Neutral Citation No. - 2025:AHC:111291 Court No. - 82 Case :- APPLICATION U/S 528 BNSS No. - 21254 of 2025 Applicant :- Ashok Kumar Srivastava And Another Opposite Party :- State of U.P. Counsel for Applicant :- Mamta Pandey,R.S. Pandey,Rajshree Malviya Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J. 1. Counter affidavit filed today on behalf of the State is taken on record. 2. Learned counsel for the applicants does not propose to file any rejoinder affidavit. 3. Heard Sri R.S. Pandey, learned counsel for the applicants and Sri Vijay Kumar, learned AGA-I for the State-respondent. 4. The instant application has been filed seeking release of the applicants on default bail in Case Crime No. 6 of 2024, under Sections 7, 12 Prevention of Corruption Act read with section 61 of BNS, 2023, Police Station Anti Corruption Gonda, District Gonda by quashing the impugned order dated 28.10.2024 passed in default bail by Special Judge (Prevention of Corruption Act)/Additional Sessions Judge, Court No.5, Gorakhpur, during pendency of the trial in the court below. 5. Learned counsel for the applicants submitted that applicants have been made accused in the present matter and they are detained in jail since02.08.2024. He further submits, after investigation charge-sheet was filed against the applicants on 01.10.2024 but charge-sheet was incomplete as the same was filed without obtaining sanction and therefore on 28.10.2024 they filed an application under Section 187 B.N.S.S. to release them on default bail but vide impugned order dated 28.10.2024 their default bail moved under Section 187 B.N.S.S. has been dismissed. 6. He further submits, the order dated 28.10.2024 passed by the Special Judge Prevention of Corruption Act is illegal as while passing the same court concerned failed to consider the fact that charge-sheet which was although filed on 01.10.2024 was incomplete and it has been filed only with intention to defeat the indefeasible right of default bail of the applicants. 7. He further submits, as charge-sheet was filed without obtaining sanction which was necessary as per Section 19 of Prevention of Corruption Act, therefore, even no cognizance could be taken on the charge-sheet dated 01.10.2024 and court concerned fixed 15.10.2024 as the next date and thereafter 28.10.2024 and 08.11.2024 were fixed. 8. He further submits, on 08.11.2024 Investigating Officer submitted supplementary case diary annexing sanction obtained against applicants and therefore on 08.11.2024 cognizance was taken. 9. He further submits, all the above facts clearly indicates that Investigating Officer submitted incomplete charge-sheet on 01.10.2024 without sanction only to defeat the indefeasible right of applicants to release them on default bail, therefore, impugned order dated 28.10.2024 passed by the court concerned is illegal and applicants should be enlarged on bail under Section 187 B.N.S.S. i.e. on default bail. 10. He placed reliance on the judgment of the Apex Court in the case of Ritu Chhabaria Vs. Union of India and others 2023 SCC OnLine SC 502. 11. Per contra, learned AGA opposed the prayer for default bail and submitted as charge-sheet against the applicants has already been filed on 01.10.2024 and they moved application to release them on default bail on 28.10.2024, therefore, their right to release them on default bail had already been extinguished as after submission of the charge-sheet an accused cannot make prayer to release him on default bail. 12. Learned AGA further submits, as after completing the entire investigation charge-sheet was filed on 01.10.2024, therefore, it cannot be said that charge-sheet dated 01.10.2024 was incomplete and it has been filed only with intention to defeat the right of applicants to release them on default bail under Section 187 B.N.S.S. 13. He further submits, there is no illegality in the impugned order dated 28.10.2024 and therefore, instant application is devoid of merit and is liable to be dismissed. 14. I have heard learned counsel for the parties and perused the record of the case. 15. Applicants are accused in the instant matter and they are detained in jail since 02.08.2024 and it appears, on 28.10.2024 they moved an application under Section 187 B.N.S.S. with the prayer to release them on default bail on the ground that however charge-sheet has been filed against them on 01.10.2024 but charge-sheet is incomplete and the same has been filed without obtaining sanction and till date due to this reason even cognizance could not be taken but on same day on 28.10.2024 court concerned dismissed their application on the ground that charge-sheet has already been filed on 01.10.2024 and investigation has been completed and therefore applicants cannot be released on default bail under Section 187 B.N.S.S. 16. From the record, it reflects, however, on 01.10.2024 charge- sheet against the applicants had been filed and they moved an application under Section 187 B.N.S.S. to release them on default bail on 28.10.2024 i.e. after submission of the charge-sheet but it reflects, charge-sheet dated 01.10.2024 was incomplee and the same was filed without obtaining sanction against the applicants, which was mandatory for taking cognizance in the present matter. Considering this fact, the argument advanced by learned counsel for the applicant that Investigating Officer submitted incomplete charge-sheet without sanction on 01.10.2024 only with intention to defeat the indefeasible right of the applicants to release them on default bail under Section 187 B.N.S.S. cannot be ruled out. In view of this Court, the manner in which incomplete charge-sheet was filed by the Investigating Officer on 01.10.2024 the indefeasible right of applicants to release them on default bail under Section 187 B.N.S.S. cannot be said to be extinguished. 17. The Apex Court in the case of Ritu Chhabaria (supra) on which reliance was placed by learned counsel for the applicant also observed in paragraph-33:- "In view of the above mentioned discussions, the issues framed by us stand answered as under:- I. Without completing the investigation of a case, a chargesheet or prosecution complaint cannot be filed by an investigating agency only to deprive an arrested accused of his right to default bail under Section 167(2) of the CrPC. II. Such a chargesheet, if filed by an investigating authority without first completing the investigation, would not extinguish the right to default bail under Section 167(2) CrPC. III. The trial court, in such cases, cannot continue to remand an arrested person beyond the maximum stipulated time without offering the arrested person default bail." 18. Therefore, considering the facts and circumstances of the case discussed above, in my considered view, order dated 28.10.2024 passed by the court concerned is illegal and is liable to be quashed and applicants are entitled to be released on default bail under Section 187 B.N.S.S. 19. Accordingly, impugned order dated 28.10.2024 is hereby quashed and applicant is directed to be enlarged on bail under Section 187 B.N.S.S.. 20. Let the applicants -Ashok Kumar Srivastava and Saeed Ahmad, be released on default bail under section 187 BNSS in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicants shall appear before the trial court on the dates fixed, unless them personal presence is exempted. (ii) The applicants shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or any police officer or tamper with the evidence. (iii) The applicants shall not indulge in any criminal and anti-social activity. 21. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the default bail of the applicant. 22. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. Order Date :- 11.7.2025 Ankita Digitally signed by :- ANKITA SRIVASTAVA High Court of Judicature at Allahabad