TMI Blog2017 (8) TMI 1526X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds for grant of bail. He does not have to file a detailed application. All he has to aver in the application is that since 60/90 days have expired and charge-sheet has not been filed, he is entitled to bail and is willing to furnish bail. This indefeasible right cannot be defeated by filing the charge-sheet after the Accused has offered to furnish bail. This Court in a large number of judgments has held that the right to legal aid is also a fundamental right. Legal aid has to be competent legal aid and, therefore, it is the duty of the counsel representing the Accused whether they are paid counsel or legal aid counsel to inform the Accused that on the expiry of the statutory period of 60/90 days, they are entitled to 'default bail'. In my view, the magistrate should also not encourage wrongful detention and must inform the Accused of his right. In case the Accused still does not want to exercise his right then he shall remain in custody but if he chooses to exercise his right and is willing to furnish bail he must be enlarged on bail. Application allowed. - Special Leave to Appeal (Crl.) Nos. 2009 and 2176 of 2017 - - - Dated:- 16-8-2017 - Madan B. Lokur, Prafulla C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stody for a maximum period of 60 days in terms of Clause (ii) of proviso (a) to Section 167 of the Code of Criminal Procedure or for 90 days in terms of Clause (i) of proviso (a) to Section 167(2) of the Code of Criminal Procedure without a charge sheet being filed. 5. On 20th December, 2016 (before the expiry of 60 days), the Petitioner applied for bail before the Special Judge dealing with cases relating to offences under the PC Act. His application was rejected. 6. Subsequently, on or about 11th January, 2017 (after the expiry of 60 days of detention but before the expiry of 90 days of detention), the Petitioner applied for bail before the Gauhati High Court, but that application was rejected on 11th January, 2017. The prayer made in the application for bail was for grant of regular bail Under Section 439 of the Code of Criminal Procedure This is of some importance because, according to learned Counsel for the State, assuming the Petitioner could be detained only for a maximum period of 60 days during investigations, he had not applied for 'default bail', that is bail in default of the prosecution filing a charge sheet against him soon after that 60 day period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 61, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police-station or the police-officer making the investigation if he is not below the rank of sub-inspector shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the Accused to such Magistrate. (2) The Magistrate to whom an Accused person is forwarded under this Section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the Accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has not 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 no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the State Government shall au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y after a final report Under Section 173 has been received, and not while the investigation is still proceeding. We are of the same view, and to us also it appears proper that the law should be clarified in this respect. The use of Section 344 for a remand beyond the statutory period fixed Under Section 167 can lead to serious abuse, as an arrested person can in this manner be kept in custody indefinitely while the investigation can go on in a leisurely manner. It is, therefore, desirable, as was observed in the Fourteenth Report, that some time limit should be placed on the power of the police to obtain a remand, while the investigation is still going on: and if the present time limit of 15 days is too short, it would be better to fix a longer period rather than countenance a practice which violates the spirit of the legal safeguard. Like the earlier Law Commission, we feel that 15 days is perhaps too short, and we propose therefore to follow the recommendation in the Fourteenth Report that the maximum period Under Section 167 should be fixed at 60 days. We are aware of the danger that such an extension may result in the maximum period becoming the Rule in every case as a matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of the offence or the punishment: 167. [Marginal Note: Procedure when investigation cannot be completed in twenty-four hours] (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the Accused to such Magistrate. (2) The Magistrate to whom an Accused person is forwarded under this Section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the Accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole: and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the Accused to be forwarded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of 90 days in cases where the investigation relates to offences punishable with death, imprisonment for life or imprisonment for not less than ten years or more and up to 60 days in any other case. These amendments are intended to remove difficulties which have been actually experienced in relation to the investigation of offences of a serious nature. A new Sub-section is being inserted empowering an Executive Magistrate .............. 