ORDER On the basis of a written report submitted by one Satyendra Baitha to the Officer-in-charge of Amba Police Station, Aurangabad on 24th July, 2012, relating to an incident which took place in the night of 23rd July, 2012, Amba P.S. Case No.45 of 2012 was registered under section 392 of the Indian Penal Code against 2-3 unknown persons. It has been alleged in the FIR that on 23rd July, 2012, when the informant’s wife woke up, at about 11.30 p.m., she saw 2-3 unknown persons in her courtyard. She tried to wake the informant upon which the miscreants started beating her. However, when the informant awoke , the miscreants fled away. After the departure of the miscreants the informant found that they had taken away jewelleries, mobile phones and several other articles from the house. 2. In course of investigation of the case, the petitioner was arrested on 10th December, 2012, and since then he is in judicial custody. On 11th February, 2013, an application had been filed on the behalf of the petitioner in the court of the Chief Judicial Magistrate, Aurangabad under section 167(2) of the Code of Criminal Procedure (for short “ the Code’) seeking default bail as no charge-sheet had been filed within the stipulated period of sixty days. The learned Chief Judicial Magistrate, Aurangabad by order dated 11th February, 2013, held that since the alleged offence had not been committed on the highway and, as such, sixty days clause would apply in case of the petitioner. He, thus, called for a report from the G.R.Clerk as to whether the police had submitted its report under Section 173(2) of the Code or not. The G.R.Clerk reported on the same day i.e., on 11th February, 2013, that the application for statutory bail had been filed on 63rd day and till 12.30 p.m., the police had not submitted its report under section 173(2) of the Code in the court. 3. In the application filed on behalf of the petitioner in the court of the Chief Judicial Magistrate it had been stated that the petitioner was ready to furnish bail bonds to the satisfaction of the court. Under such circumstances, the learned Chief Judicial Magistrate, Aurangabad vide order dated 11th February, 2013, directed the petitioner to be released on furnishing bail bond of Rs.5,000/- with two sureties of the like amount each under Section 167(2) of the Code. Under such circumstances, the learned Chief Judicial Magistrate, Aurangabad vide order dated 11th February, 2013, directed the petitioner to be released on furnishing bail bond of Rs.5,000/- with two sureties of the like amount each under Section 167(2) of the Code. 4. Later on, at 2 p.m., on the same day, the learned District Prosecution Officer filed an application on behalf of the S.H.O. Amba Police Station, Aurangabad praying therein to add Section 412 of the Indian Penal Code in the FIR and to reject the prayer of the petitioner for being released under Section 167(2) of the Code. On the same day at 3.30 p.m., in compliance with the direction of the learned Chief Judicial Magistrate, Aurangabad, the petitioner furnished the bail bond. A plea was taken by the District Prosecution officer that one of the looted mobile was recovered from the possession of the petitioner and, as such, an offence under Section 412 of the Indian Penal Code was made out. 5. On the other hand, learned counsel for the petitioner submitted before the learned Chief Judicial Magistrate, Aurangabad that admittedly it was not a case of dacoity and, as such, even on recovery of the looted mobile Section 412 of the Indian Penal Code would not apply. In that case, at best the offence would attract the ingredients of Section 411 of the Indian Penal Code. 6. The District Prosecution Officer prayed for time to reply the points raised on behalf of the petitioner and the learned Chief Judicial Magistrate, Aurangabad vide his order dated 11th February, 2013, adjourned the case for the next day and till then the bail bond furnished on behalf of the petitioner was neither accepted nor rejected. On the next day i.e., 12th February, 2013, at 12.10 p.m., the investigating officer of the case submitted charge-sheet and the learned Chief Judicial Magistrate, Aurangabad adjourned the matter until the next date fixed for hearing on the point of cognizance. The learned Chief Judicial Magistrate, Aurangabad, however, by a subsequent order passed on the same day i.e., 12th February, 2013, rejected the application filed on behalf of the petitioner for being released from judicial custody under section 167(2) of the Code as the police had already submitted charge-sheet. 7. The learned Chief Judicial Magistrate, Aurangabad, however, by a subsequent order passed on the same day i.e., 12th February, 2013, rejected the application filed on behalf of the petitioner for being released from judicial custody under section 167(2) of the Code as the police had already submitted charge-sheet. 7. In the instant application filed under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the aforesaid order dated 12th February, 2013, passed by the learned Chief Judicial Magistrate, Aurangabad. 8. Learned counsel for the petitioner submitted that the learned Chief Judicial Magistrate ought to have disposed of the application filed on behalf of the petitioner under Section 167(2) of the Code forthwith on being satisfied that the accused had been in custody for the specified period. Admittedly, the petitioner had filed an application on 63rd day of his detention and he was prepared to furnish bail bond as per direction of the court. The learned Chief Judicial Magistrate, on being satisfied after seeking report of the G.R.Clerk allowed the prayer and in obedience to his direction, the petitioner furnished the bail bond too. 9. Learned counsel submitted that the police submitted the charge-sheet on the next day. Of course, the investigating officer had filed an application on 11th February, 2013, after the order for release of the petitioner was passed by the learned Chief Judicial Magistrate, Aurangabad to add Section 412 of the Indian Penal Code but since the case was not of dacoity, the ingredients of Section 412 of the Indian Penal Code were not attracted. The application filed