U.O.I. THR. CBI vs. NIRALA YADAV@RAJA RAM YADAV@DEEPAK YADAV

Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPEALLATE JURISDICTION CRIMINAL APPEAL NO. 786 OF 2010 Union of India through C.B.I. … Appellant Versus Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav …Respondent J U D G M E N T Dipak Misra, J. The present appeal, by special leave, is directed against the order dated 4.3.2008 passed by the learned JUDGMENT Single Judge of the High Court of Judicature at Patna in Criminal Misc. No. 44042 of 2007 enlarging the respondent on bail solely on the ground that he was entitled to the benefit under the proviso appended to Section 167(2) CrPC of Criminal Procedure (for short “the CrPC”). Page 1 2 2. The antecedent essential facts are that the respondent was arraigned as an accused in Nauhatta P.S. case No. 4/02 for the offences punishable under Sections 302, 304, 353,

Section 27 of the Arms Act and under Section 49(2)(b) of Prevention of Terrorist Activities Act (POTA) for murder of Sanjay Kumar Singh, Divisional Forest Officer. Initially the investigation was carried out by the local investigating agency and thereafter, the Government of India, Ministry of Personnel, New Delhi, issued a notification No. 228/9/02- AVD/II dated 21.3.2002 handing over the investigation to the Central Bureau of Investigation (CBI) after obtaining the consent of the Government of Bihar. JUDGMENT 3. As per the allegations of the prosecution, on 15.2.2002 the deceased Sanjay Kumar Singh, Divisional Forest Officer, Shahabad Division with Headquarter at Sasaram, was on a surprise check in village Rehal, District Rohtas along with his subordinate staff and, at that juncture, he was surrounded by a group of 25-30 unknown naxalites and was taken Page 2 3 outside the village and when he declined to comply with the illegal demand of the naxalites for payment of rupees five lakhs for his release, he was taken inside the forest where he

the basis of an FIR, the investigation commenced. 4. In course of investigation, the respondent was arrested and was sent to the judicial custody on 5.12.2006. As the charge-sheet was not filed after lapse of the statutory period of ninety days, on 14.3.2007 the respondent filed an application under Section 167(2) CrPC for release on bail on the foundation that in the absence of challan on record he was entitled to be admitted to bail after completion of ninety days from his date of arrest. On 15.3.2007, an application JUDGMENT was filed by the CBI under Section 49(2)(b) of POTA seeking extension of time for a period of thirty days, but on that day no order was passed on that application and the learned Special Judge asked the defence to file a reply in rejoinder to the application for extension but did not pass any order on the application for grant of bail. Page 3 4 5. As the factual matrix would unfurl, charge-sheet was filed on 26.3.2007. On 3.4.2007 the learned Special Judge extended the time for filing the charge-sheet till the date of

respondent. Being unsuccessful in getting admitted to bail, the accused-respondent approached the High Court in Criminal Misc. No. 44042 of 2007 and the learned single Judge who dealt with the application, after referring to the decision in Hitendra Vishnu Thakur v. State of 1 Maharahstra and placing reliance on the dictum in Uday 2 Mohanlal Acharya v. State of Maharahstra , came to hold that the right had already accrued to the respondent on 14.3.2007 when he had moved the application for grant of JUDGMENT bail and, accordingly, admitted him to bail on certain conditions. 1 (1994) 4 SCC 602 2 (2001) 5 SCC 453 Page 4 5 6. We have heard Mr. P.K. Dey, learned counsel for the appellant and Ms. Prerna Singh, learned counsel for the respondent.

is submitted by Mr. Day that the High Court has been totally misguided by placing reliance upon the law laid down in Harindra Vishnu Thakur (supra) without apprising itself about the Constitution Bench decision in Sanjay Dutt v. 3 State which makes the order unsustainable. It is urged by him that when the application for bail was filed on the ground that the charge-sheet was not filed within ninety days, and the said application was not considered and no order was passed by the learned trial Judge before the JUDGMENT charge-sheet was filed, the indefeasible right that vested in an accused, got totally destroyed, but, unfortunately, the High Court has failed to appreciate the said legal principle which makes the impugned order sensitively untenable. It is his further submission that the learned single Judge has failed to apply the correct principle on the right of 3 (1994) 5 SCC 410 Page 5 6 “compulsive bail” inasmuch as such a right should be available on the date the bail application is taken up for consideration but not on the date of its presentation. He has

4 State of M.P. v. Rustam & ors. , Bipin Shantilal 5 6 Panchal v. State of Gujarat , Dinesh Dalmia v. CBI , 7 Mustaq Ahmed Isak v. State of Maharashtra and 8 Pragyna Singh Thakur v. State of Maharashtra . 8. Ms. Prerna Singh, learned counsel appearing for the respondent, per contra, has contended that the controversy is squarely covered by the decision in Uday Mohanlal Acharya (supra) and as the High Court has based its decision on the same in the backdrop of the factual scenario, JUDGMENT the order is absolutely defensible and does not suffer from any infirmity warranting interference. She would further submit that the indefeasible right available to the accused cannot be extinguished by filing an application for extension 4 1995 Supp (3) SCC 221 5 (1996) 1 SCC 718 6 (2007) 8 SCC 770 7 (2009) 7 SCC 480 8 (2011) 10 SCC 445 Page 6 7 of time to file the charge-sheet after expiry of the initial period and filing the same after certain period, for if such kind of allowance is conferred, the purpose of the provision

