In Sanjoy Dutta vs. State, (1994) 5 SCC 410, the Apex Court at Para-48 held as follows:-

“48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Cr.P.C. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Cr.P.C. ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Cr.P.C. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Sigh Nathawan v. The State of Punjab; Ram Narayan Singh v. The State of Delhi and A.K. Gopalan v. The Government of India.”
Such proposition was summarised in Para-53(2)(b) of the said report. The expression “if already not availed of” occurring in Para-48 of the said report was explained in Uday Mohonlal Acharya vs. State, (2001) 5 SCC 453 (Para-13), as follows:-

“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 an 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 been 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 it of forth with, on being satisfied that in fact the accused has been in 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.”
It is, therefore, clear when charge-sheet is filed on the self-same date on which right to statutory bail was availed of, it does not stand in the mouth of the petitioner to argue that such indefeasible right was defeated by the Court by way of adjournment of his bail application to another day so as to enable the prosecution to file police report. In fact, the Court promptly dealt with his application on the self-same date but was unable to extend the benefit due to submission of charge-sheet in view of the ratio in Uday (supra) and Sanjoy Dutta (supra). It has been argued the bail application was filed earlier then the submission of charge-sheet albeit on the self-same date. The issue whether the prayer for statutory bail proceeded the submission of charge-sheet on the self-same date is of little consequence as the Court does not remand an accused produced before it on a minute to minute or hourly basis but when it authorises detention beyond 24 hours in vies of Article 22(2) of the Constitution read with section 57 of the Code. Thus, when charge-sheet was submitted before the Court on the self-same date on which the right to statutory bail was availed of, there was no option left to the Court but to deny the bail on default as the right to remand the accused had again inhered in itself by operation of section 309 Cr.P.C. immediately upon submission of charge- sheet. Reliance on Union of India vs. Nirala Yadav, (2014) 9 SCC 457, is misplaced. In the said report, the Court allowed statutory bail to the accused as the prayer for statutory bail was adjourned to subsequent date enabling the prosecution to file application for extension of time to complete investigation under the special statute on such adjourned date. The Court held that the right to statutory bail being indefeasible could not have been frustrated by adjourning the prayer for statutory bail on another date enabling the prosecution to file on belated prayer for extension of time for completion of investigation in the meantime.


Calcutta High Court

Jyoti Tamang vs The State Of West Bengal [ 1 April, 2016 ]