M. RAVINDRAN versus THE INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE

[2020] 12 S.C.R. 915

M. RAVINDRAN

THE INTELLIGENCE OFFICER, DIRECTORATE OFREVENUE INTELLIGENCE

(Criminal Appeal No. 699 of 2020)

OCTOBER 26, 2020

[UDAY UMESH LALIT, MOHAN M. SHANTANAGOUDARAND VINEET SARAN, JJ.]

Code of Criminal Procedure, 1973:

s. 167(2) r/w s. 36A of Narcotic Drugs and PsychotropicSubstances Act, 1985 – Default bail/ Compulsive bail – Applicationfor – After completion of 180 days from the remand date – Bailgranted by trial court – High Court set aside the bail order on theground that since additional complaint was filed before disposal ofthe bail application, bail could not have been granted – Appeal toSupreme Court – Held: Section 167(2) was enacted with theobjectives of ensuring fair trial, expeditions investigation and trialand reasonable procedure prior to depriving any person of hispersonal liberty, which is intrinsically linked to Art. 21 of theConstitution – Section 167(2) has to be interpreted keeping in mindthe aforesaid objectives – If the accused applies for bail u/s. 167(2)r/w. s. 36 (4) NDPS Act upon expiry of 180 days or the extendedperiod, Court has to release him on bail forthwith – Prosecutioncannot defeat enforcement of such right of accused by subsequentlyfiling final report, additional complaint or report seeking extentionto time – However, actual release on bail is contingent upon thedirections passed by the competent court granting bail – In thepresent case, accused was deemed to have availed the right to bail,the moment he filed the application seeking bail and offered to abideby the terms and conditions of the bail order – He was entitled to bereleased on bail notwithstanding the subsequent additionalcomplaint – Constitution of India – Art. 21.

Interpretation of Statutes:

Interpretation of penal statutes – Held: In case of anyambiguity in the construction of penal statute, courts must favour

DEF

Athe interpretation which leans towards protecting the right of theaccused – Such principle is applicable not only in the case ofsubstantive penal statute, but also in cases of procedures providingfor curtailment of liberty of the accused.

Allowing the appeal, the CourtB

HELD: 1. In common legal parlance, the right to bail underthe Proviso to Section 167(2) of Cr. P.C. is commonly referred toas ‘default bail’ or ‘compulsive bail’ as it is granted on account ofthe default of the investigating agency in not completing theinvestigation within the prescribed time, irrespective of the meritsCof the case. [Para 6][929-A-B]

2. Section 36A of the Narcotic Drugs and PsychotropicSubstances Act (NDPS Act) prescribes modified application ofthe CrPC as indicated therein. The effect of Sub-Clause (4) ofSection 36A NDPS Act is to require that investigation into certainDoffences under the NDPS Act be completed within period of180 days instead of 90 days as provided under Section 167(2)CrPC. Hence the benefit of additional time limit is given forinvestigating more serious category of offences. This isaugmented by further Proviso that the Special Court may extendtime prescribed for investigation up to one year if the PublicEProsecutor submits report indicating the progress ofinvestigation and giving specific reasons for requiring thedetention of accused beyond the prescribed period of 180 days.In the present matter, it is admitted that the Public Prosecutorhad not filed any such report within the 180-day period for seekingFextension of time up to one year for filing final report/additionalcomplaint before the Trial Court. The final report was requiredto be filed within 180 days from the first date of remand. [Para6.2][929-E-H; 930-A]

3. While computing the period under Section 167(2) Cr.P.C.,

Gthe day on which accused was remanded to judicial custody hasto be excluded and the day on which challan/charge-sheet is filedin the court has to be included. [Para 7][930-B]

Ravi Prakash Singh @ Arvind Singh v. State of Bihar(2015) 8 SCC 340 : [2015] 2 SCR 241 – referred to.

4. Article 21 of the Constitution of India provides that “noperson shall be deprived of his life or personal liberty exceptaccording to procedure established by law”. Such procedurecannot be arbitrary, unfair or unreasonable. The history of theenactment of Section 167(2) Cr. P.C. and the safeguard of ‘defaultbail’ contained in the Proviso thereto is intrinsically linked toArticle 21 promising protection of life and personal liberty againstunlawful and arbitrary detention. This is nothing but legislativeexposition of the constitutional safeguard that no person shall bedetained except in accordance with rule of law. This must beinterpreted in manner which serves this purpose. The Courtscannot adopt rigid or formalistic approach whilst consideringany issue that touches upon the rights contained in Article 21.[Paras 11.1 and 11.6][935-B-C; 938-G]

Maneka Gandhi v. Union of India (1978) 1 SCC 248 :[1978] 2 SCR 621 – followed.

The Law Commission of India Report No. 14 on Reformsof the Judicial Administration (Vol. II, 1948, pages 758-760); Law Commission Report No. 41 on The Code ofCriminal Procedure, 1898 (Vol. I, 1969, pages 76-77)– referred to.

5. Section 167(2) Cr.P.C. was enacted within the present-day CrPC, providing for time limits on the period of remand ofthe accused, proportionate to the seriousness of the offencecommitted, failing which the accused acquires the indefeasibleright to bail. The intent of the legislature was to balance the needfor sufficient time limits to complete the investigation with theneed to protect the civil liberties of the accused. Section 167(2)provides for clear mandate that the investigative agency mustcollect the required evidence within the prescribed time period,failing which the accused can no longer be detained. This ensuresthat the investigating officers are compelled to act swiftly andefficiently without misusing the prospect of further remand. Thisalso ensures that the Court takes cognizance of the case withoutany undue delay from the date of giving information of the offence,so that society at large does not lose faith and develop cynicismtowards the criminal justice system. [Para 11.5][936-G-H; 937-A-C]

A6. In case of any ambiguity in the construction of penalstatute, the Courts must favour the interpretation which leanstowards protecting the rights of the accused, given the ubiquitouspower disparity between the individual accused and the Statemachinery. This is applicable not only in the case of substantivepenal statutes but also in the case of procedures providing forBthe curtailment of the liberty of the accused. The right of theaccused to be set at liberty takes precedence over the right ofthe State to carry on the investigation and submit chargesheet.[Paras 11.7 and 11.8][939-A-C]

7. With respect to the CrPC particularly, the Statement ofCObjects and Reasons is an important aid of construction. Section167(2) has to be interpreted keeping in mind the three-foldobjectives expressed by the legislature namely ensuring fairtrial, expeditious investigation and trial, and setting down arationalized procedure that protects the interests of indigentDsections of society. These objects are nothing but subsets of theoverarching fundamental right guaranteed under Article 21. [Para11.8][939-D]

8. The Court cannot suo motu grant bail without consideringwhether the accused is ready to furnish bail or not. This is an in-Ebuilt safeguard within Section 167(2) Cr. P.C. to ensure that theaccused is not automatically released from custody withoutobtaining the satisfaction of the Court that he is able to guaranteehis presence for further investigation, or for trial, as the casemay be. There could be rare occasions where the accusedvoluntarily forfeits his right to bail on account of threat to hisFpersonal security outside of remand or for some other reasons.Once chargesheet is filed, such waiver of the right by the accusedbecomes final and Section 167(2) ceases to apply. [Para 12.4][942-C-E]

9. It cannot be said that even where the accused hasGpromptly exercised his right under Section 167(2) and indicatedhis willingness to furnish bail, he can be denied bail on account ofdelay in deciding his application or erroneous rejection of thesame. Nor can he be kept detained in custody on account ofsubterfuge of the prosecution in filing police report or additional

complaint on the same day that the bail application is filed.[Para 12.4][942-F]

10. The interpretation of the expression “availed of” asactual release after furnishing the necessary bail would causegrave injustice to the accused and would defeat the very purposeof the Proviso to Section 167(2) CrPC. There will be manyinstances where the Public Prosecutor might prolong the hearingof the application for bail so as to facilitate the State to file anadditional complaint or investigation report before the Courtduring the interregnum. In some cases, the Court may also delaythe process for one reason or the other. In such an event, theindefeasible right of the accused to get the order of bail in hisfavour would be defeated. This could not have been the intentionof the legislature. If such practice is permitted, the same wouldamount to deeming illegal custody as legal. After the expiry ofthe stipulated period, the Court has no further jurisdiction toremand the accused to custody. The prosecution would not beallowed to take advantage of its own default of not filing theinvestigation report/complaint against the appellant within thestipulated period. [Para 12.5][942-G-H; 943-A-C]

11. As cautionary measure, the counsel for the accusedas well as the Magistrate ought to inform the accused of theavailability of the indefeasible right under Section 167(2) once itaccrues to him, without any delay. This is especially where theaccused is from an underprivileged section of society and isunlikely to have access to information about his legal rights. Suchknowledge-sharing by magistrates will thwart any dilatory tacticsby the prosecution and also ensure that the obligations spelledout under Article 21 of the Constitution and the Statement ofObjects and Reasons of the CrPC are upheld. [Para 12.7][943-G-H; 944-A-B]

Rakesh Kumar Paul v. State of Assam (2017) 15 SCC67 : [2017] 8 SCR 785 – relied on.

