IMPORTANT POINTS
(1) Default bail – Period of 90 days is stated to be counted when investigation for fresh offence(s) is started and not from date of lodging of FIR.
(2) Default bail – Right to seek default/statutory bail accrues to accused in nature of an indefeasible right, only if such remedy by preferring appropriate application has been availed of within prescribed window from date of expiry of total period of detention of accused person(s) under Section 167(2) Cr.P.C., until filing of charge-sheet.

JUDGMENT

Dr. Pushpendra Singh Bhati, J.—In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. The present case, originally, was filed as criminal misc. third bail application. However, upon an application being moved on behalf of the petitioner seeking to treat the bail application as criminal revision petition, the same was allowed by this Hon’ble Court order dated 14.03.2022. Accordingly, the said bail application was treated and registered as criminal revision petition, which is listed before this Court for consideration.

3. The prayer made in the present case, as originally filed, reads as under:

“It is, therefore, most respectfully and humbly prayed that this bail application under Section 167 (2) Crpc. may kindly be allowed and the petitioners may kindly be ordered to be release on bail in FIR no. 273/2021 registered on 16.10.2021 Police Station Osiyan at district Jodhpur.”

4. Learned counsel for the petitioner submits that an F.I.R., bearing No. 273/2021 was lodged on 16.10.2021 under Section 363 I.P.C., by one Chhoturam S/o Ramnarayan stating that his brother’s daughter, Sumitra was abducted by the present accused–petitioner alongwith other persons; whereafter, the petitioner was taken into custody on 19.10.2021, and remained as such for one day, until ordered to be released by the competent court on 20.10.2021; however, subsequently the petitioner was again arrested and took into custody. As per learned counsel, the total period of the petitioner’s custody was beyond the mandated time period, as prescribed under Section 167(2) Cr.P.C.

Relevant portion of Section 167 Cr.P.C reads as follows: -

167. Procedure when investigation cannot be completed in twenty-four hours.—

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that —

[(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding—

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]

[(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;]

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

[Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period