The entitlement of the accused to statutory/default bail under Section 167(2) of Cr.P.C. 1973 and the importance of the police report/challan in activating the default bail right.

JUDGMENT :

Rahul Bharti, J.

1. Statutory/default bail under spell of Section 167 (2) of the Code of Criminal Procedure Code, 1973 to an accused is a right elevated to a status of constitutional character. Grant of statutory/default bail is not discretion bound of a court of a magistrate or of a sessions judge. Statutory/default bail entitlement, if accruing in favour of and applied for being availed, is not to be denied by any disguise or declined under any guise. A pseudo police report under section 173 Cr.P.C. even if filed within time frame of Section 167 Cr.P.C. cannot be given legal sanctity to betray the statutory/default bail right of an accused in a case. This right, upon getting accrued, is given straight away on asking of the entitled accused notwithstanding the purported gravity of the accusation of offence/s against the accused under pre-trial custody. It is, thus, neither a concession nor a charity to an accused and as such cannot be seen as such by a magistrate or session judge so as to find some excuse to deny it getting availed by an accused.

2. After having failed to earn statutory/default bail under the aegis of Section 167(2) Cr.P.C. 1973, from the Court of learned Sessions Judge, Udhampur, the petitioners have come to approach and seek from this court the very same relief of statutory/default bail riding on the premise that the failure on the part of the Investigation Authority of the Police Station Udhampur to submit a cognizable final police report/ challan under section 173 Cr.P.C. within the given period of 90 days had afforded the right to and in favour of the petitioners to ask for the release on bail which they had asked for but came to be declined by the Court of learned Sessions Judge, Udhampur.

3. On 24.08.2021, an FIR no. 322/2021 came to be registered by the Police Station Udhampur. Registration of this FIR is related to an incident of death of one Rakesh Kumar which is reported to have happened on 30.06.2021 but the information about the same was lodged on 01.07.2021 with the Police Station Udhampur which initiated inquest proceedings to enquire the nature and state of circumstances attending the death of said Rakesh Kumar. During currency of the inquest proceedings, following a direction under section 156(3) Cr.P.C. vide a magisterial order dated 16.08.2021, said FIR no. 322/2021 came to be registered by the Police Station Udhampur for alleged commission of offences under section 302/201/34 IPC.

4. Upon the basis of this FIR, the arrest of the petitioners, who are four in number, had come to take place on 27.09.2021. On 15.12.2021, that is upon 79th day of arrest of the petitioners, the Police Station Udhampur, through the SHO, came to present a purported Police Report/Challan no. 392/2021, dated 07.12.2021 for commission of alleged offences under sections 302/202/34 Indian Penal Code, 1860, against the petitioners in relation to said FIR no. 322/2021 which upon committal by the Chief Judicial Magistrate, Udhampur came to be presented before the court of learned Sessions Judge Udhampur for its cognizance.

5. As the said Police Report/Challan under section 173 Cr.P.C. came to be presented seemingly within 90 days period prescribed for investigation given the nature of offences involved, so the petitioners had reckoned themselves to be under trial in custody. However, when the Court of learned Sessions Judge, Udhampur came to take up the opening of case for prosecution under section 226 Cr.P.C. the learned Sessions Judge, Udhampur got confronted with a reality of the case that said Police Report/Challan no. 392/2021, dated 07.12.2021 was an empty formality done by the Police Station, Udhampur. By reference to the said Police Report/ Challan, the Court of learned Sessions Judge Udhampur found itself not in a position to take up the case even for framing of charge against the petitioners. Thus, vide an order dated 21.02.2022, the court of learned Sessions Judge Udhampur returned the very said Police Rep