TMI Blog2020 (11) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory period of sixty days or ninety days has expired, the accused would be entitled to be released on bail provided he meets the condition as set out therein that is, he is prepared to furnish and does furnish bail. It is important to note that there is no provision requiring him to make any formal application - It is also trite law that there is no inherent power in a court to remand an accused to custody. Such power must be traced to an express provision of law. The petitioner had, unequivocally, stated that he was ready to furnish bail and provide a sound surety. He had further indicated that he would ready and willing to comply with any condition that may be imposed by the Trial Court and had also undertaken to appear before the Trial Court as and when required. Clearly, the Proviso to Section 167(2)(a) of the Cr.PC did not require the petitioner to do anything more except to indicate that he is prepared to furnish bail. In the present case, there is no doubt that the petitioner had applied for being released on bail and had offered to abide by the terms and conditions of bail. Bearing that in mind, it is at once clear that the petitioner would be entitled to default ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid contentions. Mr Amit Gupta, learned APP had also made submissions on behalf of the State on the question whether the petitioner was entitled to bail under Section 167(2) of the Cr.PC as he stated that the said question is also common to other petitions. 4. The FIR in question (FIR No. 486/2019 under Sections 393/397/34 of the IPC with PS Alipur) was registered at the instance of one Karamveer (the complainant). The complainant is employed as a Driver with the Delhi Transport Corporation. He stated that on 27.12.2019, after completing his duty, he was going to his village from GTB Bus Depot in his Wagon R car (bearing registration no. DL 7 CN 6340). At about 10.30 PM, when he was near Singhu School and Rajiv Gandhi Sports Complex, Singhu, three persons came on a motorcycle and stopped his vehicle. All the three boys alighted from the motorcycle and came towards him and indicated to him from their gestures, to open the glass window. He did so. They sought directions from him to Khatkarh Village. While he was giving them directions, one of the boys (who was sitting in the middle of the motorcycle) opened the door of his vehicle. One of the other boys (who was driving th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en motorcycle. The same was recovered from them in FIR No.176/2018. It is stated that efforts were made to recover the weapon of offence but the same could not be recovered. 8. All the three accused were produced before the Court with their faces muffled and an application for conducting TIP proceedings was made. The petitioner and accused Satpal refused to participate in the TIP proceedings. Accused Manoj participated in the TIP proceedings, which was conducted on 14.01.2020. But, the complainant failed to identify him as one of the accused. It is stated in the status report that the complainant has identified the petitioner and the accused Satpal from the dossiers shown to him. Since the complainant had not identified the accused Manoj, he was released by the IO. The chargesheet under Sections 393/397/34 of the IPC was filed against all the three accused, however, the name of the accused Manoj was mentioned in column no.12. 9. The chargesheet in this case was filed on 14.09.2020, which is beyond the period of sixty days from the date on which the petitioner was arrested. According to the prosecution, the delay in doing so is on account of the lockdown imposed due to the out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to influence him. 17. At this stage, it is not necessary to evaluate the evidence coalesced by the investigating agency in any detail. However, considering the facts in the present case, this Court considers it apposite to allow the present petition. 18. There is yet another aspect which requires consideration that is whether the petitioner was entitled to bail under the Proviso (a) to Section 167(2) of the Cr.PC. The petitioner was arrested on 10.01.2020 and his detention in custody for a period of sixty days expired on 10.03.2020. Concededly, the petitioner became entitled to a bail in default under the Proviso (a) to Section 167(2) of the Cr.PC (hereafter also referred to as default bail ). Although the petitioner had moved bail applications twice, the same were rejected. Concededly, an indefeasible right had accrued to the petitioner for being released on default bail and there is no dispute that if an application mentioning the said provision was made, the petitioner would necessarily have to be released on bail. However, the learned APP submits that since the petitioner did not avail of his indefeasible right for default bail, the same was lost on the chargesheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . When an undertrial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may be, the Magistrate must, before making an order of further remand to judicial custody, point out to the undertrial prisoner that he is entitled to be released on bail. The State Government must also provide at its own cost a lawyer to the undertrial prisoner with a view to enabling him to apply for bail in exercise of his right under proviso (a) to sub-section (2) of Section 167 and the Magistrate must take care to see that the right of the undertrial prisoner to the assistance of a lawyer provided at State cost is secured to him and he must deal with the application for bail in accordance with the guidelines laid down by us in our Order dated February 12, 1979. We hope and trust that every Magistrate in the country and every State Government will act in accordance with this mandate of the Court. This is the constitutional obligation of the State Government and the Magistrates and we have no doubt that if this is strictly carried out, there will be considerable improvement in the situation in regard to undertrial prisoners and there will be proper obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Maharashtra, (2012) 9 SCC 1 : (2012) 3 SCC (Cri) 481] this Court relied on Khatri [Khatri (2) v. State of Bihar, (1981) 1 SCC 627 : 1981 SCC (Cri) 228] and held in para 474 of the Report as follows: (Mohd. Ajmal case [Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1 : (2012) 3 SCC (Cri) 481] , SCC p. 186) 474. it is the duty and obligation of the Magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We, accordingly, direct all the Magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the Magistrate concerned liable to departmental proceedings. 