M Ravindran-Crl. Appeal No. 699-2020
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 699 OF 2020
(arising out of S.L.P. (Criminal) No. 2333 of 2020)
M. Ravindran …Appellant
Versus
The Intelligence Officer,
Directorate of Revenue Intelligence …Respondent
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
Leave granted.
2. The judgment dated 21.11.2019 passed in Crl. O.P. No.
9750 of 2019 by the High Court of Judicature at Madras is called
into question in this appeal.
Digitally si3.gnedby The brief facts leading to this appeal are as follows:
ASHWANI KU MAR
Da te: 2020.10.26
18:32: 09 IST
Re ason:
1
3.1 The Appellant was arrested and remanded to judicial
custody on 04.08.2018 for the alleged offence punishable under
Section 8(c) read with Sections 22(c), 23(c), 25A and 29 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS
Act’). After completion of 180 days from the remand date, that is,
31.01.2019, the Appellant (Accused No.11) filed application for
bail under Section 167(2) of the Code of Criminal Procedure,
1973 (‘CrPC’) on 01.02.2019 before the Special Court for
Exclusive Trial of Cases under the NDPS Act, Chennai (‘Trial
Court’) on the ground that the investigation was not complete
and chargesheet had not yet been filed. Accordingly, on
05.02.2019, the Trial Court granted the order of bail in Crl. M.P.
No. 131 of 2019 in R.R. No. 09/2017 pending before the said court.
3.2 The Respondent/complainant, i.e. the Intelligence
Officer, Directorate of Revenue Intelligence filed Crl. O.P. No.
9750 of 2019 before the High Court of Judicature at Madras
praying to cancel the bail of the Appellant. The High Court, by
the impugned judgment, allowed the said appeal and
consequently cancelled the order of bail granted by the Trial
2
Court. Being aggrieved, the Appellant has approached this Court
questioning the judgment of the High Court.
3.3 It is not in dispute that the Appellant was remanded to
judicial custody on 04.08.2018 and hence the mandatory period
of 180 days prescribed for filing of final report under Section
167(2), CrPC (excluding the date of remand) was completed on
31.01.2019. This is made amply clear by the calculation of days
as per the Gregorian calendar as stated below:
“August 2018 (from 05.08.2018 to 31.08.2018) 27 days
September 2018 30 days
October 2018
31 days
November 2018 30 days
December 2018 31 days
January 2019
31 days
Total 180 days
”
3.4 Accordingly, the Appellant filed his bail application on
01.02.2019 at 10:30 a.m. before the Trial Court. During the
course of hearing of the bail applicationafter completion of the
arguments of the counsel for the Appellant, to be precisethe
3
Respondent/complainant filed an additional complaint against
the Appellant at 4:25 p.m. on 01.02.2019 and sought for
dismissal of the bail petition on the said basis. However, the Trial
Court allowed the bail application on the ground that the Court
has no power to intervene with the indefeasible right of the
Appellant conferred on him by the legislative mandate of Section
167(2).
3.5 The said judgment of the Trial Court was set aside by
the High Court on the ground that the additional complaint was
filed on 01.02.2019 itself and since the application for bail under
Section 167(2), CrPC was not disposed of by the time the
additional complaint was filed, the Appellant could not take
advantage of the fact that he had filed his bail petition prior in
time. The High Court further reasoned that the Court of Session
conducts work from the time it sits till the time it rises and hence
the Appellant could not avail of any specific benefit for having
filed the application at 10:30 a.m. inasmuch as the additional
complaint was lodged during the course of hearing of the bail application, before the Court rose for the day.
4
4. Ms. Arunima Singh, learned counsel appearing for the
Appellant, taking us through the material on record and relying heavily on the observations of this Court in the case of Uday
Mohanlal Acharya v. State of Maharashtra , (2001) 5 SCC
453, argued that the High Court has misconstrued the mandate
of Section 167(2), CrPC and has gravely erred in entering into the
merits of the matter; that the legislative mandate conferred by
Section 167(2), CrPC was lightly brushed aside by the High Court
though the Appellant had rightly invoked the provisions thereof
after completion of the mandatory period of 180 days, that too
prior to filing of the chargesheet/additional complaint by the
Respondent; and that subsequent filing of chargesheet/
additional complaint by the investigating authority cannot defeat
the indefeasible right of the Appellant.
5. Per contra, Mr. Aman Lekhi, learned Additional Solicitor
General argued in support of the judgment of the High Court
contending that the additional complaint was lodged while the
Appellant was still in custody and prior to the disposal of the
application for bail under Section 167(2), CrPC, hence there was
no question of the Appellantaccused furnishing the bail and
5
consequently he was liable to continued detention in custody. He
contended that the time or date of disposal of the application of
bail filed under Section 167(2) is the deciding factor to adjudge
whether the accused is entitled to default bail or not.
6. Before we proceed further, it is relevant to note the provisions of Section 167(2), CrPC:
“Section 167. Procedure when investigation cannot be
completed in twentyfour hours.—
(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,
- 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;
- 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
6
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.”
In common legal parlance, the right to bail under the
Proviso to Section 167(2) is commonly referred to as ‘default bail’
or ‘compulsive bail’ as it is granted on account of the default of
the investigating agency in not completing the investigation
within the prescribed time, irrespective of the merits of the case.
7
6.1 It is also relevant to note Section 36A (4) of the NDPS
Act for the purpose of this matter:
“Section 36A. Offences triable by Special Courts.—
(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in subsection (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to “ninety days”, where they occur, shall be construed as reference to “one
hundred and eighty days”:
Provided that, if it is not possible to complete the
investigation within the said period of one hundred and
eighty days, the Special Court may extend the said period
up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific
reasons for the detention of the accused beyond the said
period of one hundred and eighty days.”