9. At the outset it is necessary to state that the facts are not in dispute and, therefore, we are obliged to advert to the law and adjudge whether the High Court has correctly applied the legal principles. As we notice from the impugned order the learned single Judge has referred to the decision in Hatindra Vishnu Thakur (supra). In the said case the Court had dwelled upon the import of Section 20(4) of Terrorist and Disruptive Activities (Prevention) Act, 1987 read with Section 167 CrPC and came to hold that: - JUDGMENT “… we find that once the period for filing the charge-sheet has expired and either no extension under clause ( bb ) has been granted by the Designated Court or the period of extension has also expired, the accused person would be entitled to move an application for being admitted to bail under sub-section (4) of Section 20 TADA read with Section 167 of the Code and the Designated Court shall release him on bail, if the accused seeks to be so released and furnishes the requisite bail. We are not impressed with the argument of the learned counsel for the appellant that on the Page 7 8

obtaining an order of bail under the ‘default’ clause by either deliberately or inadvertently concealing certain facts and would avoid multiplicity of proceedings. It would, therefore, serve the ends of justice if both sides are heard on a petition for grant of bail on account of the prosecution’s ‘default’. Similarly, when a report is submitted by the public prosecutor to the Designated Court for grant of extension under clause ( bb ), its notice should be issued to the accused before granting such an extension so that an accused may have an opportunity to oppose the extension on all legitimate and legal grounds available to him. It is true that neither clause ( b ) nor clause ( bb ) of sub-section (4) of Section 20 TADA specifically provide for the issuance of such a notice but in our opinion the issuance of such a notice must be read into these provisions both in the interest of the accused and the prosecution as JUDGMENT Page 8 9 well as for doing complete justice between the parties.” After so stating, the Court proceeded to observe as follows: -

10. After the said decision was rendered, the interpretation JUDGMENT of clause (bb) of sub-section (4) of Section 20 of TADA was referred to the Constitution Bench. In Sanjay Dutt (supra) the two questions that were posed by the Constitution Bench are as follows: - “(2) The proper construction of clause (bb) of sub-section (4) of Section 20 of the TADA Act indicating the nature of right of an accused to be released on bail thereunder, on the Page 9 10 default to complete investigation within the time allowed therein; and

that the two-Judge Bench decision in Hitendra Vishnu Thakur (supra) read in the context of final order made therein raised some ambiguity about the meaning and effect of Section 20(4)(bb) of the TADA Act. Adverting to the interpretation of the said provision and scanning the anatomy, the larger Bench observed thus: - “ 43. Section 20 of the TADA Act prescribes the modified application of the Code of Criminal Procedure indicated therein. The effect of sub- section (4) of Section 20 is to apply Section 167 of the Code of Criminal Procedure in relation to a case involving an offence punishable under the TADA Act subject to the modifications indicated therein. One of the modifications made JUDGMENT in Section 167 of the Code by Section 20(4) of the TADA Act is to require the investigation in any offence under the TADA Act to be completed within a period of 180 days with the further proviso that the Designated Court is empowered to extend that period up to one year if it is satisfied that it is not possible to complete the investigation within the said period of 180 days, on the report of the public prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of Page 10 11 180 days. This gives rise to the right of the accused to be released on bail on expiry of the said period of 180 days or the extended period on default to complete the investigation within the time allowed.”

Designated Court would have “no jurisdiction to deny to an accused his indefeasible right to be released on bail on account of the default of the prosecution to file the challan within the prescribed time if an accused seeks and is prepared to furnish the bail bond as directed by the court”; and that a ‘notice’ to the accused is required to be given by the Designated Court before it grants any extension under the further proviso beyond the prescribed period for JUDGMENT completing the investigation. It is apt to state that learned counsel for the petitioner therein conceded the legal position that the right of the accused which is enforceable only upto the filing of the challan and does not survive for enforcement on the challan being filed in the court against him. It was further contended that the decision in Hitendra Vishnu Thakur (supra) could not be read to confer on the accused Page 11 12 an indefeasible right to be released on bail under Section 20(4)(bb) once the challan has been filed if the accused continues in custody. Such a concession was given by

period of investigation. The said position of law was accepted by the learned Additional Solicitor General. However, it was contended by him that direction for grant of bail in Hitendra Vishnu Thakur (supra) was not in consonance with such reading of the decision and indicates that the indefeasible right of the accused to be released on bail on expiry of the time allowed for completing the investigation survives and is enforceable even after the challan has been filed, without reference to the merits of the JUDGMENT case or the material produced in the court with the challan. Mr. Dey has drawn inspiration from paragraphs 48 and 49 of the said decision which we think should be reproduced: - “ 48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)( bb ) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of Page 12 13

JUDGMENT Page 13 14 9 State of Punjab ; Ram Narayan Singh v. State of 10 11 Delhi and A.K. Gopalan v. Government of India .)

