Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 8800386163
In Uday Mohanlal Acharya's case (supra) the Court culled out six guidelines, which are 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 investigation 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 investigation within the period prescribed and the Accused is entitled to be released 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 enforcement 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 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.
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 investigation 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 v. State through CBI, MANU/SC/0554/1994 : (1994) 5 SCC 410, 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.
IN THE SUPREME COURT OF INDIA
Appeal (crl.) 394 of 2001
Decided On: 29.03.2001
Uday Mohanlal Acharya vs. State of Maharashtra
Hon'ble Judges/Coram:
G.B. Pattanaik, U.C. Banerjee and B.N. Agrawal, JJ.
Citation: (2001) 5 SCC 453.