(emphasis supplied)
6.2 Section 36A of the NDPS Act prescribes modified
application of the CrPC as indicated therein. The effect of Sub
Clause (4) of Section 36A, NDPS Act is to require that
investigation into certain offences under the NDPS Act be
completed within a period of 180 days instead of 90 days as
provided under Section 167(2), CrPC. Hence the benefit of
additional time limit is given for investigating a more serious
category of offences. This is augmented by a further Proviso that
the Special Court may extend time prescribed for investigation
8
up to one year if the Public Prosecutor submits a report
indicating the progress of investigation and giving specific
reasons for requiring the detention of accused beyond the
prescribed period of 180 days. In the matter on hand, it is
admitted that the Public Prosecutor had not filed any such report
within the 180day period for seeking extension of time up to one
year for filing final report/additional complaint before the Trial
Court.
From the aforementioned, it is clear that in the Appellant’s
case, the final report was required to be filed within 180 days from the first date of remand.
7. This Court in a catena of judgments including Ravi Prakash Singh @ Arvind Singh v. State of Bihar , (2015) 8
SCC 340, has ruled that while computing the period under
Section 167(2), the day on which accused was remanded to
judicial custody has to be excluded and the day on which challan/chargesheet is filed in the court has to be included.
8. As mentioned supra, it is not disputed that in compliance of
the aforementioned statutory provisions and judgments of this
Court, the Appellant waited for 180 days from the date of remand
9
(excluding the remand day) and thereafter filed application for
bail under Section 167(2), CrPC at 10:30 a.m. on 01.02.2019
inasmuch as till 31.01.2019 or till 10:30 a.m. of 01.02.2019, the
complainant had not yet filed final report/additional complaint
against the Appellant. On the same day, as mentioned supra,
during the course of hearing of the bail application, the
Respondent/complainant lodged an additional complaint at 4:25
p.m., and thus sought dismissal of the bail petition.
9. Thus the points to be decided in this case are:
(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;
(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
10
10. 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 threeJudge Bench of this Court in the case
of Uday Mohanlal Acharya (supra) by observing thus:
“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’s case (supra). 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. 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
11
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 chargesheet then also the socalled 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. 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
12
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)
While holding so, this Court considered and discussed in
depth the catena of judgments on right of the accused to default bail including Sanjay Dutt v. State through C.B.I. , (1994) 5 SCC 410; Hitendra Vishnu Thakur v. State of Maharashtra,
(1994) 4 SCC 602; State through CBI v. Mohd. Ashraft Bhat, (1996) 1 SCC 432; Dr. Bipin Shantilal Panchal v. State of Gujarat, (1996) 1 SCC 718; and Mohamed Iqbal Madar Sheikh
v. State of Maharashtra, (1996) 1 SCC 722.
10.1 We also find it relevant for the present purpose to
quote the following conclusions of the Court in the said
judgment:
“13.3. On the expiry of the said period of 90 days or
60 days, as the case may be, an indefeasible right
accrues in favour of the accused for being released on
bail on account of default by the investigating agency
in the completion of the investigation within the period
prescribed and the accused is entitled to be released
on bail, if he is prepared to and furnishes the bail as
directed by the Magistrate.
13
13.4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the accused
has been in custody for the period of 90 days or 60
days, as specified and no chargesheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated.
13.5. If the accused is unable to furnish bail, as directed by the Magistrate, then the conjoint reading of Explanation I and proviso to subsection 2 of Section 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorised, and therefore, if during that period the investigation is complete and chargesheet is filed then the socalled indefeasible right of the accused would stand extinguished.
13.6. The expression ‘if not already availed of’ used by this Court in Sanjay Dutt’s case (supra) must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to subsection (2)
of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.”
14
10.2 In Uday Mohanlal Acharya, the application for
default bail filed by the accused was rejected by the Magistrate
based on the wrongful assumption that Section 167(2), CrPC is
not applicable to cases pertaining to the Maharashtra Protection
of Interest of Depositors (in Financial Establishments) Act, 1999.
The chargesheet was filed while the application challenging
rejection of bail was pending before the High Court. Hence the
High Court held that the right to default bail was no longer enforceable.
Based on the abovementioned principles, the majority
opinion held that the accused is deemed to have exercised his
right to default bail under Section 167(2), CrPC the moment he
files the application for bail and offers to abide by the terms and
conditions of bail. The prosecution cannot frustrate the object of
Section 167(2), CrPC by subsequently filing a chargesheet or
additional complaint while the bail application is pending
consideration or final disposal before a Magistrate or a higher
forum. Accordingly, this Court granted relief to the appellant accused in that case.
15
However, it appears that in spite of the conclusions
stated by the majority in Uday Mohanlal Acharya (supra), there
continues to be confusion as to in what specific situations default
bail ought to be granted, particularly with respect to paragraphs
13.5 and 13.6 of the decision. Hence, for the purpose of removing
all doubts, we find it necessary to clarify the circumstances in which this entitlement may be claimed by the accused.
II. Section 167(2) and the Fundamental Right to Life and
Personal Liberty
11. Before we proceed to expand upon the parameters of the
right to default bail under Section 167(2) as interpreted by
various decisions of this Court, we find it pertinent to note the
observations made by this Court in Uday Mohanlal Acharya on
the fundamental right to personal liberty of the person and the
effect of deprivation of the same as follows:
“13…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 provisions thereof, as stipulated under Article
21 of the Constitution. When the law provides that the
Magistrate could authorise the detention of the accused
in custody up to a maximum period as indicated in the
16
proviso to subsection (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 21 of the Constitution.”
11.1 Article 21 of the Constitution of India provides that “no person shall be deprived of his life or personal liberty except according to procedure established by law ”. It has been settled by
a Constitution Bench of this Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that such a procedure cannot be
arbitrary, unfair or unreasonable. The history of the enactment of
Section 167(2), CrPC and the safeguard of ‘default bail’ contained
in the Proviso thereto is intrinsically linked to Article 21 and is
nothing but a legislative exposition of the constitutional
safeguard that no person shall be detained except in accordance
with rule of law.
11.2 Under Section 167 of the Code of Criminal Procedure,
1898 (‘1898 Code’) which was in force prior to the enactment of
the CrPC, the maximum period for which an accused could be
remanded to custody, either police or judicial, was 15 days.
