IMPORTANT POINT
When charge sheet is filed complying with section 173(2), Cr PC within 90 days, accused is not entitled to default bail.

JUDGMENT

V.GOPALA GOWDA, J.

Leave granted.

2. This appeal is filed by the accused appellant against the judgment and order dated 16.08.2013 of the High Court of Gujarat at Ahmedabad in Special Criminal Application (quashing) No. 2167 of 2013 rejecting the Default Bail under Section 167 (2) of the Code of Criminal Procedure, 1973 (in short “Cr.P.C.”) to the appellant in a case instituted by filing a charge sheet dated 3.7.2013 submitted by the CBI in the Court of Additional Chief Judicial Magistrate, Court No.II, Mirzapur, numbered as Special Criminal Case No. 1 of 2013 on 8.7.2013.

3. The appellant/accused was arrested on 4.4.2013 for an offence which had taken place on 15.6.2004, which is popularly known as the fake encounter death of Ishrat Jahan. The offence alleged against the appellant was punishable with life imprisonment or death and what is popularly called Default Bail becomes the indefeasible right on the expiry of 90 days in the event of non filing of police report by then. On 3.7.2013 the first respondent viz. CBI filed what they called the charge sheet which is alleged by the appellant as a misnomer because it does not comply with the statutory requirement of police report under Sections 173 (2) and 173(5) of Cr.P.C.

4. The appellant by a written application dated 4.7.2013 claimed his right to be released on bail. According to the appellant, the last extension of detention in custody was made on 21.6.2013 and the period of remand was extended upto 5.7.2013. There was no existing order of remand to custody between 5.7.2013 and 8.7.2013. Therefore, his custody during that period is illegal. It is further stated by Mr. Ram Jethmalani, the learned senior counsel for the appellant that there was no judicial order of remand made on 3.7.2013 and the custody was illegal for all the days between 3.7.2013 and 8.7.2013.

5. It is further contended that the documents required to be filed along with the police report were admittedly filed by CBI in some installments and completed only on 8.7.2013. In view of the aforesaid statement of facts, the appellant/accused is entitled to be released on bail on the following grounds:

a) The impugned judgment of the High Court is erroneous because the period in question had already expired. 26 days of April leaving aside 4.4.2013, namely the date of arrest, 31

days of May, 30 days of June and 3 days of July complete the period of 90 days. The error of law committed by the High Court is to exclude the first day of arrest, namely, 4.4.2013.

b) It is further contended that once the period of 90 days expired even according to the High Court on 3.7.2013, any further detention without judicial order under Section 209 or Section 309 of the Cr.P.C. as the case may be, is a requirement of law. The order made during the investigation on 21.6.2013 expired on 5.7.2013. Therefore, it could not have any legal efficacy after 3.7.2013 because the power under Section 167 of Cr.P.C. comes to an end.

c) It is further contended by the learned senior counsel that no cognizance was taken on 3.7.2013. The accused had no right to oppose on the ground of want of sanction or total want of legal evidence. The right could not be claimed nor could the court intelligently adjudicate upon it without the documents which had to be filed under Section 173(5) of Cr.P.C.

6. It is further contended by the learned senior counsel that even on the finding of the High Court that the police power came to an end on 3.7.2013, after that it required an order under Section 209 and not under Section 167 of Cr.P.C. The provision for bail under this proviso is in favour of liberty and must be liberally construed. In support of this contention, the learned senior counsel has also placed reliance upon the following two constitutional Bench judgments of this Court in 1) K.Veeraswamy v. Union of India & Ors., (1991) 3 SCC 655 para 76 and 2) Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 para 13.

7. The learned senior counsel for the C