[Emphasis supplied] After laying down the principles, the Constitution Bench recorded its conclusions of which conclusions (2)(a) and (2) (b), being relevant for the present purpose, are reproduced below: - “(2)( a ) Section 20(4)( bb ) of the TADA Act only requires production of the accused before the court in accordance with Section 167(1) of the Code of Criminal Procedure and this is how the requirement of notice to the accused before granting extension beyond the prescribed period of 180 days in accordance with the further proviso to clause ( bb ) of sub- section (4) of Section 20 of the TADA Act has to be understood in the judgment of the Division Bench of this Court in Hitendra Vishnu Thakur . The requirement of such notice to the accused before granting the extension for completing the investigation is JUDGMENT 9 1952 SCR 395 10 1953 SCR 652 11 (1966) 2 SCR 427 Page 14 15

JUDGMENT [Emphasis added] Page 15 16 13. Thus, the decision in Hitendra Narain Thakur (supra) has been explained by the Constitution Bench and it has laid down the principles pertaining to grant of bail on default.

dealing with a controversy whereby the High Court had rejected the prayer for bail to the appellant who was an accused for offences under the Narcotic Drugs and Psychotropic Substances Act, 1985. A contention was advanced that the statutory period prescribed under the proviso (a) to sub-section (2) of Section 167 CrPC providing for completion of investigation, had expired and, therefore, the accused-appellant therein should have been released on bail. The three-Judge Bench referred to the decision in JUDGMENT 12 Union of India v. Thamisharasi , reproduced a passage from Sanjay Dutt (supra) and came to hold as follows: - “… if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge-sheet is filed. But on the 12 (1995) 4 SCC 190 Page 16 17 other hand if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge-sheet, as pointed out in 13 Aslam Babalal Desai v. State of Maharashtra . [Emphasis added] 15. In Rustam and others (supra) the two-Judge Bench was addressing to the controversy where the High Court had entertained the bail petition after the challan was filed. After stating that the controversy had been covered by the decision in Sanjay Dutt (supra) wherein Hitendra Vishnu Thakur (supra) had been explained, the Court proceeded to state as follows: - “The court is required to examine the availability of the right of compulsive bail on the date it is considering the question of bail and not barely on the date of the presentation of the petition for bail.” JUDGMENT 16. After so stating the Court proceeded to state that when the High Court entertained the petition for bail and granted it to the respondents therein, undeniably the challan stood filed in the court and, therefore, the indefeasible right for getting bail was not available. 13 (1992) 4 SCC 272 Page 17 18 17. In Mohammed Iqbal Madar Sheikh and others v. 14 State of Maharshtra , while interpreting the proviso (a) to sub-section (2) of Section 167 CrPC in the context of TADA,

“It need not be pointed out or impressed that in view of a series of judgments of this Court, this right cannot be defeated by any court, if the accused concerned is prepared and does furnish bail bonds to the satisfaction of the court concerned. Any accused released on bail under proviso ( a ) to Section 167(2) of the Code read with Section 20(4)( b ) or Section 20(4)( bb ), because of the default on the part of the investigating agency to conclude the investigation, within the period prescribed, in view of proviso ( a ) to Section 167(2) itself, shall be deemed to have been so released under the provisions of Chapter XXXIII of the Code. It cannot be held that an accused charged of any offence, including offences under TADA, if released on bail because of the default in completion of the investigation, then no sooner the charge-sheet is filed, the order granting bail to such accused is to be cancelled. The bail of such accused who has been released, because of the default on the part of the investigating officer to complete the investigation, can be cancelled, but not only on the ground that after the release, charge-sheet has been submitted against such accused for an offence under TADA. For cancelling the bail, the well-settled principles in respect of cancellation of bail have to be made out.” JUDGMENT 14 (1996) 1 SCC 722 Page 18 19 18. Be it noted, in the said case, the accused-appellants were taken into custody on 16.1.1993 and the charge-sheet was submitted on 30.8.1993, obviously beyond the statutory

proceeded to opine thus: - “But it is an admitted position that no application for bail on the said ground was made on behalf of the appellants. Unless applications had been made on behalf of the appellants, there was no question of their being released on ground of default in completion of the investigation within the statutory period. It is now settled that this right cannot be exercised after the charge-sheet has been submitted and cognizance has been taken, because in that event the remand of the accused concerned including one who is alleged to have committed an offence under TADA, is not under Section 167(2) but under other provisions of the Code. This has been specifically considered by a Constitution Bench of this Court in the case of Sanjay Dutt v. State through CBI(II) .” JUDGMENT After so stating the learned Judges reproduced a passage from Sanjay Dutt (supra) and opined that it was not open to the accused-appellants to claim bail under proviso (a) to Section 167(2) CrPC inasmuch as the charge- sheet had been submitted against them the benefit of default would not be available. Though the three-Judge Page 19 20 Bench rejected the prayer for bail on facts, yet considering the submissions put forth at the Bar, observed as follows: - “During hearing of the appeal, it was pointed out by the counsel appearing on behalf of the appellants that some courts in order to defeat the right of the accused to be released on bail under proviso (a) to Section 167(2) after expiry of the statutory period for completion of the investigation, keep the applications for bail pending for some days so that in the meantime, charge-sheets are submitted. Any such act on the part of any court cannot be approved. If an accused charged with any kind of offence becomes entitled to be released on bail under proviso (a) to Section 167(2), that statutory right should not be defeated by keeping the applications pending till the charge- sheets are submitted so that the right which had accrued is extinguished and defeated.” [Emphasis supplied] 19. In Uday Mohanlal Acharya (supra) the majority, after JUDGMENT referring to the Constitution Bench decision in Sanjay Dutt’s case, posed the question about the true meaning of the expression of the following lines:- “the indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed or” Page 20 21 Answering the said question the court observed thus:-

released on bail and offers to abide by the terms and conditions of bail. To interpret the expression “availed of” to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart, when an accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not. If the expression “availed of” is interpreted to mean that the accused must factually be released on bail, then in a given case where the Magistrate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to the higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution JUDGMENT Page 21 22