12. It is true that Explanation I to Section 167(2) Cr. P.C.provides that the accused shall be detained in custody so long ashe does not furnish bail. However, Explanation I to Section 167(2)applies only to those situations where the accused has availed of

Ahis right to default bail and undertaken to furnish bail as directedby the Court, but has subsequently failed to comply with the termsand conditions of the bail order within the time prescribed by theCourt. In such scenario, if the prosecution subsequently files achargesheet, it can be said that the accused has forfeited his rightto bail under Section 167(2) Cr. P.C.. Explanation I is only aBsafeguard to ensure that the accused is not immediately releasedfrom custody without complying with the bail order. [Para 13][944-B-D]

13. The expression ‘the accused does furnish bail’ in Section167(2) and Explanation I thereto cannot be interpreted to meanCthat if the accused, in spite of being ready and willing, could notfurnish bail on account of the pendency of the bail applicationbefore the Magistrate, or because the challenge to the rejectionof his bail application was pending before higher forum, hiscontinued detention in custody is authorized. If such anDinterpretation is accepted, the application of the Proviso to Section167(2) would be narrowly confined only to those cases where theMagistrate is able to instantaneously decide the bail applicationas soon as it is preferred before the Court, which may sometimesnot be logistically possible given the pendency of the docketacross courts or for other reasons. Moreover, the application forEbail has to be decided only after notice to the public prosecutor.Such strict interpretation of the Proviso would defeat the rightsof the accused. Hence his right to be released on bail cannot bedefeated merely because the prosecution files the chargesheetprior to furnishing of bail and fulfil the conditions of bail ofFfurnishing bonds, etc., so long as he furnishes the bail within thetime stipulated by the Court. [Para 13.1][944-E-H]

14. The observations made in *Hitendra Vishnu Thakur and**Sanjay Dutt Cases to the effect that the application for defaultbail and any application for extension of time made by the PublicGProsecutor must be considered together are only applicable insituations where the Public Prosecutor files report seekingextension of time prior to the filing of the application for defaultbail by the accused. In such situation, notwithstanding the factthat the period for completion of investigation has expired, both

applications would have to be considered together. However,where the accused has already applied for default bail, theProsecutor cannot defeat the enforcement of his indefeasible rightby subsequently filing final report, additional complaint or reportseeking extension of time. [Para 14.1][946-B-C]

15. It is well settled that issuance of notice to the State onthe application for default bail filed under the Proviso to Section167(2) is only so that the Public Prosecutor can satisfy the Courtthat the prosecution has already obtained an order of extensionof time from the Court; or that the challan has been filed in thedesignated Court before the expiry of the prescribed period; orthat the prescribed period has actually not expired. Such issuanceof notice would avoid the possibility of the accused obtainingdefault bail by deliberate or inadvertent suppression of certainfacts and also guard against multiplicity of proceedings. However,Public Prosecutors cannot be permitted to misuse the limitednotice issued to them by the Court on bail applications filed underSection 167(2) by dragging on proceedings and filing subsequentapplications/reports for the purpose of ‘buying extra time’ andfacilitating filling up of lacunae in the investigation by theinvestigating agency. [Para 14.2][946-D-F]16. The decision in **Sanjay Dutt case only lays down as aprecautionary principle that the accused must apply for defaultbail the moment the right under Section 167(2) accrues to him. Ifhe fails to do so, he cannot claim the right at subsequent stageof the proceedings after the prosecution has filed chargesheet.The words “not having made an application when such right hadaccrued, can exercise that right at later stage” clearly indicatethat the accused is deemed to have exercised his right to bailonce he makes an application for the same. [Para 15.1][948-B-C]

17. Once the accused files an application for bail under theProviso to Section 167(2) he is deemed to have ‘availed of’ orenforced his right to be released on default bail, accruing afterexpiry of the stipulated time limit for investigation. Thus, if theaccused applies for bail under Section 167(2), CrPC read withSection 36A (4), NDPS Act upon expiry of 180 days or the

Aextended period, as the case may be, the Court must releasehim on bail forthwith without any unnecessary delay after gettingnecessary information from the public prosecutor. Such promptaction will restrict the prosecution from frustrating the legislativemandate to release the accused on bail in case of default by theinvestigative agency. [Para 18.1][954-C-E]B

18. The right to be released on default bail continues toremain enforceable if the accused has applied for such bail,notwithstanding pendency of the bail application; or subsequentfiling of the chargesheet or report seeking extension of time bythe prosecution before the Court; or filing of the chargesheetCduring the interregnum when challenge to the rejection of thebail application is pending before higher Court. [Para 18.2][954-E-F]

19. However, where the accused fails to apply for defaultbail when the right accrues to him, and subsequently aDchargesheet, additional complaint or report seeking extensionof time is preferred before the Magistrate, the right to defaultbail would be extinguished. The Magistrate would be at libertyto take cognizance of the case or grant further time for completionof the investigation, as the case may be, though the accused mayEstill be released on bail under other provisions of the CrPC.[Para 18.3][954-G-H]

20. Notwithstanding the order of default bail passed by theCourt, by virtue of Explanation I to Section 167(2), the actualrelease of the accused from custody is contingent on theFdirections passed by the competent Court granting bail. If theaccused fails to furnish bail and/or comply with the terms andconditions of the bail order within the time stipulated by the Court,his continued detention in custody is valid. [Para 18.4][955-A-B]

21.1 In the present case, admittedly the appellant-accusedGhad exercised his option to obtain bail by filing the application at10:30 a.m. on the 181[st] day of his arrest, i.e., immediately afterthe court opened, on 01.02.2019. It is not in dispute that thePublic Prosecutor had not filed any application seeking extensionof time to investigate into the crime prior to 31.01.2019 or prior

to 10:30 a.m. on 01.02.2019. The Public Prosecutor participatedin the arguments on the bail application till 4:25 p.m. on the dayit was filed. It was only thereafter that the additional complaintcame to be lodged against the Appellant. Therefore, the appellant-accused was deemed to have availed of his indefeasible right tobail, the moment he filed an application for being released on bailand offered to abide by the terms and conditions of the bail order,i.e. at 10:30 a.m. on 01.02.2019. He was entitled to be releasedon bail notwithstanding the subsequent filing of an additionalcomplaint. [Para 17][953-B-E]

21.2. In the present case, apart from furnishing the suretiesas directed by the Trial Court, the appellant-accused should alsosurrender his passport, undertake to report to the RespondentDirectorate when required for purposes of investigation, and alsoundertake to not leave Chennai city limits without the leave ofthe Trial Court. [Para 19][955-C]

Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC67 : [2017] 8 SCR 785; S. Kasi v. State Through TheInspector of Police Samaynallur Police Station MaduraiDistrict (2020) SCC OnLine SC 529; Uday MohanlalAcharya v. State of Maharashtra (2001) 5 SCC 453 :[2001] 2 SCR 878; Mohamed Iqbal Madar Sheikh v.State of Maharashtra (1996) 1 SCC 722 : [1996] 1SCR 183; Dr. Bipin Shantilal Panchal v. State of Gujarat(1996) 1 SCC 718 : [1996] 1 SCR 193; State throughCBI v. Mohd. Ashraft Bhat (1996) 1 SCC 432 : [1995]6 Suppl. SCR 300; Ateef Nasir Mulla v. State ofMaharashtra (2005) 7 SCC 29 : [2005] 2 Suppl. SCR919; Mustaq Ahmed Mohammed Isak v. State ofMaharashtra (2009) 7 SCC 480 : [2009] 8 SCR 465;Sayed Mohd. Ahmad Kazmi v. State (Government of NCTof Delhi) (2012) 12 SCC 1 : [2012] 9 SCR 836; Unionof India v. Nirala Yadav (2014) 9 SCC 457 : [2014] 6SCR 148; Bikramjit Singh v. State of Punjab (2020)SCC OnLine SC 824 - relied on.

Pragyna Singh Thakur v. State of Maharashtra, (2011)10 SCC 445 : [2011] 14 SCR 617 – held per in curiam.

AUday Mohanlal Acharya v. State of Maharashtra (2001)5 SCC 453 : [2001] 2 SCR 878; Sanjay Dutt v. Statethrough C.B.I. (1994) 5 SCC 410 : [1994] 3 Suppl. SCR263; Hitendra Vishnu Thakur v. State of Maharashtra(1994) 4 SCC 602 : [1994] 1 Suppl. SCR 360; Statethrough CBI v. Mohd. Ashraft Bhat (1996) 1 SCC 432B: [1995] 6 Suppl. SCR 300; Dr. Bipin Shantilal Panchalv. State of Gujarat (1996) 1 SCC 718 : [1996] 1 SCR193; Mohamed Iqbal Madar Sheikh v. State ofMaharashtra (1996) 1 SCC 722 : [1996] 1 SCR 183 –referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.699 of 2020.

From the Judgment and Order dated 21.11.2019 of the High Courtof Judicature at Madras in Crl.O.P. No. 9750 of 2019.

Aman Lekhi, ASG, Ms. Arunima Singh, K. Paari Vendhan, RupeshKumar, Abhishek Kumar, Piyush Beriwal, Ujjawal Sinha, B. KrishnaPrasad, Advs. for the appearing parties.

The Judgment of the Court was delivered by

MOHAN M. SHANTANAGOUDAR, J.

1. Leave granted.

2. The judgment dated 21.11.2019 passed in Crl. O.P. No. 9750of 2019 by the High Court of Judicature at Madras is called into questionin this appeal.

