Dismissed

Ajay @ Vijay v. State of U.P. and Another

Allahabad HC3 Mar 2022CRLR/676/2022

Case brief

AI extract

What is this about?

In this criminal revision, the High Court dismissed the challenge against an order rejecting an application for default bail. The court upheld the lower court's view that since the charge sheet was filed on 17.01.2022, within the 90-day limit, no right to default bail accrued despite the application being submitted on 18.01.2022.

What did the court decide?

The revision petition was dismissed; the accused remains in custody.

Ajay @ Vijay Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2022)

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Reserved on 2.3.2022

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Delivered on 3.3.2022

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Court No. - 90

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Case :- CRIMINAL REVISION No. - 676 of 2022 Revisionist :- Ajay @ Vijay

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Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ram Milan Dwivedi,Anil Kumar Dubey

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Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Sadhna Rani (Thakur),J.

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This criminal revision has been preferred by the revisionist against the order dated 18.1.2022 passed by learned In-charge Special judge (POCSO Act), Banda in case crime no. 144 of 2021, State Vs. Ajay @ Vijay, under section 376 I.P.C. and Section 3 /4 of POCSO Act, police station Tindwari, District Banda whereby the learned lower court has rejected the application of the revisionist / accused under section 167 (2) Cr.P.C.

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The case of the revisionist is that a first information report in case crime no. 144 of 2021 under section 376 I.P.C. and 3 /4 POCSO Act was registered against him on 14.10.2021 at 13.11 hours with the allegation that a day before i.e. on 13.10.2021 when the minor daughter of the first informant aged about 15 years had gone for defecation at 8.00 p.m., the accused committed rape upon her. The accused was apprehended and sent to judicial custody on 19.10.2021. He was on judicial remand upto

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18.1.2022. An application under section 167 (2) Cr.P.C. was moved by the revisionist in the lower court on 18.1.2022 with the contention that till date of moving the application 90 days have been passed but no charge sheet has been filed against him, so he is entitled for default bail under section 167 (2) a (i) of Cr.P.C.. On his application, learned Incharge Special Judge ( POCSO Act) Banda summoned a report from the office. The office reported that charge sheet has been received on 17.1.2022 at 5.00 p.m. and thus mentioning the fact that the charge sheet has been filed before moving the application under section 167(2) Cr.P.C. Referring the judgment in Bikramjit Singh Vs. the State of Punjab, Cr. Appeal No. 667 of 2020, the court concerned rejected this application. The court opined that as before moving the application under section 167(2) Cr.P.C. the charge sheet has been filed hence, the application under section 167(2) Cr.P.C. is not maintainable, hence, the same is rejected.

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Against this order dated 18.1.2022 the present revision has been filed on the ground that the revisionist was arrested by the Investigating Officer and sent for medical examination on 19.10.2021. His remand was accepted on 19.10.2021 till 1.11.2021. Then it was extended on 12.11.2021, 25.11.2021, 8.12.2021, 21.12.2021, 3.1.2021 and lastly on 15.1.2022 the remand was extended till 18.1.2022. This remand up to 18.1.2022 was illegal because on 17.1.2022 time of 90 days for submitting the chargesheet was expiring. When on 18.1.2022, he moved an application that after expiry of 90 days the charge sheet has not been filed so he may be released on bail on the basis of section 167 (2) (a) (i) Cr.P.C. on his application, the Officer concerned

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summoned a report from the office. The report was received that charge sheet has been received on 17.1.2022 at 5.00 p.m. in the evening. Learned In charge Special Judge (POCSO Act), Banda took cognizance on the charge sheet on 18.1.2022 and directed the clerk concerned to submit his explanation regarding non submission the charge sheet earlier before the Presiding Officer and after that warrant under section 309 Cr.P.C. was prepared. The revisionist is quite innocent having no criminal history except the present one. He is languishing in jail from 19.10.2021. His application under section 167 (2) Cr.P.C. was rejected by the officer concerned on 18.1.2022 itself stating that the charge sheet has been received before filing of this application and making the reference of the judgment of Bikramjit Singh Vs. the State of Punjab, Cr. Appeal No. 667 of 2020 passed by the Apex Court.

