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2022 (3) TMI 1429
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....sexual assault, he revealed to her that about 2-3 months ago, when he was at the park, one Rahul, a resident of G-Block Central Government Officers Residential Complex, tried to entice him. b) The son stated that this Rahul made him cut the wire of a cylinder kept in the basement of the parking lot and that this was seen by one Hanuman. He further stated that then one Ganesh and one Suraj (the Petitioner herein), found out about the cutting of the wire from Hanuman and blackmailed the son into having sexual intercourse with them at different points of time. c) On learning about this, the father of the victim child filed a complaint, dictated his statement and an MLC of the victim child was conducted, and on the basis of this, FIR No. 312/2021 under Sections 377/34 IPC read with Section 6 POCSO Act was registered on 20.08.2021 d) Both the accused, including the Petitioner herein, were arrested on 20.04.2021 and were remanded for 14 days to judicial custody by the Ld. Trial Court vide Order dated 21.08.2021. This judicial custody of the Petitioner was extended by the Ld. Trial Court vide Orders dated 04.09.2021 and 17.09.2021. Vide Order dated 29.09.2021, regular bail applicati....
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....etitioner under Section 167(2) Cr.P.C. does not apply in the instant case as in Suresh Kumar Bhikamchand Jain (supra), the Ld. Trial Court's inability to take cognizance stemmed from the lack of sanction under the Prevention of Corruption Act, 1988. He states that cognizance without law was prohibited by law in that case, and that this was not the case in the matter before this Court. Mr. Pujari further submits that in Suresh Kumar Bhikamchand Jain (supra), the investigation had been complete, unlike the instant case. 6. Per contra, Ms. Meenakshi Dahiya, learned APP for the State, opposes the Section 167(2) Cr.P.C. bail application of the Petitioner herein. 7. Heard Mr. Adit S. Pujari, assisted by Mr. Chaitanya Sundriyal, learned Counsel for the Petitioner, Ms. Meenakshi Dahiya, learned APP for the State, and perused the material on record. 8. The issue that arises before this Court is whether an accused is entitled to default bail under Section 167(2) Cr.P.C. when chargesheet has been filed, but cognizance has not been taken by the Court of the offences. For this purpose, Section 167 Cr.P.C. has been reproduced hereunder for ease of comprehension: "167. Procedure when investi....
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.... order authorising detention.]" 9. Section 167(2) Cr.P.C. provides an indefeasible right to statutory bail to an accused when investigation cannot be completed within the stipulated period of sixty or ninety described, prescribed in the provision. The rationale behind this provision is to ensure that the right to life and personal liberty under Article 21 of the Constitution of India remains preserved. However, once chargesheet has been filed, albeit within the prescribed period, this statutory right to bail of the accused stands extinguished. 10. In Suresh Kumar Bhikamchand Jain (supra), the Supreme Court had in detail considered the question as to whether cognizance of the chargesheet was necessary to prevent the accused from seeking default bail or whether mere filing of the chargesheet would suffice for the investigation to be deemed complete. The relevant portion of the said judgement has been referenced as follows: "16. At this juncture, we may refer to certain dates which are relevant to the facts of this case, namely: xxx From the above dates, it would be evident that both the charge-sheet as also the supplementary charge-sheet were filed within 90 days from the date....
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.... bail does not arise. As indicated hereinabove, in our view, the filing of charge-sheet is sufficient compliance with the provisions of Section 167(2)(a)(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 CrPC is concerned. The right which may have accrued to the petitioner, had charge-sheet not been filed, is not attracted to the facts of this case. Merely because sanction had not been obtained to prosecute the accused and to proceed to the stage of Section 309 CrPC, it cannot be said that the accused is entitled to grant of statutory bail, as envisaged in Section 167 CrPC. The scheme of CrPC is such that once the investigation stage is completed, the court proceeds to the next stage, which is the taking of cognizance and trial. An accused has to remain in custody of some court. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) CrPC, the Magistrate is vested with authority to remand the accused to custody, both police custody and/or judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of offence....
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.... categorically lay down that the indefeasible right of an accused to seek statutory bail under Section 167(2) Cr.P.C. arises only if the chargesheet has not been filed before the expiry of the statutory period. The relevant paragraph of Serious Fraud Investigation Office v. Rahul Modi (supra) is as follows: "16. A close scrutiny of the judgments in Sanjay Dutt (supra), Madar Sheikh (supra) and M. Ravindran (supra) would show that there is nothing contrary to what has been decided in Bhikamchand Jain (supra). In all the above judgments which are relied upon by either side, this Court had categorically laid down that the indefeasible right of an accused to seek statutory bail under Section 167(2), CrPC arises only if the charge-sheet has not been filed before the expiry of the statutory period. Reference to cognizance in Madar Sheikh (supra) is in view of the fact situation where the application was filed after the charge-sheet was submitted and cognizance had been taken by the trial court. Such reference cannot be construed as this Court introducing an additional requirement of cognizance having to be taken within the period prescribed under proviso (a) to Section 167(2), CrPC, fa....