However, since it was often unworkable to conclude complicated
17
investigations within 15 days, a practice arose wherein
investigative officers would file ‘preliminary chargesheets’ after
the expiry of the remand period. The State would then request
the magistrate to postpone commencement of the trial and
authorize further remand of the accused under Section 344 of the
1898 Code till the time the investigation was completed and the
final chargesheet was filed. The Law Commission of India in Report No. 14 on Reforms of the Judicial Administration (Vol.
II, 1948, pages 758760) pointed out that in many cases the
accused were languishing for several months in custody without
any final report being filed before the Courts. It was also pointed
out that there was conflict in judicial opinion as to whether the
magistrate was bound to release the accused if the police report
was not filed within 15 days.
Hence the Law Commission in Report No. 14
recommended the need for an appropriate provision specifically
providing for continued remand after the expiry of 15 days, in a manner that “while meeting the needs of a full and proper investigation in cases of serious crime, will still safeguard the liberty of the person of the individual.” Further, that the
legislature should prescribe a maximum time period beyond
18
which no accused could be detained without filing of the police
report before the magistrate. It was pointed out that in England,
even a person accused of grave offences such as treason could
not be indefinitely detained in prison till commencement of the
trial.
11.3 The suggestion made in Report No. 14 was reiterated by the Law Commission in Report No. 41 on The Code of
Criminal Procedure, 1898 (Vol. I, 1969, pages 7677). The Law
Commission reemphasized the need to guard against the misuse
of Section 344 of the 1898 Code by filing ‘preliminary reports’ for
remanding the accused beyond the statutory period prescribed
under Section 167. It was pointed out that this could lead to serious abuse wherein “the arrested person can in this manner be
kept in custody indefinitely while the investigation can go on in a
leisurely manner.” Hence the Commission recommended fixing of
a maximum time limit of 60 days for remand. The Commission
considered the reservation expressed earlier in Report No. 37 that
such an extension may result in the 60 day period becoming a
matter of routine. However, faith was expressed that proper
19
supervision by the superior Courts would help circumvent the same.
11.4 The suggestions made in Report No. 41 were taken
note of and incorporated by the Central Government while
drafting the Code of Criminal Procedure Bill in 1970. Ultimately,
the 1898 Code was replaced by the present CrPC. The Statement
of Objects and Reasons of the CrPC provides that the
Government took the following important considerations into
account while evaluating the recommendations of the Law Commission:
“3. The recommendations of the Commission were
examined carefully by the Government, keeping in view among others, the following basic considerations:—
- an accused person should get a fair trial in accordance with the accepted principles of natural justice;
- every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society; and
- the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal
to the poorer sections of the community.”
11.5 It was in this backdrop that Section 167(2) was
enacted within the presentday CrPC, providing for time limits on
the period of remand of the accused, proportionate to the
seriousness of the offence committed, failing which the accused
20
acquires the indefeasible right to bail. As is evident from the
recommendations of the Law Commission mentioned supra, the
intent of the legislature was to balance the need for sufficient
time limits to complete the investigation with the need to protect
the civil liberties of the accused. Section 167(2) provides for a
clear mandate that the investigative agency must collect the
required evidence within the prescribed time period, failing which
the accused can no longer be detained. This ensures that the
investigating officers are compelled to act swiftly and efficiently
without misusing the prospect of further remand. This also
ensures that the Court takes cognizance of the case without any
undue delay from the date of giving information of the offence, so
that society at large does not lose faith and develop cynicism towards the criminal justice system.
11.6 Therefore, as mentioned supra, Section 167(2) is
integrally linked to the constitutional commitment under
Article 21 promising protection of life and personal liberty against
unlawful and arbitrary detention, and must be interpreted in a
manner which serves this purpose. In this regard we find it
useful to refer to the decision of the threeJudge Bench of this
Court in Rakesh Kumar Paul v. State of Assam , (2017) 15
21
SCC 67, which laid down certain seminal principles as to the
interpretation of Section 167(2), CrPC though the questions of
law involved were somewhat different from the present case. The
questions before the threeJudge Bench in Rakesh Kumar Paul
were whether, firstly, the 90 day remand extension under Section
167(2)(a)(i) would be applicable in respect of offences where the
maximum period of imprisonment was 10 years, though the
minimum period was less than 10 years. Secondly, whether the
application for bail filed by the accused could be construed as an
application for default bail, even though the expiry of the
statutory period under Section 167(2) had not been specifically
pleaded as a ground for bail. The majority opinion held that the
90 day limit is only available in respect of offences where a minimum ten year imprisonment period is stipulated, and that
the oral arguments for default bail made by the counsel for the
accused before the High Court would suffice in lieu of a written
application. This was based on the reasoning that the Court
should not be too technical in matters of personal liberty. Madan
B. Lokur, J. in his majority opinion, pertinently observed as follows:
22
“29. Notwithstanding this, the basic legislative intent
of completing investigations within twentyfour hours and also within an otherwise timebound period remains unchanged, even though that period has been extended over the years. This is an indication that in addition to giving adequate time to complete investigations, the legislature has also and always put a premium on personal liberty and has always felt that it would be unfair to an accused to remain in
custody for a prolonged or indefinite period. It is for
this reason and also to hold the investigating agency
accountable that timelimits have been laid down by
the legislature…
xxx
32…Such views and opinions over a prolonged period have prompted the legislature for more than a century to ensure expeditious conclusion of investigations so that an accused person is not unnecessarily deprived of his or her personal liberty
by remaining in prolonged custody for an offence that he or she might not even have committed. In our opinion, the entire debate before us must also be looked at from the point of view of expeditious conclusion of investigations and from the angle of personal liberty and not from a purely dictionary or textual perspective as canvassed by the learned counsel for the State.
xxx
41. We take this view keeping in mind that in matters
of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional
courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the
Court.”
23
| th |
(emphasis supplied)
Therefore, the Courts cannot adopt a rigid or
formalistic approach whilst considering any issue that touches upon the rights contained in Article 21.
11.7 We may also refer with benefit to the recent judgement of this Court in S. Kasi v. State Through The Inspector of
Police Samaynallur Police Station Madurai District (Criminal
Appeal No. 452 of 2020 dated 19 June, 2020), 2020 SCC
OnLine SC 529, wherein it was observed that the indefeasible
right to default bail under Section 167(2) is an integral part of the
right to personal liberty under Article 21, and the said right to
bail cannot be suspended even during a pandemic situation as is
prevailing currently. It was emphasized that the right of the
accused to be set at liberty takes precedence over the right of the
State to carry on the investigation and submit a chargesheet.
