[2025:RJ-JP:32012] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous Bail Application No. 7864/2024 1. Rahul Modi S/o Sh. Virendra Modi, M D Adarsh Credit Co- Operative Society Limited, Resident Of Adarsh Nagar, Sirohi, Rajasthan. (Presently Confined At Central Jail, Jodhpur, Rajasthan). 2. Rohit Modi S/o Sh Virendra Modi, Modi Street Near Ayurvedic Hospital, Sirohi, Presently Residing At Flat No. B-2304, Sky Tresses, Opposite India International School, Shipra Path, Mansarover, Jaipur. (Presently Confined At Central Jail, Jodhpur, Rajasthan). 3. Ishwar Singh Singal S/o Ranjeet Singh Singal, President Adarsh Credit Co-Operative Society Limited, Ahmedabad, Resident Of 190, Adarsh Nagar, Sirohi. (Presently Confined At Central Jail, Jodhpur, Rajasthan). 4. Vaibhav Lodha S/o Dinesh Kumar Lodha, R/o C-103, Kalpatru Sparkle, Kala Nagar, Bandra Est, Mumbai. (Presently Confined At Central Jail, Jodhpur, Rajasthan). 5. Bharat Modi S/o Devi Chandra Modi, R/o Sunarwada, Sirohi, Rajasthan. (Presently Confined At Central Jail, Jodhpur, Rajasthan). 6. Mukesh Modi S/o Prakash Raj Modi, R/o Modilane, Sirohi, Adarsh Nagar, Sirohi, Rajasthan. (Presently Confined At Central Jail, Jodhpur, Rajasthan). 7. Bharat Das Vaishnav S/o Mandas Vaishnav, R/o Adarsh Nagar, Link Road, Man Bahwan, Sirohi, Rajasthan. (Presently Confined At Central Jail, Jodhpur, Rajasthan). ----Petitioners Versus 1. State Of Rajasthan, Through PP, SOG. ----Respondents For Petitioner(s) : Mr. V.R. Bajwa, Sr. Advocate assisted by Mr. Vikas Kabra, Mr. Kuldeep Singh, Mr. Kunal Agarwal, Mr. Vikram Sharma & [2025:RJ-JP:32012] (2 of 19) [CRLMB-7864/2024] Mr. Rohit Rajliwal. For Respondent(s) : Mr. Rajesh Choudhary, GA-cum-AAG. HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 12/08/2025 1. Instant bail application is preferred by petitioners-accused (i) Rahul Modi S/o Sh. Virendra Modi; (ii) Rohit Modi S/o Sh Virendra Modi; (iii) Ishwar Singh Singal S/o Ranjeet Singh Singal; (iv) Vaibhav Lodha S/o Dinesh Kumar Lodha; (v) Bharat Modi S/o Devi Chandra Modi; (vi) Mukesh Modi S/o Prakash Raj Modi; and (vii) Bharat Das Vaishnav S/o Mandas Vaishnav, under Section 439 read with Section 167(2) of Cr.P.C. in a matter arising out of FIR No. 24/2018, registered at Police Station – Special Operations Group (SOG), Jaipur for the offence under Sections 420, 406, 409, 467, 468, 471, 477-A and 120-B of IPC. 2. The brief facts of the case are that in FIR No. 24/2018, P.S. - SOG while these petitioners were in custody, an application under Section 439 read with Section 167(2) of Cr.P.C. filed by these petitioners were dismissed by learned Special Judge (Sati Prevention Cases) Rajasthan & Addl. Sessions Judge, Jaipur Metro-II, on dated 10.05.2024. 3. In the said FIR No. 24/2018, when date for remand paper is fixed on 11.02.2020, an application under Section 167(2) of Cr.P.C. is filed on 11.02.2020 at 11.30 AM before learned Additional Chief Metropolitan Magistrate (Communal Rights), Jaipur Metro, Jaipur for grant of default bail as SOG has [2025:RJ-JP:32012] (3 of 19) [CRLMB-7864/2024] failed to file charge-sheet within 90 days as mandated under the law. The application was considered and disposed of by learned Trial Court on 11.02.2020 on the ground that the Investigating Officer has filed charge-sheet at 01:20 PM, though petitioners-accused have contended that an incomplete charge-sheet has been filed before the learned Trial Court and that too after application of default bail submitted by petitioners. Learned Trial Court after considering the case of the present petitioners-accused, has dismissed the application under Section 167(2) of Cr.P.C. 4. Aggrieved, petitioners-accused have preferred a D.B. Civil Writ Petition No. 4134/2021 before the Division Bench of this Court to challenge the order dated 11.02.2020 with issue of filing of incomplete charge-sheet by SOG before the Trial Court. The D.B. Civil Writ Petition is disposed of on 11.08.2023 in the following manner:- “31. The aforesaid order passed by the Hon’ble Supreme Court leaves no scope for interference by this Court in exercise of extraordinary jurisdiction under Article 226/227 of the Constitution of India read with Section 482 Cr.P.C. where the petitioners’ relief is only to seek default bail. 32. In view of above, objection to the maintainability of the writ petition is sustained and the writ petition is dismissed, leaving the petitioners to avail alternative remedy as may be available to them under the law.” Aforesaid indicated that interim order passed by the Division Bench was challenged in SLP (Criminal) No. 6579/2021, wherein by order dated 16.05.2023, Hon’ble Supreme Court [2025:RJ-JP:32012] (4 of 19) [CRLMB-7864/2024] has quashed the judgment and order dated 27.05.2021, passed by the Division Bench in said writ petition. 