The judgment established that an accused's indefeasible right to bail under Section 167(2) Cr.P.C. may stand extinguished upon the submission of the challan after the grant of default bail, and the slow pace of the trial due to the COVID-19 pandemic may be considered in such cases.

JUDGMENT :

ARVIND SINGH SANGWAN, J.

1. Prayer in this petition is for quashing of the order dated 07.01.2020, vide which, after granting default bail to the petitioner under Section 167 (2) Cr.P.C. on 04.01.2020, on account of non-furnishing bail/surety bonds, the Judge, Special Court, Sangrur virtually reviewed the order dated 04.01.2020 and dismissed the bail, as in the intervening period, the challan was presented by the police.

2. Brief facts of the case are that the petitioner is facing trial in FIR No.82 dated 06.06.2018 under Section 15 of NDPS Act, registered at Police Station Sadar Dhuri. Since the challan could not be presented within the time prescribed, the Judge, Special Court, on 04.01.2020, passed the following order:-

“...After hearing the rival contentions of the parties, I am of the considered view that bail application under Section 167(2) Cr.P.C. is an indefeasible right which accrues to the accused on the day of expiry of the period stipulated under the Act and thereafter accused cannot be detained in view of the judgments of the Hon'ble Supreme Court of India reported in 2010 (1) Criminal Court Judgments 417 in the case titled as Sanjay Kumar Kedia @ Sanjay Kedia Versus Intelligence Officer, Narcotic Control Bureau and another and that of the Hon'ble High Court of Punjab and Haryana reported in 2011 (3) RCR (Criminal) 297 Rakesh Kumar and another Versus State of Punjab and Nirmal Singh @ Nimma Vs. State of Punjab- 2016(2)- RCR(Criminal-112(P&H). As per the report of Ahlmad, bail application was presented at 12:50 PM, but the challan has not been presented. This Court is of the view that as neither the challan has been filed within the stipulated period of 180 days nor any extension has been sought as envisaged under Section 36 (A) of the ND&PS Act, detention of the accused cannot be authorized keeping in view the provisions of Section 167 (2) Cr.P.C. and Section 36 (A) of the ND&PS Act. The applicant is ready to furnish the bail bonds. Bail is granted to the applicant subject to his furnishing bail bonds in the sum of Rs.1,00,000/- with two local sureties in the like amount, with an undertaking to appear before the Court on each and every date of hearing and not to leave the country without prior permission of the Court. Bail application be attached with the remand Papers.”

3. It appears that the petitioner could not arrange two sureties, so he could not furnish bail/surety bonds on the same day and after three days, he moved an application dated 07.01.2020 for furnishing bail/surety bonds and in the intervening period, the police has submitted the challan under Section 173 (2) Cr.P.C. and taking note of the same, the trial Court, while relying upon judgment of the Hon’ble Apex Court in Uday Mohanlal Acharya Vs. State of Maharashtra, 2001 (@) RCR (Crl.) 452, held that right of the petitioner/accused stands extinguished. The operative part of the order dated 07.01.2020 reads as under: -

“...Record has been perused and perusal of the record shows that on 04.01.2020 bail application under Section 167(2) Cr.P.C for the grant of bail has been filed by accused Avtar Singh with the averments that he is in judicial custody since 08.07.2019 and after the lapse of 180 days challan has not been presented and indefeasible right has accrued to him by virtue of Section 167(2) of Cr.P.C. After receiving of the report of the Criminal Ahlmad, the Court has granted bail to the accused subject to his furnishing bail bonds in the sum of Rs.1,00,000/- with two local sureties in the like amount, with an undertaking to appear before the Court on each and every date of hearing and not to leave the country without prior permission of the Court. The application for furnishing of bail bonds has been moved by the counsel on 07.01.2020 but on 06.01.2020 at 10:00AM the prosecution has filed the final report under Section 173 Cr.P.C.

Here, it is apt to make reference of the judgment passed by the Hon'ble Apex Court in Uday Mohan Lal Acharya