TMI Blog2020 (10) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 - the Appellant-accused was deemed to have availed of his indefeasible right to bail, the moment he filed an application for being 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question in this appeal. 3. The brief facts leading to this appeal are as follows: 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 consequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 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 Appellantaccuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et 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 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen 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 subsection (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 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 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:- (i) an accused person should get a fair trial in accordance with the accepted principles of natural justice; (ii) every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication 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: 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 invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utes 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 threefold 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. xxx 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, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered 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 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 knowledge -sharing by magistrates will thwart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een 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) 15. We are fortified in our aforementioned conclusions by the three Judge 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 pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the chargesheet, 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 placed upon Sanjay Dutt (supra). Similarly, in Ateef Nas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 2-6-2012. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of remand of the accused to custody. The aforementioned observations on the extinguishment of the right to default bail were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the UAPA, a three Judge 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 Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 getting necessary information from the public prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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