TMI Blog2018 (6) TMI 1810X X X X Extracts X X X X X X X X Extracts X X X X ..... is the duty of the Court if charge-sheet not filed within the statutory period, to release the detenu on bail. For that even an oral application is enough if at all accused wants to apply. There are some expressions saying even default bail granted when there is a subsequent filing of charge-sheet, the procedure contemplated if at all to cancel the bail and to take custody is as per Cr.P.C. It is crystal clear therefrom of only the bail sought to be cancelled as contemplated by Section 439(2) and 437(4) Cr.P.C. once the default bail is availed by the accused for non submission of the charge-sheet. Thus, once an application is made by the accused, after expiry of the statutory period of remand from non-filing of the charge sheet, he is entitled to the default bail and such a right cannot even be defeated by filing of charge sheet thereafter. So, the filing of the application either orally or in writing is a prerequisite, if not the Court chosen to grant the default bail, and once such an application is there, in recognition of his indefeasible right, he is entitled to the default bail, and that can no way be delayed even in its disposal - the petitioners/accused Nos. 5, 6, 8, 9, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to consider the indefeasible right, and the learned Special Jude-cum-Principal District Judge in passing the dismissal orders went wrong in saying the default bail is not entitled as if without even basis and thereby they are entitled to the default bail to be considered by setting-aside the respective dismissal orders supra. 4. Learned Public Prosecutor opposed the petitions and supported the impugned orders of the learned Special Judge-cum-Principal District Judge, Kadapa. 5. Heard both sides at length and perused the entire material on record including observations in the impugned dismissal orders. 6. The law is fairly settled at least from the Constitution Bench expression of the Apex Court in Sanjay Dutt v. State through C.B.I. Bombay (1994) 5 SCC 410. Undisputedly, in these cases, the punishment provided for any of the offences is only up to 10 years and for one of the offences upto life and thus the charge-sheet must be filed from the very wording of Section 167 of Cr.P.C. within 90 days from the date of respective remand and, if not filed, for that default, in non-compliance with the statutory period to file the final report under Section 173 Cr.P.C. read with 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il 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 charge-sheet 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. 5. If the Accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of Explanation 1 and the proviso to sub-section (2) of Section 167, the continued custody of the Accused even beyond the specified period in Para (a) will not be unauthorized, and therefore, if during that period the investigation is complete and the charge-sheet is filed then the so-called indefeasible righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed within the statutory period, to release the detenu on bail. For that even an oral application is enough if at all accused wants to apply. There are some expressions saying even default bail granted when there is a subsequent filing of charge-sheet, the procedure contemplated if at all to cancel the bail and to take custody is as per Cr.P.C. It is crystal clear therefrom of only the bail sought to be cancelled as contemplated by Section 439(2) and 437(4) Cr.P.C. once the default bail is availed by the accused for non submission of the charge-sheet. So far as the application for default bail is filed during pendency of filing of the charge-sheet concerned that practice is already deprecated way back by the Apex Court in Mohamed Iqbal (1996) 1 SCC 722 (supra). So far as the recourse if at all to take for cancellation of the bail concerned, the expression of the Constitution Bench of the Apex Court in Sanjay Dutt (1994) 5 SCC 410 (supra) reads as follows: (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 of the Code of Criminal Procedure in default of completion of the investigation an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery 1st and 2nd Paragraphs of the beginning of the Judgment as follows: 1. In Measure for Measure the Duke complains (in the given situation): And liberty plucks justice by the nose . 1 The truth is that personal liberty cannot be compromised at the altar of what the State might perceive as justice-justice for one might be perceived as injustice for another. We are therefore unable to agree with learned Counsel for the State that the Petitioner is not entitled to his liberty through what is commonly referred to as 'default bail' or that the justice of the case should persuade us to decide otherwise. 2. The facts in these petitions are not in dispute and we need not go into them in any great detail since we are really concerned with the interpretation of the words imprisonment for a term not less than ten years appearing in Clause (i) of proviso (a) to Section 167(2) of the Code of Criminal Procedure, 1973 as amended in 1978 . Further, in Paragraphs 33 to 43 and 49, it is observed by the learned Judge in dealing with the default bail as an indefeasible right what is referred supra and, particularly, at Paragraphs 41 and 43 in the beginning words in reads as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led. If he applies for bail under the provision after expiry of the period, 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 Cr.P.C. 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 time to time of filing of the challan only by the provisions relating to the grant of bail, applicable at this stage. Also referred the expression of the Apex Court in Uday Mohanlal Acharya (2001) 5 SCC 453 : 2001 (3) ALT 20.1 (DN SC) (supra) that referred the 3 Judge Bench expression of the Apex Court of 1996 in Dr. Bipin Shanthilal Panchal v. State of Gujarat (1996) 1 SCC 718, where it is observed that the accused has not made application for enforcement of his right of default bail but raised the contention only in the Apex Court thereby formulated the question thus whether accused was entitled to be released on bail under Section 167(2) of Cr.P.C., not having made an application when such right has accrued, can exercise that right at a later stage of the proceeding and answered in the nega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to the default bail, and that can no way be delayed even in its disposal, as referred supra. 15. This Court in Singamala Shankarnar v. State of A.P. 2007 (1) ALT (Crl.) 226 (A.P.) categorically observed that where the imprisonment is ten years and below the period of filing charge sheet from the date of remand is 60 days, from which there is indefeasible right to claim default bail accrues and for that conclusion referred several earlier expressions of the Apex Court even. 16. In the latest expression of the Apex Court, three judge Bench in Rambeer Shokeen v. State (NCT of Delhi) (2018) 4 SCC 405, again it came for consideration the scope of law for the default bail and it is observed by the Apex Court that the accused is entitled after expiry of the period for filing the charge sheet statutorily provided to the default bail. However, under any provision once there is provided for extension of time to file charge sheet and such application is filed pending, the Court must dispose of that application first before considering the entitlement of default bail and it is only therefrom to consider the entitlement as that entitlement depends upon consideration or not of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port before the investigating officer on every Sunday between 5.00 p.m. to 6.0 p.m. after filing of charge sheet and later once in a month on every first Sunday, for assurance of their availability to safeguard the interest of the prosecution of jumping bail and interference with witnesses, until further orders being passed by the learned trial Judge relaxing the same, empowering him by virtue of this order. 3. Petitioners shall attend before the Court of law regularly in enquiry and trial without fail, if not, their bail shall be cancelled forthwith, without any further order so that, the learned Judge concerned can also issue NBW by cancelling the bail from the power under Section 439(2) Cr.P.C. delegated by this order during pendency of proceedings before the Court. 4. Petitioners shall not leave the State pending enquiry/trial without prior permission of the learned trial Judge. 5. Petitioners shall furnish their full address with property and bank account particulars and submit their passport/s, if any, after enlargement of bail on the next hearing date or at such time granted by trial court and before the Court concerned (for collecting by police as part of their dut ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