11.8 Additionally, it is wellsettled that in case of any
ambiguity in the construction of a penal statute, the Courts must
favour the interpretation which leans towards protecting the
rights of the accused, given the ubiquitous power disparity
between the individual accused and the State machinery. This is
24
applicable not only in the case of substantive penal statutes but
also in the case of procedures providing for the curtailment of the
liberty of the accused.
With respect to the CrPC particularly, the Statement of
Objects and Reasons (supra) is an important aid of construction.
Section 167(2) has to be interpreted keeping in mind the three
fold objectives expressed by the legislature namely ensuring a fair
trial, expeditious investigation and trial, and setting down a
rationalized procedure that protects the interests of indigent
sections of society. These objects are nothing but subsets of the
overarching fundamental right guaranteed under Article 21.
11.9 Hence, it is from the perspective of upholding the
fundamental right to life and personal liberty under Article 21
that we shall clarify and reconcile the various judicial
interpretations of Section 167(2) for the purpose of resolving the
dilemma that has arisen in the present case.
III. The meaning of “ if not already availed of ” in Sanjay Dutt
25
12. One of the relevant decisions dealing with the question of
accrual and extinguishment of the right under Section 167(2) is that of the twoJudge Bench in Hitendra Vishnu Thakur
(supra). In that case, the Court was called upon to construe the
scope of Section 20(4)(bb) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (‘TADA’) which is in pari materia
with the Proviso to Section 36A (4) of the NDPS Act. The Court
held that an accused person seeking bail under Section 20(4) of
the TADA read with Section 167(2) has to make an application for
such default bail and the Court shall release the accused on bail
if the period for filing a chargesheet has expired, after notice to
the public prosecutor, uninfluenced by the merits of the case.
That unless the Court grants extension in time based on the
report of the Public Prosecutor, the Designated Court under
TADA would have no jurisdiction to deny to the accused his
indefeasible right to default bail if the accused seeks and is
prepared to furnish the bail bonds as directed by the Court.
Further that in such a scenario, the Court is obligated to decline
any request for further remand. However, it was also expressly
stated that the Court cannot release the accused on its own motion if the accused does not file any such application.
26
12.1 Subsequently the question of the proper construction
of Section 20(4)(bb) was referred to a Constitution Bench of this
Court in Sanjay Dutt (supra). Reservation was expressed before
this Court that the decision in Hitendra Vishnu Thakur (supra)
should not be held as conferring an indefeasible right on the
accused to be released on default bail even after the final report
or challan has been filed. To settle this point, the Constitution
Bench held that:
“48…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 provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been 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 CrPC ceases to apply…It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to
be dismissed, if on the date of return of the rule, the
custody or detention is on the basis of a valid order.
27
53…(2)(b) The ‘indefeasible right’ of the accused to be
released on bail in accordance with Section 20(4)(bb)
of the TADA Act read with Section 167(2) of the CrPC
in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time
of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the
extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the CrPC. The
right of the accused to be released on bail after filing
of the challan, notwithstanding the default in filing it
within the time allowed, is governed from the time of
filing of the challan only by the provisions relating to
the grant of bail applicable at that stage.”
(emphasis supplied)
It appears that the term “if not already availed of”
mentioned supra has become a bone of contention as Courts
have differed in their opinions as to whether the right to default
bail is availed of and enforced as soon as the application for bail
is filed; or when the bail petition is finally disposed of by the
Court; or only when the accused actually furnishes bail as directed by the Court and is released from custody.
28
12.2 The majority opinion in Uday Mohanlal Acharya
(supra) clarified this ambiguity by holding that the expression “if
not already availed of” used by this Court in Sanjay Dutt (supra)
must be understood to mean “when the accused files an application and is prepared to offer bail on being directed ”. In that
case, it has to be held that the accused has enforced his
indefeasible right even though the Court has not considered the
said application and has not indicated the terms and conditions
of bail, and the accused is yet to furnish the same.
12.3 However, B.N. Agrawal, J. in his minority opinion
partly dissented with the majority, particularly with respect to the conclusions expressed in paragraph 13.6 of Uday Mohanlal
Acharya (supra). He opined that the phrase “the accused person
shall be released on bail if he is prepared to and does furnish bail”
in Section 167(2)(a)(ii) (emphasis supplied) and “the accused shall be detained in custody so long as he does not furnish bail ” in
Explanation I to Section 167(2) indicated that the right to be
released on default bail could be exercised only on actual
furnishing of bail. Further, that the decision of the Constitution
Bench in Sanjay Dutt (supra) should be interpreted to have held
29
that if the challan is filed before any order directing release on
bail is passed and before the bail bonds are furnished, the right
under Section 167(2) would cease to be available to the accused.
12.4 Having considered both opinions, we have arrived at the conclusion that the majority opinion in Uday Mohanlal
Acharya (supra) is the correct interpretation of the decision
rendered by the Constitution Bench in Sanjay Dutt (supra). The decision in Sanjay Dutt merely casts a positive corresponding
obligation upon the accused to promptly apply for default bail as
soon as the prescribed period of investigation expires. As the decision in Hitendra Vishnu Thakur (supra) expressly cautions,
the Court cannot suo motu grant bail without considering
whether the accused is ready to furnish bail or not. This is an
inbuilt safeguard within Section 167(2) to ensure that the
accused is not automatically released from custody without
obtaining the satisfaction of the Court that he is able to
guarantee his presence for further investigation, or for trial, as the case may be. Further, as the majority opinion in Rakesh
Kumar Paul (supra) pointed out, there could be rare occasions
30
where the accused voluntarily forfeits his right to bail on account
of threat to his personal security outside of remand or for some
other reasons. The decision in Sanjay Dutt clarifies that once a
chargesheet is filed, such waiver of the right by the accused becomes final and Section 167(2) ceases to apply.
