different types of cases within a stipula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envisaged in Section 167 CrPC. The scheme of CrPC is such that once the investigation stage is completed, the court proceeds to the next stage, which is the taking of cognizance and trial. An accused has to remain in custody of some court. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) CrPC, the Magistrate is vested with authority to remand the accused to custody, both police custody and/or judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of offences punishable for less than 10 years and 90 days where the offences are punishable for over 10 years or even death sentence. In the event, an investigating authority fails to file the charge-sheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309 CrPC. The two stages are different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court had categorically laid down that the indefeasible right of an accused to seek statutory bail under Section 167(2), CrPC arises only if the charge-sheet has not been filed before the expiry of the statutory period. Reference to cognizance in Madar Sheikh (supra) is in view of the fact situation where the application was filed after the charge-sheet was submitted and cognizance had been taken by the trial court. Such reference cannot be construed as this Court introducing an additional requirement of cognizance having to be taken within the period prescribed under proviso (a) to Section 167(2), CrPC, failing which the accused would be entitled to default bail, even after filing of the charge-sheet within the statutory period. It is not necessary to repeat that in both Madar Sheikh (supra) and M. Ravindran (supra), this Court expressed its view that non-filing of the charge-sheet within the statutory period is the ground for availing the indefeasible right to claim bail under Section 167(2), CrPC. The conundrum relating to the custody of the accused after the expiry of 60 days has also been dealt with by this Court in Bhikamchand Jain (supra). It was made clear that the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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