[Emphasis supplied] After so stating the court referred to Makhan Singh 15 Tarsikka v. State of Punjab , Ram Narayan Singh (supra) and A.K. Gopalan (supra) and proceeded to state as JUDGMENT follows:- “In interpreting the expression “if not availed of” in the manner in which we have just interpreted we are conscious of the fact that accused persons in several serious cases would get themselves released on bail, but that is what the law permits, and that is what the legislature wanted and an indefeasible right to an accused flowing from any legislative provision ought not to be defeated by a 15 AIR 1952 SC 27 Page 22 23 court by giving a strained interpretation of the provisions of the Act. In the aforesaid premises, we are of the considered opinion that an accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to sub-section (2) of Section 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. In our view, such interpretation would subserve the purpose and the object for which the provision in question was brought on to the statute-book. In such a case, therefore, even if the application for consideration of an order of being released on bail is posted before the court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting a formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the accused.” [Underlining is ours] JUDGMENT 20. Thereafter the Court culled out six conclusions which are necessitous to be reproduced. They are: - “1. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole. Page 23 24

3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate. 4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated. JUDGMENT 5. If the accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint Page 24 25

6. The expression “if not already availed of” used by this Court in Sanjay Dutt case3 must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.” 21. Elaborating further, the Court held that if the charge- sheet is filed subsequent to the availing of the indefeasible JUDGMENT right by the accused then that right would not stand frustrated or extinguished and, therefore, if an accused is entitled to be released on bail by application of the proviso to sub-section (2) of Section 167 CrPC, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the Page 25 26 accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge-sheet is filed, the so-called indefeasible right of the

other hand, the accused has to be released on bail. The Court further proceeded to say that such an accused, thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge-sheet being filed in accordance with Section 209 and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail, already granted in accordance with the JUDGMENT law laid down by the Court in the case of Mohd. Iqbal (supra). 22. Before we proceed to deal with the subsequent decisions, we should pause here to deliberate. In Mohamed Iqbal Madar Sheikh (supra) it has been expressed with anguish that the Court should not keep an application filed Page 26 27 under Section 167(2) after expiry of the statutory period pending to enable the investigation to file the charge-sheet to defeat the indefeasible right of an accused. It has been

defeated by keeping the application pending so that the right which had accrued is extinguished. The aforesaid decision was rendered after pronouncement by the Constitution Bench in Sanjay Dutt’s case and, in fact, it has been referred to therein. 23. In Uday Mohanlal Acharya (supra) the principle has been further elaborated to hightlight the ratio laid down in Sanjay Dutt’s case. It has been clearly laid down that if a case is adjourned by the court granting time to the JUDGMENT prosecution not adverting to the application filed on behalf of the accused, it would be a violation of the legislative mandate. The principle stated in Uday Mohanlal Acharya (supra) is a binding precedent on us. Mr. Dey, learned counsel appearing for the appellant, made a feeble endeavour that it is a two-Judge Bench decision and it runs Page 27 28 contrary to the principle stated in Sanjay Dutt’s case and hence, it should be treated as per incuriam . Both the facets of the submission are absolutely fallacious. It is a judgment

Bench simply because there is a dissenting opinion. Secondly, the judgment has not been rendered in ignorance of a binding precedent but, on the contrary, it has directly dealt with the decision in Sanjay Dutt (supra), appreciated, understood and analysed the principles stated therein and culled out the conclusions and, therefore, by no stretch of imagination it can be held to be per incuriam . Even if a two- Judge Bench or a three-Judge Bench disagrees with the view expressed in Uday Mohanlal Acharya (supra), it has to be JUDGMENT referred to a larger Bench. As we notice, prior to the decision in Uday Mohanlal Acharya’s case a three-Judge Bench in Mohamed Iqbal Madar Sheikh (supra) had stated the principle in a different way. We are disposed to think, that is the principle which the Constitution Bench in Sanjay Dutt’s case has laid down. When the charge-sheet is not filed and the right has ripened earning the status of Page 28 29 indefeasibility, it cannot be frustrated by the prosecution on some pretext or the other. The accused can avail his liberty only by filing application stating that the statutory period for

filed and an indefeasible right has accrued in his favour and further he is prepared to furnish the bail bond. Once such an application is filed, it is obligatory on the part of the court to verify from the records as well as from the public prosecutor whether the time has expired and the charge-sheet has been filed or not or whether an application for extension which is statutorily permissible, has been filed. If an application for extension is filed, it is to be dealt with as has been stated in the case of Sanjay Dutt (supra). That is the duty of the JUDGMENT Court. This is the position of law as has been stated in Uday Mohanlal Acharya (supra). 16 24. In Ateef Nasir Mulla v. State of Maharashtra , the accused was arrested on 15.4.2003 and the period of ninety days for completing the investigation was to expire on 13.7.2003. On 11.7.2003 an application was moved for 16 (2005) 7 SCC 29 Page 29 30 extension of time to complete the investigation under Section 49(2)(b) of Prevention of Terrorism Act, 2002. The Special Judge, after hearing the counsel for the accused,

