Magistrate Order Rejecting Default Bail Is Quashed; Accused Entitled to Default Bail If Application Is Filed Before Charge‑Sheet

A Single Judge bench of Justice Syed Aftab Husain Rizvi heard an application under Section 482 Cr.P.C. challenging an order of the Chief Judicial Magistrate, Allahabad which rejected an application for default bail filed in a murder and loot case registered at P.S. Mauaima, Prayagraj.

The court allowed the petition, quashed the impugned order dated 25.11.2021 and directed that the applicant be released on default bail on furnishing a personal bond and two sureties. The judge held that when an accused filed an application for default bail after the expiry of the statutory period but before filing of the charge‑sheet, an indefeasible right to default bail accrued and subsequent filing of the charge‑sheet did not defeat that right. The Court, in its reasoning, observed: “25.1 Once the accused files an application for bail under the Proviso to Section 167(2) he is deemed to have 'availed of' or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2), CrPC read with Section 36A(4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency. 25.2 The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the charge‑sheet or a report seeking extension of time by the prosecution before the Court; or filing of the charge‑sheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.” The court relied on the three‑Judge Bench decisions in Bikramjit Singh v. State of Punjab and M. Ravindran v. Intelligence Officer to support this view.

Background The dispute arose from an FIR dated 19.07.2019 (Crime No. 327/2019) reporting the loot and murder of a bank branch manager. During investigation the name of the applicant surfaced; he surrendered on 26.08.2021 and was remanded to judicial custody that day. The statutory 90‑day period for investigation (under Section 167(2) Cr.P.C.) expired on 24.11.2021. The applicant moved a default bail application on 25.11.2021. The Chief Judicial Magistrate called for a report from the Additional Public Prosecutor; two reports were filed in sequence and, in the intervening period, the police filed a charge‑sheet on 25.11.2021 which was registered by the CJM. The CJM then rejected the default bail application. The applicant challenged that order under Section 482 Cr.P.C., contending that his “indefeasible” right to default bail had accrued on expiry of 90 days and that filing of the charge‑sheet after his bail application could not extinguish that right.

The State opposed the petition, defending the magistrate's reliance on earlier precedents including Pragyna Singh Thakur and the Constitution Bench decision in Sanjay Dutt. The High Court analysed the statutory provision and binding precedents, noting that the three‑Judge Bench decisions in Bikramjit Singh and M. Ravindran clarified that an application for default bail, filed after expiry of the prescribed period and before filing of the charge‑sheet, vested an enforceable right which survived even if the charge‑sheet was filed subsequently. Applying that principle, the court found the magistrate erred in awaiting the second report and the charge‑sheet before deciding the bail application and thus quashed the impugned order.

The petition succeeded; the court ordered release on bail on execution of bond and two sureties, subject to conditions including an undertaking not to seek adjournments on dates fixed for evidence, personal appearance on specified critical dates (opening of prosecution, framing of charge, recording of 313 statement), and other conditions intended to prevent abuse of bail.

Case Details: Case No.: APPLICATION U/S 482 No. - 29733 of 2021 Case Title: Anwar Ali v. State of U.P. and Another Appearances: For the Petitioner(s): Mohd Raghib Ali; Saghir Ahmad (Senior Advocate) For the Respondent(s): G.A.