5. On the basis of observation that the petitioners-accused may avail alternative remedy as may be available to them under the law, bail application under Section 439 read with Section 167(2) of Cr.P.C. is filed firstly before the trial Court and after dismissal before this Court and we are disposing of the instant application. Herein, we are not going into the merits of the allegations made in the charge-sheet. 6. Learned Senior Advocate appearing on behalf of the petitioners-accused submitted that the petitioners-accused were arrested for different charges, wherein it was necessary for the Investigating Agency to submit charge-sheet within stipulated time of 90 days and non-submission of charge- sheet within stipulated time, entitles the petitioners-accused to be released on default bail as mandated under Section 167(2) of Cr.P.C. provided the petitioners-accused are ready and willing to submit bail & bonds. He further submitted that in the instant case, the charge-sheet is not filed within time limit prescribed for filing of charge-sheet, after concluding the investigation. He submitted that if the prosecution or Investigating Agency have failed to file charge-sheet within the stipulated period of 90 days, then before filing of charge- sheet, if any application under Section 167(2) of Cr.P.C. is filed, then the Trial Court is duty bound to release petitioners-accused on default bail. He submitted that the law over the point is well settled, that if a charge-sheet is [2025:RJ-JP:32012] (5 of 19) [CRLMB-7864/2024] not filed after concluding investigation within 60/90 days as prescribed under the law, then the accused have to be mandatorily released on bail. He further submitted that in the instant case, a bail application under Section 167(2) of Cr.P.C. was filed on 11.02.2020 for making a request to grant default bail. He also submitted that after knowledge of application, an incomplete charge-sheet was filed by SOG at 1:30 PM on same day but same cannot be treated as complete charge-sheet. 7. Learned Senior Advocate has further referred content of charge-sheet and submitted that the Investigating Agency has specifically mentioned that the investigation with regard to 77 accounts are complete, but 110 account are yet to be examined and interrogated. He pointed out that out of 187 accounts only 40% were analyzed and investigation is completed but 60% accounts were not analyzed and are still pending on date of filing of incomplete charge-sheet. He referred prayer of Investigating Agency for keeping pending the investigation under Section 173(8) of Cr.P.C. and submitted that when a charge-sheet is filed against any person and same is incomplete, then it cannot be treated as a charge-sheet as provided under Section 173 of Cr.P.C. He referred the legal provision and submitted that the duty lies upon the Investigating Agency to conclude the investigation within the time prescribed and they have no authority to submit incomplete papers to defeat the provision of default bail under Section 167(2) of Cr.P.C. He also submitted that [2025:RJ-JP:32012] (6 of 19) [CRLMB-7864/2024] herein this case, it was incomplete charge-sheet and same cannot be considered as charge-sheet for any purpose. 8. Learned Senior Advocate has further referred order dated 19.09.2019 passed by learned ACJM and submitted that it was a preliminary charge-sheet and the Trial Court has refused to consider the same for the purpose of consideration of framing of charge. He also referred orders passed with respect to Kamlesh Choudhary by the Trial Court on 16.01.2020 and a coordinate Bench of this Court on 10.02.2020 and further order dated 05.01.2021 in Criminal Appeal (Bail) No. 15/2021 by Hon’ble Supreme Court. He further relied upon judgment of Hon’ble Supreme Court in case of Kamlesh Choudhary vs. State of Rajasthan (Criminal Appeal No.15/2021) and submitted that a coordinate Bench has granted bail to petitioner-accused Kamlesh Choudhary by order dated 10.02.2020 with a rider that after filing of charge-sheet, the accused can be re- arrested but the findings recorded in para No.17 of the judgment of this Hon’ble Court was set aside by Hon’ble Supreme Court. He further submitted that in Bail Application dated 11.02.2020, the petitioners have specifically mentioned that after their arrest, the period of 90 days has expired on 22.08.2019, 23.08.2019 