3. The brief facts leading to this appeal are as follows:

3.1 The Appellant was arrested and remanded to judicial custodyon 04.08.2018 for the alleged offence punishable under Section 8(c)read with Sections 22(c), 23(c), 25A and 29 of the Narcotic Drugs andPsychotropic Substances Act, 1985 (‘NDPS Act’). After completion of180 days from the remand date, that is, 31.01.2019, the Appellant(Accused No.11) filed application for bail under Section 167(2) of theCode of Criminal Procedure, 1973 (‘CrPC’) on 01.02.2019 before theSpecial Court for Exclusive Trial of Cases under the NDPS Act, Chennai(‘Trial Court’) on the ground that the investigation was not complete andchargesheet had not yet been filed. Accordingly, on 05.02.2019, the TrialCourt granted the order of bail in Crl.M.P. No. 131 of 2019 in R.R. No.09/2017 pending before the said court.

3.2 The Respondent/complainant, i.e. the Intelligence Officer,Directorate of Revenue Intelligence filed Crl. O.P. No. 9750 of 2019before the High Court of Judicature at Madras praying to cancel the bailof the Appellant. The High Court, by the impugned judgment, allowedthe said appeal and consequently cancelled the order of bail granted bythe Trial Court. Being aggrieved, the Appellant has approached this Courtquestioning the judgment of the High Court.

3.3 It is not in dispute that the Appellant was remanded to judicialcustody on 04.08.2018 and hence the mandatory period of 180 days

EFG

Aprescribed for filing of final report under Section 167(2), CrPC (excludingthe date of remand) was completed on 31.01.2019. This is made amplyclear by the calculation of days as per the Gregorian calendar as statedbelow:

3.4 Accordingly, the Appellant filed his bail application on01.02.2019 at 10:30 a.m. before the Trial Court. During the course ofhearing of the bail application-after completion of the arguments of thecounsel for the Appellant, to be precise-the Respondent/complainant filedan additional complaint against the Appellant at 4:25 p.m. on 01.02.2019Eand sought for dismissal of the bail petition on the said basis. However,the Trial Court allowed the bail application on the ground that the Courthas no power to intervene with the indefeasible right of the Appellantconferred on him by the legislative mandate of Section 167(2).

3.5 The said judgment of the Trial Court was set aside by theFHigh Court on the ground that the additional complaint was filed on01.02.2019 itself and since the application for bail under Section 167(2),CrPC was not disposed of by the time the additional complaint was filed,the Appellant could not take advantage of the fact that he had filed hisbail petition prior in time. The High Court further reasoned that the Courtof Session conducts work from the time it sits till the time it rises andGhence the Appellant could not avail of any specific benefit for havingfiled the application at 10:30 a.m. inasmuch as the additional complaintwas lodged during the course of hearing of the bail application, beforethe Court rose for the day.

4. Ms. Arunima Singh, learned counsel appearing for the Appellant,taking us through the material on record and relying heavily on theobservations of this Court in the case of Uday Mohanlal Acharya v.State of Maharashtra, (2001) 5 SCC 453, argued that the High Courthas misconstrued the mandate of Section 167(2), CrPC and has gravelyerred in entering into the merits of the matter; that the legislative mandateconferred by Section 167(2), CrPC was lightly brushed aside by theHigh Court though the Appellant had rightly invoked the provisions thereofafter completion of the mandatory period of 180 days, that too prior tofiling of the chargesheet/additional complaint by the Respondent; andthat subsequent filing of chargesheet/additional complaint by theinvestigating authority cannot defeat the indefeasible right of the Appellant.

5. Per contra, Mr. Aman Lekhi, learned Additional Solicitor Generalargued in support of the judgment of the High Court contending that theadditional complaint was lodged while the Appellant was still in custodyand prior to the disposal of the application for bail under Section 167(2),CrPC, hence there was no question of the Appellant-accused furnishingthe bail and consequently he was liable to continued detention in custody.He contended that the time or date of disposal of the application of bailfiled under Section 167(2) is the deciding factor to adjudge whether theaccused is entitled to default bail or not.

6. Before we proceed further, it is relevant to note the provisionsof Section 167(2), CrPC:

“Section 167. Procedure when investigation cannot becompleted in twenty-four hours.—

(2) The Magistrate to whom an accused person is forwardedunder this section may, whether he has or has not jurisdiction totry the case, from time to time, authorise the detention of theaccused in such custody as such Magistrate thinks fit, for termnot exceeding fifteen days in the whole; and if he has no jurisdictionto try the case or commit it for trial, and considers further detentionunnecessary, he may order the accused to be forwarded to aMagistrate having such jurisdiction:

Provided that-

(a) the Magistrate may authorise the detention of the accusedperson, otherwise than in the custody of the police, beyond theperiod of fifteen days, if he is satisfied that adequate grounds

ABC

exist for doing so, but no Magistrate shall authorise the detentionof the accused person in custody under this paragraph for totalperiod exceeding,-

(i) ninety days, where the investigation relates to an offencepunishable with death, imprisonment for life or imprisonment for termBof 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 bailif he is prepared to and does furnish bail, and every person releasedCon bail under this sub-section shall be deemed to be so releasedunder the provisions of Chapter XXXIII for the purposes of thatChapter;

(b) no Magistrate shall authorise detention of the accused in custodyof the police under this section unless the accused is producedDbefore him in person for the first time and subsequently everytime till the accused remains in the custody of the police, but theMagistrate may extend further detention in judicial custody onproduction of the accused either in person or through the mediumof electronic video linkage;

(c) no Magistrate of the second class, not specially empoweredin this behalf by the High Court, shall authorise detention in thecustody of the police.

Explanation I.- For the avoidance of doubts, it is hereby declaredthat, notwithstanding the expiry of the period specified in paragraphF(a), the accused shall be detained in custody so long as he doesnot furnish bail.

Explanation II.- If any question arises whether an accused personwas produced before the Magistrate as required under clause(b), the production of the accused person may be proved by hissignature on the order authorising detention or by the order certifiedGby the Magistrate as to production of the accused person throughthe medium of electronic video linkage, as the case may be.

Provided further that in case of woman under eighteenyears of age, the detention shall be authorised to be in the custodyof remand home or recognised social institution.”

In common legal parlance, the right to bail under the Proviso toSection 167(2) is commonly referred to as ‘default bail’ or ‘compulsivebail’ as it is granted on account of the default of the investigating agencyin not completing the investigation within the prescribed time, irrespectiveof the merits of the case.

6.1 It is also relevant to note Section 36A(4) of the NDPS Act forthe purpose of this matter:

“Section 36A. Offences triable by Special Courts.—

(4) In respect of persons accused of an offence punishable undersection 19 or section 24 or section 27A or for offences involvingcommercial quantity the references in sub-section (2) of section167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereofto “ninety days”, where they occur, shall be construed as referenceto “one hundred and eighty days”:

Provided that, if it is not possible to complete theinvestigation within the said period of one hundred and eighty days,the Special Court may extend the said period up to one year onthe report of the Public Prosecutor indicating the progress of theinvestigation and the specific reasons for the detention of theaccused beyond the said period of one hundred and eighty days.”

(emphasis supplied)

6.2 Section 36A of the NDPS Act prescribes modified applicationof the CrPC as indicated therein. The effect of Sub-Clause (4) of Section36A, NDPS Act is to require that investigation into certain offencesunder the NDPS Act be completed within period of 180 days insteadof 90 days as provided under Section 167(2), CrPC. Hence the benefitof additional time limit is given for investigating more serious categoryof offences. This is augmented by further Proviso that the SpecialCourt may extend time prescribed for investigation up to one year if thePublic Prosecutor submits report indicating the progress of investigationand giving specific reasons for requiring the detention of accused beyondthe prescribed period of 180 days. In the matter on hand, it is admittedthat the Public Prosecutor had not filed any such report within the 180-day period for seeking extension of time up to one year for filing finalreport/additional complaint before the Trial Court.

930SUPREME COURT REPORTS

From the aforementioned, it is clear that in the Appellant’s case,the final report was required to be filed within 180 days from the firstdate of remand.

7. This Court ina catena of judgments including Ravi PrakashSingh @ Arvind Singh v. State of Bihar, (2015) 8 SCC 340, has ruledBthat while computing the period under Section 167(2), the day on whichaccused was remanded to judicial custody has to be excluded and theday on which challan/charge-sheet is filed in the court has to be included.

8. As mentioned supra, it is not disputed that in compliance of theaforementioned statutory provisions and judgments of this Court, theCAppellant waited for 180 days from the date of remand (excluding theremand day) and thereafter filed application for bail under Section 167(2),CrPC at 10:30 a.m. on 01.02.2019 inasmuch as till 31.01.2019 or till10:30 a.m. of 01.02.2019, the complainant had not yet filed final report/additional complaint against the Appellant. On the same day, as mentionedsupra, during the course of hearing of the bail application, the Respondent/Dcomplainant lodged an additional complaint at 4:25 p.m., and thus soughtdismissal of the bail petition.

9. Thus the points to be decided in this case are:

(a) Whether the indefeasible right accruing to the appellantEunder Section 167(2), CrPC gets extinguished by subsequentfiling of an additional complaint by the investigating agency;

(b) Whether the Court should take into consideration the timeof filing of the application for bail, based on default of theinvestigating agency or the time of disposal of the applicationFfor bail while answering (a).