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Learned In-charge Special Judge (POCSO Act) Banda has totally ignored the legal aspect of the matter in dismissing the application of the revisionist. The order impugned is an illegal, unjust, non speaking order which is against the provisions and procedure of law, hence it is liable to be set aside and prayer to release the revisionist on bail in the aforesaid case is made.

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Regarding default bail, the relevant provision of Section 167 (2) (a) (i) of Cr.P.C. is referred as under;

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(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-

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(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,-

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(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;

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(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;]

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(b) ….

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(c)…..

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Explanation I. - For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;]. Explanation II - ………..

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It is argued by the learned counsel for the revisionist that as within 90 days of the arrest of the revisionist charge sheet has not been filed so he is entitled for default bail under section 167 (2) (a) (i) Cr.P.C. The report given by the clerk concerned is wrong. When the application under section 167(2) (a)(i) was moved in the court concerned only then charge sheet was filed which cannot be said to be filed within time i.e. within 90 days or before filing his application under section 167(2)(a)(i) Cr.P.C. As warrant under section 309 Cr.P.C. was prepared on 18.1.2022, the custody of revisionist from 17.1.2022 to 18.1.2022 becomes

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illegal. The revisionist is ready to file sureties, so revision be allowed.

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The revisionist has placed reliance on the judgement of Bikramjit Singh Vs. the State of Punjab, Cr. Appeal No. 667 of 2020 in support of his contention, wherein Hon’ble Apex Court has held that right to default bail is not mere a statutory right under first proviso to Section 167 (2) of Code but is part of procedure established by the law under Article 21 of the Constitution of India which is a fundamental right granted to accused person to be released on bail once the condition of first proviso to Section 167(2) Cr.P.C. are fulfilled.

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If we go through this Ruling, the reference of judgment of Sanjay Dutt Vs.State through CBI (1994) 5 SCC 410, has also been made therein, it has been held in this judgment that the principle laid down by the Constitution Bench is to the effect that if the charge sheet is not filed and the right for “default bail” has ripened into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext. The accused can avail his liberty by filing an application stating that the statutory period for filing the charge sheet or challan has expired and the same has not yet been filed and therefore the indefeasible right has accrued in his or her favour and further the accused is prepared to furnish the bail bond.

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It is clear from perusal of this judgment Bikramjit Singh (supra) that the facts of that case are different. The dispute in the referred judgment is regarding the extension of time of filing charge sheet from 90 days to 180 days, wherein in the case in hand there is no such dispute. Here the mere fact in dispute is

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that whether charge sheet has been filed within 90 days as referred in Section 167(2) (a)(i) Cr.P.C. or not.

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Admittedly, 90 days have been expired on 17.1.2022 and on the application of the revisionist dated 18.1.2022, the office report shows that the charge sheet has been received on 17.1.2022. Though the cognizance could not be taken on 17.1.2022 itself as the clerk concerned was preparing the file but as per allegation of revisionist there is nothing on record to support the contention of the learned counsel for the revisionist that charge-sheet was filed anti time and it was filed when he moved the present application in the court.

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As record shows that the charge-sheet was filed on 17.1.2022, then there is no reason to rely upon the version of the revisionist counsel that charge-sheet was filed on 18.1.2022.

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Thus, in the light of provision of Section 167(2)(a)(i) Cr.P.C. as the charge sheet has been filed within the prescribed period of 90 days, then no question of granting default bail arises. There is no illegality, irregularity and impropriety in the impugned order passed by the trial court, hence, revision is liable to be dismissed.

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Accordingly, the revision is dismissed.

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Order Date :- 3.3.2022 Gss

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Digitally signed by GIRAJA SHANKER SHARMA Date: 2022.03.04 15:35:13 IST Reason: Location: High Court of Judicature at Allahabad

Ajay @ Vijay v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Ajay @ Vijay v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

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