JUDGMENT : Heard Mr. Onkar Nath Tewari, learned counsel appearing for the petitioner and Mr. Jai Prakash, learned A.A.G.-IA for the State. 2. This petition has been filed for setting aside the order dated 22.03.2023, in connection with Jarmundi P.S. Case No. 13 of 2020 corresponding to G.R. No. 190 of 2023, passed by the learned Judicial Magistrate, 1st Class, Dumka, whereby, he has been pleased to cancel the default bail, granted to the petitioner on 21.03.2023, pending in the court of learned Judicial Magistrate, 1st Class, Dumka. 3. Mr. Onkar Nath Tewari, learned counsel appearing for the petitioner submits that although the petitioner is facing the charge under Sections 302, 376 and 34 of the Indian Penal Code, however, the petitioner on his own surrendered before the learned court on 23.11.2022. He submits that within the prescribed period of 90 days, the chargesheet was not submitted, in view of that the petitioner has filed a petition under Section 167(2)(a)(i) of the Cr.P.C. on 21.03.2023 for grant of default bail. He further submits that on that day, the learned court has been pleased to grant the default bail by order dated 21.03.2023 with the condition that the bail bond should be filed at the earliest. He further submits that the petitioner has not been able to file the bail bond on 21.03.2023, however, the petitioner filed the said bail bond on the very next day i.e. on 22.03.2023 on opening of the Court. He further submits that in the meantime, on 22.03.2023 the chargesheet was submitted and the learned court on the same day at 10.15 A.M. has been pleased to take cognizance against the petitioner. He submits that in view of the chargesheet submitted by the police, the impugned order has been passed, whereby the learned court has cancelled the bail granted to the petitioner on 21.03.2023. He further submits that the life and liberty of the petitioner has been taken away by the said order in view of statutory provisions made under Section 167 of the Cr.P.C. as once within the 90 days period, the chargesheet is not submitted, the accused is entitled for default bail, as has been held in several judgments and recently the Hon’ble Supreme Court has considered this aspect of the matter in the case of M. Ravindran Versus Intelligence Officer, Directorate of Revenue Intelligence, reported in (2021) 2 SCC 485 . He heavily relied upon paras-10, 11, 25.1, 25.2 and 25.3, which are quoted hereinbelow:- “10. Thus the points to be decided in this case are: 10.1. (a) Whether the indefeasible right accruing to the appellant under Section 167(2) CrPC gets extinguished by subsequent filing of an additional complaint by the investigating agency. 10.2. (b) Whether the Court should take into consideration the time of filing of the application for bail, based on default of the investigating agency or the time of disposal of the application for bail while answering (a). I. The principles laid down in Uday Mohanlal Acharya [Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760] 11. Upon perusal of the relevant jurisprudence, we are unable to agree with Mr Lekhi's submissions. Rather, we find that both points (a) and (b) mentioned supra have been answered by the majority opinion of a three-Judge Bench of this Court in Uday Mohanlal Acharya [Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760] by observing thus : (SCC pp. 469-70 & 472-73, para 13) “13. … It is also further clear that that indefeasible right does not survive or remain enforceable on the challan being filed, if already not availed of, as has been held by the Constitution Bench in Sanjay Dutt case [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433]. The crucial question that arises for consideration, therefore, is what is the true meaning of the expression “if already not availed of”? Does it mean that an accused files an application for bail and offers his willingness for being released on bail or does it mean that a bail order must be passed, the accused must furnish the bail and get him released on bail? 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. 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 the 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. … There is no provision in the Criminal Procedure Code authorising 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. … There is no provision in the Criminal Procedure Code authorising 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 cannot be frustrated on the off chance of the 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.” (emphasis supplied) 25. Therefore, in conclusion: 25.1. Once the accused files an application for bail under the proviso to Section 167(2) he is deemed to have “availed of” or enforced his right to be released on default bail, accruing after expiry of the stipulated time-limit for investigation. Thus, if the accused applies for bail under Section 167(2) CrPC read with Section 36-A(4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the court must release him on bail forthwith without any unnecessary delay after getting necessary information from the Public Prosecutor, as mentioned supra. Thus, if the accused applies for bail under Section 167(2) CrPC read with Section 36-A(4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the court must release him on bail forthwith without any unnecessary delay after getting necessary information from the Public Prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigating agency. 