However, the Constitution Bench decision in Sanjay
Dutt cannot be interpreted so as to mean that even where the
accused has promptly exercised his right under Section 167(2)
and indicated his willingness to furnish bail, he can be denied
bail on account of delay in deciding his application or erroneous
rejection of the same. Nor can he be kept detained in custody on
account of subterfuge of the prosecution in filing a police report
or additional complaint on the same day that the bail application
is filed.
12.5
The arguments of the State that the expression
“availed of” would only mean actual release after furnishing the
necessary bail would cause grave injustice to the accused and
would defeat the very purpose of the Proviso to Section 167(2),
CrPC. If the arguments of Mr. Lekhi are accepted, there will be
31
many instances where the Public Prosecutor might prolong the
hearing of the application for bail so as to facilitate the State to
file an additional complaint or investigation report before the
Court during the interregnum. In some cases, the Court may
also delay the process for one reason or the other. In such an
event, the indefeasible right of the accused to get the order of bail
in his favour would be defeated. This could not have been the
intention of the legislature. If such a practice is permitted, the
same would amount to deeming illegal custody as legal. After the
expiry of the stipulated period, the Court has no further jurisdiction to remand the accused to custody. The prosecution
would not be allowed to take advantage of its own default of not
filing the investigation report/complaint against the appellant within the stipulated period.
12.6 It was noted by B.N. Agrawal, J. in his minority opinion in Uday Mohanlal Acharya (supra) that a distinction
can be made between cases where the Court has adopted dilatory
tactics to defeat the right of the accused and where the delay in
deciding the bail application is bona fide and unintentional. In
case of the former, the accused could move the superior Court for
32
appropriate direction. Whereas in case of the latter, the Court
must dismiss the bail petition if the prosecution files the challan
in the meantime. In a similar manner, the Respondent/
complainant in the present case has also sought to distinguish Uday Mohanlal Acharya and subsequent decisions of this
Court pertaining to Section 167(2) on the ground that the Trial
Court considered the bail application on the same day it was
filed, and hence there was no unjust delay which would make the
accused entitled to be released on bail.
In our considered opinion, such a distinction cannot
be adopted as it would give rise to parallel litigations
necessitating separate inquiries into the motivation of the Court
for delaying a bail application, or for posting it for hearing on a
particular date at a particular time. Delay in deciding the bail
application could be due to a number of factors and there may
not be a clearcut answer to the same in all circumstances.
Hence irrespective of the reasons for delay in deciding the bail
application, the accused is deemed to have exercised his
indefeasible right upon filing of the bail application, though his
33
actual release from custody is inevitably subject to compliance with the order granting bail.
12.7 We agree with the view expressed in Rakesh Kumar
Paul (supra) that as a cautionary measure, the counsel for the
accused as well as the magistrate ought to inform the accused of
the availability of the indefeasible right under Section 167(2) once
it accrues to him, without any delay. This is especially where the
accused is from an underprivileged section of society and is
unlikely to have access to information about his legal rights.
Such knowledgesharing by magistrates will thwart any dilatory
tactics by the prosecution and also ensure that the obligations
spelled out under Article 21 of the Constitution and the Statement of Objects and Reasons of the CrPC are upheld.
IV. The Import of Explanation I to Section 167(2), CrPC
13. It is true that Explanation I to Section 167(2), CrPC provides
that the accused shall be detained in custody so long as he does
not furnish bail. However, as mentioned supra, the majority opinion in Uday Mohanlal Acharya expressly clarified that
Explanation I to Section 167(2) applies only to those situations
34
where the accused has availed of his right to default bail and
undertaken to furnish bail as directed by the Court, but has
subsequently failed to comply with the terms and conditions of
the bail order within the time prescribed by the Court. We find
ourselves in agreement with the view of the majority. In such a
scenario, if the prosecution subsequently files a chargesheet, it
can be said that the accused has forfeited his right to bail under
Section 167(2), CrPC. Explanation I is only a safeguard to ensure
that the accused is not immediately released from custody without complying with the bail order.
13.1 However, the expression ‘the accused does furnish bail’
in Section 167(2) and Explanation I thereto cannot be interpreted
to mean that if the accused, in spite of being ready and willing,
could not furnish bail on account of the pendency of the bail
application before the Magistrate, or because the challenge to the
rejection of his bail application was pending before a higher
forum, his continued detention in custody is authorized. If such
an interpretation is accepted, the application of the Proviso to
Section 167(2) would be narrowly confined only to those cases
where the Magistrate is able to instantaneously decide the bail
35
application as soon as it is preferred before the Court, which may
sometimes not be logistically possible given the pendency of the
docket across courts or for other reasons. Moreover, the
application for bail has to be decided only after notice to the
public prosecutor. Such a strict interpretation of the Proviso
would defeat the rights of the accused. Hence his right to be
released on bail cannot be defeated merely because the
prosecution files the chargesheet prior to furnishing of bail and
fulfil the conditions of bail of furnishing bonds, etc., so long as he
furnishes the bail within the time stipulated by the Court.
13.2 Hence we reject Mr. Lekhi’s argument that the
Appellantaccused is not entitled to the protection of Section
167(2), CrPC if he has not furnished bail at the time the additional complaint was filed.
V. Rights of the Prosecutor under Section 167(2), CrPC read with Section 36(A) (4), NDPS Act
14. There also appears to be some controversy on account of the opinion expressed in Hitendra Vishnu Thakur (supra) that the
Public Prosecutor may resist grant of default bail by filing a
36
report seeking extension of time for investigation. The Court held
that:
“30…It is, however, permissible for the public prosecutor to resist the grant of bail by seeking an extension under clause (bb) by filing a report for the purpose before the court. However, no extension shall
be granted by the court without notice to an accused
to have his say regarding the prayer for grant of
extension under clause (bb). In this view of the
matter, it is immaterial whether the application for
bail on ground of ‘default’ under Section 20(4) is filed
first or the report as envisaged by clause ( bb ) is filed
by the public prosecutor first so long as both are considered while granting or refusing bail. If the period prescribed by clause ( b) of Section 20(4) has expired and the court does not grant an extension on
the report of the public prosecutor made under clause
(bb), the court shall release the accused on bail as it would be an indefeasible right of the accused to be so released. Even where the court grants an extension under clause ( bb) but the chargesheet is not filed within the extended period, the court shall have no option but to release the accused on bail if he seeks it
and is prepared to furnish the bail as directed by the
court…”
(emphasis supplied)
This was affirmed by the Constitution Bench in Sanjay
Dutt (supra), wherein it was held that the grant of default bail is
subject to refusal of the prayer for extension of time, if such a
prayer is made. This seems to have given rise to the misconception that Sanjay Dutt (supra) endorses the view that
37
the prosecution may seek extension of time (as provided for
under the relevant special statute) for completing the
investigation or file a final report at any time before the accused
is released on bail, notwithstanding the fact that a bail application on ground of default has already been filed.
