IMPORTANT POINT
The right to default bail under Section 167(2) Cr.P.C. is extinguished upon the filing of a charge sheet if the accused has not furnished the required sureties within the stipulated time.

ORDER :

1. The complaint in Cr. No. 371/2022, dated 08/12/2022 was registered by the Nagapattinam Town Police Station for offences under Sections 147, 148, 341, 307 and 302 IPC against Alex S/o Kesavan and Others. The informant was one Vinothkumar a friend of the slain Sivapandi and also the injured witness. The Respondent Police failed to complete the investigation within a period of 90 days from the date of the arrest of the suspected accused. Hence, the suspected accused got default bail from the Judicial Magistrate No. 1, Nagapattinam as below:

(A-10 to A-14): Petitioners in Cr. O.P. No. 44188/2023: Arrested on 20/12/2022: Default bail granted on 20/03/2023 on condition to furnish two sureties for Rs. 10,000/- each and out of which, one must be a blood relative.

(A-8): Petitioner in Crl. O.P. No. 44185/2023: Arrested on 12/12/2022. Default bail granted on 13/03/2023 on condition to furnish two sureties for Rs. 10,000/- each and out of which one must be a blood relative.

(A-3): Petitioner in Crl. O.P. No. 44187/2023: Arrested on 10/12/2022. Default bail granted on 13/03/2023 on condition to furnish two sureties for Rs. 10,000/- each and out of which one must be a blood relative.

2. These petitioners though availed their right under Section 167(2) of Cr.P.C. and got bail on condition to furnish sureties, they did not furnish sureties till the respondent police completed the investigation and filed the final report against Munishwaran and 13 others. The challan filed before the Judicial Magistrate No. 1, Nagapattinam was numbered as P.R.C. No. 14/2023 and committed to Court of Sessions after furnishing copies under Section 207 Cr.P.C. to the accused persons. The Principal Sessions Judge, Nagapattinam had taken the case on file on 08/06/2023 and assigned S.C. No. 51/2023 on 09/06/2023. The case is now stand posted to 18/10/2023.

3. In the meanwhile, the petitioners/accused have filed memo before the Judicial Magistrate No. I, Nagapattinam stating that they wish to furnish surety in compliance of the default bail orders. The trial Court has declined to entertain the memo on two grounds stating that the case already been committed to the Court of Sessions and in such circumstances, surety could not be verified by the Court (Judicial Magistrate No. 1) and in view of the Division Bench judgment in Crl. O.P. No. 7736/2021, dated 23.12.2021, (Kannan @ Senthil Kumar @ Minnal vs. State Rep. by the Deputy Superintendent of Police ‘Q’ Branch CID, Coimbatore) the right to seek default bail got extinguished. Therefore, returned the memo seeking clarification from the learned counsel for the petitioners. In response to the return, the Learned Counsel for the petitioners/accused represented the memo with endorsement referring a judgment of this High Court rendered by a Learned Single Judge in Punaekkar Seetharaman Dikule vs. State Rep. by the Inspector of Police, Town West Police Station, Tanjavur, Crl. O.P. (MD) No. 4432 of 2023 dated 21.03.2023 and prayed for entertaining the petitions.

4. The trial Court after considering the two judgments and facts of this case, returned the memo stating that the decision of the Division Bench (Kannan @ Senthil) binds him and the judgment of learned Single Judge in Punaekkar case is not relevant to the present case. The trial Court in fact had held that after filing the charge sheet, the case been committed to the Court of Session, therefore, the right accrued to the accused persons got extinguished, since they have not availed the right within time.

5. The learned counsel for the petitioners submitted that the right under Section 167(2) Cr.P.C. is an indefeasible right and once accrued and availed it will not get extinguished for the failure of the accused by not furnishing surety.

6. Per contra, the Learned Government Advocate appearing for the State submitted that, the right which get accrued by default of the investigation cannot sustain endlessly. Once the challan filed and the stage is set for trial, the a