25.2. The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the charge-sheet or a report seeking extension of time by the prosecution before the court; or filing of the charge-sheet during the interregnum when challenge to the rejection of the bail application is pending before a higher court. 25.3. However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge-sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC. 4. Relying on this judgment, learned counsel appearing for the petitioner submits that in this case the Hon’ble Supreme Court has further considered the three Judges Bench judgment in the case of Uday Mohanlal Acharya Versus State of Maharashtra [reported in (2001) 5 SCC 453 ] at para-11 and several aspects have been dealt with in view of that particularly in para-25.2 in the case of M. Ravindran (Supra), the petitioner is entitled for default bail and the impugned order is unwarranted. 5. On the other hand, Mr. Jai Prakash, learned A.A.G.-IA appearing for the State by way of inviting the attention of the court at page-35 of the petition submits that at 10.15 A.M., the learned court has passed the order on 22.03.2023, wherein he has been pleased to consider the chargesheet and has taken cognizance against the petitioner. 5. On the other hand, Mr. Jai Prakash, learned A.A.G.-IA appearing for the State by way of inviting the attention of the court at page-35 of the petition submits that at 10.15 A.M., the learned court has passed the order on 22.03.2023, wherein he has been pleased to consider the chargesheet and has taken cognizance against the petitioner. He submits that in view of the second proviso to Sub-Section (2) of Section 167 of the Cr.P.C. the condition precedent of furnishing of the bail bond is prescribed therein. He further submits that the petitioner has submitted the bail bond at 11.12 A.M. in view of that the bail bond was not submitted before submission of chargesheet. He further submits that Section 167(2) of the Cr.P.C. is required to be read along with explanation-I of the said Section and by way of referring that he submits that it has been provided that the accused shall remain in custody, he does not furnish his bail bond. Relying on this, he submits that the bail bond was not submitted before that the chargesheet was submitted and the learned court has been pleased to take cognizance. 6. Mr. Jai Prakash, learned A.A.G.-IA further submits that the judgment relied by learned counsel appearing for the petitioner is not in dispute and in that case also the case of Uday Mohanlal Acharya (supra) has been held to be binding precedent in view of the three Judges Bench judgment of the Hon’ble Supreme Court. He submits that in the case of Uday Mohanlal Acharya (Supra), it has been held that if 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. He further submits that at para-13 of the judgment relied by the learned counsel appearing for the petitioner the relevant paragraph of Uday Mohan Acharya’s case has been quoted, where in para-13.5, the argument advanced by him has been considered by the Hon’ble Supreme Court and in view of provision made under Section 167(2) read with Explanation-I, it has been held that if the bail bond is not submitted and the chargesheet is there, default bail cannot be allowed. He further refers to para-22.3 of the judgment of M. Ravindran (supra) and submits that in that para, it has been held therein that the Uday Mohanlal Acharya’s Case is a binding precedent. On these grounds, Mr. Jai Prakash, learned counsel appearing for the State submits that the bail bond was not submitted and in view of the provisions made under Section 167(2) read with Explanation-I, there is no illegality in the impugned order and this court may not interfere in the said order. 