15. When Section 167 of the Code of Criminal Procedure was enacted, it was perhaps felt that the words or more were superfluous (as indeed we believe that they are in the context of the use of the words not less than ) and Section 167 came to read: 167. Procedure when investigation cannot be completed in twenty-four hours-(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (2A) to (6) Not relevant for the present purposes. 16. Generally speaking therefore, it could be said that the legislative intent is and always has been to complete the investigation into an offence within twenty-four hours, failing which within 15 days (Code of Criminal Procedure of 1898). The period of 15 days was later extended to 60 days (Code of Criminal Procedure of 1973) and eventually it was extended to 90 days if the investigation was relatable to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. In respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the offence was punishable Under Section 386 of the Indian Penal Code which provides that an accused, if found guilty, shall be punished with imprisonment for a term which may extend to 10 years .2 This Court contrasted that expression with the words not less than occurring in Clause (i) to proviso (a) of Section 167(2) of the Code of Criminal Procedure Juxtaposing the two expressions, this Court concluded that the words not less than in Clause (i) would mean that the imprisonment should be 10 years or more and would cover only those offences for which punishment of imprisonment could be for a clear period of 10 years or more. It was held in paragraph 6 of the Report: From the relevant part of the aforesaid sections, it is apparent that pending investigation relating to an offence punishable with imprisonment for a term not less than 10 years , the Magistrate is empowered to authorize the detention of the Accused in custody for not more than 90 days. For rest of the offences, the period prescribed is 60 days. Hence in cases where offence is punishable with imprisonment for 10 years or more, the Accused could be detained up to a period of 90 days. In this context, the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) of Section 167(2) Code of Criminal Procedure. the imprisonment should be for a clear period of 10 years or more. This is factually incorrect, inasmuch as Section 386 of the Indian Penal Code provides for a punishment which may extend to ten years . It is Clause (i) that uses the expression imprisonment for a term not less than ten years . This Court unfortunately overlooked the juxtaposition and distinction referred to above. 23. It was further held in paragraph 11 of the Report: The position is different in respect of the offence punishable Under Section 304-B Indian Penal Code. In the case of Section 304-B the range varies between 7 years and imprisonment for life. What should be the adequate punishment in a given case has to be decided by the court on the basis of the facts and circumstances involved in the particular case. The stage of imposing a sentence comes only after recording the order of conviction of the Accused person. The significant word in the proviso is punishable . The word punishable as used in statutes which declare that certain offences are punishable in a certain way means liable to be punished in the way designated. It is ordinarily defined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27. It is true that an offence punishable with a sentence of death or imprisonment for life or imprisonment for a term that may extend to 10 years is a serious offence entailing intensive and perhaps extensive investigation. It would therefore appear that given the seriousness of the offence, the extended period of 90 days should be available to the investigating officer in such cases. In other words, the period of investigation should be relatable to the gravity of the offence-understandably so. This could be contrasted with an offence where the maximum punishment under the Indian Penal Code or any other penal statute is (say) 7 years, the offence being not serious or grave enough to warrant an extended period of 90 days of investigation. This is certainly a possible view and indeed the Code of Criminal Procedure makes a distinction in the period of investigation for the purposes of 'default bail' depending on the gravity of the offence. Nevertheless, to avoid any uncertainty or ambiguity in interpretation, the law was enacted with two compartments. Offences punishable with imprisonment of not less than ten years have been kept in one compartment equating them with offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 time limits have been laid down by the Legislature. There is a legislative appreciation of the fact that certain offences require more extensive and intensive investigations and, therefore, for those offences punishable with death or with imprisonment for life or a minimum sentence of imprisonment for a term not less than 10 years, a longer period is provided for completing investigations. 