Master Bholu through his father and natural guardian Vinod Kumar vs Central Bureau of Investigation

The present appeal has been filed to challenge impugned order dated 05.02.2018 passed by the Additional Sessions Judge, Gurugram, whereby, the

application filed by the appellant under Section 167(2)(a)(ii) Cr.P.C. read with Section 2(33) and 21 of the Juvenile Justice (Care and Protection of

Children) Act, 2015 (for short 'the Juvenile Justice Act') for grant of statutory/default bail in case FIR No.RC-8(S)/2017/SCIII/New Delhi dated

22.09.2017 for offence punishable under Section 302 of Indian Penal Code, Section 25 of the Arms Act, 1954, Section 12 of the Protection of Children

from Sexual Offences Act, 2012 (for short 'the POCSO Act') and Section 75 of the Juvenile Justice Act, 2015 has been dismissed.

Briefly, the facts of the case as made out in the present appeal are that FIR No.250 dated 08.09.2017 was registered at Police Station Bhondsi,

District Gurugram, under Section 302 IPC, Section 25 of the Arms Act, Section 12 of the POCSO Act and Section 75 of the Juvenile Justice Act. The

State Government issued notification and transferred the investigation of the case to CBI and thereafter, the case was re-registered as FIR No.RC-

8(S)/2017/SCIII/New Delhi dated 22.09.2017.

After registration of said FIR in view of notification issued by the State Government, the investigation of the case was conducted by the CBI. The

present appellant was arrested by the CBI and was produced before the Juvenile Justice Board on 08.11.2017. Thereafter, an inquiry was conducted

by the Juvenile Justice Board and vide order dated 20.12.2017, it was ordered that the appellant could be tried as an adult and transferred the case to

the Children Court. Since no Court was specifically designated as Children Court, the case was entrusted to the Court of Additional Sessions Judge,

Gurugram to try the present appellant as an adult under the Juvenile Justice Act.

After arrest of the appellant, he was retained in the Observation Home. When the challan was not presented by the CBI within the prescribed period,

the appellant moved an application under Section 167(2) Cr.P.C. A report was called from the Criminal Ahlmad, wherein it was clarified that the

challan had been submitted by the CBI on 05.02.2018. The application moved by the appellant under Section 167(2) Cr.P.C. was dismissed vide order

dated 05.02.2018, which is subject matter of challenge in the present appeal.

Learned senior counsel for the appellant submits that the period of 60 days had expired on 05.01.2018 and the period of 90 days from the date of

arrest had expired on 04.02.2018. The challan was not presented within a period of 60 days and the appellant became entitled for bail as per provisions

of Section 167(2) Cr.P.C. Learned senior counsel further submits that while passing impugned order, the lower Court has held that the period of filing

challan was 90 days as the appellant was facing trial for offence punishable under Section 302 IPC. The application for grant of bail was moved on

90th day and on that day, only the charge-sheet was submitted and the appellant was not entitled for bail. Learned senior counsel also submits that as

per provisions of Section 21 of the Juvenile Justice Act, the period for filing challan was 90 days and not 60 days as in case, the offence is punishable

with death penalty and life imprisonment, then the period of presentation of challan is 90 days. Learned senior counsel also submits that as per proviso

to Section 167(2) Cr.P.C., it is apparent that total period of 90 days is specified to an offence where offence is punishable with death, imprisonment

for life or for a term not less than 10 years. It is also the argument of learned senior counsel that Section 5 Cr.P.C. shows that said section is a saving

clause and it provides that nothing in the Court shall affect any special or local law in absence of any specific provision to the contrary but however, as

per Section 103 of the Juvenile Justice Act, the procedure as provided under Cr.P.C. is to be followed. It is also the argument of learned senior

counsel that punishment, which can be imposed under the Juvenile Justice Act is to be seen for grant of bail under Section 167(2) Cr.P.C. As per

Juvenile justice Act, no minimum punishment for any offence committed by a juvenile, has been prescribed and period for filing challan would not be

90 days but it would be 60 days. It has further been submitted by learned senior counsel that the Investigating Agency-CBI has failed to submit the

challan upto 05.02.2018, which was the 90th day from the date of production of juvenile i.e., 08.11.2017. The challan was presented on 06.02.2018,

which was duly endorsed in the Court Institutional Branch. Meaning thereby, the period of 90 days had expired on 05.02.2018 and the appellant

became entitled for bail under Section 167(2) Cr.P.C. Learned senior counsel also submits that the challan was not presented till 3.30 pm on

05.02.2018. At the end, learned senior counsel submits that the presentation of challan would be considered when it is submitted before the Court not

with the Ahlmad. Learned senior counsel for the appellant has relied upon judgments rendered in Rakesh Kumar Paul vs. State of Assam, 2017(3)

RCR (Criminal) 996 and Rajeev Chaudhary vs. State (NCT) of Delhi, 2001(2) RCR (Criminal) 754 in support of his contentions.

Learned standing counsel for CBI has opposed the submissions made by learned counsel for the appellant and submits that the present appeal is not

maintainable as the order was passed by the trial Court under Section 167(2) Cr.P.C. and the appellant has filed the present appeal under Section 101

of the Juvenile Justice Act. The appeal under the Juvenile Justice Act is maintainable only when there is an order passed under the provisions of the

said Act but there is no provision of appeal in Cr.P.C. against an order rejecting bail under Section 167(2) Cr.P.C. Learned counsel further submits

that the appellant has earlier filed Criminal Revision No.635 of 2018 before this Court to challenge the order passed by the Juvenile Justice Board in

an application moved under Rule 10(5) of the Juvenile Justice Model Rules, 2016, which was dismissed. Learned counsel also submits that the

contents of the present appeal are contradictory to the stand taken by the appellant in the earlier petition. Learned counsel also submits that the

charge-sheet was filed on 05.02.2018, which was within 90 days from the date of first production before the Juvenile Justice Board on 08.11.2017.