44. Strong words indeed. That being so we are of the clear opinion that adapting this princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for default bail or an oral application for default bail is of no consequence. The court concerned must deal with such an application by considering the statutory requirements, namely, whether the statutory period for filing a charge-sheet or challan has expired, whether the charge-sheet or challan has been filed and whether the accused is prepared to and does furnish bail. 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. 42. In Sunil Batra (2) v. State (UT of Delhi) [Sunil Batra (2) v. State (UT of Delhi), (1980) 3 SCC 488 : 1980 SCC (Cri) 777] this Court accepted a letter, which was treated as petition, written by a prisoner in Tihar Jail, Delhi complaining of inhuman tortur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r relating to inhuman conditions in the Agra Protective Home for Women was treated as a writ petition and in Sheela Barse v. State of Maharashtra [Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96 : 1983 SCC (Cri) 353] a letter addressed by a journalist complaining of custodial violence against woman prisoners in Bombay was treated as a writ petition. These cases are merely illustrative of the personal liberty jurisprudence of this Court and in matters pertaining to Article 21 of the Constitution of India this Court has consistently taken the view that it is not advisable to be ritualistic and formal. However, we must make it clear that we should not be understood to suggest that procedures must always be given a go-by - that is certainly not our intention. [underlined for emphasis] 26. In Arvind Kumar Saxena (supra), the accused was arrested by the Crime Branch on 03.06.2017 and he was placed in judicial custody. The statutory period of sixty days from the date of arrest expired on 04.08.2017. Thereafter, on 19.09.2017, he filed an application for bail under Section 439 of the Cr.PC. The said application was fixed for hearing on 26.09.2017. The chargesheet in that case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and authorize further remand of the accused under Section 344 of the1898 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 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 trea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lature 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. 28. In S. Kasi v. State Through The Inspector of Police Samaynallur Police Station Madurai District: Crl. A. 452/2020 decided on 19.06.2020, the Supreme Court set aside the order of the Madu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verned by the State without either the existence of the right to live or the means of enforcement of the right. The right to life being inalienable to each individual, it existed prior to the Constitution and continued in force under Article 372 of the Constitution. Khanna, J. was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the State on whose mercy these rights would depend. Such a construct is contrary to the basic foundation of the Rule of Law which imposes restraints upon the powers vested in the modern State when it deals with the liberties of the individual. The power of the Court to issue a writ of habeas corpus is a precious and undeniable feature of the Rule of Law. 29. In Bikramjt Singh v. State of Punjab: Crl. A. No. 667 of 2020, decided on 12.10.2020, the Supreme Court observed as under: We must not forget that we are dealing with the personal liberty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention 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 authorize detention in the custody of the police. 32. A plain reading of the Proviso (a) to Section 167(2) of the Cr.PC indicates that an accused would necessarily have to be released on bail if he is prepared to and does furnish bail . Thus, in cases where the statutory period of sixty days or ninety days has expired, the accused would be entitled to be released on bail provided he meets the condition as set out therein that is, he is prepared to furnish and does furnish bail. It is important to note that there is no provision requiring him to make any formal application. 33. It is also trite law that there is no inherent power in a court to remand an accused to custody. Such power must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il and offers to abide by the terms and conditions of bail. 37. In the present case, there is no doubt that the petitioner had applied for being released on bail and had offered to abide by the terms and conditions of bail. Bearing that in mind, it is at once clear that the petitioner would be entitled to default bail even though he had not specifically mentioned the provisions of Section 167(2) of the Cr.PC in his application. 38. Mr Amit Gupta, the learned APP had also referred to the decision of the Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra: (1994) 4 SCC 602 and had drawn the attention of this Court to paragraph no. 21 of the said decision. He contended that a court cannot release an accused on bail on its own motion without any application on his behalf and, it would be necessary for the accused to make an application to be released on bail on account of default on the part of the investigation agency. It was submitted that since no such application had been made, the petitioner could not have been released on default bail. The relevant extract of paragraph no. 21 of the said decision referred to by Mr Gupta is set out below: 21 . We are not imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary that the accused offers to furnish bail in order to avail of his right to default bail. If the accused offers to furnish bail he would comply with the condition as set out in proviso (a) to section 167(2) Cr.PC. In this case, the said condition has been met. Undisputedly, the petitioner had made an application, albeit under Section 439 of the Cr PC, offering to furnish bail. In view of the decision in Rakesh Kumar Paul (supra), even an oral plea for default bail is compliant with the proviso(a) to Section 167(2) Cr.PC. Thus, it would be apposite to consider an application for bail filed on expiry of stipulated period of filing chargesheet, as an application for bail under the provisio to Section 167 (2), since it does indicate that the accused is prepared to furnish bail. 41. The second requirement is that the prosecution agency must be put to notice of the ground on which the bail is being granted in order for the prosecution agency to point out if there is any reasons why the accused is not entitled to such bail. By virtue of certain special acts such as the Unlawful Activities (Prevention) Act 1967, and the Narcotic Drugs and Psychotropic Substances Act 1985, certa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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