Page 184 - ELT_15th July 2020_Vol 373_Part 2

166 EXCISE LAW TIMES [ Vol. 373

in custody for the period of 90 days or 60 days, as specified and no charge-
sheet has been filed by the investigating agency. Such prompt action on the
part of the Magistrate/Court will not enable the prosecution to frustrate the
object of the Act and the legislative mandate of an accused being released
on bail on account of the default on the part of the investigating agency in
completing the investigation within the period stipulated.
[Emphasis Supplied]
5. If the accused is unable to furnish the bail as directed by the Magistrate,
then on a conjoint reading of Explanation I and the proviso to sub-section (2) of
Section 167, the continued custody of the accused even beyond the specified period
in para (a) will not be unauthorised, and therefore, if during that period the inves-
tigation is complete and the charge-sheet is filed then the so-called indefeasible right
of the accused would stand extinguished.
6. The expression “if not already availed of” used by this Court in Sanjay
Dutt case [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] must be understood to mean
when the accused files an application and is prepared to offer bail on being directed.
In other words, on expiry of the period specified in para (a) of the proviso to sub-
section (2) of Section 167 if the accused files an application for bail and offers also
to furnish the bail on being directed, then it has to be held that the accused has
availed of his indefeasible right even though the court has not considered the said
application and has not indicated the terms and conditions of bail, and the accused
has not furnished the same.
With the aforesaid interpretation of the expression “availed of” if the charge-
sheet is filed subsequent to the availing of the indefeasible right by the accused then
that right would not stand frustrated or extinguished, necessarily therefore, if an
accused entitled to be released on bail by application of the proviso to sub-section
(2) of Section 167, makes the application before the Magistrate, but the Magistrate
erroneously refuses the same and rejects the application and then the accused moves
the higher forum and while the matter remains pending before the higher forum for
consideration a charge-sheet is filed, the so-called indefeasible right of the accused
would not stand extinguished thereby, and on the other hand, the accused has to be
released on bail. Such an accused, who thus is entitled to be released on bail
in enforcement of his indefeasible right will, however, have to be produced
before the Magistrate on a charge-sheet being filed in accordance with Sec-
tion 209 and the Magistrate must deal with him in the matter of remand to
custody subject to the provisions of the Code relating to bail and subject to
the provisions of cancellation of bail, already granted in accordance with
the law laid down by this Court in the case of Mohd. Iqbal v. State of Maha-
rashtra [(1996) 1 SCC 722 : 1996 SCC (Cri) 202].”
[Emphasis Supplied]
12. It is argued by the Learned Counsel for the respondent that since
the application had been filed in the Morning at 10.30 a.m. and since the prosecu-
tion had filed their additional complaint only in the Evening at 4.25 p.m., the bail
granted is correct since the accused had already availed of his remedy to be re-
leased under Section 167(2) of Cr.P.C. However, in the Criminal Rules of Practice
and Circular Orders, 1958, as made by the High Court for guidance of all criminal
Courts in this State, definition of hours of sitting is as follows :-
“2. Hours of sitting. - The Court shall ordinarily be from 10.00 a.m.
to 5.30 p.m. with an interval for lunch from 1.15 p.m. to 2.00 p.m.
Every Sessions Judge and Magistrate shall ordinarily commence the
sitting not later than 11.00 a.m. each day and unless work of the day is dis-
posed of earlier shall not rise except for a brief interval of luncheon before
EXCISE LAW TIMES  15th July 2020  184