I. The Principles Laid Down in Uday Mohanlal Acharya

10. Upon perusal of the relevant jurisprudence, we are unable toagree with Mr. Lekhi’s submissions. Rather, we find that both points (a)and (b) mentioned supra have been answered by the majority opinion ofGa three-Judge Bench of this Court in the case of Uday MohanlalAcharya (supra) by observing thus:-

“13…It is also further clear that that indefeasible right does notsurvive or remain enforceable on the challan being filed, if alreadynot availed of, as has been held by the Constitution Bench in SanjayHDutt’s case (supra). The crucial question that arises for

consideration, therefore, is what is the true meaning of theexpression ‘if already not availed of’? Does it mean that anaccused files an application for bail and offers his willingness forbeing released on bail or does it mean that bail order must bepassed, the accused must furnish the bail and get him released onbail? In our considered opinion it would be more in consonancewith the legislative mandate to hold that an accused must be heldto have availed of his indefeasible right, the moment he files anapplication for being released on bail and offers to abide by theterms and conditions of bail.To interpret the expression “availedof” to mean actually being released on bail after furnishing thenecessary bail required would cause great injustice to the accusedand would defeat the very purpose of the proviso to Section 167(2)of the Criminal Procedure Code and further would make an illegalcustody to be legal, inasmuch as after the expiry of the stipulatedperiod the Magistrate had no further jurisdiction to remand andsuch custody of the accused is without any valid order of remand.That apart, when an accused files an application for bail indicatinghis right to be released as no challan had been filed within thespecified period, there is no discretion left in the Magistrate andthe only thing he is required to find out is whether the specifiedperiod under the statute has elapsed or not, and whether challanhas been filed or not. If the expression “availed of” is interpretedto mean that the accused must factually be released on bail, thenin given case where the Magistrate illegally refuses to pass anorder notwithstanding the maximum period stipulated in Section167 had expired, and yet no challan had been filed then the accusedcould only move to the higher forum and while the matter remainspending in the higher forum for consideration, if the prosecutionfiles charge-sheet then also the so-called right accruing to theaccused because of inaction on the part of the investigating agencywould get frustrated. Since the legislature has given its mandate itwould be the bounden duty of the court to enforce the same andit would not be in the interest of justice to negate the same byinterpreting the expression “if not availed of” in manner whichis capable of being abused by the prosecution….

…There is no provision in the Criminal Procedure Code authorisingdetention of an accused in custody after the expiry of the periodindicated in proviso to sub-section (2) of Section 167 excepting

ABC

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Athe contingency indicated in Explanation I, namely, if the accuseddoes not furnish the bail. It is in this sense it can be stated that ifafter expiry of the period, an application for being released on bailis filed, and the accused offers to furnish the bail and therebyavail of his indefeasible right and then an order of bail is passedon certain terms and conditions but the accused fails to furnishBthe bail, and at that point of time challan is filed, then possibly itcan be said that the right of the accused stood extinguished. Butso long as the accused files an application and indicates in theapplication to offer bail on being released by appropriate ordersof the court then the right of the accused on being released on bailCcannot be frustrated on the off chance of the Magistrate not beingavailable and the matter not being moved, or that the Magistrateerroneously refuses to pass an order and the matter is moved tothe higher forum and challan is filed in interregnum. This is theonly way how balance can be struck between the so-calledindefeasible right of the accused on failure on the part of theDprosecution to file challan within the specified period and theinterest of the society, at large, in lawfully preventing an accusedfrom being released on bail on account of inaction on the part ofthe prosecuting agency”.

(emphasis supplied)

While holding so, this Court considered and discussed in depth thecatena of judgments on right of the accused to default bail includingSanjay Dutt v. State through C.B.I., (1994) 5 SCC 410; HitendraVishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602; Statethrough CBI v. Mohd. Ashraft Bhat, (1996) 1 SCC 432; Dr. BipinFShantilal Panchal v. State of Gujarat, (1996) 1 SCC 718; andMohamed Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1SCC 722.

10.1 We also find it relevant for the present purpose to quote thefollowing conclusions of the Court in the said judgment: -G

“13.3. On the expiry of the said period of 90 days or 60 days, asthe case may be, an indefeasible right accrues in favour of theaccused for being released on bail on account of default by theinvestigating agency in the completion of the investigation withinthe period prescribed and the accused is entitled to be released on

bail, if he is prepared to and furnishes the bail as directed by theMagistrate.

13.4. When an application for bail is filed by an accused forenforcement of his indefeasible right alleged to have been accruedin his favour on account of default on the part of the investigatingagency in completion of the investigation within the specifiedperiod, the Magistrate/court must dispose of it forthwith, on beingsatisfied that in fact the accused has been in custody for the periodof 90 days or 60 days, as specified and no charge-sheet has beenfiled by the investigating agency. Such prompt action on the partof the Magistrate/court will not enable the prosecution to frustratethe object of the Act and the legislative mandate of an accusedbeing released on bail on account of the default on the part of theinvestigating agency in completing the investigation within the periodstipulated.

13.5. If the accused is unable to furnish bail, as directed by theMagistrate, then the conjoint reading of Explanation I and provisoto sub-section 2 of Section 167, the continued custody of theaccused even beyond the specified period in paragraph (a)willnot be unauthorised, and therefore, if during that period theinvestigation is complete and charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished.

13.6. The expression ‘if not already availed of’ used by this Courtin Sanjay Dutt’s case (supra) must be understood to mean whenthe accused files an application and is prepared to offer bail onbeing directed. In other words, on expiry of the period specified inparagraph (a) of proviso to sub-section (2) of Section 167 if theaccused files an application for bail and offers also to furnish thebail, on being directed, then it has to be held that the accused hasavailed of his indefeasible right even though the Court has notconsidered the said application and has not indicated the termsand conditions of bail, and the accused has not furnished the same.”

(emphasis supplied)

10.2 In Uday Mohanlal Acharya, the application for default bailfiled by the accused was rejected by the Magistrate based on the wrongfulassumption that Section 167(2), CrPC is not applicable to cases pertainingto the Maharashtra Protection of Interest of Depositors (in Financial

AEstablishments) Act, 1999. The charge sheet was filed while theapplication challenging rejection of bail was pending before the HighCourt. Hence the High Court held that the right to default bail was nolonger enforceable.

Based on the abovementioned principles, the majority opinion heldBthat the accused is deemed to have exercised his right to default bailunder Section 167(2), CrPC the moment he files the application for bailand offers to abide by the terms and conditions of bail. The prosecutioncannot frustrate the object of Section 167(2), CrPC by subsequentlyfiling charge sheet or additional complaint while the bail application ispending consideration or final disposal before Magistrate or higherCforum. Accordingly, this Court granted relief to the appellant-accused inthat case.

However, it appears that in spite of the conclusions stated by themajority in Uday Mohanlal Acharya (supra), there continues to beconfusion as to in what specific situations default bail ought to be granted,Dparticularly with respect to paragraphs 13.5 and 13.6 of the decision.Hence, for the purpose of removing all doubts, we find it necessary toclarify the circumstances in which this entitlement may be claimed bythe accused.

II. Section 167(2) and the Fundamental Right to Life andEPersonal Liberty

11. Before we proceed to expand upon the parameters of theright to default bail under Section 167(2) as interpreted by variousdecisions of this Court, we find it pertinent to note the observations madeby this Court in Uday Mohanlal Acharya on the fundamental right toFpersonal liberty of the person and the effect of deprivation of the sameas follows:-

“13…Personal liberty is one of the cherished objects of the IndianConstitution and deprivation of the same can only be in accordancewith law and in conformity with the provisions thereof, as stipulatedGunder Article 21 of the Constitution. When the law provides thatthe Magistrate could authorise the detention of the accused incustody up to maximum period as indicated in the proviso tosub-section (2) of Section 167, any further detention beyond theperiod without filing of challan by the investigating agency wouldbe subterfuge and would not be in accordance with law and inH

conformity with the provisions of the Criminal Procedure Code,and as such, could be violative of Article 21 of the Constitution.”

11.1 Article 21 of the Constitution of India provides that “no personshall be deprived of his life or personal liberty except according toprocedure established by law”. It has been settled by ConstitutionBench of this Court in Maneka Gandhi v. Union of India, (1978) 1SCC 248, that such procedure cannot be arbitrary, unfair orunreasonable. The history of the enactment of Section 167(2), CrPCand the safeguard of ‘default bail’ contained in the Proviso thereto isintrinsically linked to Article 21 and is nothing but legislative expositionof the constitutional safeguard that no person shall be detained except inaccordance with rule of law.

11.2 Under Section 167 of the Code of Criminal Procedure, 1898(‘1898 Code’) which was in force prior to the enactment of the CrPC,the maximum period for which an accused could be remanded to custody,either police or judicial, was 15 days. However, since it was oftenunworkable to conclude complicated investigations within 15 days, apractice arose wherein investigative officers would file ‘preliminarychargesheets’ after the expiry of the remand period. The State wouldthen request the magistrate to postpone commencement of the trial andauthorize further remand of the accused under Section 344 of the 1898Code till the time the investigation was completed and the final chargesheetwas filed. The Law Commission of India in Report No. 14 on Reformsof the Judicial Administration (Vol. II, 1948, pages 758-760) pointedout that in many cases the accused were languishing for several monthsin custody without any final report being filed before the Courts. It wasalso pointed out that there was conflict in judicial opinion as to whetherthe magistrate was bound to release the accused if the police report wasnot filed within 15 days.

Hence the Law Commission in Report No. 14 recommended theneed for an appropriate provision specifically providing for continuedremand after the expiry of 15 days, in manner that “while meeting theneeds of full and proper investigation in cases of serious crime,will still safeguard the liberty of the person of the individual.” Further,that the legislature should prescribe maximum time period beyond whichno accused could be detained without filing of the police report beforethe magistrate. It was pointed out that in England, even person accusedof grave offences such as treason could not be indefinitely detained inprison till commencement of the trial.

