Azhar Ahmad Tak and Another vs State and Others

Mohammad Yaqoob Mir, J.—Compulsive bail or bail by default is a right guaranteed u/s 167(2)(a) Cr.P.C. When the charge sheet

(challan) is not filed within the prescribed period which in the instant case is 60 days, on expiry thereof accused has to be released on bail. The

right though indefeasible but is controlled by two exceptions, first the right is not availed of on the expiry of stipulated period and second right gets

forfeited if not availed of until filing of the charge sheet (challan).

It is contended that in connection with case FIR No. 128 of 2008 for the commission of offences punishable under Sections 302, 364, 34 RPC,

accused admittedly have been arrested on 3.12.2008 and produced before the Magistrate on the same date who has remanded them to the

custody. The challan/charge sheet has been presented on 2.2.2009 before Chief Judicial Magistrate, Jammu, who in turn has transferred the same

to Judicial Magistrate 1st Class (City Judge), Jammu on the same date. Admittedly charge sheet (challan) has been produced on 61st day as 60th

day was a Sunday.

The application claiming benefit of bail by default as permissible u/s 167(2)(a) Cr.P.C. has been filed on 61st day itself, not before the Chief

Judicial Magistrate before whom charge sheet (challan) was presented but before Judicial Magistrate 1st Class(City Judge), Jammu, so admittedly

has been filed after filing of the charge sheet (challan). The learned Judicial Magistrate (City Judge) on the same date without passing any order on

the said application has committed the case to the Court of Sessions Judge where the application was pressed but unsuccessfully. The said order

of learned Additional Sessions Judge, Jammu, dated 28.4.2009 is sought to be quashed and at the same time release of accused on bail in terms of

Section 167(2)(a) Cr.P.C. is also prayed for.

A separate application has also been filed seeking bail by default in terms of Section 167(2)(a) Cr.P.C. both petitions, as such, are taken up

together for disposal.

Learned Counsel for the accused-petitioners while supporting the grant of bail by default has relied on the judgment Uday Mohanlal Acharya v.

State of Maharashtra reported in 2001 (3) Supreme 142 which is also reported in (2001) 5 SCC. Same judgment/s also relied upon by the

learned Counsel for the respondents while praying for rejection of the application.

In the reported judgment in para 13 Hon'ble Apex Court has observed ""that the Court is required to examine the availability of the right to

compulsive bail on the date it is considering the question of bail and barely on the date of presentation of the petition for bail"". The Hon'ble Apex

Court in the reported case has concluded that ""on the date when the High Court entertained the petition for bail and granted it to the accused,

undeniably the challan stood filed in the Court and then the right as such was not available"". While referring to the judgment State of M.P. v.

Rustam and Ors., the Apex Court has observed ""that an indefeasible right accrues to the accused on the failure of the prosecution to file the challan

within the period specified under Sub-section (2) of Section 167 and that right can be availed of by the accused if he is prepared to offer the bail

and abide by the terms and conditions of the bail. It is also made clear that indefeasible right does not survive or remain enforceable on the challan

being filed,"" If already not availed of as has been held by the Constitution Bench in Sanjay Dutt's case. Hon'ble Apex Court framed the question as

to what is the true meaning of the expression ""if already not availed of it is observed by the Apex Court that when 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.

It has been held that an accused must be held to have availed of his right flowing from 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 had 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 arrest

of the accused.

It is clear from the judgment that the application claiming bail by default has to be disposed of by the Magistrate forthwith on being satisfied that

the accused had been in custody for specified period and that no charge sheet has been filed and that accused is prepared to offer the bail.

Magistrate is obliged to grant bail even if after the filing of the application by the accused, charge sheet had been filed.

The most important position as has emerged is that the accused is required to file application on the expiry of stipulated period and such right

survives for availing of until filing of the charge sheet. After filing of the application, filing of the charge sheet thereafter will not defeat such right but

in case application is filed though after stipulated period but after filing of the charge sheet (challan), then this right gets extinguished.

A Coordinate Bench of this Court in the judgment Excise Commissioner v. Hilal Ahmad and Anr. reported in 2006 (1) JKJ 71 (HC) has held

as under:

in case the accused has not filed the application immediately after 60 days, the right of the accused to be released on bail after the expiry of

stipulated period is subject to one exception i.e. on filing of the charge sheet the accused forfeits his right to bail under Sub-section (2)(a) of

Section 167 Cr.P.C.

While applying the ratio of the judgments as mentioned above, it is quite evident that in the instant case right of the accused to claim compulsive

bail stands forfeited because admittedly the charge sheet (challan) has been presented on 61st day before the Chief Judicial Magistrate. Until

production of challan before Chief Judicial Magistrate, the accused had not filed the application for grant of bail in terms of Section 167(2)(a)

Cr.P.C. and admittedly application has been filed before Judicial Magistrate 1st Class (City Judge), to whom the challan had been transferred for

disposal. If the accused-petitioners would have filed the application immediately before the production of the challan before Chief Judicial

Magistrate, their right would survive and their right would be said to be indefeasible but the application has been filed subsequent to the production

of the challan, that too, before the Court to which the case was transferred, therefore, the right of the accused stood forfeited. So the benefit of

compulsive bail in terms of Section 167(2)(a) Cr.P.C. was not then available. Therefore, accused could not be released on bail by default.

Learned Counsel for the accused, Mr. Goni, while claiming bail in default has also relied upon the judgment Riaz Ahmad and Ors. v. State of

Jammu and Kashmir reported in Crimes 1989 (2) 600. Said judgment is of no help to him as in the reported judgment accused were taken into

custody in connection with Crime No. 166 of 1987. Before the expiry of stipulated period of 60 days, their custody was transferred to another

case registered as Crime No. 48 of 1987. It was held that the accused in the peculiar facts were deprived of the benefit of grant of bail conferred

under provisions of Section 167(2)(a) Cr.P.C.

In the instant case there is no question of transfer of custody of the accused from one case to another. The principle that the right accruable and

guaranteed cannot be permitted to be defeated by having recourse to different methods. The said legal principle while applying to the instant case

does not favour the accused-petitioners because bail in default is a right which has to be availed of well in time i.e. application has to be filed after

stipulated period but before production of charge sheet (challan). In the instant case the right stood extinguished when the challan was presented,

subsequent filing of the application disentitled the accused from claiming the benefit of compulsive bail.

In view of the stated position of the facts and law, the order of learned Additional Sessions Judge, Jammu is not interfereable, same is up-held,

resultantly petition seeking quashment of the said order fails. Bail application is also rejected. It shall be open for the accused-petitioners to apply

for bail in accordance with Section 497 and 498 Cr.P.C., if they so choose and same is and shall be open to be considered on merits by the trial

court.

Trial court record along with copy of this order be sent to the trial court.