IMPORTANT POINT
Application u/s 167(2) Cr.P.C. must be disposed of promptly and such application should not be treated as a regular bail application.

JUDGMENT

Rajesh Singh Chauhan, J.—Heard Sri Arun Sinha, learned counsel for the applicant and Sri Anurag Verma, learned AGA-I for the State.

2. The precise question for consideration in this petition is as to whether the accused has an indefeasible right to ‘compulsive bail’ i.e. ‘default bail’ under proviso to section 167(2) Cr.P.C. on the expiry of the period of 90 days, (or 60 days as the case may be), if the charge-sheet has not been filed within aforesaid stipulated time.

3. So as to answer this question some facts in brief of the case are required to be considered.

4. The present applicant is an accused in Sessions Trial No. 669/2021, Crime No. 23/2021, u/s 342, 376D, 372, 506 IPC, & section 5/6 POCSO Act, P.S. Mahanagar, District Lucknow. He was sent to judicial custody on 14.1.2021.

5. As per learned counsel for the applicant this is a case wherein the investigation should be completed within a period of 90 days and charge-sheet should have been filed within aforesaid period under section 167 Cr.P.C.

6. The aforesaid 90 days period has expired on 14.4.2021 but no charge sheet has been filed before the learned trial court i.e. Special Judge, POCSO Act, Lucknow.

7. On 22.4.2021 an application under section 167(2) Cr.P.C. was filed before the learned trial court through physical filing. However, at that point of time filing of physical application was not allowed in terms of restriction being imposed by the High Court as a Covid-19 Protocol. Thereafter, the petitioner filed an online application. Learned counsel for the applicant was appointed to file such application before the learned Court of Sessions Judge as this is a case relating to session trial. Learned counsel for the applicant has filed the certified copy of those applications with this petition as Annexure no. 7 and Annexure no. 8. Both the applications are of 22.4.2021. In both the applications before the learned trial court and before the learned sessions court it has been indicated that after expiry of 90 days period no charge-sheet has been filed, therefore, the applicant may be granted bail under section 167(2) Cr.P.C. as ‘default bail’.

8. Per contra, Sri Anurag Verma, learned AGA-I has submitted that even if the applicant has filed an application under section 167(2) Cr.P.C. on 22.4.2021, he would not be entitled for default bail under section 167(2) inasmuch as the charge-sheet was filed before the learned trial court on 22.4.2021 and the cognizance thereof has been taken. Therefore, in view of the decision of Apex Court in re: Sanjay Dutta vs. State reported in (1994) 5 SCC 410 the benefit of default bail may not be extended to the present applicant. Replying to the aforesaid objection being made by learned AGA -I, Sri Sinha, learned counsel for the applicant has cited some decisions of Apex Court i.e. Uday Mohanlal Acharya vs. State of Maharashtra (2001) 5 SCC 453, Bikramjit Singh vs. State of Punjab (2020) 10 Supreme Court Cases 616 and M. Ravindran vs. The Intelligence Officer, Directorate of Revenue Intelligence passed in Criminal Appeal No. 699 of 2020 arising out of S.I.P. (Criminal) No. 2333 of 2020 decided on 26.10.2020.

9. Sri Sinha has submitted that the judgment of Apex Court in re: Sanjay Dutta (supra) would not be applicable in the present case inasmuch as in the case of Sanjay Dutta (supra) the challan was presented by the prosecution on 25.3.2019 and application u/s 167(2) was filed on the next date i.e. 26.3.2019. Whereas in the present case the charge-sheet was presented by the prosecution on 22.4.2021 subsequent to the application u/s 167(2) has been filed on the same day i.e. 22.4.2021. Therefore, the right of the present applicant accrued immediately after filing such application under section 167(2) since the charge-sheet was not filed by that time.

10. It would be apt to consider some recent cases of the Apex Court wherein the quashing of default bail has been considered :

Saravanan vs State Rep. By The Inspector of ... on 15 Oct