7. In view of the above submissions of learned counsel appearing for the parties, the court finds that admittedly the petitioner is an accused under Sections 302, 376 and 34 of the Indian Penal Code. The petitioner himself surrendered before the learned court on 23.11.2022 and he filed a petition for default bail under Section 167(2)(a)(i) of the Cr.P.C. on 21.03.2023. In view of the mandate of the Hon’ble Supreme Court and also the judgment heavily relied by Mr. Tewari, learned counsel appearing for the petitioner in the case of M. Ravindran (Supra), the learned court has been pleased to pass the order of default bail on 21.03.2023 with the condition that the bail bond has to be filed at the earliest. Admittedly, on 21.03.2023, the bail bond was not submitted by the petitioner, in the meantime, the chargesheet was submitted on 22.03.2023 and the learned court after looking into the said chargesheet had taken the cognizance against the petitioner. However, the petitioner has filed the bail bond supported with affidavit at 11.12 A.M. on 22.03.2023. Thus, it is crystal clear that before furnishing of the bail bond, the chargesheet was submitted and the learned court has been pleased to take cognizance. 8. In view of the argument advanced by the learned counsel appearing for the petitioner as well as for the State, the provisions made under Section 167 of the Cr.P.C. are quoted hereinbelow:- “167. Thus, it is crystal clear that before furnishing of the bail bond, the chargesheet was submitted and the learned court has been pleased to take cognizance. 8. In view of the argument advanced by the learned counsel appearing for the petitioner as well as for the State, the provisions made under Section 167 of the Cr.P.C. are quoted hereinbelow:- “167. Procedure when investigation cannot be completed in twenty-four hours.—(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that— [(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,— (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] [(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;] (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. [Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.] [Explanation II.—If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be:]” [Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.] [(2-A) Notwithstanding anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate, or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2): Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.] (3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it to the Chief Judicial Magistrate. (5) If in any case triable by Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. (6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.” 9. Looking into the provisions made under Section 167(2)(a)(i) of the Cr.P.C., it is crystal clear that if the chargesheet is not submitted within 90 days, the default bail is a Rule, as has been held by the Hon’ble Supreme Court in several cases and the two judgments have been considered by the Hon’ble Supreme Court in the case of M. Ravindran (Supra), on which, the learned counsel appearing for the petitioner has heavily relied upon. 10. In view of the provisions made in the above Section of Cr.P.C., after the order of default bail, the furnishing of the bail bond is a condition precedent, which has been done by the petitioner later on, wherein the observation was there by the learned court to furnish the bail bond at the earliest. 10. In view of the provisions made in the above Section of Cr.P.C., after the order of default bail, the furnishing of the bail bond is a condition precedent, which has been done by the petitioner later on, wherein the observation was there by the learned court to furnish the bail bond at the earliest. The learned court has received the chargesheet on 22.03.2023 and on the same day at 10.15 A.M., he has been pleased to take cognizance looking into the said chargesheet and admittedly the bail bond supported with affidavit was submitted at 11.12 A.M., which is later on, thus, till the submission of the chargesheet, in spite of default bail, which is statutory in nature and that has been taken care of by the learned court, who has granted the bail, however, the petitioner has not furnished the bail bond and that aspect of the matter has been dealt with by the Hon’ble Supreme Court in the case of Uday Mohanlal Acharya, which was considered in the case of M. Ravindran (Supra) and in para-13 of the Uday Mohanlal Acharaya, it has been clearly held that if the bail is granted on certain terms and conditions, but the accused fails to furnish the bail bond and at that point of time, the challan is filed, then possibly it can be said that the right of the accused stood extinguished and this aspect has been affirmed by the Hon’ble Supreme Court at para-22.3 of the judgment relied by the learned counsel appearing for the petitioner. Further in para-13.5 of the Uday Mohanlal Ahcarya’s case, Sub-Section (2) of Section 167 read with Explanation-I of the Cr.P.C. has been considered and it has been held that if the accused is in continuous custody even beyond the specified period in para-(a) will not be unauthorized and therefore, if during that period the investigation is complete and the chargesheet is filed then the so-called indefeasible right of the accused would stand extinguished. Law on this point is very clear in view of the judgment in the case of Uday Mohanlal Acharya as well as the judgment relied by the learned counsel appearing for the petitioner in the case of M. Ravindran (Supra). 