Dismissed

Ashish Yadav and 2 Others v. State of U.P. Thru. Secy.Deptt. of Home and Another

Allahabad HC19 Jul 2022/1284/2022

Case brief

AI extract

What is this about?

This court dismissed an application under Section 482 Cr.P.C. opposing the rejection of a default bail plea. It held that if the 90-day period under Section 167(2) Cr.P.C. expires on a holiday, the accused is not entitled to default bail if the charge sheet is filed on the next working day, preventing accrual of the right prior to cognizance.

What did the court decide?

Petition under Section 482 Cr.P.C. dismissed; order below upheld.

Ashish Yadav and 2 Others Vs State of U.P. Thru… — Bail and Remand | Allahabad HC (2022)

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Court No. - 10

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Case :- APPLICATION U/S 482 No. - 1284 of 2022

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Applicant :- Ashish Yadav And 2 Others Opposite Party :- State Of U.P. Thru. Secy.Deptt. Of Home And Another Counsel for Applicant :- S M Singh Royekwar,Paritosh Shukla,Sukh Deo Singh

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Counsel for Opposite Party :- G.A.,Ramesh Kumar Yadav

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Hon'ble Dinesh Kumar Singh,J.

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Heard Sri S M Singh Royekwar, learned counsel for the petitioners and Sri Rao Narendra Singh, learned AGA and perused the record.

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The present petition under Section 482 Cr.P.C. has been filed seeking quashing of the order dated 26.6.2022 passed by the Additional Sessions Judge, Court No.4, Sultanpur in Criminal Revision No.35 of 2022 preferred by the petitioners against the order dated 17.1.2022 passed by the Chief Judicial Magistrate, Sultanpur on an application filed under Section 167(2) Cr.P.C. in FIR No.249 of 2021, under Sections 147, 148, 149 and 302 IPC, whereby the learned Magistrate has rejected the said application.

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Petitioners had filed an application under Section 167(2) Cr.P.C. before the court concerned stating therein that they were languishing in judicial custody since 18.10.2021 in the said offence and as per the proviso to Section 167(2) Cr.P.C., where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years and on the expiry of said period of ninety days, if accused is prepared to and does furnish bail, then he will be released on bail and it shall be deemed to be so released under the provisions of Chapter 33 for the purpose of the said Chapter. It was stated that the limitation period of ninety days got expired on 16.1.2022 and, therefore, they ought to be released

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on default bail under the provisions of Section 167(2) Cr.P.C.

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Learned Magistrate after hearing the accused-petitioners and considering the contents of the application and the provisions of Section 167(2) Cr.P.C., rejected the said application on the ground that the cognizance on the charge sheet had already been taken on 17.1.2022. The accused-petitioners have been in judicial custody since 18.10.2021 and the prescribed time for filing the default bail got expired on 16.1.2022, but 16.1.2022 happened to be the holiday (Sunday), cognizance of the charge sheet was taken on 17.1.2022. The trial court also held that the offences committed by the accused-petitioners were heinous in nature, non-bailable and triable by the Sessions Court.

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Against the aforesaid order, accused-petitioners preferred a criminal revision. The revisional court after concerning the entire material and evidence on record, held that from perusal of the charge sheet and the relevant prosecution papers annexed in the file of the learned Magistrate, it would be evident that the investigation has been completed on 15.1.2022. 16.1.2022 was Sunday and, therefore, the charge sheet could not have been presented on Sunday in the Court. There was no application on behalf of the accused-petitioners for their release under the provisions of Section 167(2) Cr.P.C. till 16.1.2022. On Monday i.e. 17.1.2022, the charge sheet was filed, on which cognizance was taken and on the same day, application under Section 167(2) Cr.P.C. for default bail was filed on behalf of the accused-petitioners.

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Learned revisional court also held that the accusedpetitioners were in custody since 18.10.2021 and the prescribed time limit of ninety days for filing the charge sheet got expired on 16.1.2022 (Sunday) and on the date when the application for default bail under Section 167(2) Cr.P.C. was filed, the charge

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sheet was filed and the cognizance was taken. In view thereof, it was held that the order passed by the learned Magistrate rejecting the application under Section 167(2) Cr.P.C. was justified one and the accused-petitioners were not entitled for default bail.

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This Court has considered the submissions of the learned counsel for the petitioners, who has submitted that the right to get default bail under Section 167(2) Cr.P.C. accrues in favour of the accused-petitioners on completion of 60/90 days as the case may be. In the present case, the prescribed limit for filing the application under Section 167(2) Cr.P.C. is 90 days and the right of the accused-petitioners to be released on default bail accrued in favour of the petitioners on 16.1.2022 inasmuch as till the said date charge sheet was not on record. The accusedpetitioners had moved an application under Section 167(2) Cr.P.C. on 17.1.2022 and the said date charge sheet was filed and the cognizance was taken. Since the right accrued on 16.1.2022, therefore, the accused-petitioners ought to have been released on default bail under the provisions of Section 167(2) Cr.P.C. as valuable right had accrued in favour of the accusedpetitioners irrespective of the nature of the offence.

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On the other hand, Sri Rao Narendra Singh, learned AGA has supported the orders passed by the courts below and has contended that the investigation was completed on 15.1.2022 and the charge sheet could not have been filed on 16.1.2022 being Sunday and, therefore, it was presented on the next working day i.e. 17.1.2022, therefore, the petitioners cannot claim the benefit of the provisions of Section 167(2) Cr.P.C. He further submits that the charge sheet was filed within 90 days considering the provisions of Section 10 of the General Clauses Act. He has, therefore, submitted that there is no illegality in the orders passed by the courts below and the petition being devoid

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of merit, is liable to be dismissed.

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I have considered the submissions advanced by the learned counsel for the parties and perused the record.

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The facts are not dispute. This Court is of the view that if 90 days expired on holiday and the charge sheet is submitted on the next day, the accused is not entitled for the benefit of the provisions of Section 167(2) Cr.P.C.. The cognizance had already been taken on the said date when the application under Section 167(2) Cr.P.C. was filed on behalf of the accusedpetitioners, therefore, the two courts below have not committed any error of law or jurisdiction, which warrants this Court to interfere with the well reasoned order passed by the revisional court.

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In view thereof, the present petition is devoid of merit and substance, which is hereby dismissed.

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Order Date :- 19.7.2022 Rao/-

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Digitally signed by CHEBROLU SRINIVASA RAO Date: 2022.07.27 18:51:36 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Ashish Yadav and 2 Others v. State of U.P. Thru. Secy.Deptt. of Home and Another

Case brief

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Ashish Yadav and 2 Others v. State of U.P. Thru. Secy.Deptt. of Home and Another

Case brief

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