30. The need to expeditiously conclude investigations has been discussed from time to time over the years and the view has been that as far as practicable, the investigating agency should be distinct from the police staff assigned to the enforcement of law and order. This was the view expressed (in 1958) in the 14th Report of the Law Commission of India as reflected in its 154th Report (in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is interregnum the Petitioner was entitled to 'default bail' or not? Ordinarily, the answer would be yes but in the present case, the Petitioner was not granted bail and a charge sheet was filed against him on 24th January, 2017. Was his indefeasible right completely taken away? 35. Our attention was drawn to the decision of the Constitution Bench in Sanjay Dutt v. State (1994) 5 SCC 410. In paragraph 46 of the Report it was conceded by learned Counsel appearing for the Accused that the indefeasible right is enforceable only up to the filing of a charge sheet or challan and does not survive after the charge sheet or challan is filed in the court against him. This submission was not refuted by but agreed to by the learned Additional Solicitor General appearing for the State. The submission made by both the learned Counsels was based on an interpretation of the decision of this Court in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 which was a case under the Terrorist and Disruptive Activities (Prevention) Act, 1987. 36. While dealing with this common stance, the Constitution Bench in Sanjay Dutt made it clear in paragraph 48 of the Report that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision rendered in Sanjay Dutt and noted that the principle laid down by the Constitution Bench is to the effect that if the charge sheet is not filed and the right for 'default bail' has ripened into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext. The Accused can avail his liberty by filing an application stating that the statutory period for filing the charge sheet or challan has expired and the same has not yet been filed and therefore the indefeasible right has accrued in his or her favour and further the Accused is prepared to furnish the bail bond. 39. This Court also noted that apart from the possibility of the prosecution frustrating the indefeasible right, there are occasions when even the court frustrates the indefeasible right. Reference was made to Mohamed Iqbal Madar Sheikh v. State of Maharashtra (1996) 1 SCC 722 wherein it was observed that some courts keep the application for 'default bail' pending for some days so that in the meantime a charge sheet is submitted. While such a practice both on the part of prosecution as well as some courts must be very strongly and vehemently discouraged, we reiterate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of a letter addressed to the Chief Justice or the Court. 42. In Sunil Batra II v. Home Secretary, Delhi Administration (1980) 3 SCC 488 this Court accepted a letter, which was treated as petition, written by a prisoner in Tihar Jail, Delhi complaining of inhuman torture inflicted on another prisoner by the Jail Warder. In Hussainara Khatoon v. State of Bihar (1980) 1 SCC 98 a number of writ petitions, some by way of a letter, were grouped together and treated as habeas corpus petitions. In Rubabbuddin Sheikh v. State of Gujarat (2007) 4 SCC 318 the brother of the deceased wrote a letter to the Chief Justice of India complaining of a fake encounter and subsequent disappearance of his sister-in-law. This was treated as a habeas corpus petition. In Kishore Singh Ravinder Dev v. State of Rajasthan (1981) 1 SCC 503 the Petitioners sent a telegram to a learned judge of this Court complaining of solitary confinement of prisoners. The telegram was treated as a habeas corpus petition and the concerned persons were directed to be released from solitary confinement. In Paramjit Kaur (Mrs.) v. State of Punjab (1996) 7 SCC 20 a telegram received at the residential office of a learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate. In Suk Das v. Union Territory of Arunachal Pradesh (1986) 2 SCC 401 the Accused was tried and convicted without legal representation, due to his poverty. He had not applied for legal representation but notwithstanding this, this Court held that the trial was vitiated and the sentence awarded was set aside, particularly since the Accused was not informed of his entitlement to free legal assistance, nor was an inquiry made from him whether he wanted a lawyer to be provided at State expense. In Rajoo @ Ramakant v. State of Madhya Pradesh (2012) 8 SCC 553 the High Court dismissed the appeal of the Accused without enquiring whether he required legal assistance at the expense of the State even though he was unrepresented. Relying on Khatri and Suk Das this Court remanded his appeal to the High Court for re-hearing after giving an opportunity to the Accused to take legal assistance. Finally, in Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra (2012) 9 SCC 