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2017 (4) TMI 136
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....y the Special Chief Judicial Magistrate (Customs), Lucknow whereby the Magistrate observed that the bail order passed by him earlier on 28-6-2016 was ineffective and refused to release the petitioner on bail. He has, therefore, approached this Court by invoking the inherent powers of this Court praying that the said order be set aside, and that the petitioner be released in accordance with the original bail order passed by the said Magistrate. 5. The order dated 7-9-2016 which has been impugned by filing the present petition came to be passed under the following circumstances. 6. The petitioner was arrested on 26-4-2016 by the officials of the Directorate of Revenue Intelligence on the allegations of the petitioner having co....
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....ssary to refer to any specific decision of the Apex Court. All that needs to be observed is that a bail granted under the proviso to Section 167(2) of Code is, though termed as 'bail on default' is as effective as bail granted on merits, and does not get cancelled automatically on completion of investigation or charge-sheet being filed. 9. The question of interpretation of the first proviso to sub-section (2) of Section 167 of the Code keeps on coming before the Courts quite often. The provisions of the said proviso have been interpreted by the Superior Courts and the Apex Court from different angles for determining different questions arising in different situations. 10. The question that arises in the present case is as fo....
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....dy, his right to get himself released on bail stands extinguished. 15. This is patently incorrect. 16. The attention of the Special Chief Judicial Magistrate was, inter alia, drawn to a decision of the Supreme Court of India in the case of Udai Mohan Lal Acharya v. State of Maharashtra, reported in 2001 (5) SCC 453. The Magistrate amongst other things, reproduced certain parts from the reported Judgment, but, the parts re-produced by him were not relevant to the question that arose before him; and if at all there was any relevancy, the said parts did not, at all, support the view of the Magistrate. 17. The disputes that generally arise before the Courts in the context of the said proviso to Section 167(2) of the Code....
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.... comes to be filed. The other type of cases would be where the accused has made an application for bail in accordance with the said proviso and the bail order has also been passed; and when the process of furnishing sureties is pending, the charge-sheet is filed. 20. A perusal of the reported cases shows that the controversy as to 'whether the right of the accused to be released on bail in accordance with the said proviso could be enforced on the filing of the charge-sheet' has arisen only in the first type of cases. Nobody has seriously contended in any case that even if the bail order was passed, the subsequent filing of charge-sheet would extinguish the right of an accused to be released on bail. This would amount to automatic ca....
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....also took time. When the solvency of sureties had been verified, and the question of accepting them arose, the Special Chief Judicial Magistrate said that there was no valid bail order, as the bail order had already been extinguished on filing of the charge-sheet. This was in itself unjust, improper and ought to have shocked the judicial conscience of the Special Chief Judicial Magistrate. 23. In the case of Udai Mohan Lal Acharya (supra), Their Lordships of the Supreme Court of India have categorically held as under : "6. The expression 'if not already availed of' used by this Court in Sanjay Dutt's case (supra) must be understood to mean when the accused filed an application and is prepared to offer bail on being directed.....