The case of the appellant falls in the category where period of presentation of challan is 90 days. Learned counsel also submits that the decision on

quantum of sentence is to be taken by the Court only after conclusion of the trial. It cannot be interpreted that the Court cannot pass the sentence

beyond the period of 10 years. The only condition in Section 21 of the Juvenile Justice Act is that death penalty or life imprisonment with possibility of

not release of convict cannot be awarded, meaning thereby, the convict cannot be awarded punishment of imprisonment for life but he can be

punished for more than 10 years. Learned standing counsel for CBI has also relied upon judgments rendered in Ratan Lal Rajak vs. State of

Chhattisgarh, 2014(40) RCR (Criminal) 779 and Chaganti Satyanarayana and others vs. State of A.P., 1987 (1) RCR (Criminal) 40 in support of his

arguments.

Heard arguments of learned counsel for the parties and have also perused the impugned order as well as other documents available on the file.

In the present appeal, five issues are involved, which are necessary to be considered :

(a) Whether the time-period available to the investigating agency to conclude the investigation in a case of murder, having been committed by a child

in conflict with law, would be 60 days or 90 days failing which, the accused would be entitled for grant of statutory/default bail under Section 167(2) of

the Cr.P.C.?

(b) Whether for the purpose of Section 167(2) of the Cr.P.C., the presentation of the challan is required to be before the Court or whether merely

filing it before an official of the Court, such as the Ahlmad, would be sufficient for determining the compliance of Section 167(2) of the Cr.P.C.?

(c) Whether in the present case, the challan came to be filed by the investigating agency on 05.02.2018 as claimed by the investigating agency or on

06.02.2018 as is alleged by the present appellant?

(d) Whether the indefeasible right to be released on bail, which accrues to an accused on account of the investigation not having been concluded

within the statutory time-period would stand extinguished, if the challan is filed by the investigating agency on the same day on which the application is

moved by the accused under Section 167(2) of the Cr.P.C.?

(e) Whether in the facts and circumstances of the present case, any right under Section 167(2) of the Cr.P.C. had accrued to the present appellant so

as to entitle him to the relief of statutory/default bail? As far as, the first issue is considered, it relates to whether the investigating agency is required

to file the challan within a period of 60 days or 90 days, in a case wherein murder has been allegedly committed by the child in conflict with law. It has

been submitted by learned senior counsel for the appellant that the time period for presentation of challan would be that of 60 days as his case falls

within the ambit of Section 167(2) (a)(ii) of the Cr.P.C. It has also been argued by learned senior counsel for the appellant that the investigating

agency is required to file complete challan within a period of 90 days. Ordinarily, in a case of murder, the punishment prescribed is either 'death' or

'imprisonment of life'. In such a situation, admittedly, the investigating agency has a time period of 90 days to conclude the investigation failing which,

the accused can claim his right to seek statutory/default bail as per provisions of Section 167(2) Cr.P.C. However, in case a child in conflict with law

is facing trial for the offence of murder, he can neither be sentenced to death nor for imprisonment for life without the possibility of release in view of

provisions of Section 21 of the Juvenile Justice Act. Section 21 of the Juvenile Justice Act is reproduced as under: -

“21. No child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release, for any such offence, either

under the provisions of this Act or under the provisions of the Indian Penal Code or any other law for the time being in force.â€​

As per said provisions of Section 21 of the Juvenile Justice Act, a child in conflict with law can neither be sentenced to death nor can be subjected to

life imprisonment without the possibility of release. The case of child, who is in conflict with law and facing investigation or trial for the offence of

murder is on different footing than that of an adult accused facing an investigation or trial for the same offence. Since no minimum punishment is

prescribed to be imposed upon a child, who is in conflict with law, the case of said child in conflict with law would fall within the domain of Section

167(2)(a)(ii) Cr.P.C. Accordingly, the period of 60 days is there to conclude the investigation and not 90 days. The relevant part of Section 167

Cr.P.C. is reproduced as under: -

“167. Procedure when investigation cannot be completed in twenty-four hours -

(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;]â€​

On perusal of Section 167(2) of the Code as reproduced above, it is clear that the time period granted to investigating agency to conclude the

investigation in a case where the matter relates to an offence punishable with death, with imprisonment of life or with imprisonment for a term of not

less than 10 years would be that of 90 days; whereas the time period granted to investigating agency in any other case would be that of 60 days failing

which, an indefeasible right to seek statutory/default bail is accrued to the accused. It has been argued by learned counsel for the appellant that

investigation in the case relates to an offence, which is not punishable with death and there is no minimum sentence prescribed the present appellant

became entitled to be released on statutory/default bail in case, the investigation is not concluded within a period of 60 days. It has also been argued

that it is for the investigating agency to claim that it had a period of 90 days to present challan, it will have to show that the minimum sentence, which

ought to be awarded is either death or the life imprisonment or of an imprisonment for a term of not less than 10 years. As per case of the

investigating agency, the trial Court after conclusion of the trial can either award imprisonment for life or imprisonment for a term more than 10 years,

the investigating agency is having 90 days to conclude the investigation and not 60 days. It is also relevant to mention here that both the parties have

placed reliance upon the decision rendered by Hon'ble the Apex Court in Rakesh Kumar Paul vs. State of Assam, 2017(3) RCR (Criminal) 996.