1 this Court relied on Khatri and held that in paragraph 474 of the Report as follows: ...it is the duty and obligation of the Magistrate before whom a person Accused of committing a cognizable offence is first produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It would have been another matter altogether if the Petitioner had not applied for 'default bail' for whatever reason during this interregnum. There could be a situation (however rare) where an Accused is not prepared to be bailed out perhaps for his personal security since he or she might be facing some threat outside the correction home or for any other reason. But then in such an event, the Accused voluntarily gives up the indefeasible right for default bail and having forfeited that right the Accused cannot, after the charge sheet or challan has been filed, claim a resuscitation of the indefeasible right. But that is not the case insofar as the Petitioner is concerned, since he did not give up his indefeasible right for 'default bail' during the interregnum between 4th January, 2017 and 24th January, 2017 as is evident from the decision of the High Court rendered on 11th January, 2017. On the contrary, he had availed of his right to 'default bail' which could not have been defeated on 11th January, 2017 and which we are today compelled to acknowledge and enforce. 47. Consequently, we are of opinion that the Petitioner had satisfied all the requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igations into offences along with scientific methods and techniques of investigation and the use of technology. Prafulla C. Pant, J. 53. I have the benefit of going through the draft judgment authored by My Lord Hon'ble Justice Madan B. Lokur. Agreeing with the importance of right of personal liberty, with great regard to His Lordship, I beg to differ on the interpretation of Section 167(2)(a)(i) of the Code of Criminal Procedure 1973, and in the facts and circumstances of the case at hand, in my opinion, both the appeals are liable to be dismissed. I express my opinion in the matter as under: 54. These appeals are directed against the order dated 11.01.2017, passed by the High Court of Guwahati in Bail Application No. 23/2017 and the order dated 13.2.2017 in Bail Application No. 136/2017, wherein the bail applications filed by the Appellant Under Section 439 of the Code of Criminal Procedure 1973, have been rejected. 55. Prosecution story in short is that the Appellant-Rakesh Kumar Paul was working as the Chairman of the Assam Public Service Commission (APSC) from 11.12.2013. On 27.10.2016 an FIR No. 936 of 2016 was lodged by one Dr. Angshumita Gogoi for offences U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. As such, there was no ground taken in the petition to enlarge the Appellant on default bail for non filing of chargesheet within a period of sixty days. This issue will be addressed later in the judgment. The bail application came to be disposed on 11.1.2017. It is to be noted that the arguments made before the High Court were predominantly based on the ground that the Accused was entitled to bail Under Section 167(2) of the code since the chargesheet was not filed within a period of sixty days. The counsel for the Accused argued that since the maximum punishment Under Section 13(2) of the PC Act 1988 was seven years, the charge sheet was to be filed within sixty days, i.e. upto 04.01.2017, but since chargesheet was not filed, the Accused is entitled to bail Under Section 167(2) of the Code. It was also argued that assuming the PC Act was amended by the Lokpal and Lokayuktas Act, 2013 the punishment Under Section 13(2) as amended will extend to 10 years and in that case also the chargesheet had to be filed within 60 days. He placed reliance on the judgment of the decision of this Court in the case of Rajeev Chaudhary v. State (NCT) of Delhi (2001) 5 SCC 34. 57. Counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Lokpal and Lokayuktas Act 2013 was not permissible in respect of offences tried by ordinary Special Courts. Further it was argued that, assuming that the Act stood amended and the punishment for the offence Under Section 13(2) of the PC Act was amended and the maximum punishment stood extended to ten years, the Investigating agency was still required to file the charge sheet within sixty days and in default of which the Accused would be entitled to bail Under Section 167(2) of the Code. He placed reliance on a decision of this Court in the case of Rajeev Chaudhary v. State (NCT) of Delhi (supra) wherein the court held that for the offence Under Section 386 Indian Penal Code which is punishable with imprisonment upto ten years, the chargesheet was required to be filed within sixty days. 61. Mr. Mukul Rohatgi argued that power of the parliament to amend the PC Act 1988 by way of the Lokpal and Lokayuktas Act, 2013 cannot be questioned. He further submitted that the Amendment came into force with effect from 16.1.2014 as recognised by this Court in the case of Kiran Chander Asri v. State of Haryana (2016) 1 SCC 578. Reference is also made to the case of Bhupinder Singh and Ors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de