on behalf of the investigating officer was nothing but a desperate attempt to frustrate the legal right of the petitioner to be released on bail. 10. On the other hand, learned counsel for the State submitted that time of default continues till the filing of the report by the police under Section 173(2) of the Code but does not survive thereafter. He submitted that the bail bond furnished on behalf of the petitioner was not accepted by the learned Chief Judicial Magistrate, Aurangabad on 11th February, 2013, and, as such, the learned Chief Judicial Magistrate, Aurangabad was not competent to direct the release of the petitioner under Section 167(2) of the Code on 12th February, 2013, after receipt of the police report in terms of Section 173(2) of the Code. He further submitted that once the police had submitted charge-sheet, the only option left to the court was to decide the case of the petitioner for being released on bail on merits. 11. In Sanjay Dutt Vs. State through C.B.I. since reported in (1994)5 SCC 410 , the Constitution Bench of the Apex Court in paragraph 48 observed “……….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.” 12. In Uday Mohanlal Acharya Vs. State of Maharashtra since reported in (2001)5 SCC 453 , the Apex Court considered the true meaning of the expression “if not availed of” used in the case of Sanjay Dutta case (supra) and explained in paragraph 13 so far as relevant for the present case in the following terms:— “13. ……………. In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression “availed of” to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart, when an accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not. If the expression “availed of” is interpreted to mean that the accused must factually be released on bail, then in a given case where the Magistrate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to be higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution files a charge sheet then also the so-called right accruing to the accused because of inaction on the part of the investigating agency would get frustrated. Since the legislature has given its mandate it would be the bounden duty of the court to enforce the same and it would not be in the interest of justice to negate the same by interpreting the expression “ if not availed of” in a manner which is capable of being abused by the prosecution .…………………………… …………….In interpreting the expression “ if not availed of” in the manner in which we have just interpreted we are conscious of the fact that accused persons in several serious cases would get themselves released on bail, but that is what the law permits, and that is what the legislature wanted and an indefeasible right to an accused flowing from any legislative provision ought not to be defeated by a court by giving a strained interpretation of the provisions of the Act. In the aforesaid premises, we are of the considered opinion that an accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to sub-section (2) of Section 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of arrest of the accused. In our view, such interpretation would subserve the purpose and the object for which the provision in question was brought on to the statute-book. In our view, such interpretation would subserve the purpose and the object for which the provision in question was brought on to the statute-book. In such a case, therefore, even if the application for consideration of an order of being released on bail is posted before the court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting a formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the accused. Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provision thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorize the detention of the accused in custody up to a maximum period as indicated in the provision to sub-section (2) of Section 167, any further detention beyond the period without filing of a 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 of 21 of the Constitution. There is no provision in the Criminal Procedure Code authorizing detention of an accused in custody after the expiry of the period indicated in 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 avail 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 can not be frustrated on the off 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 a challan within the specified period and the interest of the society, at large, in lawfully preventing an accused from being released on bail on account of inaction on the part of the prosecuting agency. .……………………………..” 13. Taking into consideration the rival submissions made on behalf of the parties and the law laid down by the Apex court, I am unable to appreciate the procedure adopted by the learned Chief Judicial Magistrate, Aurangabad. I am of the considered opinion that the petitioner had acquired the indefeasible right for grant of statutory bail on 11th February, 2013. The learned Chief Judicial Magistrate, Aurangabad had therefore, rightly allowed the prayer made on behalf of the petitioner on 11th February, 2013, and directed the petitioner to be released on furnishing bail bond to his satisfaction. The petitioner abided by the direction given by the learned Chief Judicial Magistrate, Aurangabad and furnished bail bond too. In my considered opinion, the prayer of the petitioner to be released remained unfettered and unaffected from the subsequent application made on behalf of the investigating officer by the District Prosecution Officer. The same would have no bearing on the order of release already passed by the learned Chief Judicial Magistrate. The learned Chief Judicial Magistrate, Aurangabad fell in error by adjourning the matter for the next day. I, therefore, set aside the order dated 12th February, 2013, passed by the learned Chief Judicial Magistrate, Aurangabad in Amba P.S. Case No.45 of 2012 and direct that the petitioner be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Aurangabad on furnishing bail bond of Rs.5,000/- (five thousand) with two sureties of the like amount each. 14. 14. The order may be communicated through fax at the cost of the petitioner.