and 07.09.2019 respectively and they are entitled for bail under Section 167(2) of Cr.P.C. He referred the obligation upon the Trial Court under law and submitted that after completion of 90 days, if a charge-sheet is not filed, then it is the duty of the [2025:RJ-JP:32012] (7 of 19) [CRLMB-7864/2024] Trial Court to intimate accused so that he may file bail & bonds to get default bail under Section 167(2) of Cr.P.C. 9. Learned Senior Advocate has placed reliance upon judgments of Hon’ble Supreme Court in case of Union of India v. Nirala Yadav : (2014) 9 SCC 457; Rakesh Kumar Paul v. State of Assam : (2017) 15 SCC 67; M. Ravindran v. DRI : (2021) 2 SCC 485; Uday Mohanlal Acharya v. State of Maharashtra : (2001) 5 SCC 453; Bikramjit Singh v. State of Punjab : (2020) 10 SCC 616 and Satender Kumar Antil v. CBI : (2022) 10 SCC 51. 10. Learned Senior Advocate has further referred a Constitution Bench Judgment in case of Behram Khurshid Pesikaka v. State of Bombay : AIR 1955 SC 123 and submitted that this is not a case of waiver and in criminal proceedings any right accrued to any accused, cannot be waive by any actions. He further referred and placed reliance upon case of Narendra Kumar Amin v. CBI & Ors.: JT 2015 (2) SC 233; Sharif Ahmed & Anr. v. State of UP & Anr.: AIR 2024 SC 2420; Dablu Kujur vs. State of Jharkhand : 2024 INSC 197 and CBI vs. Kapil Wadhawan : (2024) 3 SCC 734. 11. To buttress his arguments, he further referred the documents annexed with current bail application and submitted that time and again, Hon’ble Supreme Court has explained the legal position to protect interest and rights of accused. [2025:RJ-JP:32012] (8 of 19) [CRLMB-7864/2024] 12. Learned AAG appearing for State and SOG have vehemently opposed the bail application and submitted that the judgments referred by learned Senior Advocate on behalf of petitioners-accused were already considered by Hon’ble Supreme Court in the case of CBI vs. Kapil Wadhawan : (2024) 3 SCC 734 which clearly lays down that once a charge-sheet is filed, even if, with clause of further investigation under Section 173(8) of Cr.P.C. and same has to be treated as charge-sheet and thereafter the accused has no right to seek default bail under Section 167(2) of Cr.P.C. 13. Heard learned Senior Advocate appearing on behalf of petitioners-accused and learned AAG appearing on behalf of State and SOG. Considered report submitted by SOG indicating role and involvement of the present petitioners- accused and also their criminal antecedents. Also considered and perused the judgments as referred by learned Senior Advocate appearing on behalf of petitioners-accused and learned AAG. 14. Having considered the material placed on record and also the judgments as referred from both the sides, I am of the considered view that since lot of judgments were referred during the course of arguments, therefore, for the sake of brevity, we are not referring each and every judgment as referred by learned Senior Advocate, but we have gone through each and every material as referred during course of arguments and also the principles of law as laid down in the [2025:RJ-JP:32012] (9 of 19) [CRLMB-7864/2024] judgments as referred by learned Senior Advocate and learned AAG. 15. In the case of Narendra Kumar Amin (supra), without compliance of Sub Sections (2) and (5) of Section 173 of Cr.P.C., a charge-sheet has been filed on 90th day. Hon’ble Supreme Court considering the entire circumstances, has held that accused are not entitled for default bail. In the case of Sharif Ahmed & Anr. (supra), Hon’ble Supreme Court has discussed requirement and manner of providing details in charge-sheet. In the case of Dablu Kujur (supra), after considering the judgment in the case of CBI v. Kapil Wadhawan (supra), has laid down that report of police officer on completion of investigation, shall contain the following in terms of Section 173(2) of Cr.P.C.:- “17. Ergo, having regard to the provisions contained in Section 173 it is hereby directed that the Report of police officer on the completion of investigation shall contain the following: - (i) A report in the form prescribed by the State Government stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under section 170. [2025:RJ-JP:32012] (10 of 19) [CRLMB-7864/2024] (h) Whether the report of medical examination of the woman has been attached where investigation relates to an offence under [sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB] or section 376E of the Indian Penal Code (45 of 1860)” (ii) If upon the completion of investigation, there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, the Police officer in charge shall clearly state in the Report about the compliance of Section 169 Cr.PC. (iii) When the report in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report, all the documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; and the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (iv) In case of further investigation, the Police officer in charge shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and shall also comply with the details mentioned in the above sub para (i) to (iii).” 