14.1 The observations made in Hitendra Vishnu Thakur
(supra) and Sanjay Dutt (supra) to the effect that the application
for default bail and any application for extension of time made by
the Public Prosecutor must be considered together are, in our
opinion, only applicable in situations where the Public Prosecutor files a report seeking extension of time prior to the filing of the
application for default bail by the accused. In such a situation,
notwithstanding the fact that the period for completion of
investigation has expired, both applications would have to be
considered together. However, where the accused has already
applied for default bail, the Prosecutor cannot defeat the
enforcement of his indefeasible right by subsequently filing a final
report, additional complaint or report seeking extension of time.
14.2 It must also be added and it is well settled that
issuance of notice to the State on the application for default bail
38
filed under the Proviso to Section 167(2) is only so that the Public
Prosecutor can satisfy the Court that the prosecution has already
obtained an order of extension of time from the Court; or that the
challan has been filed in the designated Court before the expiry
of the prescribed period; or that the prescribed period has
actually not expired. The prosecution can accordingly urge the
Court to refuse granting bail on the alleged ground of default.
Such issuance of notice would avoid the possibility of the
accused obtaining default bail by deliberate or inadvertent
suppression of certain facts and also guard against multiplicity of
proceedings.
However, Public Prosecutors cannot be permitted to
misuse the limited notice issued to them by the Court on bail
applications filed under Section 167(2) by dragging on
proceedings and filing subsequent applications/reports for the
purpose of ‘buying extra time’ and facilitating filling up of lacunae
in the investigation by the investigating agency.
VI. Other Relevant Precedents pertaining to the right under
Section 167(2)
39
15. We are fortified in our aforementioned conclusions by the threeJudge Bench decision of this Court in Mohamed Iqbal
Madar Sheikh v. State of Maharashtra, (supra). In that case,
though the chargesheet was submitted after expiry of the
statutory period under Section 20(4)(bb) of the TADA Act, it was
admitted that no prior application for bail had been filed by the
appellants. Hence the Court held, relying upon Sanjay Dutt, that
the right to bail could not be exercised once the chargesheet has
been submitted and cognizance has been taken.
However, at the same time, the threeJudge Bench also
expressed with consternation that Courts cannot engage in
practices such as keeping the applications for bail pending till
the time chargesheets are submitted, so that the statutory right
which has accrued to the accused is defeated. If the Court
deliberately does not decide the bail application but adjourns the
case by granting time to the prosecution, it would be in violation
of the legislative mandate. It may be pertinent to note that the threeJudge Bench in Mohamed Iqbal Madar Sheikh had also been part of the Constitution Bench in Sanjay Dutt.
40
15.1 Similarly, in Dr. Bipin Shantilal Panchal (supra), it
was admitted that the accused had not filed an application for
bail at the time the right under Section 167(2), CrPC had accrued
to him. The chargesheet had already been filed by the time the
accused sought to avail of his right. Incidentally, the same three
Judge Bench which had delivered the opinion in Mohamed Iqbal
Madar Sheikh (supra), and which was part of the original
Constitution Bench in Sanjay Dutt (supra), rendered judgment as follows:
“4…But it is an admitted position that the charge sheet has been filed on 2351994 and now the appellant is in custody on the basis of orders of remand passed under the other provisions of the Code. Whether the accused who was entitled to be released on bail under proviso to subsection (2) of Section 167 of the Code, not having made an application when such right had accrued, can exercise that right at a later stage of the proceeding,
has been examined by a Constitution Bench of this
Court in the case of Sanjay Dutt v. State through
CBI…
…Therefore, if an accused person fails to exercise his
right to be released on bail for the failure of the prosecution to file the chargesheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the chargesheet is filed. But on the other hand if he
exercises the right within the time allowed by law and
41
is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge
sheet, as pointed out in Aslam Babalal Desai v. State
of Maharashtra.”
(emphasis supplied)
The abovementioned discussion clearly corroborates
our view, and the view taken by the majority in Uday Mohanlal
Acharya, that the decision in Sanjay Dutt only lays down as a
precautionary principle that the accused must apply for default
bail the moment the right under Section 167(2) accrues to him. If
he fails to do so, he cannot claim the right at a subsequent stage
of the proceedings after the prosecution has filed a chargesheet.
The words “not having made an application when such right had
accrued, can exercise that right at a later stage ” clearly indicate
that the accused is deemed to have exercised his right to bail once he makes an application for the same.
15.2 It is useful to refer to the decisions of this Court in Mohd. Ashraft Bhat (supra); Ateef Nasir Mulla v. State of Maharashtra, (2005) 7 SCC 29; and Mustaq Ahmed
Mohammed Isak v. State of Maharashtra, (2009) 7 SCC 480.
In Mohd. Ashraft Bhat, the Court rejected the application for
bail as the police report already stood submitted. Reliance was
42
placed upon Sanjay Dutt (supra). Similarly, in Ateef Nasir
Mulla the Court held that since the order granting extension of
time under Section 49(2)(b) of the Prevention of Terrorism Act, 2002 (‘POTA’), which is in pari materia with the Proviso to Section 36A (4) of the NDPS Act, had been passed prior to the application
for default bail, the accused would not be entitled to bail. In Mustaq Ahmed Mohammed Isak, the Court similarly rejected
the application for bail under Section 21(2)(b) of the Maharashtra
Control of Organised Crime Act, 1999 as the chargesheet was
filed on the same day, but which was the last day of the extended
period granted by the Special Court and hence within the statutory time limit.
