Sanjay Dutt v. State through CBI

In this landmark 5-Judge Constitution Bench verdict authored by Justice J.S. Verma, the Supreme Court authoritatively resolved the procedural rules governing default bail under Section 167(2) proviso (a) CrPC (now Section 187 BNSS, 2023) and Section 20(4)(bb) of TADA. The Court held that the 'indefeasible right' to default bail accrues immediately upon the expiry of the statutory period for investigation if the charge-sheet is not filed. However, this right is not self-executing in perpetuity; it must be actively 'availed of' by filing an application and expressing readiness to furnish bail prior to the actual filing of the charge-sheet. Once the charge-sheet is filed before the accused has availed of the right, the indefeasible right lapses. The Court also held that Section 5 of TADA requires conscious, unauthorized possession of arms in a notified area.

• Indefeasible Right Accrual: Right to default bail accrues immediately upon expiry of the statutory investigation timeline (60/90/180 days).
• Active Availing Required: Accused must actively avail of default bail by moving an application and offering sureties before the charge-sheet is submitted.
• Filing of Charge-Sheet Extinguishes Unavailed Right: If the charge-sheet is filed before the accused exercises the right, default bail cannot be claimed.
• Subsequent Charge-Sheet Cannot Defeat Availed Right: If the accused has already filed for default bail, subsequent filing of the challan cannot defeat the application.
• Conscious Possession Under Section 5 TADA: Possession of unauthorized arms in a notified area requires conscious physical control and knowledge.

In the aftermath of the 1993 Bombay serial bomb blasts, several accused, including film actor Sanjay Dutt, were arrested under TADA, the IPC, and the Arms Act.

Sanjay Dutt was arrested on 19 April 1993 for unauthorized possession of an AK-56 assault rifle and ammunition in a notified area under Section 5 of TADA.

The statutory investigation period of 180 days expired, leading to conflicting claims regarding default bail under Section 20(4)(bb) TADA read with Section 167(2) CrPC.

Discrepancies between 2-Judge and 3-Judge Bench decisions (including Hitendra Vishnu Thakur) had created intense confusion regarding when default bail must be granted, whether notice is required for investigation extensions, and whether filing a challan defeats an unexercised bail plea.

A 5-Judge Constitution Bench was constituted to settle the law definitively.

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 regular provisions relating to grant of bail. The right to bail on default of the prosecution is an indefeasible right, but it must be availed of by the accused by an application. If the accused has availed of the right before the challan is filed, his right cannot be defeated by the subsequent filing of the challan during the pendency of the application. Notice to the accused is required when the prosecution seeks an extension of time beyond 180 days under Section 20(4)(bb) TADA. However, notice does not require service of a written notice; the production of the accused before the court when the extension report is considered, informing him that an extension is sought, satisfies the requirement. Section 5 of TADA applies to unauthorized possession of arms in a notified area. The expression 'possession' means conscious unauthorized possession. Once conscious possession is established in a notified area, the statutory presumption arises, but it is open to the accused to prove that the possession was for innocent purposes and unconnected with any terrorist act.

• Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453: Interpreted 'availed of' to mean filing of application offering to furnish bail.
• Bikramjit Singh v. State of Punjab (2020) 10 SCC 616: Reaffirmed Sanjay Dutt, holding default bail is an indefeasible Article 21 fundamental right.
• M. Ravindran v. Directorate of Revenue Intelligence (2021) 2 SCC 485: Confirmed that subsequent charge-sheets cannot defeat accrued default bail rights.
• CBI v. Kapil Wadhawan (2024) 3 SCC 734: Clarified that filing of a preliminary or substantive charge-sheet within time stops default bail.