Page 183 - ELT_15th July 2020_Vol 373_Part 2

2020 ] INTELLIGENCE OFFICER, DRI, CHENNAI v. M. RAVINDRAN 165

tional complaint, since two further accused had been included and whether pro-
cess is to be served on them or not and whether additional documents can be
taken into consideration or not. The Learned Judge only examined the petition
under Section 167(2) of Cr.P.C., which itself was filed only on the 181st day and
stating that an indefeasible right had accrued to the respondent/A11, the
Learned Judge had granted bail.
10. Before this Court reliance has been placed on (1994) 5 SCC 410, San-
jay Dutt v. The State, through C.B.I. Bombay, wherein the Honourable Constitution
Bench of the Supreme Court had held in similar circumstances where the challan was
filed, that the indefeasible right does not survive once challan had been filed, if already not
availed of. Paragraph 50 is as follows :
“We have no doubt that the common stance before us of the nature of
indefeasible right of the accused to be released on bail by virtue of Section
20(4)(bb) is based on a correct reading of the principle indicated in that de-
cision. The indefeasible right accruing to the accused in such a situation is enforce-
able only prior to the filing of the challan and it does not survive or remain enforce-
able on the challan being filed, if already not availed of. Once the challan has
been filed, the question of grant of bail has to be considered and decided
only with reference to the merits of the case under the provisions relating 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 not governed by Section 167 but different
provisions of the Code of Criminal Procedure. If that right had accrued to the
accused but it remained unenforced till the filing of the challan, then there
is no question of its enforcement thereafter since it is extinguished the mo-
ment challan is filed because Section 167 Cr.P.C., ceases to apply.”
[Emphasis Supplied]
11. The term if already not availed has been further examined in (2001) 2
SCC 453, Uday Mohanlal Acharya v. State of Maharashtra. In the said judgment, the
Hon’ble Supreme Court had finally recorded their conclusions as follows :
“1. Under sub-section (2) of Section 167, a Magistrate before whom an
accused is produced while the police is investigating into the offence can
authorise detention of the accused in such custody as the Magistrate thinks
fit for a term not exceeding 15 days on the whole.
2. Under the proviso to the aforesaid sub-section (2) of Section 167, the
Magistrate may authorise detention of the accused otherwise than in the
custody of police for a total period not exceeding 90 days where the inves-
tigation relates to offence punishable with death, imprisonment for life or
imprisonment for a term of not less than 10 years, and 60 days where the
investigation relates to any other offence.
3. On the expiry of the said period of 90 days or 60 days, as the case
may be, an indefeasible right accrues in favour of the accused for being released on
bail on account of default by the investigating agency in the completion of the in-
vestigation within the period prescribed and the accused is entitled to be re-
leased on bail, if he is prepared to and furnishes the bail as directed by the
Magistrate.
4. When an application for bail is filed by an accused for enforce-
ment of his indefeasible right alleged to have been accrued in his favour on
account of default on the part of the investigating agency in completion of
the investigation within the specified period, the Magistrate/court must
dispose of it forthwith, on being satisfied that in fact the accused has been
EXCISE LAW TIMES  15th July 2020  183