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A11.3 The suggestion made in Report No. 14 was reiterated by theLaw Commission in Report No. 41 on The Code of Criminal Procedure,1898 (Vol. I, 1969, pages 76-77). The Law Commission re-emphasizedthe need to guard against the misuse of Section 344 of the 1898 Code byfiling ‘preliminary reports’ for remanding the accused beyond the statutoryperiod prescribed under Section 167. It was pointed out that this couldBlead to serious abuse wherein “the arrested person can in this mannerbe kept in custody indefinitely while the investigation can go on ina leisurely manner.” Hence the Commission recommended fixing of amaximum time limit of 60 days for remand. The Commission consideredthe reservation expressed earlier in Report No. 37 that such an extensionCmay result in the 60 day period becoming matter of routine. However,faith was expressed that proper supervision by the superior Courts wouldhelp circumvent the same.

11.4 The suggestions made in Report No. 41 were taken note ofand incorporated by the Central Government while drafting the Code ofDCriminal Procedure Bill in 1970. Ultimately, the 1898 Code was replacedby the present CrPC. The Statement of Objects and Reasons of theCrPC provides that the Government took the following importantconsiderations into account while evaluating the recommendations ofthe Law Commission:

E“3. The recommendations of the Commission were examinedcarefully by the Government, keeping in view among others, thefollowing basic considerations:—

(i) an accused person should get fair trial in accordance withthe accepted principles of natural justice;

F(ii) every effort should be made to avoid delay in investigation andtrial which is harmful not only to the individuals involved but alsoto society; and

(iii) the procedure should not be complicated and should, to theutmost extent possible, ensure fair deal to the poorer sections ofGthe community.”

11.5 It was in this backdrop that Section 167(2) was enacted withinthe present-day CrPC, providing for time limits on the period of remandof the accused, proportionate to the seriousness of the offence committed,failing which the accused acquires the indefeasible right to bail. As is

evident from the recommendations of the Law Commission mentionedsupra, the intent of the legislature was to balance the need for sufficienttime limits to complete the investigation with the need to protect the civilliberties of the accused. Section 167(2) provides for clear mandatethat the investigative agency must collect the required evidence withinthe prescribed time period, failing which the accused can no longer bedetained. This ensures that the investigating officers are compelled toact swiftly and efficiently without misusing the prospect of further remand.This also ensures that the Court takes cognizance of the case withoutany undue delay from the date of giving information of the offence, sothat society at large does not lose faith and develop cynicism towardsthe criminal justice system.

11.6 Therefore, as mentioned supra, Section 167(2) is integrallylinked to the constitutional commitment under Article 21 promisingprotection of life and personal liberty against unlawful and arbitrarydetention, and must be interpreted in manner which serves this purpose.In this regard we find it useful to refer to the decision of the three-JudgeBench of this Court in Rakesh Kumar Paul v. State of Assam, (2017)15 SCC 67, which laid down certain seminal principles as to theinterpretation of Section 167(2), CrPC though the questions of lawinvolved were somewhat different from the present case. The questionsbefore the three-Judge Bench in Rakesh Kumar Paul were whether,firstly, the 90 day remand extension under Section 167(2)(a)(i) would beapplicable in respect of offences where the maximum period ofimprisonment was 10 years, though the minimum period was less than10 years. Secondly, whether the application for bail filed by the accusedcould be construed as an application for default bail, even though theexpiry of the statutory period under Section 167(2) had not beenspecifically pleaded as ground for bail. The majority opinion held thatthe 90 day limit is only available in respect of offences where minimumten year imprisonment period is stipulated, and that the oral argumentsfor default bail made by the counsel for the accused before the HighCourt would suffice in lieu of written application. This was based onthe reasoning that the Court should not be too technical in matters ofpersonal liberty. Madan B. Lokur, J. in his majority opinion, pertinentlyobserved as follows:

“29. Notwithstanding this, the basic legislative intent of completinginvestigations within twenty-four hours and also within an otherwise

time-bound period remains unchanged, even though that periodhas been extended over the years. This is an indication that inaddition to giving adequate time to complete investigations, thelegislature has also and always put premium on personal libertyand has always felt that it would be unfair to an accused to remainin custody for prolonged or indefinite period. It is for this reason-and also to hold the investigating agency accountable that timelimits have been laid down by the legislature…

xxx

32…Such views and opinions over prolonged period haveCprompted the legislature for more than century to ensureexpeditious conclusion of investigations so that an accused personis not unnecessarily deprived of his or her personal liberty byremaining in prolonged custody for an offence that he or she mightnot even have committed. In our opinion, the entire debate beforeus must also be looked at from the point of view of expeditiousDconclusion of investigations and from the angle of personal libertyand not from purely dictionary or textual perspective ascanvassed by the learned counsel for the State.

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E41. We take this view keeping in mind that in matters of personalliberty and Article 21 of the Constitution, it is not always advisableto be formalistic or technical. The history of the personal libertyjurisprudence of this Court and other constitutional courts includespetitions for writ of habeas corpus and for other writs beingentertained even on the basis of letter addressed to the ChiefFJustice or the Court.”

(emphasis supplied)

Therefore, the Courts cannot adopt rigid or formalistic approachwhilst considering any issue that touches upon the rights contained inArticle 21.G

11.7 We may also refer with benefit to the recent judgement ofthis Court in S. Kasi v. State Through The Inspector of PoliceSamaynallur Police Station Madurai District (Criminal Appeal No.452 of 2020 dated 19[th ]June, 2020), 2020 SCC OnLine SC 529, whereinit was observed that the indefeasible right to default bail under Section

167(2) is an integral part of the right to personal liberty under Article 21,and the said right to bail cannot be suspended even during pandemicsituation as is prevailing currently. It was emphasized that the right ofthe accused to be set at liberty takes precedence over the right of theState to carry on the investigation and submit chargesheet.

11.8 Additionally, it is well-settled that in case of any ambiguity inthe construction of penal statute, the Courts must favour theinterpretation which leans towards protecting the rights of the accused,given the ubiquitous power disparity between the individual accused andthe State machinery. This is applicable not only in the case of substantivepenal statutes but also in the case of procedures providing for thecurtailment of the liberty of the accused.

With respect to the CrPC particularly, the Statement of Objectsand Reasons (supra) is an important aid of construction. Section 167(2)has to be interpreted keeping in mind the three-fold objectives expressedby the legislature namely ensuring fair trial, expeditious investigationand trial, and setting down rationalized procedure that protects theinterests of indigent sections of society. These objects are nothing butsubsets of the overarching fundamental right guaranteed under Article21.

11.9 Hence, it is from the perspective of upholding the fundamentalright to life and personal liberty under Article 21 that we shall clarify andreconcile the various judicial interpretations of Section 167(2) for thepurpose of resolving the dilemma that has arisen in the present case.

III. The meaning of “if not already availed of” in SanjayDutt

12. One of the relevant decisions dealing with the question ofaccrual and extinguishment of the right under Section 167(2) is that ofthe two-Judge Bench in Hitendra Vishnu Thakur (supra). In that case,the Court was called upon to construe the scope of Section 20(4)(bb) ofthe Terrorist and Disruptive Activities (Prevention) Act, 1987 (‘TADA’)which is in pari materia with the Proviso to Section 36A (4) of theNDPS Act. The Court held that an accused person seeking bail underSection 20(4) of the TADA read with Section 167(2) has to make anapplication for such default bail and the Court shall release the accusedon bail if the period for filing chargesheet has expired, after notice tothe public prosecutor, uninfluenced by the merits of the case. That unless

Athe Court grants extension in time based on the report of the PublicProsecutor, the Designated Court under TADA would have no jurisdictionto deny to the accused his indefeasible right to default bail if the accusedseeks and is prepared to furnish the bail bonds as directed by the Court.Further that in such scenario, the Court is obligated to decline anyrequest for further remand. However, it was also expressly stated thatBthe Court cannot release the accused on its own motion if the accuseddoes not file any such application.

12.1 Subsequently the question of the proper construction ofSection 20(4)(bb) was referred to Constitution Bench of this Court inSanjay Dutt (supra). Reservation was expressed before this Court thatCthe decision in Hitendra Vishnu Thakur (supra) should not be held asconferring an indefeasible right on the accused to be released on defaultbail even after the final report or challan has been filed. To settle thispoint, the Constitution Bench held that:

“48…The indefeasible right accruing to the accused in such aDsituation is enforceable only prior to the filing of the challan and itdoes not survive or remain enforceable on the challan being filed,if already not availed of. Once the challan has been filed, thequestion of grant of bail has to be considered and decided onlywith reference to the merits of the case under the provisionsErelating to grant of bail to an accused after the filing of the challan.The custody of the accused after the challan has been filed is notgoverned by Section 167 but different provisions of the Code ofCriminal Procedure. If that right had accrued to the accused butit remained unenforced till the filing of the challan, then there is noquestion of its enforcement thereafter since it is extinguished theFmoment challan is filed because Section 167 CrPC ceases toapply…It is settled by Constitution Bench decisions that petitionseeking the writ of habeas corpus on the ground of absence of avalid order of remand or detention of the accused, has to bedismissed, if on the date of return of the rule, the custody orGdetention is on the basis of valid order.

