Sec 167 (2) CrPC | After Filing of Charge Sheet and Cognizance by Magistrate Application For Default Bail is Not Maintainable: Allahabad HC

The Allahabad HC at Lucknow on Monday ruled that, after filing of charge sheet and cognizance by magistrate application for default bail under Section 167(2)(a) CrPC is not maintainable.

The bench of Justice Ajai Kumar Srivastava was dealing with the application filed to quash and set aside the impugned order passed by the Additional District and Sessions Judge and to release the applicant on default bail in connection with Case Crime registered under 153A, 153B, 295A, 417, 298, 121A, 123 and 120B of the IPC and sections 3, 5 and 8 of The Prohibition of Unlawful Religious Conversion Act, 2021.

In this case, the applicant, Sallahuddin was arrested on 30.06.2021 in connection with Crime No.9/2021 under Sections 420, 120B, 153A, 153B, 295A, 511 I.P.C. and 3/5 Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act 2021.

This charge sheet against the applicant was filed on 48th day from the date of first remand, which was well within the prescribed period under proviso (a) to Section 167(2) Cr.P.C.

During the course of further investigation, the offence under Sections 121-A and 123 I.P.C. were added on 31.08.2021 and the remand was obtained on 01.09.2021 for the offence under Sections 121-A and 123 I.P.C.

Sri Arsh R. Shaikh, Counsel for the applicant submitted that, the applicant was entitled to default bail as investigation was not concluded within sixty days. The investigating agency, only to deprive the applicant of his right of getting default bail, moved an application for adding Section 121A and 123 I.P.C. with a view to extend the time limit of investigation upto 90 days.

Sri Shiv Nath Tilhari, A.G.A for the State submitted that, both the charge sheets were filed well within the time prescribed under Section 167 Cr.P.C. and, therefore, the applicant has no right to claim default bail. The prayer for default bail itself is not maintainable as the charge sheet was filed well within time. The right of being enlarged on bail under Section 167 Cr.P.C., arises only when the charge sheet is not filed within time.

Sri Tilhari added that that the contention of the applicant to the effect that the addition/ alteration of the other sections during investigation is not permissible under Cr.P.C., is neither acceptable nor tenable in the eyes of law as Section 173(8) Cr.P.C. permits the further investigation in respect of an offence even after the report under sub Section 2 of Section 173 Cr.P.C. has been forwarded to the Magistrate. Therefore, the filing of the first charge sheet and thereafter undertaking further investigation was legally sustainable and filing of supplementary charge sheet, well within ninety days from the date of first remand was within the domain of the investigating agencies. There is no illegality in filing the first charge sheet dated 13.08.2021 in the court below on 18.08.2021 and the supplementary charge sheet in court below on 17.09.2021 because the first charge sheet was filed on 48th day and supplementary charge sheet was filed on 79th day.

It was further contended that contended that it would not be open to accused to claim that he is entitled to bail under proviso (a) to Section 167(2) Cr.P.C. even if charge sheet is filed within time or the charge sheet is filed before any time prior to filing of application for default bail and making any submission that accused is prepared to furnish bail. In the present case, both the conditions are not available. Charge sheet was filed within ninety days. Further, the application for default bail being moved on 13.04.2022 does not entitle the applicant in any manner to get the default bail.

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The issue for consideration before the bench was:

Whether an Application seeking Default Bail under Section 167(2)(a) CrPC is maintainable after filing of chargesheet and cognizance is taken?

The High Court observed that “the application seeking default bail came to be filed by the applicant on 13.04.2022 after filing of charge sheet/ supplementary charge sheet and even after cognizance of the matter was taken by the court below. Therefore, the application seeking default bail under proviso (a) to Section 167(2) Cr.P.C. was not maintainable. The question that whether sanction was necessary or not or whether sanction was obtained or not, does not appear to be material in view of admitted fact that the application seeking default bail by the applicant came to be filed after cognizance was taken by the trial court. The first charge sheet was filed on 13.08.2021 and the supplementary charge sheet was filed on 17.09.2021. Therefore, this Court does not find any substance in the submissions of counsel for the applicant to the effect that the applicant was wrongly denied default bail to which he was entitled to get in this matter.”

The Court referred to the Judgment of Kerala HC’s Division Bench in the case of Abdul Azeez vs. National Investigation Agency, (2014) 144 AIC 380, wherein it was held that in case, after further investigation under Section 173(8) Cr.P.C., any supplementary charge sheet is submitted, in such a case it cannot be said that filing of such supplementary charge sheet within statutorily stipulated period is designed to defeat the right of an accused to get default bail.

Thus, the court conculded that the impugned order dated 27.04.2022, whereby the Special Court has rejected the application moved by the applicant seeking default bail does not suffer from any illegality.

In view of the above, the High Court rejected the application.

Case Title: Sallahuddin v. State Of U.P.

Bench: Justice Ajai Kumar Srivastava

Case No.: APPLICATION U/S 482 No. – 2958 of 2022

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