However, paragraph Nos.25 and 27 of said judgment are relevant, which are reproduced as under: -

“While it is true that merely because a minimum sentence is provided for in the statute it does not mean that only the minimum sentence is

imposable. Equally, there is also nothing to suggest that only the maximum sentence is imposable. Either punishment can be imposed and even

something in between. Where does one strike a balance? It was held that it is eventually for the court to decide what sentence should be imposed

given the range available. Undoubtedly, the Legislature can bind the sentencing court by laying down the minimum sentence (not less than) and it can

also lay down the maximum sentence. If the minimum is laid down, the sentencing judge has no option but to give a sentence “not less than†that

sentence provided for. Therefore, the words “not less thanâ€​ occurring in Clause

(i) to proviso (a) of Section 167(2) of the Cr.P.C. (and in other provisions) must be given their natural and obvious meaning which is to say, not below

a minimum threshold and in the case of Section 167 of the Cr.P.C. these words must relate to an offence punishable with a minimum of 10 years

imprisonment.

27.It is true that an offence punishable with a sentence of death or imprisonment for life or imprisonment for a term that may extend to 10 years is a

serious offence entailing intensive and perhaps extensive investigation. It would therefore appear that given the seriousness of the offence, the

extended period of 90 days should be available to the investigating officer in such cases. In other words, the period of investigation should be relatable

to the gravity of the offence understandably so. This could be contrasted with an offence where the maximum punishment under the IPC or any other

penal statute is (say) 7 years, the offence being not serious or grave enough to warrant an extended period of 90 days of investigation. This is certainly

a possible view and indeed the Cr.P.C. makes a distinction in the period of investigation for the purposes of ‘default bail’ depending on the

gravity of the offence. Nevertheless, to avoid any uncertainty or ambiguity in interpretation, the law was enacted with two compartments. Offences

punishable with imprisonment of not less than ten years have been kept in one compartment equating them with offences punishable with death or

imprisonment for life. This category of offences undoubtedly calls for deeper investigation since the minimum punishment is pretty stiff. All other

offences have been placed in a separate compartment, since they provide for a lesser minimum sentence, even though the maximum punishment could

be more than ten years imprisonment. While such offences might also require deeper investigation (since the maximum is quite high) they have been

kept in a different compartment because of the lower minimum imposable by the sentencing court, and thereby reducing the period of incarceration

during investigations which must be concluded expeditiously. The cut-off, whether one likes it or not, is based on the wisdom of the Legislature and

must be respected.â€​

Learned senior counsel for the appellant while placing reliance upon said paragraphs, submits that the Legislature has divided Section 167(2) Cr.P.C.

into two distinct categories. It has been argued that the investigating agency would have a period of 90 days to conclude the investigation in a case

where the minimum sentence is either death, life imprisonment or a sentence of imprisonment for a period of more than 10 years. It has also been

argued that only in those cases where the minimum sentence is of imprisonment for more than 10 years or life imprisonment or of death, the

investigating agency is afforded a period of 90 days to conclude the investigation. Meaning thereby, where neither the sentence of death nor life

imprisonment is there like the present one, the accused would be entitled to be released on default bail if the challan is not presented/filed within a

period of 60 days.

In the present case, a perusal of judgment of Hon'ble the Apex Court in Rakesh Kumar Paul's case (supra) would reveal that the said judgment was

rendered by a three-Judge Bench, wherein three separate judgments have been rendered by each of the Hon'ble Judge. Learned counsel for the

appellant has placed reliance on the judgment of Justice Madan B. Lokur whereas learned counsel for CBI has placed reliance upon the judgment

rendered by Justice Prafulla C. Pant and Justice Deepak Gupta to submit that such a reasoning, as being convassed by the present appellant was not

accepted by other two Judges and therefore, as per decision of majority, the time period available to the investigating agency, in a case where the

maximum sentence can be imposed of life imprisonment, even if no minimum sentence is prescribed would be that of 90 days. In this regard, reliance

has been placed on paragraph No.71 of the decision rendered by Justice Prafulla C. Pant, which is reproduced as under: -

“ 71. From the above analogy, I am of the opinion that the intention of the legislature was that if an offence was punishable with imprisonment upto

ten years, then it falls within the provision of Section 167(2)(a)(i) of the Code, and the permissible period for investigation is ninety days. The intention

of the Legislature in extending the permissible time period from sixty days to ninety days for investigation is to include the offences in which sentence

awardable is at least ten years or more. Therefore, as discussed above, though the expression “not less than ten years†used in Section 167(2)(a)

(i) of the Code has created some ambiguity, the real intention of the legislature seems to include all such offences wherein an imprisonment which

may extend to ten years is an awardable sentence. In other words, for offences wherein the punishment may extend to ten years imprisonment, the

permissible period for filing charge sheet shall be ninety days, and only after the period of ninety days, the accused shall be entitled to bail on default

for non-filing of the charge-sheet. (In the present case, admittedly the charge sheet is filed within ninety days). I may further add that, since the

expression “not less than ten years†has caused ambiguity in interpretation, the best course for the legislature would be to clear its intention by

using the appropriate words.â€​

On perusal of abovesaid paragraph, it is apparent that it has been categorically held that the intention of the Legislature in extending the permissible

time period from 60 days to 90 days for completing the investigation is to include the offences for which, the sentence awardable is at least 10 years

or more but it has been held that in case of an offence for which, the punishment may extend to ten years, the permissible period for filing the challan

shall be 90 days. It is apparent that in case where the Court can award more than ten years of imprisonment, the time period available to the

investigating agency would be that of 90 days. Similarly, reliance has been placed by learned counsel for CBI upon the judgment rendered by Justice

Deepak Gupta, who while interpreting Section 167(2) Cr.P.C. has held as under: -

“89. We are only concerned with interpretation of the phrase for a term of not less than ten years' occurring in Section 167(2)(a)(i), which provides

a period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than

10 years.

