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Anil Kshetarpal, J. –

1. The challenge herein is to the orders dated 09.04.2020 and 28.04.2020 passed by the Learned Special Judge, S.A.S. Nagar, Mohali. The question which needs adjudication is that whether the bail granted to the accused under proviso to Section 167(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) comes to an end because the previous surety has been permitted to withdraw and the accused did not immediately furnish fresh surety?

2. Some facts are required to be noticed. As per the record, the petitioner herein is accused in three different FIRs, detail whereof is as under:-

1.    FIR No. 6 dated 08.06.2017, registered under Section 420, 465, 467, 468, 471, 506 & 120-B IPC and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 at Police Station Vigilance Bureau, Phase-1, Mohali;

2.    FIR No. 8 dated 30.06.2017, registered under Section 420, 467, 468, 471 & 120-B IPC and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 at Police Station Vigilance Bureau, Phase-1, Mohali;

3.    FIR No. 13 dated 07.11.2017, registered under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 at Police Station Vigilance Bureau, Phase-1, Mohali.

3. The Hon’ble Supreme Court granted bail to the petitioner on 08.04.2020 in FIR No. 6 dated 08.06.2017. In FIR No. 13 dated 07.11.2017, vide order dated 14.05.2019, this Court granted regular bail to the petitioner on his furnishing bail bonds after examination of the Chartered Accountant. The learned Special Judge, S.A.S. Nagar, Mohali, vide order dated 06.06.2019, directed release of the petitioner on bail on his furnishing bail bonds in the sum of ? 2,00,000/- with two local sureties of the like amount. The bail bonds were furnished on 09.04.2020.

4. In FIR No. 8 dated 30.06.2017, the petitioner was granted bail vide order dated 28.10.2017 under proviso to Section 167(2) of the Code, which in common parlance is known as “default bail”. The petitioner furnished bail bonds and Sh. Inderjit Singh gave surety, which was accepted and attested by the learned Court below. However, the petitioner remained in custody as he had not been granted bail at that time in two other FIRs registered against him. Subsequently, Sh. Inderjit Singh, the surety of the petitioner, moved an application for permission to withdraw the surety furnished by him for release of the petitioner which was allowed on 16.08.2018. The learned Special Judge permitted the petitioner to furnish fresh surety while directing that till then he will be presumed to be in custody in this case. At this stage, it would be appropriate to notice that the petitioner filed an application for grant of interim bail for a period of four days which was dismissed on 01.11.2018.

5. The petitioner, thereafter, filed an application for permission to furnish fresh surety bonds which was dismissed by the learned Court below on 09.04.2020. The petitioner, once again, filed an application through the Superintendent, Central Jail, Patiala as well as another application through his counsel for furnishing bail bonds and for issuing direction to the Jail Superintendent to release him. The aforesaid applications have also been dismissed by the learned Judge, Special Court/Duty Judge vide order dated 28.04.2020.

6. The petitioner filed Criminal Revision No. 859 of 2020 before this Court challenging the correctness of the order dated 09.04.2020, however, after realizing that the order dated 28.04.2020 has also been passed and would also be required to be challenged, sought permission to withdraw the revision petition with liberty to file a fresh petition which was allowed by this Court. That is how the present revision petition has been filed.

7. This Court has heard the learned counsel for the petitioner as well as the learned counsel representing the State of Punjab and with their able assistance, gone through the paper-book.

8. It will be noted here that reply to the revision petition has been filed by the State.

9. Learned counsel for the petitioner has contended that the learned Courts below have erred in refusing to accept fresh surety as the bail granted to the petitioner, vide order dated 28.10.2017, has never been cancelled. He further submitted that the bail granted to the petitioner under Section 167(2) of the Code confers indefeasible right to the accused which does not come to an end only because of passage of some time.

10. On the other hand, learned State counsel has submitted that the view of the learned Court below, while passing order dated 09.04.2020 and 28.04.2020, is correct.

11. The proviso to Section 167(2) of the Code provides that where the investigations in the case are not completed within the time prescribed and the accused who is in continues custody applies for being released on bail, the accused shall be released on bail if he is prepared to and does furnish bail. Section 167 of the Code lays down the procedure where the investigation could not be completed within the time prescribed and the accused continues to be in custody. On careful reading of Clause (ii) of Proviso (a) to Section 167(2) of the Code, it is apparent that the bail granted under this provision shall be deemed to be bail under Chapter XXXIII of the Code. Still further, it is well settled that the bail once granted, may be cancelled under Section 437(5) or 439(b) of the Code. There is no time limit prescribed for furnishing of bail/surety. This aspect has been examined in detail by the Hon’ble Supreme Court in Raghubir Singh and Others v. State of Bihar (1986) 4 SCC 481. In para No. 22 of the judgment, it was held as under:

“22. The result of our discussion and the case-law in this: An order for release on bail made under the proviso to s. 167(2) is not defeated by lapse of time, the filing of the charge sheet or by remand to custody under s. 309(2). The order for release on bail may however be cancelled under s. 437(5) or s. 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to s. 167(2) for the default of the prosecution in not completing the investigation in sixty days, after the defect is cured by the filing of a charge sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed”.

