The right to default bail under Section 167(2) does not accrue if the charge-sheet is filed within the stipulated time before the bail application.

ORDER :

Vijay Kumar Shukla, J.

The present petition is filed under section 482, Criminal Procedure Code seeking quashment of the order dated 9-8-2023 passed by ASJ and Special Court (under the Electricity Act) in crime No. 522/2022 affirming the order dated 31-7-2023 passed by JMFC in Criminal Case No. 4757/2023.

2. The petitioner is claiming default bail on the ground that respondent has failed to file charge-sheet within the period of 90 days under section 167(2) Criminal Procedure Code and therefore, the petitioner is entitled for default bail.

3. Facts of the case are that applicant is accused in crime No. 522/2022 registered at P.S. M.G. Road, Indore for commission of offence under section 420, 467, 468 and 471, Indian Penal Code. According to the applicant, he surrendered before the Magistrate on 2-5-2023 and on the said date, order of remand was passed. The period of 90 days expired on 30-7-2023 and the charge-sheet was filed on 31-7-2023, beyond the period of 90 days, and therefore indefeasible right has accrued in favour of the petitioner for grant of default bail. In support of his submission, he has placed reliance on the judgment passed by the Supreme Court in the case of Enforcement Directorate, Govt. of India vs. Kapil Wadhwan, Cr. Appeal No. 701-702/2020 decided on 27-3-2023. He also referred the order passed by High Court of Orissa in case of Lambodar Bag vs. State of Orissa, (2018) 71 OCR 31 and the judgment passed by Madras High Court on 6-12-2021 in CRL OP (MD) No. 18273 of 2021, K. Muthuirul vs. Inspector of Police.

4. Per contra, counsel for the State submitted that charge-sheet was filed on 31-7-2023 and the applicant filed an application for grant of default bail after filing of the charge-sheet and therefore, in the light of the judgment passed by the Apex Court in the case of Pragyna Singh Thakur vs. State of Maharashtra, (2011) 10 SCC 445, no indefeasible right would accrue under section 167(2) Criminal Procedure Code. Counsel further submitted that charge-sheet was already submitted to the Magistrate before expiration of 90 days. However, the Magistrate was on remand duty, therefore, the charge-sheet could not be filed in the Court. He has produced copy of Roznamcha dated 29-7-2023.

5. After hearing learned counsel for the parties, it is apposite to refer the relevant provision of section 167(2), Criminal Procedure Code, which is reproduced herein under :—

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.

Provided that —

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding —

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.”

6. The Magistrate has rejected the application on the ground that charge-sheet was filed on 31-7-2023 before the tea-break and application for default bail