In my considered view, without indulging in any semantic gymnastics, the meaning of this provision is absolutely clear. It envisages three types of

offences:

(a) Offences which are punishable with death;

(b) Offences which are punishable with imprisonment for life;

(c) Offences which are punishable with a term not less than 10 years.

In my view the language of the statute is clear and unambiguous. Out of the three categories of offences, we need to deal only with that category

of offences where the punishment prescribed is not less than 10 years. If an offence is punishable with death then whatever be the minimum

punishment, the period of investigation permissible would be 90 days. Similarly, if the offence is punishable with life imprisonment, even if the minimum

sentence provided is less than 10 years, the period of detention before 'default bail' is available would be 90 days.

Keeping in view the legislative history of Section 167, it is clear that the legislature was carving out the more serious offences and giving the

investigating agency another 30 days to complete the investigation before the accused became entitled to grant of 'default bail'. It categorizes these

offences in the three classes:

I. First category comprises of those offences where the maximum punishment was death.

II. Second category comprises of those offences where the maximum punishment is life imprisonment.

III. The third category comprises of those offences which are punishable with a term not less than 10 years.â€​

It is apparent from the judgment rendered by Justice Deepak Gupta wherein it has been categorically held that if the offence is punishable with death

then whatever be the minimum punishment, the period of investigation permissible would be 90 days. Similarly, it has been held that in case, the

offence is punishable with life imprisonment but the minimum sentence provided is less than 10 years, the period of detention before statutory/default

bail would be 90 days. Thus, in a case wherein the accused can be sentenced to undergo life imprisonment, even if there is no minimum sentence

prescribed the period available to the investigating agency to conclude the investigation would be 90 days.

In the present case, the bare perusal of Section 21 of the Juvenile Justice Act would reveal that any sentence other than 'death' and 'life imprisonment

without the possibility of release' can be imposed upon a child in conflict with law. It is apposite to mention herein that with the passage of time, two

types of life imprisonment have been recognized by our Courts, which may be awarded to an accused. In this regard, reference may be made to the

decision of a Constitution Bench of Hon'ble the Apex Court in the case of Union of India vs. V. Sriharan, 2016(1) RCR (Criminal) 234, wherein it has

been held that imprisonment for life, in terms of Section 53 read with Section 45 IPC, means imprisonment for the rest of the life of the convict.

However, it has also been held that a convict, who has been awarded life imprisonment, would have the right to claim remission etc., as provided

under Article 72 and 61 of the Constitution of

India, as the case may be. Further, Hon'ble Constitution Bench confirmed the view that the Courts can, in certain cases, create a special category of

sentence where, instead of 'death', they can impose a punishment of imprisonment for life but, put the same beyond the application of the provisions of

'remission'. Thus, in certain cases, it is open for the Courts to grant life sentence to a convict but take away his right to seek remission etc., and

thereby ruling out any possibility of release. It is such a category of 'life imprisonment' without the possibility of release that has been excluded in the

case of a child in conflict with law, by virtue of Section 21 of the Juvenile Justice Act. However, a sentence of life imprisonment simpliciter can

always be imposed upon a child in conflict with law. In such circumstances, when the maximum sentence, which can be imposed upon a child in

conflict with law, is life imprisonment then the time period available to the investigating agency to conclude the investigation would be that of 90 days.

It is submitted that the majority view on this point, which can be culled out from the judgment rendered by Justice Prafulla C. Pant and Justice Deepak

Gupta would be conclusive to the extent that when the maximum sentence that can be imposed is life imprisonment then, notwithstanding the fact that

there is no minimum sentence prescribed the time period available to the investigating agency for purposes of Section 167(2) Cr.P.C. would be that of

90 days.

In view of the above discussion, it is apparent that the answer to the first question to issue framed as (a) above, is that the time period available to the

investigating agency to complete the investigation, in the case involving a child in conflict with law, who is alleged to have committed the offence of

murder, would be that of 90 days and not 60 days.

During course of final hearing, a lot of arguments were addressed as to when exactly did the challan in the present case came to be filed. It was

urged by the investigating agency that it had presented the challan on 05.02.2018 itself, by putting up the challan before the Ahlmad of the Court. Per

contra, it was urged that the requirement of Section 167(2) of the Cr.P.C. is to present the challan before the Court; and that presenting it before any

functionary of the Court, such as the Ahlmad, would not be a compliance of Section 167(2) Cr.P.C. It is submitted that the said controversy is no

longer res integra and has already been answered by this Court in Gurcharan Singh @ Mintu vs. State of Haryana, 2016(1) Law Herald 679 and the

relevant portion of the said judgment is reproduced as under: -

“7.The first question which requires consideration before this Court is as to whether presentation of challan before the Ahlmad of the Court is legal

presentation or not? Section 173(2) Cr.P.C. provides as under:-

Report of police officer on completion of investigation-(1) 66.

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a GOPAL KRISHAN 2016.02.11 15:11 I attest to the

accuracy and authenticity of this document High Court Chandigarh Magistrate empowered to take cognizance of the offence on a police report, a

report in the form prescribed by the State Government, stating--

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under Section 170

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any

whom the information relating to the commission of the offence was first given.

It is clear that the challan is to be presented before the Magistrate and not before the Ahlmad. The challan was presented at 4.45 PM i.e. after the

Court hours. If the Magistrate was not available, then challan could have been presented at the residence of the Illaqa Magistrate or before the Duty

Magistrate. It is to be noted that it is not disputed that 11.11.2015 and 12.11.2015 were holidays being second Saturday and Sunday. The order of the

Magistrate shows that when the application under Section 167(2) Cr.P.C. was moved and only when the Magistrate called for the report from the

Ahlmad, the Ahlmad brought to the notice of the Court that challan was presented before him at 4.45 PM on 10.11.2015. Original file has also been

called for, which also bears the same fact. In fact, the Ahlmad gave the receipt to the investigating officer regarding receipt of challan on 10.11.2015

at 4.45 PM.