15.3 On the other hand in Sayed Mohd. Ahmad Kazmi v. State (Government of NCT of Delhi), (2012) 12 SCC 1, the
accused filed an application for default bail on 17.7.2012. The
Chief Metropolitan Magistrate, instead of hearing the application
on the said date, renotified the hearing for 18.7.2012. On
18.7.2012, the State filed an application seeking extension of
remand under Section 43D (2)(b) of the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’) which is also in pari materia with
the Proviso to Section 36A (4) of the NDPS Act. The Magistrate
43
took up both matters on 20.7.2012 and allowed the application
for extension of custody with retrospective effect from 2.6.2012
without considering the application under Section 167(2), CrPC.
Subsequently, the chargesheet was filed on 31.7.2012. It was
contended by the learned Additional Solicitor General, in reliance upon Sanjay Dutt, that the right to statutory bail stood
extinguished once the application for extension of time was filed.
The threeJudge Bench rejected the aforesaid
contention and held that the right of the accused to statutory
bail, which was exercised at the time his bail application was
filed, remained unaffected by the subsequent application for
extension of time to complete investigation. Further, the Court
expressly censured the dilatory tactic adopted by the Magistrate
in that case in the following words:
“25. Having carefully considered the submissions
made on behalf of the respective parties, the relevant provisions of law and the decision cited, we are unable to accept the submissions advanced on behalf of the State by the learned Additional Solicitor General Mr Raval. There is no denying the fact that
on 1772012, when CR No. 86 of 2012 was allowed
by the Additional Sessions Judge and the custody of
the appellant was held to be illegal and an application
under Section 167(2) CrPC was made on behalf of the
appellant for grant of statutory bail which was listed
44
for hearing. Instead of hearing the application, the Chief Metropolitan Magistrate adjourned the same till the next day when the Public Prosecutor filed an application for extension of the period of custody and
investigation and on 2072012 extended the time of
investigation and the custody of the appellant for a further period of 90 days with retrospective effect from 262012. Not only is the retrospectivity of the
order of the Chief Metropolitan Magistrate untenable,
it could not also defeat the statutory right which had accrued to the appellant on the expiry of 90 days from the date when the appellant was taken into custody. Such right, as has been commented upon by this Court in Sanjay Dutt and the other cases cited by the learned Additional Solicitor General, could only be distinguished ( sic extinguished) once the chargesheet had been filed in the case and no application has been made prior thereto for grant of
statutory bail. It is wellestablished that if an accused
does not exercise his right to grant of statutory bail
before the chargesheet is filed, he loses his right to
such benefit once such chargesheet is filed and can,
thereafter, only apply for regular bail.
26. The circumstances in this case, however, are different in that the appellant had exercised his right
to statutory bail on the very same day on which his custody was held to be illegal and such an application was left undecided by the Chief Metropolitan Magistrate till after the application filed
by the prosecution for extension of time to complete investigation was taken up and orders were passed thereupon.
27. We are unable to appreciate the procedure adopted by the Chief Metropolitan Magistrate, which
has been endorsed by the High Court and we are of the view that the appellant acquired the right for grant of statutory bail on 1772012, when his custody was held to be illegal by the Additional Sessions Judge since his application for statutory bail
45
was pending at the time when the application for
extension of time for continuing the investigation was
filed by the prosecution. In our view, the right of the
appellant to grant of statutory bail remained unaffected by the subsequent application and both the Chief Metropolitan Magistrate and the High Court
erred in holding otherwise.”
(emphasis supplied)
15.4 Similarly, in Union of India v. Nirala Yadav, (2014) 9
SCC 457, the accused filed application for default bail on
14.3.2007. The State filed application seeking extension of time
under Section 49(2)(b) of the POTA on 15.3.2007. However, no
order was passed on either application. In the meanwhile, the
chargesheet was filed on 26.3.2007. On 3.4.2007 the Special
Judge took up both applications and retrospectively extended the
time for filing of the chargesheet. It was contended by the Union
Government that according to the decision in Sanjay Dutt, the
indefeasible right to bail was totally destroyed as no order on bail
was passed before the chargesheet was filed.
The Court noted that the prosecution had not filed any
application for extension prior to the date of expiry of 90 days. It
was further observed that “had an application for extension been
filed, then the matter would have been totally different ”. The Court
46
ultimately held that the Magistrate was obligated to deal with the
application for default bail on the day it was filed. Hence the Court, in reliance upon Uday Mohanlal Acharya, upheld the
order of the High Court granting default bail to the accused.
16. Mr. Lekhi pressed into service the judgment of this Court in Pragyna Singh Thakur v. State of Maharashtra, (2011) 10
SCC 445, wherein it was held, in reliance upon Sanjay Dutt
(supra), that where an application for bail is filed on the ground
of nonfiling of the chargesheet within the prescribed period, the
said right to bail would be extinguished if the prosecution
subsequently files a chargesheet before consideration of the
application and the release of the accused. Thereafter, the release
of the accused on bail can only be on merits. Though the learned Judges in Pragyna Singh Thakur (supra) had referred to the
Uday Mohanlal Acharya case, they have expressed a completely
contrasting opinion as mentioned supra.
16.1 It ought to be noted that in Pragyna Singh Thakur,
the learned Judges had concluded on the facts of that case that
the chargesheet had been filed within 90 days from the first order
47
of remand of the accused to custody. The aforementioned
observations on the extinguishment of the right to default bail were only made as obiter, in the form of a hypothetical arguendo,
and hence cannot be said as laying down a binding precedent as
such. However in any case, given that the decision continues to
be relied upon by the State, we must clarify that in our considered opinion, the observations made in Pragyna Singh
Thakur run counter to the principles laid down in the judgments
rendered by larger Benches.
