UDAY MOHANLAL ACHARYA versus STATE OF MAHARASIITRA

Citation: [2001] 2 S.C.R. 878 · Decided: 29-03-2001 · Supreme Court of India · Bench: G.B. PATTANAIK · Disposal: Appeal(s) allowed

Cited by 11 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

) 
A 
UDAY MOHANLAL ACHARYA 
--< 
,.
v. 
STATE OF MAHARASIITRA 
MARCH, 29, 2001 
B 
[G.B. PAITANAIK, U.C. BANERJEE AND B.N. AGRAWAL, JJ.] 
Code of Criminal Procedure, 1973 : 
...,.. 
Section 167(2), Proviso-Detention of an accused-Maximum period-
c 
Prescription of-Challan not filed within the stipulated time-Consequence 
of-Held, an indefeasible right to be released on bail accrues to the accused-
Such indefeasible right not surviving or remaining enforceable on the challan 
being filed, if already not availed of-Expression 'if already not availed of-
Meaning of-Held, an accused can be said to have availed of his indefeasible 
right if he is prepared to and furnish the bail, as directed by the Magistrate-
D 
Filing of challan aJ this stage will not take away the indefeasible right of the 
accused-However, if the accused is unable to furnish bail, as directed by the 
Magistrale, he cannot be, held to have availed of his indefeasible right-
During such period if challan is filed, the indefeasible right of the accused 
would stand extinguished-Sections 56, 57, 154, 167, 173, 209(b), 309(2), 436, 
E 
437(5), 439-Constitution of India, 1950-Articles 21, 22(2)-Maharashtra 
;.. 
Protection of Interest of Depositors (Financial Establishment) Act, 1999-
Sections 3, 13, 14-lndian Penal Code, 1860-Sections 406, 420-Terrorist 
and Disruptive Activities Act-Section 20(4)(b). 
Respondent-State filed a complaint in the Court of Special Judge for 
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prosecution of appellant for the offences under Sections 406 and 420 of the 
Indian Penal Code read with Section 3 of the Maharashtra Protection of 
Interest of Depositors (Financial Establishment) Act, 1999. Appellant sur-
~ 
rendered before the Special Judge and was remanded to judicial custody. 
No challan was filed within the statutory period or sixty days. On the very 
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next day or the completion or the period or sixty days, an application for 
being released on ball was Ried on behalf of the appellant alleging that 
non-ftllng of challan within 60 days entitled him to be released on ball 
under proviso to S~tlon 167(2) of the Code or Criminal Procedure, 1973. 
1'he said application was rejected by the Special Judge on the same day on ... 
the ground that the provisions of Section 167(2) or the Code of Criminal 
H 
Procedure bad no application to cases pertaining to the Maharashtra 
878 
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U.M. ACHARYA v. STATE 
879 
Protection of Interest of Depositors (Financial Establishment) Act. There-
A 
after, appellant preferred a Criminal Application before the High Court 
which was placed for bearing before a Division Bench. The Division Bench 
adjourned the matter for conclusion of the arguments. In the meanwhile, 
cballan was filed before the Special Judge. The Division Bench of the High 
Court held that proviso to Section 167(2) of the Code of Criminal Proce-
B 
dure was applicable even to cases filed for prosecution of an accused for 
offences under the Maharashtra Protection of Interest of Depositors (Fi-
nancial Establishment) Act. However, as cballan had already been filed, 
the prayer for bail was rejected. Hence the present appeal. 
On behalf of the appellant, it was contended that the legislative c 
mandate conferring right on the accused to be released on bail on the 
expiry of the period contemplated under Proviso to sub-section (2) of 
Section 167 Cr.P.C. could not be nullified by keeping the matter pending 
for passing of an order, allowing the prosecution to file a charge sheet; that 
the expression 'shall be released on bail' in the said Proviso not only 
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conferred indefeasible right on the accused but also cast duty on the 
Magistrate since the Magistrate would not be entitled to remand the ac-
cused any further, that if an accused had not made any application for 
being released on bail, notwithstanding the fact, that charge sheet had not 
been filed within the stipulated period, he would not be entitled to file the 
same after filing of the challan; that if the accused had filed the application 
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for bail and was prepared to offer and furnish the bail, then subsequent 
filing of challan would not take away the accrued right of the accused 
merely because the Magistrate or any other Court bad not passed the 
order, or the accused had not been factually released; and that the passing 
of an order of bail under Proviso to sub·Section (2) of Section 167 was 
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merely a clerical act of the concerned Magistrate or the Court in imple· 
mentation of th

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