completing the investigation till 14.8.2003 and, accordingly, the accused was remanded to custody. The order of granting extension was challenged before the High Court. On 14.7.2003, after expiry of ninety days, an application for release of accused was filed stating that the period of ninety days had expired and hence, he was entitled to bail in terms of Section 49(2)(b) read with the provisions of Section 167(2) CrPC. The charge-sheet was filed by the investigating agency on 19.7.2003 before expiration of the extended time. JUDGMENT The learned Special Judge rejected the application for grant of bail by order dated 25.7.2003 which was affirmed by the High Court. Noting various contentions advanced at the Bar, this Court held thus:- “ 17. It was then contended on behalf of the appellant that the appellant having acquired an indefeasible right to be released on bail on the expiry of 90 days from the date of his arrest, the Page 30 31 Special Judge was not justified in rejecting the application for grant of bail which was filed on 14- 7-2003. By then the charge-sheet had not been submitted by the police and, hence, there was no reason to continue the detention of the appellant.

there was already an order extending the time for completion of the investigation, and consequently the Court was empowered to remand the accused to judicial or police custody during the said extended period.” 25. The purpose of citing the aforesaid decision is that an application for grant of extension was filed prior to the expiry of ninety days and the same was granted and, therefore, the indefeasible right vested in the accused stood extinguished. JUDGMENT 26. Presently, we shall refer to certain later decisions. In the case of Dinesh Dalmia (supra), which has been placed reliance upon by Mr. Dey, the CBI lodged the First Information Report against the appellant and three companies on a complaint made by the Securities and Exchange Board of India. As the appellant was away, the learned Magistrate, by an order dated 14.2.2005, issued a Page 31 32 non-bailable warrant of arrest against him. In the meantime, after the completion of investigation a charge-sheet was submitted before the learned Magistrate in terms of sub-

featured in the charge-sheet along with the companies. Eventually, after following the process the appellant was sent to police custody on 14.2.2006 till 24.2.2006. The accused was handed over to the police for conducting investigation till 8.3.2006. He, however, was remanded to judicial custody till 14.3.2006 by order dated 9.3.2006 on the plea that further investigation was pending. CBI prayed for and obtained orders of remand to judicial custody from the learned Magistrate on 14.3.2006, 28.3.2006, 10.4.2006 and JUDGMENT 28.4.2006. The appellant, on expiry of sixty days from the date of his arrest, filed an application for statutory bail purported to be in terms of the proviso appended to sub- section (2) of Section 167 CrPC on the premise that no further charge-sheet in respect of the investigation under sub-section (8) of Section 173 CrPC had been filed. When the said application was pending consideration, CBI sought Page 32 33 for his remand into judicial custody under sub-section (2) of Section 309 thereof. The application for statutory bail was rejected by the learned Magistrate basically on the ground

warrant issued by the court after taking cognizance of the offences in the charge-sheet. In revision, the learned Sessions Judge allowed the revision placing reliance on 17 State v. Dawood Ibrahim Kaskar . The CBI moved the High Court which overturned the decision of the learned Sessions Judge. This Court took note of the fact that the charge-sheet was submitted on 24.10.2005 and the applicant was arrested only on 12.2.2006. To the contentions raised before this Court, namely, (i) the charge- JUDGMENT sheet filed against the appellant and the cognizance taken thereupon was illegal and invalid and by reason thereof, the valuable right of the appellant to be released on bail had been taken away; and (ii) even if the charge-sheet was legal, the right of the appellant under sub-section (2) of Section 167 CrPC continued to remain available in the facts and 17 (2000) 10 SCC 438 Page 33 34 circumstances of the case. Noting the contentions, the Court adverted to the power conferred under the statute under Section 173 CrPC and, eventually, opined as follows: -

25. Such a right of bail although is a valuable right but the same is a conditional one; the condition precedent being pendency of the investigation. Whether an investigation in fact has remained pending and the investigating officer has submitted the charge-sheet only with a view to curtail the right of the accused would essentially be a question of fact. Such a question strictly does not arise in this case inasmuch as, according to CBI, sufficient materials are already available for prosecution of the appellant. According to it, further investigation would be inter alia necessary on certain vital points including end use of the funds. JUDGMENT xxx xxx xxx Page 34 35 27. It is also not a case of the appellant that he had been arrested in course of further investigation. A warrant of arrest had already been issued against him. The learned Magistrate was conscious of the said fact while taking cognizance of the offence.” Thereafter, the Court proceeded to the concept of remand as contemplated under the Code. We may profitably quote the same: - “ 38. It is a well-settled principle of interpretation of statute that it is to be read in its entirety. Construction of a statute should be made in a manner so as to give effect to all the provisions thereof. Remand of an accused is contemplated by Parliament at two stages; pre-cognizance and post-cognizance. Even in the same case, depending upon the nature of charge-sheet filed by the investigating officer in terms of Section 173 of the Code, a cognizance may be taken as against the person against whom an offence is said to have been made out and against whom no such offence has been made out even when investigation is pending. So long a charge-sheet is not filed within the meaning of sub-section (2) of Section 173 of the Code, investigation remains pending. It, however, does not preclude an investigating officer, as noticed hereinbefore, to carry on further investigation despite filing of a police report, in terms of sub-section (8) of Section 173 of the Code. JUDGMENT 39. The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under sub-section (2) of Section Page 35 36

