JUDGMENT :

1. Heard learned counsel for the applicant and learned AGA for the State and perused the material on record.

2. This application U/s 482 Cr.P.C. is filed to quash/set aside the order dated 25.11.2021 passed in connection with default bail application filed under Section 167(2) Cr.P.C. in case crime no. 327 of 2019 under Section 302, 397/34 IPC, P.S. Mauaima, District Prayagraj by the court of CJM Allahabad. It is further prayed that applicant be released on bail in the aforesaid case crime.

3. On 19.07.2019 at 13:40 hrs, an FIR was lodged by informant Naveen Kumar Jaiswal against three unknown motorcycle riders registered as case crime no.327 of 2019 under Section 397 and 302 IPC at P.S. Mauaima, Prayagraj with respect to the incident dated 19.07.2019 at 9:40 am with regard to loot and murder of Anil Dohre, Branch Manager, Allahabad Bank. During the course of investigation, the name of the applicant came into the light. He moved an application for surrender and on the basis of police report, the applicant surrendered on 26.08.2021 and taken into judicial custody and sent to jail.

4. Learned counsel for the applicant submitted that even after completion of 90 days on 24.11.2021 from the first date of judicial remand, the Investigating Officer has not filed a police report under Section 173(2) Cr.P.C. against the applicant. On 25.11.2021 at 10:00 am the applicant has applied for default bail under Section 167 (2) Cr.P.C. The Chief Judicial Magistrate passed an order and called a report from the Additional Public Prosecutor vide order dated 25.11.2021. In compliance of the aforesaid order, the Additional Public prosecutor submitted its report, thereafter he submitted another report before the Chief Judicial Magistrate, Allahabad. In the intervening time of two reports of the Additional Public Prosecutor, the Investigating Officer has enough time to submit a charge-sheet in the case against the applicant. The Chief Judicial Magistrate after receiving the copy of police report/charge-sheet registered it as case no.13041 of 2021 and taken cognizance but the reference of the offence is not mentioned therein. So this cognizance order is illegal. The Chief Judicial Magistrate has authorized the detention of the applicant against the procedure established by law in violation of Article 21 of the Constitution of India. On 25.11.2021, the Chief Judicial Magistrate after receiving the second report, submitted by Additional Public Prosecutor, heard and rejected the default bail application of the applicant-accused. Learned counsel further contended that till the filing of the default bail application and inasmuch as also the first report submitted by Additional Public Prosecutor, the Investigating Officer has not submitted the charge-sheet, whereas according to Section 167 (2) Cr.P.C. the prescribed time limit i.e. 90 days has already expired on 24.11.2021. The second report dated 25.11.2021 submitted by Additional Public Prosecutor reveals that the Investigating Officer was called to submit charge-sheet. The Chief Judicial Magistrate has awaited for second report submitted by Additional Public Prosecutor and after receiving thereof, heard and rejected the default bail application, whereas the Chief Judicial Magistrate ought to heard and decide the default bail application on the basis of first report dated 25.11.2021 submitted by Additional Public Prosecutor. The Chief Judicial Magistrate only in order to anyhow extinguish statutory/ fundamental right of the applicant for default bail has awaited for a second report, whereas the applicant has already availed the remedy and make out a case of default bail prior to the submission of the charge-sheet. Thus, the right of default bail of the applicant cannot be extinguished but even though the Chief Judicial Magistrate has denied the applicant, his statutory as well as fundamental right as provided in Section 167(2) Cr.P.C. and article 21 of the Constitution of India respectively. The im