Therefore, if the challan papers are left with the Ahlmad, it is not proper presentation of the final report under Section 173(2) Cr.P.C. before the

Magistrate.

Therefore, the date of presentation of challan is to be taken as 13.11.2015.

23.It being so, it has to be held that for the purpose of computing the period of 90 days, 15.8.2015, when he was first time produced before the

Magistrate and remanded to custody is to be included. If it is so included, the period of 90 days will elapse on 12.11.2015. Since, this Court has held

that filing of papers before the Ahlmad is not the presentation of challan before the Magistrate under Section 173(2) Cr.P.C., therefore, the challan is

deemed to have been presented on 13.11.2015 when the period of 90 days had already elapsed.

From the aforesaid, it is clear that the controversy was settled by this Court by observing that if the challan is left with the Ahlmad the same is not to

be construed as proper presentation of the final report, as envisaged under Section 173(2) Cr.P.C. it was categorically held that mere presentation of

the challan papers before the Ahlmad would not be enough for the purposes of compliance of Section 167(2) Cr.P.C. It is apposite to mention here

that non-filing of the challan within the stipulated period of time gives birth to an indefeasible right to the accused to be released on statutory/default

bail. If the contention of the respondent is to be accepted, that the mere presentation of the challan before the Ahlmad would be sufficient for the

purposes of determining the compliance of Section 167(2) Cr.P.C. - the same may lead to a situation wherein the indefeasible right of the accused can

be frustrated by indulgence in ante-timing or ante-dating by the Ahlmad or any other official in collusion or in connivance with the investigating

agency. Similarly, in serious offences, prejudice can be caused to the investigating agency if the Ahlmad or any other person connives with the

accused and shows a wrong date or time at which the challan was presented, so as to facilitate the release of the accused on statutory/default bail. In

such a situation, the only plausible interpretation of Section 167(2) of the Code of Criminal Procedure ought to be that the challan has to be presented

before the Court and the Court alone; and merely leaving it with the Ahlmad or any other functionary would not satisfy the compliance of Section

167(2) Cr.P.C.

In view of the above discussion, the answer to the second question to issue framed as (b) above, is that in order to determine as to whether the challan

has been presented well within the stipulated time period the date on which the same is presented before the Court would be relevant and not the date

on which the same may have been presented before the Ahlmad.

In the present case, a controversy has arisen as to date on which the challan came to be filed before the Court. It is not in dispute that the application

under Section 167(2) Cr.P.C. was moved by the present appellant on 05.02.2018 at 10.00 am, as is reflected from the zimni order passed by the

Court, which is reproduced as under: -

“Present: Sh. SS Gulia, PP for the State.

Sh.Vishal Gupta and Sh. Sandeep Aneja,

Advocates, counsel for accused.

File taken up on account of moving of bail application under Section 167(2)(a)(ii) Cr.P.C. read with Section 2(33) and 21 of the Juvenile Justice (Care

and Protection of Children) Act, 2015. Let copy of the application be supplied to the PP/CBI and matter to come up on consideration on the

application. In the meantime,

office to report qua filing of challan. On the request of learned counsel for the applicant, it is hereby certified that application in hand is moved at 10.00

a.m. sharp. Sd/-

(J.S. Kundu)

Additional Sessions Judge, Gurugram Date of order 05.02.2018â€​

That the bare perusal of the record would reveal that on the same day i.e., 05.02.2018 another order came to be passed wherein the Court observed

that the Ahlmad has clarified that the challan has been presented by the CBI today itself i.e., on 05.02.2018. The said second order passed on

05.02.2018 is reproduced as under for the purpose of ready reference: -

“Present: Sh.Vishal Gupta and Sh. Sandeep Aneja, Advocates, counsel for applicant-Juvenile. Sh. Sushil Tekriwal, Advocate, counsel for

complainant.

(Investigating Officer Ajay Kumar Bassi, DSP, CBI) (Complainant Varun Chandra Thakur present in person) Criminal Ahlmad by making report has

clarified that challan has been submitted by the CBI today itself i.e., on 05.02.2018. The arguments on bail application heard. Vide my separate order

of even date, bail application is dismissed. Matter to come up on 12.02.2018, the date already fixed, for supplying copy of challan.

Sd/-

(J.S. Kundu)

Additional Sessions Judge, Gurugram

Date of order 05.02.2018â€​

That it has been argued on behalf of the present appellant that the said order does not indicate the correct picture. The appellant has urged so by

adverting to various documents and has sought to indicate that the challan had actually been filed on 06.02.2018. It was, therefore, urged that the

actual date of filing of the challan would be 06.02.2018 and not 05.02.2018, as has been stated by the Ahlmad in its report before the Court and as

observed by the Court. It is submitted that in the present case where there is a categoric Judicial Order that the challan has been presented before the

Court on 05.02.2018 itself it is neither possible nor permissible for this Court to launch an inquiry as to whether the order correctly records the

sequence of events or not. It is humbly submitted that this Court is to presume that the Judicial Order in question correctly recorded the sequence of

events, in view of the presumption of law envisaged under Section 114,

Illustration (e) of the Indian Evidence Act, 1872. Section 114 of the Evidence Act is reproduced as under: -

“ 114. Court may presume existence of certain facts. â€"The Court may presume the existence of any fact which it thinks likely to have happened,

regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular

case.

xxx xxx xxx

(e) The judicial and official acts have been regularly performed.

xxx xxx xxxâ€​

A bare perusal of Section 114, Illustration (e) of the Evidence Act would reveal that there is a presumption in law that judicial acts are regularly

performed. Thus, merely on the asking of the appellant or by adverting to some document, it cannot be urged that the challan was actually presented

on 06.02.2018 and that a wrong report has been given by the Ahlmad and that the order also incorrectly records the date and time of the presentation

of the challan, since there is presumption that the official act done by the Ahlmad is factually correct and similarly, the judicial order passed by the

learned Judge recording that the challan was indeed presented on 05.02.2018 is also correct.

