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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
FARJAND ALI, J.
Vikash S/o Shri Rakma – Appellant
Versus
State Of Rajasthan – Respondent
S.B. Criminal Revision Petition No.1334 of 2022
Decided on : 05-12-2022
POCSO Act - Bail Application - Sections 363, 366, 376(1) of IPC, Sections 3 and 4 of POCSO Act - Section 167 of Cr.P.C. - AIR 2001 SC 1910, (2020) 10 SCC 616 - The judgment discusses the right of an accused to be released on bail due to default in submission of charge-sheet within the stipulated period, the interpretation of the expression 'if already not availed of', and the indefeasible right of an accused for release on default bail by the investigating agency on non-submission of the charge-sheet within the prescribed period.
Fact of the Case:
The accused was arrested for offenses under Sections 363, 366, 376(1) of IPC and Sections 3 and 4 of the POCSO Act. The accused filed a default bail application due to non-filing of the charge sheet within the stipulated period.
Finding of the Court:
The court found that the accused had an indefeasible right to default bail as the charge-sheet was not submitted within the prescribed period. The court also noted that the accused was ready and willing to furnish bail bonds, and the delay in hearing the bail plea seemed to facilitate the agency to submit the charge-sheet.
Issues: The issues revolved around the right of the accused to default bail, the interpretation of the expression 'if already not availed of', and the obligation of the court to pass an order regarding the amount of surety and bail bonds upon fulfillment of the conditions.
Ratio Decidendi: The court held that the accused had an indefeasible right to default bail if the charge-sheet was not submitted within the prescribed period, and the accused's intent and preparation for default bail could be gathered from the moment he filed the application for release on default bail.
Final Decision: The Criminal Revision Petition succeeded, and the order dated 07.09.2022 was quashed and set aside. The accused was directed to be released on bail upon furnishing personal bond and sureties. The order did not prohibit or prevent the arrest/re-arrest of the accused-petitioner on other legitimate and cogent reasons in respect of the subject charge.
JUDGMENT :
1. The legality, correctness and propriety of the order dated 07.09.2022 passed by the Special Judge, POCSO Act Cases, Pratapgarh in Bail Application No.113/2022, which arose out of FIR No.76/2002, Police Station Pipalkhunt has been challenged by the accused-petitioner by way of filing the instant Criminal Revision Petition.
2. The notice issued by this Court has been duly served upon the private respondents; the proof of which has been filed on record by learned Public Prosecutor as per which, the SHO, P.S. Pipalkhunt intimated the complainant regarding hearing of the instant revision petition.
3. Bereft of elaborate details, the brief facts necessary for disposal of the instant Criminal Revision Petition are that the petitioner was arrested on 05.06.2022 in connection with aforementioned FIR for the offences under Sections 363, 366, 376 (1) of the IPC and Sections 3 and 4 of the POCSO Act.
4. As per the statutory provisions contained in Sub-Clause (2) of Section 167 of the Cr.P.C., the charge-sheet is supposed to be submitted within 90 days of arrest of the accused/his or her production before the learned Magistrate concerned for remand. It is an admitted position that till 03.09.2022, no charge-sheet was submitted before the court concerned and, therefore, on behalf of the accused an application seeking default bail was filed in the Court below on the ground of non-filing of the charge sheet. A copy of the default bail application and endorsement made by the Court dated 03.09.2022 is available on record. It is emanating from the endorsement that upon filing of the default bail application, the learned Judge directed to list the matter on 07.09.2022 after preparation of check-report by the office. It is an undisputed fact that the charge-sheet was filed in this case on 06.09.2022 i.e., well after the expiry of 90 days of the arrest of accused and even after filing of the application for default bail. It has been propounded by Hon’ble the Supreme Court in the case of Uday Mohan Lal Acharya Vs. State of Maharashtra reported in AIR 2001 SC 1910 that the right of an accused to be released on bail due to commission of default in submission of charge-sheet within the stipulated period is a valuable, and indefeasible right. The above referred judgment of a three Judges’ Bench has been recapitulated by the Hon’ble Supreme Court in catena of judgments and the same principle has been reiterated time and again.
5. The learned trial Court has dismissed the bail application on the ground that though the bail application had been submitted prior to filing of the charge-sheet but the accused was not willing to argue on default bail thus, prior to hearing on bail plea under Section 167 (2) of the Cr.P.C., the charge-sheet had been submitted on 06.09.2022, therefore, the petitioner’s right to default bail has come to an end after filing of the charge-sheet. However, the record is reflecting altogether a different scene. Indisputably, the default bail application was filed by the accused on 03.09.2022. No endorsement was made by the Court on the bail application that any adjournment was sought on behalf of the accused, however, the Court posted the matter for hearing the bail plea on 07.09.2022 and in the meantime, the charge-sheet was submitted on 06.09.2022. It seems that only with a view to defeat the cause of the accused, the hearing of the bail application was postponed and the same was listed for hearing on 07.09.2022 so that the agency could file the charge-sheet in the meantime. It is nowhere reflecting that the accused was not willing and ready to furnish the bail bonds.
6. A perusal of the application is manifestly revealing that the accused was ready and willing to furnish bail bonds, thus, it was imperative upon the Court to pass an order in respect of furnishing bail bonds but the same was not done. This practice cannot be appreciated that when an accused prefers an application for default bail on the ground of non-filing of
An accused has an indefeasible right to default bail if the charge-sheet is not submitted within the prescribed period, and the accused's intent and preparation for default bail can be gathered from ....
The main legal point established is that an accused has an indefeasible right to default bail if the charge-sheet is not filed within the prescribed period, and the accused's intent and preparation f....
The right to default bail extinguishes if a charge sheet is filed before the application for default bail, irrespective of the application date.
Point of Law : Applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the cour....
Application u/s 167(2) Cr.P.C. must be disposed of promptly and such application should not be treated as a regular bail application.
The right to default bail is indefeasible if the prosecution fails to file a chargesheet or extension application within the statutory period, and oral submissions during bail hearings suffice for cl....
The right to default bail under Section 167(2) of the Cr.P.C. is a fundamental right that cannot be undermined by procedural lapses of the prosecution or the courts.
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