Point of Law:
Court cannot act to extinguish the right of an accused if the law so confers on him. Law has to prevail. The prosecution cannot avail such subterfuges to frustrate or destroy the legal right of the accused. Such an act is not permissible. If we permit ourselves to say so, the prosecution exhibited sheer negligence in not filing the application within the time which it was entitled to do so in law but made all adroit attempts to redeem the cause by its conduct.

JUDGMENT :

1. All these three cases are being decided by this common order as similar questions are involved.

2. The brief facts of the case are that all the three applicants were arrested by the police authorities on 5.2.2020 in connection with the First Information Report dated 4.2.2020, which was registered as Case Crime No. 15 of 2020, under Sections 302, 201 I.P.C., P.S. Harpur Budhat, District Gorakhpur. On the said day of arrest, the Chief Judicial Magistrate, Gorakhpur vide his order dated 5.2.2020 remanded all the three applicants to the police custody and since then they continued to be in police custody.

3. Counsel for the applicants argues that 90 days were completed on 5.5.2020, however, no charge-sheet was filed, as such the applicants filed their bail applications seeking release on default under Section 167(2) Cr.P.C. All the said bail applications were preferred on 8.5.2020. In the case of Ramu, the said bail application was rejected by order dated 12.5.2020 mainly on the ground that as per the case diary, the charge-sheet has been dispatched on 8.5.2020, and thus the applicants right of bail under Section 167(2) stood lost. In respect of applicants Harendra and Rajesh, their bail applications were rejected vide order dated 13.5.2020 on the same ground that as per the case diary, the charge-sheet had been dispatched on 8.5.2020, however the said orders do not record whether the charge-sheet had actually been filed before the Court concerned on 8.5.2020.

4. Counsel for the applicants has heavily relied upon the report called by the Court below from the concerned Office while disposing off the bail applications and the Office in turn filed a report dated 13.5.2020 (Annexure-3 to the affidavit) stating that till 13.5.2020, no charge-sheet had been received in the Office of the Chief Judicial Magistrate, Gorakhpur. However, without any reference of the said report, the Chief Judicial Magistrate proceeded to dismiss the bail applications only on the ground that the public prosecutor had informed that the investigation was completed and the charge-sheet was dispatched on 8.5.2020.

5. Counsel for the applicants has extensively argued that on the completion of 90 days, indefeasible right is created in favour of the accused and any further custody after the completion of 90 days is wholly arbitrary and illegal and is also violative of the rights enshrined under Article 21 of the Constitution. He further submits that right guaranteed under Article 21 of the Constitution is sacrosanct and can be taken away only by a procedure established by law, in the present case the provisions of Section 167, which authorize the Magistrate to remand the accused for a period of 60 days/90 days (depending on the nature of the offence alleged). He further argued that on the 90th day, the accused are entitled to be enlarged on bail subject to their filing an application and offering to furnish security in terms of the mandate of Section 167(2) of the Cr.P.C. He further argues that delay in disposal of the bail application has been looked down upon by the Supreme Court. He thus argues that well settled law on the question can be crystallized as under that after the completion of 90 days, as soon as the bail application is filed, the crystallized rights of the accused get triggered and they are entitled to be released on bail subject to of course the applicants agreeing to furnish the bail bonds, which as per the counsel for the applicants were duly indicated in the bail application filed. He also admits that in the event, the bail application is filed after the submission of the charge-sheet, even after 90 days, the indefeasible rights gets extinguished.

6. In the present case, as per the records, the bail application was admittedly filed before the charge-sheet reached the Court concerned, which is clearly demonstrable from the report issued by the Office and contained in Annexure-3.

7. Counsel for the applicants has extensively argued placing r