11. Law on this point is very clear in view of the judgment in the case of Uday Mohanlal Acharya as well as the judgment relied by the learned counsel appearing for the petitioner in the case of M. Ravindran (Supra). 11. Recently the Hon’ble Supreme Court in the case of The State through Central Bureau of Investigation Versus T. Gangi Reddy @ Yerra Gangi Reddy, [passed in Criminal Appeal No. 37 of 2023] reported in 2023 LiveLaw (SC) 37, wherein the Hon’ble Supreme court in paras-12 and 13 thereof held as follows:- “12. As such, we are in complete agreement with the view taken by this Court in the aforesaid decisions. The submission on behalf of the respondent – original Accused No. 1 and the view taken by the High Court in the impugned judgment and order that once an accused is released on default bail under Section 167(2) Cr.P.C., his bail cannot be cancelled on merits is accepted, in that case, it will be giving a premium to the lethargic and/or negligence, may be in a given case of deliberate attempt on the part of the investigating agency not to file the chargesheet within the prescribed time period. In a given case, even if the accused has committed a very serious offence, may be under the NDPS or even committed murder(s), still however, he manages through a convenient investigating officer and he manages not to file the chargesheet within the prescribed time limit mentioned under Section 167(2) Cr.P.C. and got released on default bail, it may lead to giving a premium to illegality and/or dishonesty. As observed hereinabove, such release of the accused on default bail is not on merits at all, and is on the eventuality occurring in proviso to sub-section (2) of Section 167. However, subsequently on curing the defects and filing the chargesheet, though a strong case is made out that an accused has committed the very serious offence and non-bailable crime, the Court cannot cancel the bail and commit the person into custody and not to consider the gravity of the offence committed by the accused, the Courts will be loathe for such an interpretation, as that would frustrate the justice. The Courts have the power to cancel the bail and to examine the merits of the case in a case where the accused is released on default bail and released not on merits earlier. The Courts have the power to cancel the bail and to examine the merits of the case in a case where the accused is released on default bail and released not on merits earlier. Such an interpretation would be in furtherance to the administration of justice. 13. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court dismissing the application for cancellation of the bail filed by the C.B.I. under Section 439(2) Cr.P.C. deserves to be quashed and set aside and is accordingly quashed and set aside. The issue involved in the present appeal is answered in the affirmative and it is observed and held that in a case where an accused is released on default bail under Section 167(2) Cr.P.C., and thereafter on filing of the chargesheet, a strong case is made out and on special reasons being made out from the chargesheet that the accused has committed a non-bailable crime and considering the grounds set out in Sections 437(5) and Section 439(2), his bail can be cancelled on merits and the Courts are not precluded from considering the application for cancelation of the bail on merits. However, mere filing of the chargesheet is not enough, but as observed and held hereinabove, on the basis of the chargesheet, a strong case is to be made out that the accused has committed non-bailable crime and he deserves to be in custody.” 12. In the case in hand, the petitioner is facing the charge under Sections 302, 376 and 34 of the Indian Penal Code and the default bail order passed on 21.03.2023, which was not on merits, however, the same was passed on the basis of statutory provision made in the Cr.P.C. and after filing the chargesheet, a strong case is made out and on special reasons being made out from the chargesheet that the accused has committed a non-bailable crime and considering the grounds set out in Sections 437(5) and Section 439(2), his bail can be cancelled on merits and the Courts are not precluded from considering the application for cancellation of the bail on merits. 13. 13. In view of the above, facts, reasons and analysis, the Court finds that the petitioner has not submitted the bail bond, as directed by the learned court, and in between, the chargesheet has been submitted and the learned court after going through the said chargesheet has taken the cognizance against the petitioner. As such, no relief can be extended to the petitioner, accordingly, this petition is dismissed. 14. This order is based on the arguments of default bail, however, the bail on merits shall be decided in accordance with law without being prejudiced by this order.