before the High Court? III. Whether the Appellant is entitled to bail on merits? Answer to question I: 64. To answer this question, I shall briefly trace out the history of the provision Under Section 167(2)(a) of the Code. The erstwhile Code of Criminal Procedure 1898 did not contain any such provision for grant of bail on default of the investigating agency in not filing the charge sheet within a specific period of time. When the Code of Criminal Procedure 1973 was enacted to replace the Code of Criminal Procedure of 1898, it was felt that the investigation into offences ought to be carried out in a time bound manner so as to provide speedy justice and to protect the life and liberty of the Accused persons who are remanded to custody during the pendency of investigation. Thus the provision of Section 167(2)(a) was introduced in the Code of Criminal Procedure 1973, wherein the Accused was entitled to get bail on default of the investigating agency in not filing the charge sheet within sixty days of remand. Thereafter, in the year 1978, the Code of Criminal Procedure (Amendment) Act 1978 (Act 45 of 1978) was passed, making several amendments to the Code of Criminal Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Indian Penal Code provide for a punishment of life imprisonment, also and as such the expression-'or imprisonment for a term not less that ten years , does not help any determine for the purposes of Section 167(2) of the Code in the above category of cases as the alternative punishment of imprisonment for life already covered in the said clause. Similarly, offences Under Sections 132, 305 and 396 are punishable with death, or life imprisonment also. In my view if the legislature intended to exclude the offences for which the minimum imprisonment was ten years, it could have used the words or imprisonment for a term more than ten years . Thus the argument that ninety days period does not cover the cases where maximum imposable sentence is ten years cannot be accepted. It is also relevant to mention here that there seems to be some contusion in the disposition of the Rajeev Chaudhary case (supra) wherein the Appellant in that Case, Rajeev Chaudhary, was an accused, and had in fact approached this Court challenging the decision of the High Court of Delhi passed in Cr.M.(M.) No. 2532 of 1999 (reported in 2001 Cri.L.J. 2023) wherein the High Court had held that the Accused w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 167 as to why the investigation is not completed within 60 days. There is a provision for releasing a person on bail. Why do we want to extend it by thirty days? We have made two categories. Ninety days are applicable where the investigation relates to an offence punishable with death,-there are eight offences punishable with death---Imprisonment for life-we have 48 offences punishable with imprisonment for life---or imprisonment for a term of not less than ten years and we have 36 offences punishable with this sentence. Only in such cases which are complicated in nature investigation takes a longer time. To complete this kind of investigation, one has to go through other states as well. This has been our experience...5 70. If we look at the figures of 8, 48 and 36, referred to in the aforementioned statement, we may be able to cull out the intention of the legislature in classifying the offences. From the first Schedule of the Code of Criminal Procedure 1973 (as it existed in 1978) read with whole of Indian Penal Code, it can be gathered that, the eight cases punishable with death were-Sections 121, 132, 194 (part II), 302, 303 (struck down), 305, 307 (part III), 396 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le is at least ten years or more. Therefore, as discussed above, though the expression not less than ten years used in Section 167(2)(a) (i) of the Code has created some ambiguity, the real intention of the legislature seems to include all such offences wherein an imprisonment which may extend to ten years is an awardable sentence. In other words, for offences wherein the punishment may extend to ten years imprisonment, the permissible period for filing charge sheet shall be ninety days, and only after the period of ninety days, the Accused shall be entitled to bail on default for non filing of the charge sheet. (In the present case, admittedly the charge sheet is filed within ninety days). I may further add that, since the expression not less than ten years has caused ambiguity in interpretation, the best course for the legislature would be to clear its intention by using the appropriate words. Answer to question II: 73. The second issue which requires to be addressed is whether the Appellant is entitled to statutory bail Under Section 167(2) of the Code though he has not made any application Under Section 167(2) of the Code before the Magistrate (or Special Judge) prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time allowed, as held in Hitendra Vishnu Thakur v. State of Maharashtra [ (1994) 4 SCC 602], 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 Code of Criminal Procedure. 