Notice to be issued to Respondent No.2 is dispensed with.

2. Heard the learned counsel for the petitioner-Krishna and the learned SPP-II for the Respondent-State.

3. In Crime No.392/2007 on the file of the Child Friendly Court, Bengaluru Urban District, petitioner, who is the sole accused, has filed an application under Section 167(2) of Cr.PC. seeking grant of statutory bail for the offences punishable under Sections 363, 376, 342 and 506 of IPC and also under Sections 4, 5 & 6 of the POCSO Act, 2012. The said application came to be rejected by the learned Trial Judge only on the ground that, during the pendency of the said application, the charge sheet has been filed. Therefore, indefeasible right of the accused has come to an end on the expiry of the period prescribed under Section 167(2) of Cr.P.C. i.e., till filing of the charge sheet and after filing of the charge sheet, the court has to look into entire charge sheet papers to find out prima facie case against the accused or not and to dispose of the said application on merits of the case. Relying upon a decision of the Hon’ble Apex Court in Sanjay Dutt Vs. State of Maharashtra reported in 1994 AIR SCW 3852, the trial Court has rejected the said bail application in such manner.

4. Though the trial Court has also relied upon various rulings and it has come to the conclusion that the charge sheet has been filed by the police on 92nd day and on that day, the application was already filed by the accused for statutory bail. The fact remains that, before expiry of 90 days, the police have not filed the charge sheet, as observed by the trial Court itself. Further, added to that, application was already pending before the court on that day for his release under Section 167(2) of Cr.PC.

5. Learned counsel for the petitioner has relied upon a ruling of the Hon’ble Apex Court in Criminal Special Leave Appeal No.2009/2017 vide judgment dated 16.08.2017 between Rakesh Kumar Paul Vs. State of Assam, wherein the Hon’ble Apex Court has in detail considered Sanjay Dutt’s case as noted above and has come to the conclusion at Para 28 to the effect that,

“The accused does not have to make out any grounds for grant of bail. He does not have to file a detailed application. All he has to aver in the application is that, since 60/90 days have expired and charge sheet has not been filed within that period, he is entitled to bail and he is willing to furnish bail bond. His indefeasible right cannot be defeated by filing charge sheet, after the accused has offered to furnish bail’.

Further, the court has also observed at para 29 that,

“This court in large number of judgments, has held that, the right to legal aid is also fundamental right. Legal aid has to be competent legal aid and, therefore, it is the duty of the counsel representing the accused whether they are paid counsel or legal aid counsel to inform the accused that on the expiry of the statutory period of 60/90 days, they are entitled to ‘Default Bail’. In my view, the learned Magistrate should also not encourage wrongful detention and must inform the accused of his right. In case the accused still does not want to exercise his right, then he shall remain in custody, but if he chooses to exercise his right and is willing for furnish bail, he must be enlarged on bail.”

It is also relevant to quote here that, at Para 30 of the said decision at subpara (4), the Hon’ble Apex Court has further observed that,

“Right to statutory bail is an indefeasible right and this right must be exercised by the accused by offering to furnish bail.”

The court has also observed that, when such an application is filed, the same has to be disposed of on the same day or forthwith.

6. This observation made by the Hon’ble Apex Court is the indication that, the right of the accused in claiming statutory bail is virtually equitable protection to the constitutional right of liberty as guaranteed under the Constitution. There should not be any unlawful detention by any co