The right to be released on default bail is an indefeasible right of the accused and cannot be frustrated by the state. It can only be enforced prior to the filing of the charge sheet and not thereafter.

Heard Mr. Rana Pratap Singh, learned Senior Advocate assisted by Mr. Aruni Singh on behalf of the petitioner, Mr. Roshan Kumar Mishra, learned Advocate for the informant and Ms. Pushpa Sinha –II, learned A.P.P. for the State.

The petitioner, by the present application, has sought for quashing of the order dated 24.04.2013 passed by the learned Chief Judicial Magistrate, Khagaria whereby the prayer for default bail under the provision of Section 167(2) of the Code of Criminal Procedure was refused. The petitioner has also challenged the order dated 31.07.2013 passed in Criminal Revision No. 26 of 2013 by the learned Ist Adhoc Additional Sessions Judge, Khagaria, whereby the order refusing the default bail by the learned Chief Judicial Magistrate, Khagaria was affirmed.

The petitioner was made accused in Maheshkhunt P.S. Case No. 150 of 2012 dated 17.10.2012 instituted for the offence under Sections 307, 302, 504 and read with Section 34 of the Indian Penal Code.

In the aforementioned case, the petitioner surrendered before the Court of learned Chief Judicial Magistrate on 24.01.2013. A period of 90 days was completed on 23.04.2013. On 24.04.2013, an application was filed by the petitioner making a prayer for releasing him on bail in terms of Section 167(2) of the Cr.P.C. as by then charge sheet had not been filed. By way of Annexure-3, the petitioner has brought on record the photo copy of the aforesaid petition filed on his behalf for grant of default bail. Attention of this court was drawn towards the left margin of such petition which discloses that Court Master reported that till 9 a.m., the charge sheet had not been submitted.

It has been submitted on behalf of the petitioner that thereafter, the Chief Judicial Magistrate, Khagaria gave a direction to the petitioner to furnish his bail bonds and pursuant to such direction bail bonds were furnished by the petitioner. Santosh Kumar and Ram Chandra Singh chose to become bailers. Photo copy of the bail bonds have also brought on record vide Annexure-4 to this application. However, from perusal of the order of learned Chief Judicial Magistrate, Khagaria dated 24.04.2013, refusing the prayer of bail of the petitioner in terms of Section 167(2) of the Cr.P.C., it appears that on the right hand column there is a note of the Court Master that the charge sheet alongwith the copy of the case diary has been received at 10 a.m. It appears that when, in the first instance, the learned Chief Judicial Magistrate may have perused the petition for grant of default bail he would have instructed his Court Master to report about the status of the case. Court Master appears to have reported that the charge sheet has not been received till 9 a.m. It appears that possibly on seeing such report, the learned Magistrate may have orally asked the petitioner to furnish his bail bonds. However, no such order appears to be on record to suggest that such an oral observation was made by the learned Chief Judicial Magistrate.

Be that as it may, an order was passed on 24.04.2013, refusing the prayer of bail in terms of Section 167 (2) as charge sheet by then had already been submitted. In this connection, a reference has been made by the counsel for the petitioner to the judgment of the Apex Court in the case of Sayed Mohd. Ahmad Kazmi Vs. State (Government of NCT of Delhi) and Others reported in 2012 (12)SCC -1. In the aforesaid case, the petitioner (Sayed Mohd. Ahmad Kazmi) was an accused of unlawful activities (Prevention) Act, 1967. After completion of 90 days in custody, the petitioner (Sayed Mohd. Ahmad Kazmi) had made a prayer for bail in terms of Section 167 (2). Instead of hearing such application, the Chief Metropolitan Magistrate, Delhi adjourned the matter to another date. In the meantime, the State preferred an application for extension of the period of investigation. On receiving such application, the Chief Metropolitan Magistrate after noticing the applicant, extended the time of interr