16. In the case of M. Ravindran v. DRI : (2021) 2 SCC 485, it was held by Hon’ble Supreme Court that right to default bail survives only until charge sheet is filed in time. 17. In the case of Central Bureau of Investigation v. Kapil Wadhawan and Anr.: 2024 INSC 58, it was held by Hon’ble Supreme Court that the right of default bail under section 167(2) Cr.P.C. is not just a statutory right but a right [2025:RJ-JP:32012] (11 of 19) [CRLMB-7864/2024] that flows from Article 21 of the Constitution. It is an indefeasible right i.e. enforceable only prior to the filing of challan or charge-sheet and does not survive on the challan being filed if not already availed of. Hon’ble Supreme Court observed as under:- “The benefit of proviso appended to sub- section (2) of Section 167 of the Code would be available to the offender only when a charge-sheet is not filed and the investigation is kept pending against him. Once however, a charge-sheet is filed, the said right ceases. It may be noted that the right of the investigating officer to pray for further investigation in terms of sub-section (8) of Section 173 is not taken away only because a charge-sheet is filed under sub-section (2) thereof against the accused. Though ordinarily all documents relied upon by the prosecution should accompany the chargesheet, nonetheless for some reasons, if all the documents are not filed along with the chargesheet, that reason by itself would not invalidate or vitiate the chargesheet. It is also well settled that the court takes cognizance of the offence and not the offender. Once from the material produced along with the charge- sheet, the court is satisfied about the commission of an offence and takes cognizance of the offence allegedly committed by the accused, it is immaterial whether the further investigation in terms of Section 173(8) is pending or not. The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of charge-sheet would neither vitiate the charge-sheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete charge-sheet or that the chargesheet was not filed in terms of Section 173(2) of Cr.P.C.” 18. In the case of Sanjay Dutt v. State : (1994) 5 SCC 410, it was held by Hon’ble Supreme Court that once the accused avails of default bail, the right cannot be defeated by subsequently filing a charge-sheet and observed as under:- [2025:RJ-JP:32012] (12 of 19) [CRLMB-7864/2024] “The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filling 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 filing of the challan. The custody of the accused after the challan is filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. 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 ceases to apply.” 19. Hon’ble Supreme Court in the case of Uday Mohanlal Acharya v. State of Maharashtra : (2001) 5 SCC 453 held that the indefeasible right to default bail accrues once the statutory period expires, and filing of an incomplete charge-sheet will not defeat that right. Hon’ble Supreme Court further laid down what will happen in case of application for bail and challan are filed on the same day and observed as under:- “What will happen if on the 61st day an application for bail is filed for being released on bail on the ground of default by not filing the challan by the 60th day and on the 61st day the challan is also filed by the time the Magistrate is called upon to apply his mind to the challan as well as the petition for grant of bail? …such an application for bail has to be dismissed because the stage of proviso to Section 167(2) is over, as such right is extinguished the moment the challan is filed.” 20. Hon’ble Supreme Court in the case of Y.S. Jaganmohan Reddy v. CBI : (2013) 7 SCC 439 held that economic offences constitute a class apart, having deep rooted [2025:RJ-JP:32012] (13 of 19) [CRLMB-7864/2024] conspiracies and huge loss of public funds. These must be viewed with greater seriousness. 