Even in the grounds of appeal presented by the present appellant, it has been admitted by the appellant himself that the challan was filed on 05.02.2018

at 3.00 PM. The relevant averment made in the grounds of appeal is reproduced as under: -

“11.That on the same day Ld. Children Court/ASJ Gurugram issued notice upon the application for default bail and sought report qua filing of the

challan for the same day, which is evidence from order Annexure P-. Thereafter, challan was filed at 03.00 pm on 05.02.2018 and after hearing the

arguments, the application for default bail was declined. The Ld. Judge while declining the application U/s 167(2) Cr.P.C. did not consider, the

question as to the sentence under Indian Penal Code which cannot be imposed would be considered for the purpose of determination of period of

60/90 days.â€​

Even otherwise, the matter is also one of sound public policy that a Judicial Order cannot be disputed, as has been held by Hon'ble the Apex Court in

State of Maharashtra vs. Ramdas Shriniwas Nayak & Another, 1982 AIR (SC) 1249, wherein it was held as under: -

“4.....We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us

Judicial decorum restrains us. Matters of Judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena.

“Judgments cannot be treated as mere counters in the game of litigationâ€. (Per Lord Atkinson in Somasundaran v. Subramanian, AIR 1926 PC

136). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement

of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was

done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what

transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by

affidavit or other evidence.........â€​

In view of the presumption under the provisions of the Evidence Act, as well as in view of the law enunciated by Hon'ble the Apex Court it will have

to be held that the order whereby it has been recorded that the challan has been presented on 05.02.2018 correctly records the sequence of events.

In view of the above discussion, the answer to the third question to issue framed as (c) above, is that, for the purposes of determining the applicability

of Section 167(2) Cr.P.C. to the present case the challan will have to be construed as having been submitted on 05.02.2018.

In the present case, the bare perusal of the record would reveal that the application under Section 167(2) Cr.P.C. was moved on 05.02.2018 at 10.00

am sharp. It is not in dispute that it is only thereafter that the challan was presented by the CBI. It has been urged on behalf of the investigating

agency that if the application is moved and on the same day the challan is also filed the right of appellant to be released on statutory/default bail would

automatically extinguish. This reasoning has also been accepted by the trial Court in the present case wherein it has placed reliance on the judgment of

the Chhattisgarh High Court in case Ratan Lal Razak vs. State of Chhattisgarh, 2014 (40) RCR (Criminal) 779 wherein it was held that in the event

that the application and the challan are filed simultaneously on the same day the benefit of statutory/default bail cannot be extended to the accused.

The bare perusal of the said judgment rendered by the Chhattisgarh High Court would reveal that while arriving at the aforesaid conclusion, the Court

had relied extensively on the judgment of Pragyna Singh Thakur vs. State of Maharashtra, 2010 (1) RCR (Criminal) 302 wherein it was held that if

during the pendency of the application under Section 167(2) Cr.P.C., the challan is filed by the investigating agency, the same would disentitle the

accused to the relief of statutory/default bail. In the present case, to answer the controversy at hand, it would be imperative to embark upon a series

of judgments which have been rendered by Hon'ble the Apex Court, which have a direct bearing on the question being considered by this Court. The

first decision, which has a direct bearing on the aforesaid question, would be that rendered in the case of Uday Mohanlal Acharya vs. State of

Maharashtra, 2001(2) RCR (Criminal) 452, wherein a three-Judge Bench of Hon'ble the Apex Court observed that on the expiry of the period of 90

days or 60 days, as the case may be, an indefeasible right accrues to the accused for being released on statutory/default bail. It has been held that the

application under Section 167

(2) Cr.P.C. filed by the accused for the enforcement of his indefeasible right cannot be frustrated by the subsequent presentation of the challan by the

investigating agency. The relevant portion of said judgment is reproduced as under: -

“12. .... Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can be only in accordance with law

and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could

authorise the detention of the accused in custody upto a maximum period as indicated in the proviso to sub-section (2) of Section 167, any further

detention beyond the period without filing of challan by the Investigating Agency would be a subterfuge and would not be in accordance with law and

in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Article 21 of the Constitution. There is no

provision in the Criminal Procedure Code authorising detention of an accused in custody after the expiry of the period indicated in the proviso to sub-

section (2) of Section 167 excepting the contingency indicated in Explanation I, namely, if the accused does not furnish the bail. It is in this sense it can

be stated that if after expiry of period, an application for being released on bail is filed, and the accused offers to furnish the bail, and thereby avails of

his indefeasible right and then an order of bail is passed on certain terms and conditions but the accused fails to furnish the bail, and at that point of

time a challan is filed then possibly it can be said that the right of the accused stood extinguished. But so long as the accused files an application and

indicates in the application to offer bail on being released by appropriate orders of the Court then the right of the accused on being released on bail

cannot be frustrated on the oft chance of Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refuses to

pass an order and the matter is moved to the higher forum and a challan is filed in interregnum. This is the only way how a balance can be struck

between the so-called indefeasible right of the accused on failure on the part of the prosecution to file challan within the specified period and the

interest of the society, at large, in lawfully preventing an accused for being released on bail on account of inaction on the part of the prosecuting

agency.â€​

It was, thus, observed that once an indefeasible right accrues to the accused, the same cannot be frustrated by a subsequent action of the investigating

agency in filing the final report. However, a discordant note was struck in the case of Pragyna Singh Thakur (supra), wherein a two- Judge Bench of