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... 75. In the case of Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453 three Judge Bench of this Court had the occasion to determine when an Accused can be said to have availed of his indefeasible right for being released on bail under the proviso to Section 167(2) of the Code of Criminal Procedure, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that event the remand of the Accused concerned including one who is alleged to have committed an offence under TADA, is not Under Section 167(2) but under other provisions of the Code. 77. In the case of Hitendra Vishnu Thakur and Ors. etc. etc. v. State of Maharashtra and Others (1994) 4 SCC 602, it was held in para 30 that: In conclusion, we may (even at the cost of repetition) say that an Accused person seeking bail Under Section 20(4) has to make an application to the court for grant of bail on grounds of the 'default' of the prosecution and the court shall release the Accused on bail after notice to the public prosecutor uninfluenced by the gravity of the offence or the merits of the prosecution case since Section 20(8) does not control the grant of bail Under Section 20(4) of TADA and both the provisions operate in separate and independent fields. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the Accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words reasonable grounds for believing instead of the evidence which means the Court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the Accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the Accused beyond reasonable doubt. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial heal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Abhishek Manu Singhvi, learned senior Counsel, was that the amendments made to the PC Act whereby the sentence for committing offence Under Section 13 has been increased from a minimum of one year to maximum of 7 years to a minimum of 4 years and maximum of 10 years is applicable only in those cases where the prosecution is launched under the provisions of Lokpal and Lokayuktas Act, 2013 (for short 'the Lokpal Act'). This argument is without any merit whatsoever. Section 58 of the Lokpal Act incorporates amendments in other statutes as mentioned in the Schedule. Amendments have been made to the Commission of Enquiry Act, 1952, The Delhi Special Police Act, the Prevention of Corruption Act, 1988, The Code of Criminal Procedure, 1973 and the Central Vigilance Commission Act, 2003. In my view, the amendments made to these five Acts by the Lokpal Act will apply regardless of the fact whether the prosecution has been launched under the Lokpal Act or under the provisions of any other law. I fully agree with my learned brothers that this submission has no force. 87. The Petitioner was arrested on 04.11.2016 and was remanded to judicial custody on 05.11.2016. The period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an seven decades. After the country attained independence, we enacted and gave to ourselves the Constitution of India, which came into force on 26.01.1950. Article 21 of the Constitution provides that no man shall be deprived of his life and personal liberty except in accordance with the procedure established by law . Right of personal liberty is not only a legal right but it is a human right, which is inherent in every citizen of any civilised society. Article 21 only recognises this right. We can read Section 57 and 167 to be the procedure established by law which curtails this right. 89. The investigating agencies, for reasons best known to them, found that it was not possible to complete investigation within 15 days and, therefore, a very unhealthy practice of filing preliminary or incomplete police reports before the magistrate was started to ensure that the Accused is kept in custody and not released. This amounted to virtually nullifying the legal provisions. Therefore, the Law Commission of India, in its 41st Report, recommended that the time limit for completion of investigation should be enhanced to 60 days. Even though the Law Commission was recommending enhancement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the Accused person in custody under this paragraph for a total period exceeding,- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the Accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this Sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] (b) no Magistrate shall authorise detention of the Accused in custody of the police under this Section unless the Accused is produced before him in person for the first time and subsequently every time till the Accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the Accused either in person or through the medium of electronic video linkage; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion before the Accused became entitled to grant of 'default bail'. It categorises these offences in the three classes: I First category comprises of those offences where the maximum punishment was death; II Second category comprises of those offences where the maximum punishment is life imprisonment. III The third category comprises of those offences which are punishable with a term not less than 10 years. 