21. In the case of Sanjay Dutt v. State through CBI, Bombay : (1994) 5 SCC 410; Hitendra Vishnu Thakur v. State of Maharashtra : (1994) 4 SCC 602; Dr. Bipin Shantilal Panchal v. State of Gujarat : (1996) 1 SCC 718; Dinesh Dalmia v. CBI : AIR 2008 SC 78; Uday Mohanlal Acharya vs. State of Maharashtra : (2001) 5 SCC 453 and Pragyna Singh Thakur v. State of Maharashtra : (2011) 10 SCC 445, Hon’ble Supreme Court has held that right of the accused for grant of bail under Section 167(2) of Cr.P.C. is accrued if the Investigating Agency failed in submitting the charge-sheet within the statutory period of 60/90 days and same is enforceable by the accused only from the time of default in the submission of charge sheet till the filing of the challan and it does not survive or remain enforceable on the challan being filed as after submission of charge-sheet, a right of bail under Section 167(2) of Cr.P.C. ceased to apply. If after expiry of 60 or 90 days, a charge- sheet is not filed and accused is in custody on basis of order of remand, even then the accused cannot be released on bail on the ground that charge sheet is not submitted within the statutory period of 60 or 90 days. It is necessary for accused to file application for default bail before submission of charge-sheet. It is also settled proposition that period of 90 days, shall be counted from the date of remand and a day [2025:RJ-JP:32012] (14 of 19) [CRLMB-7864/2024] either date of remand or date of filing charge-sheet has to be excluded for purpose of counting 60/90 days. 22. In case of Pragyna Singh Thakur (supra) and Uday Mohanlal Acharya (supra), it was laid down that Magistrate is obliged to grant bail to accused under Section 167(2) of Cr.P.C. even if after filing of application for default bail under Section 167(2) of Cr.P.C., a charge-sheet is filed by the Investigating Agency. In the case of Uday Mohanlal Acharya (supra), it was further held that if accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of explanation-I and proviso to Sub Section (2) of Section 167 of Cr.P.C., the continued custody of the accused even beyond the specified period will not be unauthorized and if during that the said period of remand, if the investigation is complete and the charge-sheet is filed, then the so called indefeasible right of the accused would stand extinguished. 23. In the case of Narendra Kumar Amin (supra), the bail was refused even the charge-sheet is filed without compliance of provision under Sub Section (2) and (5) of Section 173 of Cr.P.C. 24. Herein this case, the facts as mentioned by learned Senior Advocate clearly indicate that after completion of 90 days, the Investigating Officer has not filed a charge-sheet against the petitioners and the Magistrate has authorized further remand of the accused. On 11.02.2020, an application under Section 167(2) of Cr.P.C. is filed by the petitioners before [2025:RJ-JP:32012] (15 of 19) [CRLMB-7864/2024] learned ACMM and for default bail under Section 167(2) of Cr.P.C. and after few hours of filing of application, a charge- sheet is filed on very same day before the Trial Court. It simply means that on 11.02.2020, when the application was filed by the petitioners, they were eligible for default bail under Section 167(2) of Cr.P.C. as no charge-sheet has been filed despite expiry of 90 days as mandated under the law. 25. The sequence of events as mentioned on record clearly indicate that this application is filed at 11.30 AM on 11.02.2020 and the Investigating Officer has filed a charge- sheet at 01:20 PM on very same day, which means an application for default bail and charge-sheet has been filed on 11.02.2020. Admittedly, the charge-sheet is filed after expiry of 90 days. It is also evident on record that before considering of application filed by the petitioners-accused, a charge-sheet has been filed. The Trial Court has neither passed an order nor was there any occasion for accused to submit bail and bonds for their release. The only issue remains before us is – Whether after expiry of 90 days, when bail application has been filed before filing of charge- sheet on very same day, the petitioners-accused are still entitled to get default bail under Section 167(2) of Cr.P.C.? 26. In case of Behram Khurshid Pesikaka (supra), a Constitutional Bench of Hon’ble Supreme Court held that in a criminal prosecution, it is not open to an accused person to waive his constitutional right and get convicted. The fundamental rights have not been put in the Constitution [2025:RJ-JP:32012] (16 of 19) [CRLMB-7864/2024] merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy. A citizen cannot get discrimination by telling the State "You can discriminate", or get convicted by waiving the protection given under Articles 20 and 21. 