Hon'ble the Apex Court has held that if an application for statutory/default bail is filed and during the pendency of the same the challan is filed, the

said right to be released on statutory/default bail would stand extinguished and the accused can then be released only on merits and not by default. It is

the aforesaid decision, which is the foundation of the judgment rendered by the Chhattisgarh High Court, to hold that if the application and the challan

were filed on the same date, the right of accused to be released under Section 167(2) Cr.P.C. would stand extinguished. It is further submitted that the

judgment in case of Pragyna Singh Thakur (supra) itself came to be reconsidered by Hon'ble the Apex Court in the case of Union of India through

C.B.I. vs. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, 2014 (3) RCR (Criminal) 534 wherein it was observed that the judgment in case of

Pragyna Singh Thakur (supra) runs contrary to the decision of the Larger Bench in the case of Uday Mohanlal Acharya (supra); and held that the

view taken in the case of Pragyna Singh Thakur (supra) does not state the correct principle of law.

It is, therefore, apparent that the law, as on date, is that once the accused moves an application under Section 167(2) Cr.P.C., the same cannot be

frustrated by filing the challan at a later stage, during the pendency of such application. The view taken by the Chhattisgarh High Court may no longer

be good in law, since the same was rendered while heavily relying upon the judgment in the case of Pragyna Singh Thakur (supra) which, in turn, has

been over-ruled by a specific decision rendered by Hon'ble the Apex Court in the case of Union of India through C.B.I. (supra).

Moreover, what would be relevant while adjudicating the application under Section 167(2) Cr.P.C. would be the time at which the application was

moved and the time at which the challan has been presented, in the event that the same were filed on the same date. In this regard, it has been held by

a number of High Courts of our country that even if both the application under Section 167(2) Cr.P.C. and the challan are presented on the same day

the accused will be entitled to be released if the application was entertained prior in time. The said view has been taken by the various High Courts in

the following cases: -

(i) The Hon'ble Karnataka High Court in the case of Gousemohiddin vs. State (Karnataka), 2004(2) RCR (Criminal) 179 has held that if the charge-

sheet and the bail application under Section 167(2) of the Cr.P.C. are filed on the same day; but, if the charge-sheet is filed subsequent in time to the

bail application the right of the accused under Section 167(2) of the Cr.P.C. would not stand extinguished.

The reasoning given by the Karnataka High Court is as under: -

“7. The reason for successive decisions of the Supreme Court describing the right of an accused to be released on bail under Section 167(2) of the

Cr.P.C. as indefeasible is because that right is mandatory in nature and no option is left to the Court but to release the accused on bail if he offers and

furnishes bail. In the Constitution personal liberty is recognised as a valuable right which can be deprived of only in accordance and in conformity with

the provisions of law. The power of the Magistrate to authorise the detention of the accused in custody otherwise than in police custody under Clause

(a) of the proviso to Section 167(2) of the Cr.P.C., comes to an end on the expiry of the period prescribed therein. Consequently a right accrues in

favour of the accused for being released on bail and that right continues to subsist until the Investigating agency files the charge sheet. Therefore, the

right which 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 prescribed period gets extinguished only if the charge sheet is filed before the accused avails of the right under Section 167(2)

of Cr.P.C. When an application for bail is filed by an accused for enforcement of his indefeasible right and he is prepared to offer bail on being

directed, before the charge sheet is filed, then the accused has availed of his indefeasible right even though the Court is yet to determine his

application for bail. Therefore, where the charge sheet is filed on the same day, if it is subsequent in time to the application for bail, the indefeasible

right available to the accused does not get extinguished.â€​

(ii) That a similar factual matrix arose before the Gujarat High Court in the case of Alamkhan Umarkhan Jatmalek

Jenjari Tal, Dashada Dist, Surendranagar v. State of Gujarat, 2015 (46) RCR (Criminal) 801 wherein the application for statutory/default bail was

moved under Section 167(2) of the Cr.P.C. on 10.11.2014 at 10.30 AM. However, on the same date, i.e., on 10.11.2014, the charge-sheet also came

to be filed, albeit at 4.00 PM in the evening. The High Court of Gujarat, after adverting to the decision of Hon'ble the Supreme Court in the case of

Union of India through C.B.I. vs. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav (supra), held that the subsequent filing of the challan, even if

on the same day, but at a later time, i.e., at 4:00 PM would not extinguish the right of the accused to be released on statutory/default bail. The relevant

portion of the said judgment is reproduced as under: -

“14. As the period of limitation is 90 days expired on 09.11.2014, on the very next date i.e., on 10.11.2014 at 10:35 a.m. in the morning, the

applicants filed an application. However, no orders were passed on the same immediately by the concerned Court and ultimately, at 4:00 O' clock in

the evening, the charge-sheet came to be filed. In my view, although no orders were passed on the said application, yet, the accused persons did

exercise their right of being released on bail by filing the application early in the morning at 10:35 a.m., as even at that point of time their detention

could be said to be unlawful. In my view, the subsequent filing of the charge-sheet at 4 O' clock in the evening would not save the situation. I may

reiterate the observations made by the Supreme Court in the case of Union of India through C.B.I. vs. Nirala Yadav @ Raja Ram Yadav @ Deepak

