LexUNION OF INDIA THROUGH CBI versus NIRALA YADAV @ RAJA RAM YADAV @ DEEPAK YADAV
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A. B [2014) 6 S.C.R. 148 UNION OF INDIA THROUGH CBI v. NIRALA Y,ADAV @ RAJA RAM YADAV @ DEEPAK YADAV (Criminal Appeal No. 786 of 2010) JUNE 30, 2014 [DIPAK MISRA AND N.V. RAMANA, JJ.] Code of Criminal Procedure, 1973 - s. 167(2) - Non c filing of charge-sheet within the statutory period of 90 days of arrest - Application u/s 167(2) for release on bail by accused ~ Subsequent application by CBI seeking extension of time - Court not adverting to the application filed by accused for grant of bail, rather asking defence to file rejoinder to 0 application for extension - Thereafter, filing charge-sheet and rejection of application for grant of bail by the court - High Court releasing the accused on baf/ holding that right had already accrued to the respondent when he moved the application for grant of bail - Justification of - Held: When the E charge-sheet is not filed, indefeasible right accrues to the accused - Accused can avail his liberty only by filing application u/s. 167(2) - It cannot be frustrated by the prosecution on some pretext or the other - Once such an application is filed, it is obligatory on the part of the court to F verify from the records as well as from the public prosecutor whether the time has expired and the charge-sheet has been filed or not or whether an application for extension which is statutorily permissible, has been filed - On facts, the High Court was justified in extending the benefit to the respondent - The day the accused filed the application for benefit uls. G 167, the Court required the accused to file a rejoinder affidavit by the time the initial period provided under the statute had expired - There was no question of any contest as if the application for extension had been filed prior to the expiry of H time - Adjournment by the Magistrate was misconceived - 148 U.0.1. THR. CBI v. NIRALA YADAV@ RAJA RAM 149 YADAV @ DEEPAK YADAV He was obliged on that day to deal with the application filed A by the accused as required u/s. -167(2)- Such procrastination frustrates the legislative mandate - Court cannot act to extinguish the right of an accused if the law so confers on him - Law has to prevail - Such act on the part of the prosecution was not permissible. B The respondent was arraigned as an accused for the offences punishable ulss. 302, 304, 353, 323, 149, 148 and 147 IPC, u/s. 27 of the Arms Act and u/s. 49(2)(b) of Prevention of Terrorist Activities ActAor murder of 'SK', Divisional Forest Officer. The local investigating agency C carried out the investigation. Thereafter, the investigation was handed over to the Central Bureau of Investigation (CBI). In course of investigation, the respondent was. arrested and was sent to the judicial custody. The statutory period of ninety days lapsed but the charge D sheet was not filed. The respondent filed an application under .section 167(2) CrPC for release on bail on the ground that in the absence of challan on record he was entitled to be admitted to bail after completion of ninety days from his date of arrest. The next day, CBI filed an application u/s. 49(2)(b) of POTA seeking extension of time for a periOd of thirty days, but on that day no order was passed on that application and the Special Judge asked the defence to file a reply in rejoinder to the application for extension but did not pass any order on E F the application for grant of bail. Thereafter, the Special Judge extended the time for filing the charge-sheet. The charge sheet was filed. The Special Judge rejected the application of the respondent. The accused-respondent approached the High Court. The High Court relying ·on G *Hitendra Vishnu Thakur's case **Uday Mohanlal Acharya's case held that the right had already accrued to the respondent when he had moved the application for grant of bail and admitted him to bail on certain conditions. Hence, the instant appeal. H 150 SUPREME COURT REPORTS [2014] 6 S.C.R. A Dismissing the appeal, the Court HELD: 1.1. Prior to the date of expiry of 90 days which is the initial period for filing the charge-sheet, the prosecution neither had filed the charge-sheet nor had it 8 filed an application for extension. Had an application for extension· been filed, then the matter would have been totally different. After the accused respondent filed the application, the prosecution submitted an application seeking extension of time for filing of th
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