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53…(2)(b) The ‘indefeasible right’ of the accused to be releasedon bail in accordance with Section 20(4)(bb) of the TADA Actread with Section 167(2) of the CrPC in default of completion of

the investigation and filing of the challan within the time allowed,as held in Hitendra Vishnu Thakur is right which enures to,and is enforceable by the accused only from the time of defaulttill the filing of the challan and it does not survive or remainenforceable on the challan being filed. If the accused applies forbail under this provision on expiry of the period of 180 days or theextended period, as the case may be, then he has to be releasedon bail forthwith. The accused, so released on bail may be arrestedand committed to custody according to the provisions of the CrPC.The right of the accused to be released on bail after filing of thechallan, notwithstanding the default in filing it within the timeallowed, is governed from the time of filing of the challan only bythe provisions relating to the grant of bail applicable at that stage.”

(emphasis supplied)

It appears that the term “if not already availed of” mentionedsupra has become bone of contention as Courts have differed in theiropinions as to whether the right to default bail is availed of and enforcedas soon as the application for bail is filed; or when the bail petition isfinally disposed of by the Court; or only when the accused actuallyfurnishes bail as directed by the Court and is released from custody.

12.2 The majority opinion in Uday Mohanlal Acharya (supra)clarified this ambiguity by holding that the expression “if not alreadyavailed of” used by this Court in Sanjay Dutt (supra) must be understoodto mean “when the accused files an application and is prepared tooffer bail on being directed”. In that case, it has to be held that theaccused has enforced his indefeasible right even though the Court hasnot considered the said application and has not indicated the terms andconditions of bail, and the accused is yet to furnish the same.

12.3 However, B.N. Agrawal, J. in his minority opinion partlydissented with the majority, particularly with respect to the conclusionsexpressed in paragraph 13.6 of Uday Mohanlal Acharya (supra). Heopined that the phrase “the accused person shall be released on bailif he is prepared to and does furnish bail” in Section 167(2)(a)(ii)(emphasis supplied) and “the accused shall be detained in custody solong as he does not furnish bail” in Explanation I to Section 167(2)indicated that the right to be released on default bail could be exercisedonly on actual furnishing of bail. Further, that the decision of the

AConstitution Bench in Sanjay Dutt (supra) should be interpreted to haveheld that if the challan is filed before any order directing release on bailis passed and before the bail bonds are furnished, the right under Section167(2) would cease to be available to the accused.

12.4 Having considered both opinions, we have arrived at theBconclusion that the majority opinion in Uday Mohanlal Acharya (supra)is the correct interpretation of the decision rendered by the ConstitutionBench in Sanjay Dutt (supra). The decision in Sanjay Dutt merely castsa positive corresponding obligation upon the accused to promptly applyfor default bail as soon as the prescribed period of investigation expires.As the decision in Hitendra Vishnu Thakur (supra) expressly cautions,Cthe Court cannot suo motu grant bail without considering whether theaccused is ready to furnish bail or not. This is an in-built safeguard withinSection 167(2) to ensure that the accused is not automatically releasedfrom custody without obtaining the satisfaction of the Court that he isable to guarantee his presence for further investigation, or for trial, asDthe case may be. Further, as the majority opinion in Rakesh KumarPaul (supra) pointed out, there could be rare occasions where the accusedvoluntarily forfeits his right to bail on account of threat to his personalsecurity outside of remand or for some other reasons. The decision inSanjay Dutt clarifies that once chargesheet is filed, such waiver ofthe right by the accused becomes final and Section 167(2) ceases toEapply.

However, the Constitution Bench decision in Sanjay Dutt cannotbe interpreted so as to mean that even where the accused has promptlyexercised his right under Section 167(2) and indicated his willingness tofurnish bail, he can be denied bail on account of delay in deciding hisFapplication or erroneous rejection of the same. Nor can he be keptdetained in custody on account of subterfuge of the prosecution in filinga police report or additional complaint on the same day that the bailapplication is filed.

12.5 The arguments of the State that the expression “availed of”Gwould only mean actual release after furnishing the necessary bail wouldcause grave injustice to the accused and would defeat the very purposeof the Proviso to Section 167(2), CrPC. If the arguments of Mr. Lekhiare accepted, there will be many instances where the Public Prosecutormight prolong the hearing of the application for bail so as to facilitate theHState to file an additional complaint or investigation report before the

Court during the interregnum. In some cases, the Court may also delaythe process for one reason or the other. In such an event, the indefeasibleright of the accused to get the order of bail in his favour would be defeated.This could not have been the intention of the legislature. If such practiceis permitted, the same would amount to deeming illegal custody as legal.After the expiry of the stipulated period, the Court has no furtherjurisdiction to remand the accused to custody. The prosecution wouldnot be allowed to take advantage of its own default of not filing theinvestigation report/complaint against the appellant within the stipulatedperiod.

12.6 It was noted by B.N.Agrawal, J. in his minority opinion inUday Mohanlal Acharya (supra) that distinction can be made betweencases where the Court has adopted dilatory tactics to defeat the right ofthe accused and where the delay in deciding the bail application is bonafide and unintentional. In case of the former, the accused could movethe superior Court for appropriate direction. Whereas in case of thelatter, the Court must dismiss the bail petition if the prosecution files thechallan in the meantime. In similar manner, the Respondent/complainantin the present case has also sought to distinguish Uday MohanlalAcharya and subsequent decisions of this Court pertaining to Section167(2) on the ground that the Trial Court considered the bail applicationon the same day it was filed, and hence there was no unjust delay whichwould make the accused entitled to be released on bail.

In our considered opinion, such distinction cannot be adoptedas it would give rise to parallel litigations necessitating separate inquiriesinto the motivation of the Court for delaying bail application, or forposting it for hearing on particular date at particular time. Delay indeciding the bail application could be due to number of factors andthere may not be clear-cut answer to the same in all circumstances.Hence irrespective of the reasons for delay in deciding the bail application,the accused is deemed to have exercised his indefeasible right uponfiling of the bail application, though his actual release from custody isinevitably subject to compliance with the order granting bail.

12.7 We agree with the view expressed in Rakesh Kumar Paul(supra) that as cautionary measure, the counsel for the accused aswell as the magistrate ought to inform the accused of the availability ofthe indefeasible right under Section 167(2) once it accrues to him, withoutany delay. This is especially where the accused is from an underprivileged

Asection of society and is unlikely to have access to information about hislegal rights. Such knowledge-sharing by magistrates will thwart anydilatory tactics by the prosecution and also ensure that the obligationsspelled out under Article 21 of the Constitution and the Statement ofObjects and Reasons of the CrPC are upheld.

BIV. The Import of Explanation I to Section 167(2), CrPC

13. It is true that Explanation I to Section 167(2), CrPC providesthat the accused shall be detained in custody so long as he does notfurnish bail. However, as mentioned supra, the majority opinion in UdayMohanlal Acharya expressly clarified that Explanation I to SectionC167(2) applies only to those situations where the accused has availed ofhis right to default bail and undertaken to furnish bail as directed by theCourt, but has subsequently failed to comply with the terms and conditionsof the bail order within the time prescribed by the Court. We find ourselvesin agreement with the view of the majority. In such scenario, if theprosecution subsequently files chargesheet, it can be said that theDaccused has forfeited his right to bail under Section 167(2), CrPC.Explanation I is only safeguard to ensure that the accused is notimmediately released from custody without complying with the bail order.

13.1 However, the expression ‘the accused does furnish bail’ inSection 167(2) and Explanation I thereto cannot be interpreted to meanEthat if the accused, in spite of being ready and willing, could not furnishbail on account of the pendency of the bail application before theMagistrate, or because the challenge to the rejection of his bail applicationwas pending before higher forum, his continued detention in custody isauthorized. If such an interpretation is accepted, the application of theFProviso to Section 167(2) would be narrowly confined only to thosecases where the Magistrate is able to instantaneously decide the bailapplication as soon as it is preferred before the Court, which maysometimes not be logistically possible given the pendency of the docketacross courts or for other reasons. Moreover, the application for bail hasto be decided only after notice to the public prosecutor. Such strictGinterpretation of the Proviso would defeat the rights of the accused.Hence his right to be released on bail cannot be defeated merely becausethe prosecution files the chargesheet prior to furnishing of bail and fulfilthe conditions of bail of furnishing bonds, etc., so long as he furnishesthe bail within the time stipulated by the Court.

13.2 Hence we reject Mr. Lekhi’s argument that the Appellant-accused is not entitled to the protection of Section 167(2), CrPC if hehas not furnished bail at the time the additional complaint was filed.

V. Rights of the Prosecutor under Section 167(2), CrPCread with Section 36(A) (4), NDPS Act

14. There also appears to be some controversy on account of theopinion expressed in Hitendra Vishnu Thakur (supra) that the PublicProsecutor may resist grant of default bail by filing report seekingextension of time for investigation. The Court held that:

“30…It is, however, permissible for the public prosecutor to resistthe grant of bail by seeking an extension under clause (bb) byfiling report for the purpose before the court. However, noextension shall be granted by the court without notice to anaccused to have his say regarding the prayer for grant of extensionunder clause (bb). In this view of the matter, it is immaterialwhether the application for bail on ground of ‘default’ underSection 20(4) is filed first or the report as envisaged by clause(bb) is filed by the public prosecutor first so long as both areconsidered while granting or refusing bail. If the period prescribedby clause (b) of Section 20(4) has expired and the court does notgrant an extension on the report of the public prosecutor madeunder clause (bb), the court shall release the accused on bail asit would be an indefeasible right of the accused to be so released.Even where the court grants an extension under clause (bb) butthe charge-sheet is not filed within the extended period, thecourt shall have no option but to release the accused on bail if heseeks it and is prepared to furnish the bail as directed by thecourt...”