Yadav (supra) that the procrastination frustrates the legislative mandate. A Court cannot act to extinguish the right of an accused if the law so confers

on him. The law has to prevail. In Uday Mohanlal (supra), the word used by the Supreme Court is “forthwith'. The plain dictionary meaning of the

word “forthwith†means immediately. If that be so, then the Court concerned owed a duty to pass the necessary order immediately, more

particularly when the bail application contained an endorsement put by the Superintendent that upto 10:35 in the morning the charge-sheet was not

filed. The Court should have immediately called upon the Public Prosecutor, however, instead of doing so, it erroneously issued notice and fixed the

hearing on the next day i.e., on 11.11.2014.â€​

(iii) That a similar view has already been taken by the Jharkhand High Court in the case of Deepak Mandal @

Deepu Mandal @ Chhotu vs. State of Jharkhand, 2015 (18) RCR (Criminal) 433 as well as by the Madhya Pradesh High Court in the case of Ganesh

Prasad vs. State of M.P., 2001 (4) RCR (Criminal) 669.

In view of the above discussion, the answer to the fourth question to issue framed as (d) above, is that in the event that the application under Section

167(2) of the Cr.P.C. as well as the challan, both are filed on the same day it will have to be seen as to whether the application was filed prior in time

to the challan. If it is found that the application was indeed filed prior in time, even if on the same day the indefeasible right of the accused to be

released on statutory/default bail would remain intact.

Lastly, the question, which eventually arose for the consideration of this Court is as to whether, in the present case, the period of 90 days had lapsed at

the point in time when the application under Section 167(2) Cr.P.C. was moved so as to entitle the present appellant to be released on statutory/default

bail. It has not been disputed by either of the parties i.e., the appellant as well as the investigating agency that the accused was arrested on 07.11.2017

and was produced before the Juvenile Justice Board by the CBI on 08.11.2017. In this regard, the categoric averment to this effect has been made in

paragraph No.5 of the present appeal, which is reproduced as under: -

“5. That after the re-registration of the case by the CBI, the petitioner was arrested on 07.11.2017 and was produced before the Juvenile Justice

Board by CBI on 08.11.2017 and since then is in custody/observation home.â€​

Similarly, even in the affidavit filed on behalf of the CBI, it has been admitted by the CBI that the child in conflict with law was arrested on 07.11.2017

and was produced before the Juvenile Justice Board on 08.11.2017. It has been admitted that on 08.11.2017, the accused was remanded to Police

custody for three days from 08.11.2017 to 11.11.2017.

The relevant averments to this extent are made by the CBI in paragraph Nos.3 and 6 of the affidavit, which are reproduced as under: -

“3. On 07.11.2017, CBI came to the conclusion that there was enough evidence to substantiate the involvement of Bholu petitioner (imaginary

name given by the Ld. Trial Court), a 11th standard student of Vidyalaya, in the commission of murder of 7 years old Prince in the boys' washroom in

Vidyalaya on 08.09.2017 by slitting the throat of the child with a knife. Hence, the juvenile in conflict with law was apprehended on 07.11.2017 for

committing a heinous offence after explaining the grounds of apprehension and the charges levelled against him to his father Shri Vinod Kumar

Raghav. The apprehension was effected in presence of his father, Welfare Police Officer of PS Lodhi Colony, New Delhi, Welfare Officer of CBI

and two independent witnesses.

That Bholu was produced in the Ld. Juvenile Justice Board, Gurugram on 08.11.2017 and application was moved for his police custody. The Ld.

Juvenile Justice Board, District Courts, Gurugram considering the significance of the case that it is a very sensational case and falls into the purview

of heinous offence wherein a 7 years old child was brutally murdered inside the boy's toilet at the ground floor of Vidyalaya granted 3 days police

custody of Bholu from 08.11.2017 to 11.11.2017 with specific instructions that Bholu has to be examined between 10:00 AM to 06:00 PM and he has

to be placed at Seva Kutir, Kingsway Camp, New Delhi for the said 3 days. The Ld. Juvenile Justice Board, Gurugram, Haryana also directed Ms.

Gyamwati, Ld. Member, Juvenile Justice Board, Gurugram to remain present with the juvenile at the time of interrogation of Bholu by CBI during the

period of police custody.â€​

It has, thus, emerged on the record that the accused was arrested on 07.11.2017 and was produced before the Juvenile Justice Board on 08.11.2017

wherefrom, he was then sent for three days' police remand.

It has also emerged on the record that as per the orders passed by the Court below, to the effect that the challan in question came to be filed on

05.02.2018. Thus, the short question, which has to be considered is whether the accused remained in custody for a period of 90 days or not. As per

the law enunciated by Hon'ble the Apex Court in case of Ravi Parkash Singh @ Arvind Singh vs. State of Bihar, 2015 (2) RCR (Criminal) 89 while

computing the period of 90 days, the day on which the accused was remanded to the judicial custody has to be excluded. Reliance was placed on

earlier decisions in the case of Chaganti Satyanarayana & others vs. State of A.P., 1987 (1) RCR (Criminal) 40 and in the case of State of M.P. vs.

Rustam & Others, 1995 SCC (Cri.) 830 to conclude that the period of 90 days has to be computed from the date of remanding of the accused and not

from the date of arrest. It was further held that the day on which the accused was remanded to the judicial custody should be excluded while the date

on which the challan has been filed should be included.

In view of the above discussion, the answer to the last question to issue framed as (e) above, is that no indefeasible right accrued to the present

appellant under Section 167(2) Cr.P.C. and that the appellant was not entitled to be released on statutory/default bail.

In view of the facts and law position as discussed above, it is apparent that the appellant is not entitled to be released on statutory/default bail as no

indefeasible right has accrued to him under Section 167(2) Cr.P.C. and the present appeal being devoid of any merit is, hereby, dismissed.