27. It is settled proposition of law that filing of charge-sheet under Section 173 Cr.P.C. results into culmination of investigation as Section 167(2) of Cr.P.C. is no longer applicable once charge-sheet is filed. Herein this case, learned Senior Advocate has referred finding of the Investigating Officer and submitted that the investigation with regard to 77 accounts were complete, but still investigation in 110 accounts were yet to be taken up and for the said purpose, the Investigating Officer has kept pending investigation for filing of further evidence. 28. Learned Senior Advocate has also referred order in the case of Kamlesh Choudhary (supra), wherein Hon’ble Supreme Court has set aside the finding in para No. 17 passed by a coordinate Bench of this Court particularly with regard to content of charge-sheet. 29. We have considered the judgments in the case of CBI vs. Kapil Wadhawan (supra), Dablu Kujur (supra) and Narendra Kumar Amin (supra) with regard to content of [2025:RJ-JP:32012] (17 of 19) [CRLMB-7864/2024] charge-sheet and effect on grant of default bail in case of filing of incomplete charge-sheet. 30. In the case of Sanjay Dutt v. State (supra), a Constitution Bench has clarified the legal position in following words:- “The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filling 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 filing of the challan. The custody of the accused after the challan is filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. 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 ceases to apply.” 31. In the case of State through CBI v. Mohd. Ashraft Bhat & Anr.: (1996) 1 SCC 432, Hon’ble Supreme Court has reiterated the settled legal position that right of default bail is enforceable only prior to filing of charge-sheet. 32. In the instant case, an application for seeking default bail and charge-sheet has been filed on same day, but neither the application is allowed nor accused have availed of their right. As per settled position, if the bail & bonds are not filed before filing of charge-sheet, then the right of bail extinguishes under Section 167(2) of Cr.P.C. and same is clarified by a Constitution Bench of Hon’ble Supreme Court in case of Sanjay Dutt (supra), wherein it was held that if there be such an application of accused for release on bail [2025:RJ-JP:32012] (18 of 19) [CRLMB-7864/2024] and also a prayer for extension of time to complete the investigation both of them should be considered together. Similar issue was also considered by Hon’ble Supreme Court in the case of Uday Mohanlal Acharya (supra) in following words:- “What will happen if on the 61 day an application for bail is filed for being released on bail on the ground of default by not filing th st the challan by the 60 day and on the 61 day the challan is also filed by the time the Magistrate is called upon to apply his mind to the challan as well as the petition for grant of bail? …such an application for bail has to be dismissed because the stage of proviso to Section 167(2) is over, as such right is extinguished the moment the challan is filed.” 33. No doubt about it, the liberty is the most sacrosanct right as provided under the Constitution of India and in Criminal Law, the right of waiver is not applicable for the accused. Herein, the right of bail accrues only when there is a default by Investigating Agency and Investigating Officer has failed to conclude the investigation within prescribed time, which means if the investigation is not concluded within time, then the accused is entitled to enforce his right of liberty as an accused cannot be kept in custody without any justifiable reason under the law. The grounds raised by learned Senior Advocate on behalf of petitioners are not sufficient to set aside and quash the orders passed by the courts below and the petitioners are not entitled for default bail in the instant case as before consideration of bail, a charge-sheet, incomplete has already been filed. [2025:RJ-JP:32012] (19 of 19) [CRLMB-7864/2024] 34. In view of the discussion made hereinabove, the instant Misc. Bail Application preferred by the applicants-accused – Rahul Modi S/o Sh. Virendra Modi; Rohit Modi S/o Sh Virendra Modi; Ishwar Singh Singal S/o Ranjeet Singh Singal; Vaibhav Lodha S/o Dinesh Kumar Lodha; Bharat Modi S/o Devi Chandra Modi; Mukesh Modi S/o Prakash Raj Modi and Bharat Das Vaishnav S/o Mandas Vaishnav, is hereby dismissed. (ASHOK KUMAR JAIN),J PKS/5-suppli