27. As the aforesaid decision has been assiduously relied upon by Mr. Dey to pyramid his submission of statutory interpretation, the right of the accused and concept of remand, we have dealt with the same in detail. The ultimate conclusion, as we perceive, is that once a charge-sheet is filed the benefit of proviso appended to sub-section (2) of Section 167 CrPC ceases and it does not revive solely JUDGMENT because the further investigation remains pending. In the said case the Court declined to interfere as the benefit was denied to the accused as the charge-sheet was filed and cognizance had been taken on which basis a non-bailable warrant of arrest was issued. Thus, the said decision does not render any assistance to the learned counsel for the appellant. Page 36 37 28. In Union of India v. Hassan Ali Khan and 18 another , a two-Judge Bench, while adverting to the submission of the learned counsel for the Union of India

Mohanlal Acharya (supra), has understood the said decision in the following manner: - 25. Reference was also made to the decision of a three-Judge Bench of this Court in Uday Mohanlal Acharya v. State of Maharashtra wherein the scope of Section 167(2) CrPC and the proviso thereto fell for consideration and it was the majority view that an accused had an indefeasible right to be released on bail when the investigation is not completed within the specified period and that for availing of such right the accused was only required to file an application before the Magistrate seeking release on bail alleging that no challan had been filed within the period prescribed and if he was prepared to offer bail on being directed by the Magistrate, the Magistrate was under an obligation to dispose of the said application and even if in the meantime a charge- sheet had been filed, the right to statutory bail would not be affected. It was, however, clarified that if despite the direction to furnish bail, the accused failed to do so, his right to be released on bail would stand extinguished.” JUDGMENT 29. From the aforesaid analysis, it is graphically clear that the learned Judges laid emphasis how an accused avails the 18 (2011) 10 SCC 235 Page 37 38 benefit of compulsive bail and what is the obligation cast on the Magistrate in law.

19 (Government of NCT of Delhi) and others . In the said case, the accused had filed an application for grant of bail on 2.6.2012 since his ninety days’ period of custody was to expire on 3.6.2012 and further custody was sought for by the prosecution. The learned Magistrate, by his order dated 2.6.2012, extended the period of investigation and the custody of the appellant by another ninety days. The said order was assailed by the appellant in a revision which came for consideration before the learned Additional Sessions JUDGMENT Judge, who, on 8.6.2012, held that it was only the Sessions Court and not the Chief Metropolitan Magistrate which had the competence to extend the judicial custody of the accused and to entertain cases of such nature. On 22.6.2012, the accused-appellant was produced before the learned Chief Judicial Magistrate for extension of his custody. 19 (2012) 12 SCC 1 Page 38 39 On 17.7.2012 an application was filed under Section 167(2) CrPC seeking default bail as no charge-sheet had been filed within ninety days period of the appellant’s custody. The

Thereafter, the matter was referred by the learned Chief Metropolitan Magistrate to the learned District and Sessions Judge, who directed that judicial custody of the accused- appellant be extended. The aforesaid order of the learned Sessions Judge was assailed before the High Court under Section 482 CrPC and the High Court stayed the operation of the order passed by the learned Additional Sessions Judge dated 28.6.2012 and, therefore, the application for grant of statutory bail could not be taken up by the learned JUDGMENT Additional Sessions Judge till the High Court vacated the order of stay on 13.7.2012. As has been stated earlier, the accused moved an application for grant of bail under Section 167(4) and the same was listed for consideration on 17.7.2012. In the meantime, revision petition came before the learned Additional and Sessions Judge, who allowed the application and opined that the custody of the accused was Page 39 40 illegal. In view of the order passed by the learned Additional Sessions Judge declaring the custody of the accused to be illegal, on the same day an application under Section 167(2)

Magistrate, but he, instead of hearing the application on the sad date, notified the hearing for 18.7.2012. On the adjourned date, i.e., 18.7.2012 the State filed a fresh application seeking further extension of appellant’s custody and the investigation period. The learned Chief Metropolitan Magistrate directed a copy of the said application to be served on the counsel for the accused and notified the matter for hearing on 20.7.2012. On that day he took up the matter for extension of custody and, instead of considering JUDGMENT the application, extended the time of interrogation and custody of the appellant for ninety days with retrospective effect from 2.6.2012. The aforesaid order was challenged before the learned Sessions Judge who adjourned the matter to 12.10.2012 and on 31.7.2013 the prosecution filed the charge-sheet. When the matter travelled to this Court, a question arose with regard to getting the benefit of the Page 40 41 default bail. Be it stated, the Court was considering the provisions contained in Section 43-D of Unlawful Activities (Prevention) Act, 1967 and Section 167(2) CrPC. In that context, it observed thus: - “ 18. By virtue of the aforesaid modification to the provisions of Section 167(2) CrPC, the period of 90 days stipulated for completion of investigation and filing of charge-sheet was modified by virtue of the amended proviso, which indicated that if the investigation could not be completed within 90 days and if the court was satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for detention of the accused beyond the period of 90 days, extend the said period up to 180 days. In other words, the custody of an accused could be directed initially for a period of 90 days and, thereafter, for a further period of 90 days, in all a total of 180 days, for the purpose of filing charge- sheet. In the event the charge-sheet was not filed even within the extended period of 180 days, the conditions directing that the accused person shall be released on bail if he is prepared to do and does furnish bail , would become operative.” JUDGMENT 31. Thereafter, the three-Judge Bench referred to the decision in Sanjay Dutt (supra), Uday Mohanlal Acharya (supra) and Bipin Shantilal Panchal (supra) and taking note of the fact situation held that: - “Not only is the retrospectivity of the order of the Chief Metropolitan Magistrate untenable, it could Page 41 42