Subsequently, in Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453 by a majority judgment, the Hon’ble Supreme Court explained what is the meaning of expression “availed of”. It has been held that once an application has been filed, the Court must decide the same immediately and if the accused, who has been granted bail, is unable to furnish bail bonds/surety immediately and in the meantime, challan i.e. the report under Section 173 of the Code is filed after the conclusion of the investigation, the right accrued under Section 167(2) of the Code would not stand defeated. Once the accused has availed of his right under Section 167(2) of the Code, it would not stand defeated by subsequent presentation of the challan. The Supreme Court has expounded the principles of law in the following manner:-

“Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can be only in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the accused in custody upto a maximum period as indicated in the proviso to sub-section (2) of Section 167, any further detention beyond the period without filing of challan by the Investigating Agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Article 21 of the Constitution. There is no provision in the Criminal Procedure Code authorising detention of an accused in custody after the expiry of the period indicated in the proviso to sub-section (2) of Section 167 excepting the contingency indicated in Explanation I, namely, if the accused does not furnish the bail. It is in this sense it can be stated that if after expiry of the period, an application for being released on bail is filed, and the accused offers to furnish the bail, and thereby avails of his indefeasible right and then an order of bail is passed on certain terms and conditions but the accused fails to furnish the bail, and at that point of time a challan is filed then possibly it can be said that the right of the accused stood extinguished. But so long as the accused files an application and indicates in the application to offer bail on being released by appropriate orders of the Court then the right of the accused on being released on bail cannot be frustrated on the oft chance of Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refuses to pass an order and the matter is moved to the higher forum and a challan is filed in interregnum. This is the only way how a balance can be struck between the so-called indefeasible right of the accused on failure on the part of the prosecution to file challan within the specified period and the interest of the society, at large, in lawfully preventing an accused for being released on bail on account of inaction on the part of the prosecuting agency. On the aforesaid premises, we would record our conclusions as follows:-

1. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole.

2. Under the proviso to aforesaid sub-section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence.

3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the Investigating Agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnish the bail, as directed by the Magistrate.

4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have accrued in his favour on account of default on the part of the Investigating Agency in completion of the investigation within the specified period, the Magistrate/Court must dispose of it forthwith, on being satisfied that in fact the accused has been custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the Investigating Agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the Investigating Agency in completing the investigation within the period stipulated.

5. If the accused is unable to furnish bail, as directed by the Magistrate, then the conjoint reading of Explanation I and proviso to sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorised, and, therefore, if during that period the investigation is complete and chargesheet is filed then the so-called indefeasible right of the accused would stand extinguished.

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 files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.

With the aforesaid interpretation of the expression 'availed of' if charge-sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished, necessarily therefore, if an accused entitled to be released on bail by application of the proviso to sub-section (2) of Section 167, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge-sheet is filed, the socalled indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail. Such an accused, who thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge-sheet being filed in accordance with Section 209 and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail, already granted in accordance with law laid down by this Court in the case of Mohd. Iqbal v. State of Maharashtra (supra)”.

Recently, in Achpal Alias Ramswaroop and Another v. State of Rajasthan, (2019) 14 SCC 599 has again followed the law expounded in Uday Mohanlal Acharya (supra). It has been declared that the accused gets an indefeasible right once he “avails of” an opportunity under Section 167(2) of the Code.

In view of the aforesaid exposition of law, now let us discuss the facts of the present case. The petitioner did “avail of” his right under proviso to Section 167(2) of the Code. The learned Court below accepted the application and found the petitioner entitled to be released on bail vide order dated 28.10.2017. The petitioner did furnish personal bail bond with surety, which was accepted and attested by the Court. Thus, in this case, the petitioner would be deemed to have been released from custody. It is a different matter that in fact the petitioner was not released because two other cases were pending against him. Sh. Inderjit Singh, surety, filed an application for permission to withdraw the surety furnished by him for release of the petitioner, which was allowed on 16.08.2018. On that day also, the learned Court below permitted the petitioner to furnish fresh bail bond with surety. Since the petitioner was in custody in other cases, therefore, he did not furnish the fresh bail bond with surety. Now the petitioner has been granted bail in other cases as noted above. In view of the aforesaid, the petitioner requested the Court to accept the personal bail bond with surety as directed vide order dated 28.10.2017 which has been declined. In the considered opinion of this Court, the orders passed by the learned Court below are erroneous. There is no order of cancellation of bail in FIR No. 8 dated 30.06.2017 or in any other case in accordance with the law. In such circumstances, mere delay in furnishing personal bail bonds/surety cannot visit the petitioner with adverse consequences and the order granting bail under Section 167(2) of the Code does not cease to exist or comes to an end or stand eclipsed. The petitioner was only required to furnish fresh personal bail bond with surety, which he has offered to furnish. In fact he moved an application before the Court but the same has not been accepted only on the ground that the effect of order dated 28.10.2017 has come to an end. The view of the learned Court below is against the mandate of proviso to Section 167(2) of the Code as expounded by the Hon’ble Supreme Court in various judgments.

There is another disturbing fact which needs some discussion. It has been noticed that the petitioner, in support of his claim, has referred to the judgment in Raghubir Singh (supra). The learned Court below, in para 3 of the order dated 09.04.2020, has taken notice of the aforesaid judgment, but refuses to follow the same by observing that “these judgments are not applicable to the facts and circumstances of the present case”. A judgment passed by the Hon’ble Supreme Court is binding on all Courts in the country under Article 141 of the Constitution of India. No doubt, the ratio decidendi laid down in a judgment is binding and not obiter dicta. However, before distinguishing judgment, the Court is required to analyse that what is the ratio laid down in the judgment and thereafter, proceed to explain the same. The manner in which the learned Court below has ignored the judgment of the Hon’ble Supreme Court is not appreciable.

A priori, it is held that the orders passed by the learned Court below dated 09.04.2020 and 28.04.2020 are liable to be set aside and hence, set aside. The petitioner is directed to furnish personal bail bonds with surety as directed in the order dated 28.10.2017 which, if found to the satisfaction of the learned Court below, shall be accepted and attested and thereafter, the petitioner shall be released on bail.

The present revision petition is allowed.

The miscellaneous application(s) pending, if any, shall also stand disposed of in terms of the main order.

Petition allowed.

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