Subsequent Filing Of Chargesheet Can't Defeat Indefeasible Right Of Accused Who Applied For 'Default Bail': Allahabad High Court

The Allahabad High Court has observed that an accused gets an indefeasible right to 'default bail' if he makes an application after the maximum period for investigation of an offence is over, and before a charge sheet is filed.

This assertion came from the bench of Justice Syed Aftab Husain Rizvi who held that an accused has an indefeasible right to 'default bail' under proviso to section 167(2) Cr.P.C. if the charge sheet isn't filed within the stipulated time.

Essentially, a murder accused had applied for default bail under Section 167 (2) Cr.P.C. on November 25, 2021, after the completion of 90 days on November 24, 2021, from the first date of judicial remand as the Investigating Officer failed to file a police report under Section 173(2) 2 Cr.P.C. against him.

Now, the Chief Judicial Magistrate passed an order and called a report from the Additional Public Prosecutor on November 25, 2021. Till that point in time, the charge sheet had not been filed.

Pursuant to Court's order, the Public Prosecutor submitted his report. Thereafter a second report was submitted and meanwhile, a charge sheet was filed thus, the Court dismissed his plea for default bail.

Challenging the same, the accused moved to the High Court averring that he had availed his right of bail before the filing of the charge sheet and it does not matter whether an order had been passed on the aforesaid application or not.

Court's observations 

At the outset, the bench referred to a three Judges Bench judgment of the Supreme Court in Bikramjit Singh Vs. State of Punjab, 2020 (10) SCC 616, wherein it was held that the right of the accused under section 167(2), arises, if the charge-sheet has not been filed by the prosecution within stipulated period so indicated under section 167(1).

In other words, in the Bikramjit Singh case (Supra), the Supreme Court had observed that the accused gets an indefeasible right to 'default bail' if he makes an application after the maximum period for investigation of an offence is over, and before a charge sheet is filed.

The right to default bail, Justice RF Nariman led bench said, is a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

Also, in Bikramjit Singh's case, it was also observed that even if the application for consideration of an order of being released on bail is posted before the court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting a formal order of being released on bail in the enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the accused.

Now, against the backdrop of Bikramjit Singh ruling, the High Court opined that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete.

"It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted," the Court held.

From the above discussion, the Court averred thar it was clear that charge-sheet in the instant case had been submitted after statutory period of 90 days and that, before filing of charge-sheet, the accused had moved application for bail.

Subsequent filing of chargesheet will not defeat the indefeasible right accrued to the applicant-accused. Learned Magistrate has failed to appreciate the facts and law on the point and order passed by learned Magistrate is against the law.

In view of above, the application succeeded and was thereby allowed. Accordingly, impugned order dated 25.11.2021 passed by Chief Judicial Magistrate, Prayagraj was thereby quashed and his default bail application was allowed. 

Case title - Anwar Ali v. State Of UP And Another [APPLICATION U/s 482 No. - 29733 of 2021]

Citation: 2022 LiveLaw (AB) 307

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