(emphasis supplied)

This was affirmed by the Constitution Bench in Sanjay Dutt(supra), wherein it was held that the grant of default bail is subject torefusal of the prayer for extension of time, if such prayer is made. Thisseems to have given rise to the misconception that Sanjay Dutt (supra)endorses the view that the prosecution may seek extension of time (asprovided for under the relevant special statute) for completing theinvestigation or file final report at any time before the accused is released

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Aon bail, notwithstanding the fact that bail application on ground of defaulthas already been filed.

14.1 The observations made in Hitendra Vishnu Thakur (supra)and Sanjay Dutt (supra) to the effect that the application for defaultbail and any application for extension of time made by the PublicBProsecutor must be considered together are, in our opinion, only applicablein situations where the Public Prosecutor files report seeking extensionof time prior to the filing of the application for default bail by the accused.In such situation, notwithstanding the fact that the period for completionof investigation has expired, both applications would have to be consideredtogether. However, where the accused has already applied for defaultCbail, the Prosecutor cannot defeat the enforcement of his indefeasibleright by subsequently filing final report, additional complaint or reportseeking extension of time.

14.2 It must also be added and it is well settled that issuance ofnotice to the State on the application for default bail filed under theDProviso to Section 167(2) is only so that the Public Prosecutor can satisfythe Court that the prosecution has already obtained an order of extensionof time from the Court; or that the challan has been filed in the designatedCourt before the expiry of the prescribed period; or that the prescribedperiod has actually not expired. The prosecution can accordingly urgeEthe Court to refuse granting bail on the alleged ground of default. Suchissuance of notice would avoid the possibility of the accused obtainingdefault bail by deliberate or inadvertent suppression of certain facts andalso guard against multiplicity of proceedings.

However, Public Prosecutors cannot be permitted to misuse theFlimited notice issued to them by the Court on bail applications filed underSection 167(2) by dragging on proceedings and filing subsequentapplications/reports for the purpose of ‘buying extra time’ and facilitatingfilling up of lacunae in the investigation by the investigating agency.

VI. Other Relevant Precedents pertaining to the right underGSection 167(2)

15. We are fortified in our aforementioned conclusions by thethree-Judge Bench decision of this Court in Mohamed Iqbal MadarSheikh v. State of Maharashtra, (supra). In that case, though thechargesheet was submitted after expiry of the statutory period underSection 20(4)(bb) of the TADA Act, it was admitted that no priorH

application for bail had been filed by the appellants. Hence the Courtheld, relying upon Sanjay Dutt, that the right to bail could not be exercisedonce the chargesheet has been submitted and cognizance has been taken.

However, at the same time, the three-Judge Bench also expressedwith consternation that Courts cannot engage in practices such as keepingthe applications for bail pending till the time chargesheets are submitted,so that the statutory right which has accrued to the accused is defeated.If the Court deliberately does not decide the bail application but adjournsthe case by granting time to the prosecution, it would be in violation ofthe legislative mandate. It may be pertinent to note that the three-JudgeBench in Mohamed Iqbal Madar Sheikh had also been part of theConstitution Bench in Sanjay Dutt.

15.1 Similarly, in Dr. Bipin Shantilal Panchal (supra), it wasadmitted that the accused had not filed an application for bail at the timethe right under Section 167(2), CrPC had accrued to him. The chargesheethad already been filed by the time the accused sought to avail of hisright. Incidentally, the same three-Judge Bench which had delivered theopinion in Mohamed Iqbal Madar Sheikh (supra), and which was partof the original Constitution Bench in Sanjay Dutt (supra), renderedjudgment as follows:

“4…But it is an admitted position that the charge-sheet has beenfiled on 23-5-1994 and now the appellant is in custody on thebasis of orders of remand passed under the other provisions ofthe Code. Whether the accused who was entitled to be released-on bail under proviso to subsection (2) of Section 167 of theCode, not having made an application when such right had accrued,can exercise that right at later stage of the proceeding, has beenexamined by Constitution Bench of this Court in the caseof Sanjay Dutt v. State through CBI…

…Therefore, if an accused person fails to exercise his right to bereleased on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contendthat he had an indefeasible right to exercise it at any timenotwithstanding the fact that in the meantime the charge-sheet isfiled. But on the other hand if he exercises the right within thetime allowed by law and is released on bail under suchcircumstances, he cannot be rearrested on the mere filing of the

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[2020] 12 S.C.R.

Acharge-sheet, as pointed out in Aslam Babalal Desai v. State ofMaharashtra.”

(emphasis supplied)

The above-mentioned discussion clearly corroborates our view,and the view taken by the majority in Uday Mohanlal Acharya, thatBthe decision in Sanjay Dutt only lays down as precautionary principlethat the accused must apply for default bail the moment the right underSection 167(2) accrues to him. If he fails to do so, he cannot claim theright at subsequent stage of the proceedings after the prosecution hasfiled chargesheet. The words “not having made an application whenCsuch right had accrued, can exercise that right at later stage”clearly indicate that the accused is deemed to have exercised his right tobail once he makes an application for the same.15.2 It is useful to refer to the decisions of this Court in Mohd.Ashraft Bhat (supra); Ateef Nasir Mulla v. State of Maharashtra,D(2005) 7 SCC 29; and Mustaq Ahmed Mohammed Isak v. State ofMaharashtra, (2009) 7 SCC 480. In Mohd. Ashraft Bhat, the Courtrejected the application for bail as the police report already stoodsubmitted. Reliance was placed upon Sanjay Dutt (supra). Similarly, inAteef Nasir Mulla the Court held that since the order granting extensionof time under Section 49(2)(b) of the Prevention of Terrorism Act, 2002E(‘POTA’), which is in pari materia with the Proviso to Section 36A (4)of the NDPS Act, had been passed prior to the application for defaultbail, the accused would not be entitled to bail. In Mustaq AhmedMohammed Isak, the Court similarly rejected the application for bailunder Section 21(2)(b) of the Maharashtra Control of Organised CrimeFAct, 1999 as the chargesheet was filed on the same day, but which wasthe last day of the extended period granted by the Special Court andhence within the statutory time limit.

15.3 On the other hand in Sayed Mohd. Ahmad Kazmi v. State(Government of NCT of Delhi), (2012) 12 SCC 1, the accused filed anGapplication for default bail on 17.7.2012. The Chief MetropolitanMagistrate, instead of hearing the application on the said date, re-notifiedthe hearing for 18.7.2012. On 18.7.2012, the State filed an applicationseeking extension of remand under Section 43-D (2)(b) of the UnlawfulActivities (Prevention) Act, 1967 (‘UAPA’) which is also in pari materiawith the Proviso to Section 36A (4) of the NDPS Act. The MagistrateH

took up both matters on 20.7.2012 and allowed the application forextension of custody with retrospective effect from 2.6.2012 withoutconsidering the application under Section 167(2), CrPC. Subsequently,the chargesheet was filed on 31.7.2012. It was contended by the learnedAdditional Solicitor General, in reliance upon Sanjay Dutt, that the rightto statutory bail stood extinguished once the application for extension oftime was filed.

The three-Judge Bench rejected the aforesaid contention and heldthat the right of the accused to statutory bail, which was exercised at thetime his bail application was filed, remained unaffected by the subsequentapplication for extension of time to complete investigation. Further, theCourt expressly censured the dilatory tactic adopted by the Magistratein that case in the following words:

“25. Having carefully considered the submissions made on behalfof the respective parties, the relevant provisions of law and thedecision cited, we are unable to accept the submissions advancedon behalf of the State by the learned Additional Solicitor GeneralMr Raval. There is no denying the fact that on 17-7-2012, whenCR No. 86 of 2012 was allowed by the Additional Sessions Judgeand the custody of the appellant was held to be illegal and anapplication under Section 167(2) CrPC was made on behalf ofthe appellant for grant of statutory bail which was listed for hearing.Instead of hearing the application, the Chief MetropolitanMagistrate adjourned the same till the next day when the PublicProsecutor filed an application for extension of the period ofcustody and investigation and on 20-7-2012 extended the time ofinvestigation and the custody of the appellant for further periodof 90 days with retrospective effect from 2-6-2012. Not only isthe retrospectivity of the order of the Chief Metropolitan Magistrateuntenable, it could not also defeat the statutory right which hadaccrued to the appellant on the expiry of 90 days from the datewhen the appellant was taken into custody. Such right, as hasbeen commented upon by this Court in Sanjay Dutt and the othercases cited by the learned Additional Solicitor General, could onlybe distinguished (sic extinguished) once the charge-sheet had beenfiled in the case and no application has been made prior theretofor grant of statutory bail. It is well-established that if an accuseddoes not exercise his right to grant of statutory bail before the

DEF

charge-sheet is filed, he loses his right to such benefit once suchcharge-sheet is filed and can, thereafter, only apply for regularbail.

26. The circumstances in this case, however, are different in thatthe appellant had exercised his right to statutory bail on the veryBsame day on which his custody was held to be illegal and such anapplication was left undecided by the Chief MetropolitanMagistrate till after the application filed by the prosecution forextension of time to complete investigation was taken up and orderswere passed thereupon.

27. We are unable to appreciate the procedure adopted by theChief Metropolitan Magistrate, which has been endorsed by theHigh Court and we are of the view that the appellant acquired theright for grant of statutory bail on 17-7-2012, when his custodywas held to be illegal by the Additional Sessions Judge since hisapplication for statutory bail was pending at the time when theapplication for extension of time for continuing the investigationwas filed by the prosecution. In our view, the right of the appellantto grant of statutory bail remained unaffected by the subsequentapplication and both the Chief Metropolitan Magistrate and theHigh Court erred in holding otherwise.”