Thereafter, the Court opined thus: - “ 26. The circumstances in this case, however, are different in that the appellant had exercised his right to statutory bail on the very same day on which his custody was held to be illegal and such an application was left undecided by the Chief Metropolitan Magistrate till after the application filed by the prosecution for extension of time to complete investigation was taken up and orders were passed thereupon.” JUDGMENT 32. Thus, the aforesaid decision, as we find, has placed reliance on Uday Mohanlal Acharya’s case and, therefore, the principle with regard to the time and manner of availability of the proviso appended to sub-section (2) of Section 167 CrPC has been further crystallized. Page 42 43 33. Learned counsel for the appellant has commended us, with immense perseverance, the authority in Pragyna Singh Thakur (supra). In the said cae a contention was

enlarge the accused on bail was violative of the mandate of Articles 22(1) and 22(2) of the Constitution and also violative of the statutory provisions engrafted under Section 167(2) CrPC. In the said case, the accused was under detention from 10.10.2008 and ninety days expired on 9.1.2009 and the charge-sheet was filed on 20.1.2009. The accused- appellant filed an application under Section 167(2) CrPC read with Section 21(4) of Maharashtra Control of Organized Crime Act, 1999 (MOCA) and also under Section 439 CrPC. JUDGMENT The said application was resisted by the prosecution on the ground that the charge-sheet was filed on 20.1.2009 which was the eighty-ninth day from the date of his remand order, i.e., 24.10.2008. The learned Special Judge rejected the application vide order dated 9.7.2009. The High Court being moved, dismissed the application vide order dated 12.3.2010. Before this Court a question arose whether the Page 43 44 appellant was in police custody from 10.10.2008 to 22.10.2008, for the High Court had returned a finding that the accused was arrested on 23.10.2008. This Court, on a

23.10.2008 and, accordingly, came to hold thus: - “ 49. As far as Section 167(2) of the Criminal Procedure Code is concerned this Court is of the firm opinion that no case for grant of bail has been made out under the said provision as charge-sheet was filed before the expiry of 90 days from the date of first remand. In any event, right in this regard of default bail is lost once the charge-sheet is filed. This Court finds that there is no violation of Article 22(2) of the Constitution, because on being arrested on 23-10-2008, the appellant was produced before the Chief Judicial Magistrate, Nasik on 24-10-2008 and subsequent detention in custody is pursuant to the order of remand by the Court, which orders are not being challenged, apart from the fact that Article 22(2) is not available against a court i.e. detention pursuant to an order passed by the court. JUDGMENT xxx xxx xxx 51. Though this Court has come to the conclusion that the appellant has not been able to establish that she was arrested on 10-10-2008, even if it is assumed for the sake of argument that the appellant was arrested on 10-10-2008 as claimed by her and not on 23-10-2008 as stated by the prosecution, she is not entitled to grant of default bail because this Court finds that the charge-sheet Page 44 45

34. To arrive at the said conclusion, reliance was also placed on Chaganti Satyanarayana (supra), CBI v. 21 22 Anupan J. Kulkarni , State v. Mohd. Ashraft Bhat , 23 State of Maharashtra v. Bharati Chandmal Varma and Rustam (supra). 35. After so stating, the Court addressed to the entitlement of bail under Section 167(2) CrPC and, in that context, stated thus: - JUDGMENT “ 54. There is yet another aspect of the matter. The right under Section 167(2) CrPC to be released on bail on default if charge-sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge-sheet is filed and would not survive after the filing of the charge-sheet. In other words, even if an application for bail is filed on the ground that charge-sheet was not filed within 90 days, but before the consideration of the 20 (1986) 3 SCC 141 21 (1992) 3 SCC 141 22 (1996) 1 SCC 432 23 (2002) 2 SCC 121 Page 45 46

[Underlining is ours] 36. Be it noted, to say so, the learned Judges drew support from the decisions in Rustam (supra), Bipin Shantilal Panchal (supra), Dinesh Dalmia (supra) and Mustaq Ahmed Mohammed Isak (supra). Thereafter they adverted to Uday Mohanlal Acharya’s case in following terms: - “ 56. In Uday Mohanlal Acharya v. State of Maharashtra a three-Judge Bench of this Court considered the meaning of the expression “if already not availed of” used by this Court in the decision rendered in Sanjay Dutt in para 48 and held that if an application for bail is filed before the charge-sheet is filed, the accused could be said to have availed of his right under Section 167(2) even though the court has not considered the said application and granted him bail under Section 167(2) CrPC. This is quite evident if one refers to para 13 of the reported decision as well as the conclusion of the Court at p. 747. JUDGMENT 57. It is well settled that when an application for default bail is filed, the merits of the matter are Page 46 47 not to be gone into. This is quite evident from the principle laid down in Union of India v. 24 Thamisharasi , SCC para 10, placita c - d . 58. From the discussion made above, it is quite clear that even if an application for bail is filed on the ground that charge-sheet was not filed within 90 days, before the consideration of the same and before being released on bail if charge-sheet is filed, the said right to be released on bail, can be only on merits. So far as merits are concerned the learned counsel for the appellant has not addressed this Court at all and in fact bail is not claimed on merits in the present appeal at all.” [Emphasis added] 37. At this juncture, it is absolutely essential to delve into what were the precise principles stated in Uday Mohanlal Acharya’s case and how the two-Judge Bench has understood the same in Pragyna Singh Thakur (supra). We have already reproduced the paragraphs in extenso from JUDGMENT Uday Mohanlal Acharya’s case and the relevant paragraphs from Pragyna Singh Thakur (supra). Pragyna Singh Thakur (supra) has drawn support from Rustam and others case to buttress the principle it has laid down though in Uday Mohanlal Acharya’s case the said decision has been held not to have stated the correct position of law 24 (1995) 4 SCC 190 Page 47 48 and, therefore, the same could not have been placed reliance upon. The Division Bench in paragraph 56 which have been reproduced hereinabove, as referred to