16.2 It is pertinent to note that the twoJudge Bench in Nirala Yadav (supra) has already illuminated that the principles stated by the earlier coordinate Bench in Pragyna Singh Thakur, particularly in paragraphs 54 and 58 of the decision, do
not state the correct position of law. Having studied both
opinions, we are constrained to conclude and hold that the position as stated in Nirala Yadav is correct. We find that the opinion expressed in Pragyna Singh Thakur that the right to
bail can be considered only on merits once the chargesheet is
filed, is based on an erroneous interpretation of the conclusions
48
of the Constitution Bench in Sanjay Dutt. As mentioned supra,
the expression “if not already availed of” used in the Constitution
Bench decision has been misinterpreted by the Courts, including
the twoJudge Bench in Pragyna Singh Thakur, to mean that
the accused can only avail of the right to default bail if he is
actually released prior to the filing of the chargesheet. However, this Court in Uday Mohanlal Acharya (supra) has correctly
understood and analysed the principles stated in the case of Sanjay Dutt before coming to its conclusion as stated above.
We are of the firm opinion that the view taken in Uday
Mohanlal Acharya is a binding precedent. It has been followed by a subsequent threeJudge Bench in Sayed Mohd. Ahmad Kazmi (supra). Hence, the opinion rendered by the twoJudge
Bench in paragraphs 54 and 58 of Pragyna Singh Thakur, to
the effect that “even if an application for bail is filed on the ground that chargesheet was not filed within 90 days, but before consideration of the same and before being released on bail, the
said right to be released on bail would be lost” or “can only be on
merits”, must be held per incuriam.
49
16.3 Quite recently, in the case of Bikramjit Singh v.
State of Punjab (Criminal Appeal No. 667 of 2020 dated 12
th
October, 2020), 2020 SCC OnLine SC 824, dealing with similar
question which arose in an application for default bail under the
UAPA, a threeJudge Bench of this Court, after considering the
various judgments on the point, observed thus:
“A conspectus of the aforesaid decisions would show that so long as an application for grant of
default bail is made on expiry of the period of 90
days (which application need not even be in writing) before a charge sheet is filed, the right to
default bail becomes complete. It is of no moment
that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed. So long
as an application has been made for default bail
on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.”
This decision in Bikramjit Singh ensures that the
rigorous powers conferred under special statutes for curtailing
liberty of the accused are not exercised in an arbitrary manner.
At the cost of repetition, it must be emphasized that
the paramount consideration of the legislature while enacting
Section 167(2) and the Proviso thereto was that the investigation
50
| st |
must be completed expeditiously, and that the accused should
not be detained for an unreasonably long period as was the
situation prevailing under the 1898 Code. This would be in
consonance with the obligation cast upon the State under Article
21 to follow a fair, just and reasonable procedure prior to depriving any person of his personal liberty.
Conclusion
17. In the present case, admittedly the Appellantaccused had
exercised his option to obtain bail by filing the application at
10:30 a.m. on the 181 day of his arrest, i.e., immediately after
the court opened, on 01.02.2019. It is not in dispute that the
Public Prosecutor had not filed any application seeking extension
of time to investigate into the crime prior to 31.01.2019 or prior
to 10:30 a.m. on 01.02.2019. The Public Prosecutor participated
in the arguments on the bail application till 4:25 p.m. on the day
it was filed. It was only thereafter that the additional complaint
came to be lodged against the Appellant.
Therefore, applying the aforementioned principles, the
Appellantaccused was deemed to have availed of his indefeasible
right to bail, the moment he filed an application for being
51
released on bail and offered to abide by the terms and conditions
of the bail order, i.e. at 10:30 a.m. on 01.02.2019. He was
entitled to be released on bail notwithstanding the subsequent filing of an additional complaint.
17.1 It is clear that in the case on hand, the State/the
investigating agency has, in order to defeat the indefeasible right
of the accused to be released on bail, filed an additional
complaint before the concerned court subsequent to the
conclusion of the arguments of the Appellant on the bail
application. If such a practice is allowed, the right under Section
167(2) would be rendered nugatory as the investigating officers
could drag their heels till the time the accused exercises his right
and conveniently files an additional complaint including the
name of the accused as soon as the application for bail is taken
up for disposal. Such complaint may be on flimsy grounds or
motivated merely to keep the accused detained in custody,
though we refrain from commenting on the merits of the
additional complaint in the present case. Irrespective of the
seriousness of the offence and the reliability of the evidence
52
available, filing additional complaints merely to circumvent the
application for default bail is, in our view, an improper strategy.
Hence, in our considered opinion, the High Court was
not justified in setting aside the judgment and order of the Trial
Court releasing the accused on default bail.
17.2
We also find that the High Court has wrongly entered
into merits of the matter while coming to the conclusion. The
reasons assigned and the conclusions arrived at by the High Court are unacceptable.
18. Therefore, in conclusion:
18.1 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 36A (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
53
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 investigative agency.
18.2 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 chargesheet or a report seeking
extension of time by the prosecution before the
Court; or filing of the chargesheet during the
interregnum when challenge to the rejection of the
bail application is pending before a higher Court.
18.3 However, where the accused fails to apply
for default bail when the right accrues to him, and
subsequently a chargesheet, additional complaint
or a report seeking extension of time is preferred
before the Magistrate, the right to default bail
54
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.
18.4 Notwithstanding the order of default bail
passed by the Court, by virtue of Explanation I to
Section 167(2), the actual release of the accused
from custody is contingent on the directions
passed by the competent Court granting bail. If
the accused fails to furnish bail and/or comply
with the terms and conditions of the bail order
within the time stipulated by the Court, his continued detention in custody is valid.
19. Hence the impugned judgment of the High Court stands set
aside and the Trial Court judgment stands confirmed. However,
we additionally direct that apart from furnishing the sureties as
directed by the Trial Court, the Appellantaccused should also
surrender his passport, undertake to report to the Respondent
Directorate when required for purposes of investigation, and also
55
undertake to not leave Chennai city limits without the leave of
the Trial Court. This should alleviate any concerns about the Appellant absconding from the jurisdiction of the Court.
20. The appeal is allowed accordingly.
…..……………………………………..J.
(UDAY UMESH LALIT)
…..……………………………………..J.
(MOHAN M. SHANTANAGOUDAR)
.…………………………………………J.
(VINEET SARAN)
NEW DELHI,
OCTOBER 26, 2020
56