(emphasis supplied)

15.4 Similarly, in Union of India v. Nirala Yadav, (2014) 9 SCC457, the accused filed application for default bail on 14.3.2007. The Statefiled application seeking extension of time under Section 49(2)(b) of thePOTA on 15.3.2007. However, no order was passed on either application.FIn the meanwhile, the chargesheet was filed on 26.3.2007. On 3.4.2007the Special Judge took up both applications and retrospectively extendedthe time for filing of the chargesheet. It was contended by the UnionGovernment that according to the decision in Sanjay Dutt, the indefeasibleright to bail was totally destroyed as no order on bail was passed beforeGthe chargesheet was filed.

The Court noted that the prosecution had not filed any applicationfor extension prior to the date of expiry of 90 days. It was further observedthat “had an application for extension been filed, then the matterwould have been totally different”. The Court ultimately held that theMagistrate was obligated to deal with the application for default bail onH

the day it was filed. Hence the Court, in reliance upon Uday MohanlalAcharya, upheld the order of the High Court granting default bail to theaccused.

16. Mr. Lekhi pressed into service the judgment of this Court inPragyna Singh Thakur v. State of Maharashtra, (2011) 10 SCC 445,wherein it was held, in reliance upon Sanjay Dutt (supra), that wherean application for bail is filed on the ground of non-filing of the chargesheetwithin the prescribed period, the said right to bail would be extinguishedif the prosecution subsequently files chargesheet before considerationof the application and the release of the accused. Thereafter, the releaseof the accused on bail can only be on merits. Though the learned JudgesinPragyna Singh Thakur (supra) had referred to the Uday MohanlalAcharya case, they have expressed completely contrasting opinion asmentioned supra.

16.1 It ought to be noted that in Pragyna Singh Thakur, thelearned Judges had concluded on the facts of that case that thechargesheet had been filed within 90 days from the first order of remandof the accused to custody. The aforementioned observations on theextinguishment of the right to default bail were only made as obiter, inthe form of hypothetical arguendo, and hence cannot be said as layingdown binding precedent as such. However in any case, given that thedecision continues to be relied upon by the State, we must clarify that inour considered opinion, the observations made in Pragyna Singh Thakurrun counter to the principles laid down in the judgments rendered bylarger Benches.16.2 It is pertinent to note that the two-Judge Bench in NiralaYadav (supra) has already illuminated that the principles stated by theearlier co-ordinate Bench in Pragyna Singh Thakur, particularly inparagraphs 54 and 58 of the decision, do not state the correct position oflaw. Having studied both opinions, we are constrained to conclude andhold that the position as stated in Nirala Yadav is correct. We find thatthe opinion expressed in Pragyna Singh Thakur that the right to bailcan be considered only on merits once the chargesheet is filed, is basedon an erroneous interpretation of the conclusions of the ConstitutionBench in Sanjay Dutt. As mentioned supra, the expression “if not alreadyavailed of” used in the Constitution Bench decision has beenmisinterpreted by the Courts, including the two-Judge Bench in PragynaSingh Thakur, to mean that the accused can only avail of the right to

Adefault bail if he is actually released prior to the filing of the chargesheet.However, this Court in Uday Mohanlal Acharya (supra) has correctlyunderstood and analysed the principles stated in the case of SanjayDutt before coming to its conclusion as stated above.

We are of the firm opinion that the view taken in Uday MohanlalBAcharya is binding precedent. It has been followed by subsequentthree-Judge Bench in Sayed Mohd. Ahmad Kazmi (supra). Hence,the opinion rendered by the two-Judge Bench in paragraphs 54 and 58of Pragyna Singh Thakur, to the effect that “even if an applicationfor bail is filed on the ground that charge-sheet was not filed within90 days, but before consideration of the same and before beingCreleased on bail, the said right to be released on bail would be lost”or “can only be on merits”, must be held per incuriam.

16.3 Quite recently, in the case of Bikramjit Singh v. State ofPunjab (Criminal Appeal No.667 of 2020 dated 12[th] October, 2020),2020 SCC OnLine SC 824, dealing with similar question which arose inDan application for default bail under the UAPA, three-Judge Bench ofthis Court, after considering the various judgments on the point, observedthus:-

“A conspectus of the aforesaid decisions would show that so longas an application for grant of default bail is made on expiry of theEperiod of 90 days (which application need not even be in writing)before charge sheet is filed, the right to default bail becomescomplete. It is of no moment that the Criminal Court in questioneither does not dispose of such application before the charge sheetis filed or disposes of such application wrongly before such chargeFsheet is filed. So long as an application has been made for defaultbail on expiry of the stated period before time is further extendedto the maximum period of 180 days, default bail, being anindefeasible right of the accused under the first proviso to Section167(2), kicks in and must be granted.”

GThis decision in Bikramjit Singh ensures that the rigorous powersconferred under special statutes for curtailing liberty of the accused arenot exercised in an arbitrary manner.

At the cost of repetition, it must be emphasized that the paramountconsideration of the legislature while enacting Section 167(2) and theProviso thereto was that the investigation must be completedH

expeditiously, and that the accused should not be detained for anunreasonably long period as was the situation prevailing under the 1898Code. This would be in consonance with the obligation cast upon theState under Article 21 to follow fair, just and reasonable procedureprior to depriving any person of his personal liberty.

Conclusion

17. In the present case, admittedly the Appellant-accused hadexercised his option to obtain bail by filing the application at 10:30 a.m.on the 181[st] day of his arrest, i.e., immediately after the court opened, on01.02.2019. It is not in dispute that the Public Prosecutor had not filedany application seeking extension of time to investigate into the crimeprior to 31.01.2019 or prior to 10:30 a.m. on 01.02.2019. The PublicProsecutor participated in the arguments on the bail application till 4:25p.m. on the day it was filed. It was only thereafter that the additionalcomplaint came to be lodged against the Appellant.

Therefore, applying the aforementioned principles, the Appellant-accused was deemed to have availed of his indefeasible right to bail, themoment he filed an application for being released on bail and offered toabide by the terms and conditions of the bail order, i.e. at 10:30 a.m. on01.02.2019. He was entitled to be released on bail notwithstanding thesubsequent filing of an additional complaint.

17.1 It is clear that in the case on hand, the State/the investigatingagency has, in order to defeat the indefeasible right of the accused to bereleased on bail, filed an additional complaint before the concerned courtsubsequent to the conclusion of the arguments of the Appellant on thebail application.If such practice is allowed, the right under Section167(2) would be rendered nugatory as the investigating officers coulddrag their heels till the time the accused exercises his right andconveniently files an additional complaint including the name of theaccused as soon as the application for bail is taken up for disposal. Suchcomplaint may be on flimsy grounds or motivated merely to keep theaccused detained in custody, though we refrain from commenting on themerits of the additional complaint in the present case. Irrespective of theseriousness of the offence and the reliability of the evidence available,filing additional complaints merely to circumvent the application for defaultbail is, in our view, an improper strategy.

AHence, in our considered opinion, the High Court was not justifiedin setting aside the judgment and order of the Trial Court releasing theaccused on default bail.

17.2 We also find that the High Court has wrongly entered intomerits of the matter while coming to the conclusion. The reasons assignedBand the conclusions arrived at by the High Court are unacceptable.

18. Therefore, in conclusion:

18.1Once the accused files an application for bail under theProviso to Section 167(2) he is deemed to have ‘availed of’or enforced his right to be released on default bail, accruingafter expiry of the stipulated time limit for investigation.Thus, if the accused applies for bail under Section 167(2),CrPC read with Section 36A (4), NDPS Act upon expiry of180 days or the extended period, as the case may be, theCourt must release him on bail forthwith without anyunnecessary delay after getting necessary information fromthe public prosecutor, as mentioned supra. Such promptaction will restrict the prosecution from frustrating thelegislative mandate to release the accused on bail in caseof default by the investigative agency.

E18.2The right to be released on default bail continues toremain enforceable if the accused has applied for such bail,notwithstanding pendency of the bail application; orsubsequent filing of the chargesheet or report seekingextension of time by the prosecution before the Court; orfiling of the chargesheet during the interregnum whenFchallenge to the rejection of the bail application is pendingbefore higher Court.

18.3However, where the accused fails to apply for defaultbail when the right accrues to him, and subsequently achargesheet, additional complaint or report seekingextension of time is preferred before the Magistrate, theright to default bail would be extinguished. The Magistratewould be at liberty to take cognizance of the case or grantfurther time for completion of the investigation, as the casemay be, though the accused may still be released on bailunder other provisions of the CrPC.

18.4Notwithstanding the order of default bail passed by theACourt, by virtue of Explanation I to Section 167(2), the actualrelease of the accused from custody is contingent on thedirections passed by the competent Court granting bail. Ifthe accused fails to furnish bail and/or comply with the termsand conditions of the bail order within the time stipulated byBthe Court, his continued detention in custody is valid.

19. Hence the impugned judgment of the High Court stands setaside and the Trial Court judgment stands confirmed. However, weadditionally direct that apart from furnishing the sureties as directed bythe Trial Court, the Appellant-accused should also surrender his passport,undertake to report to the Respondent Directorate when required forpurposes of investigation, and also undertake to not leave Chennai citylimits without the leave of the Trial Court. This should alleviate anyconcerns about the Appellant absconding from the jurisdiction of theCourt.

20. The appeal is allowed accordingly.

Kalpana K. Tripathy

Appeal allowed.