95. In the first two categories, the legislature made reference only to the maximum punishment imposable, regardless of the minimum punishment, which may be imposed. Therefore, if a person is charged with an offence, which is punishable with death or life imprisonment, but the minimum imprisonment is less than 10 years, then also the period of 90 days will apply. However, when we look at the third category, the words used by the legislature are not less than ten years . This obviously means that the punishment should be 10 years or more. This cannot include offences where the maximum punishment is 10 years. It obviously means that the minimum punishment is 10 years whatever be the maximum punishment. 96. While interpreting any statutory provision, it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 167 of the Code clearly indicates that if the offence is punishable with death or life imprisonment or with a minimum sentence of 10 years, then Section 167(2)(a)(i) will apply and the Accused can apply for 'default bail' only if the investigating agency does not file charge-sheet within 90 days. However, in all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment then Section 167(2)(a)(ii) will apply and the Accused will be entitled to grant of 'default bail' after 60 days in case charge-sheet is not filed. 101. Even if I were to assume that two views are possible and third category envisaged in Section 167(2)(a)(ii) is ambiguous, as suggested by learned brother Pant J., then also I have no doubt in my mind that a statute which curtails the liberty of a person must be read strictly. When any human right; a Constitutional fundamental right of a person is curtailed, then the statute which curtails such right must be read strictly. Section 167 of the Code lays down the procedure established by law by which a person can be deprived of his personal liberty, guaranteed to him Under Article 21 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end to imprisonment for life. Since the offence is punishable with imprisonment for life, then the fact that the minimum sentence provided is 7 years would make no difference, as explained by me above. It is only when the maximum sentence is less than life imprisonment that the minimum sentence must be 10 years to fall in the third category of cases. Certain examples of such cases are offences punishable Under Section 21(c) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, which provide a minimum sentence of 10 years and a maximum sentence of 20 years. 105. The Code was initially enacted in the year 1898. We are now in the year 2017. 119 years have elapsed. There have been huge technological advancements. We have moved from horse-carts to the space age. From telegraph we have moved to the fast changing vistas in the field of telecommunications including internet, wi fi etc.. Scientific investigation is the need of the hour. The investigating agencies must investigate quickly and efficiently. They must use the latest technology. Scientific investigation should be done in each and every case. If the investigation agencies adopt scientific methods of investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actice followed by some courts of adjourning applications for grant of 'default bail' till the prosecution filed the charge-sheet and held that the statutory right should not be defeated by keeping the applications pending till the charge-sheet is filed. 109. In Uday Mohanlal Acharya's case (supra) the Court culled out six guidelines, which are as follows: 1. Under Sub-section (2) of Section 167, a Magistrate before whom an Accused is produced while the police is investigating into the offence can authorise detention of the Accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole. 2. Under the proviso to the aforesaid Sub-section (2) of Section 167, the Magistrate may authorise detention of the Accused otherwise than in the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail then he is deemed to have exercised his right to avail of bail and this right cannot be defeated by filing the charge-sheet thereafter. 111. The right to get 'default bail' is a very important right. Ours is a country where millions of our countrymen are totally illiterate and not aware of their rights. A Constitution Bench of this Court in the case of Sanjay Dutt (supra) has held that the Accused must apply for grant of 'default bail'. As far as Section 167 of the Code is concerned, Explanation I to Section 167 provides that notwithstanding the expiry of the period specified (i.e. 60 days or 90 days, as the case may be), the Accused can be detained in custody so long as he does not furnish bail. Explanation I to Section 167 of the Code reads as follows: 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. This would, in my opinion, mean that even though the period had expired, the Accused would be deemed to be in legal custody till he does not furnish bail. The requirement is of furnishing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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