Acharya’s case. We have already quoted from paragraph 13 and the conclusions. 38. The opinion expressed in paragraph 54 and 58 in Pragyna Singh Thakur (supra) which we have underlined, as it seems to us, runs counter to the principles stated in Uday Mohanlal Acharya (supra) which has been followed in Hassan Ali Khan and another (supra) and Sayed Mohd. Ahmad Kazmi. The decision in Sayed Mohd. Ahmad Kazmi’s case has been rendered by a three-Judge JUDGMENT Bench. We may hasten to state, though in Pragyna Singh Thakur’s case the learned Judges have referred to Uday Mohanlal Acharya’s case but as stated the principle that even if an application for bail is filed on the ground that the charge-sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, Page 48 49 if charge-sheet is filed the said right to be enlarged on bail is lost. This opinion is contrary to the earlier larger Bench decisions and also runs counter to the subsequent three-

Isak’s case. We are disposed to think so, as the two-Judge Bench has used the words “before consideration of the same and before being released on bail”, the said principle specifically strikes a discordant note with the proposition stated in the decisions rendered by the larger Benches. 39. At this juncture, it will be appropriate to refer to the dissenting opinion by B.N. Agarwal, J. in Uday Mohanlal Acharya’s case. The learned Judge dissented with the majority as far as interpretation of the expression “if not JUDGMENT already availed of” by stating so:- “29. My learned brother has referred to the expression “if not already availed of” referred to in the judgment in Sanjay Dutt case for arriving at Conclusion 6. According to me, the expression “availed of” does not mean mere filing of application for bail expressing therein willingness of the accused to furnish the bail bond. What will happen if on the 61st day an application for bail is filed for being released on bail on the ground of default by not filing the challan by the 60th day Page 49 50

30. In this background, the expression “availed of” does not mean mere filing of the application for bail expressing thereunder willingness to furnish bail bond, but the stage for actual furnishing of bail bond must reach. If the challan is filed before that, then there is no question of enforcing the right, howsoever valuable or indefeasible it may be, after filing of the challan because thereafter the right under default clause cannot be exercised.” 40. On a careful reading of the aforesaid two paragraphs, we think, the two-Judge Bench in Pragyna Singh Thakur’s JUDGMENT case has somewhat in a similar matter stated the same. As long as the majority view occupies the field it is a binding precedent. That apart, it has been followed by a three-Judge Bench in Sayed Mohd. Ahmad Kazmi’s case. Keeping in view the principle stated in Sayed Mohd. Ahmad Kazmi’s case which has based on three-Judge Bench decision in Page 50 51 Uday Mohanlal Acharys’s case, we are obliged to conclude and hold the principle laid down in Paragraph 54 and 58 of Pragyna Singh Thakur’s case(which have been

can clearly be stated that in view of the subsequent decision of a larger Bench that cannot be treated to be a good law. Our view finds support from the decision in Union of India and others v. Arviva Industries India Limited and 25 others . 41. Coming to the facts of the instant case, we find that prior to the date of expiry of 90 days which is the initial period for filing the charge-sheet, the prosecution neither had filed the charge-sheet nor had it filed an application for JUDGMENT extension. Had an application for extension been filed, then the matter would have been totally different. After the accused respondent filed the application, the prosecution submitted an application seeking extension of time for filing of the charge-sheet. Mr. P.K. Dey, learned counsel for the appellant would submit that the same is permissible in view 25 (2014) 3 SCC 159 Page 51 52 of the decision in Bipin Shantilal Panchal (supra) but on a studied scrutiny of the same we find the said decision only dealt with whether extension could be sought from time to

i.e., 180 days. It did not address the issue what could be the effect of not filing an application for extension prior to expiry of the period because in the factual matrix it was not necessary to do so. In the instant case, the day the accused filed the application for benefit of the default provision as engrafted under proviso to sub-Section (2) of Section 167 CrPC the Court required the accused to file a rejoinder affidavit by the time the initial period provided under the statute had expired. There was no question of any contest JUDGMENT as if the application for extension had been filed prior to the expiry of time. The adjournment by the learned Magistrate was misconceived. He was obliged on that day to deal with the application filed by the accused as required under Section 167(2) CrPC. We have no hesitation in saying that such procrastination frustrates the legislative mandate. A Court cannot act to extinguish the right of an accused if the Page 52 53 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

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. 42. In view of our aforesaid premised reasons we do not find any error in the order of the High Court in overturning the order refusing bail and extending the benefit to the respondent and, accordingly, the appeal fails and is hereby dismissed. JUDGMENT ……………………………….J. [Dipak Misra] ……………………………….J. [N. V. Ramana] New Delhi; June 30, 2014. Page 53 54 JUDGMENT Page 54 JUDGMENT Page 55