Supreme Court of India
M. RAVINDRANversusTHE INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE
- Citation
- 2020 INSC 608
- Decided
- 26 October 2020
- Disposal
- Appeal(s) allowed
- Bench
- UDAY UMESH LALIT
Holding
An accused who files an application for default bail under the proviso to Section 167(2) CrPC is deemed to have availed his indefeasible right to bail, which cannot be defeated by a subsequent complaint or report filed by the prosecution.
Summary
The appellant, accused under the NDPS Act, was remanded to judicial custody on 4 August 2018. After the statutory period of 180 days elapsed on 31 January 2019, he filed an application for default bail under Section 167(2) of the CrPC on 1 February 2019, offering to furnish bail. While the bail application was being heard, the prosecution lodged an additional complaint later that day, and the trial court nevertheless granted bail. The High Court set aside the bail order, holding that the subsequent complaint defeated the appellant's right. The Supreme Court held that filing the bail application itself avails the indefeasible right to bail under Section 167(2) and that the prosecution cannot defeat this right by filing a later complaint or report. The Court emphasized the constitutional linkage of Section 167(2) with Article 21 and the need to interpret penal statutes in favour of the accused. Consequently, the appeal was allowed and the trial court's bail order was restored with conditions.
Issues considered
- The effect of a subsequent additional complaint or report filed by the prosecution after an accused has applied for default bail under Section 167(2) of the CrPC.
- Whether the right to default bail is deemed to be availed of at the moment of filing the bail application or only upon actual release after furnishing bail.
- The applicability of Section 36A(4) of the NDPS Act in extending the investigation period and its impact on the right to default bail.
- The interpretation of Explanation I to Section 167(2) in the context of a bail application pending before the court.
Legislation cited
Subjects
default bailSection 167(2)NDPS ActArticle 21indefeasible rightbail applicationinvestigation delayinterpretation of penal statutes
Judgment
[2020] 12 S.C.R. 915 915
M. RAVINDRAN A
v.
THE INTELLIGENCE OFFICER, DIRECTORATE OF
REVENUE INTELLIGENCE
(Criminal Appeal No. 699 of 2020) B
OCTOBER 26, 2020
[UDAY UMESH LALIT, MOHAN M. SHANTANAGOUDAR
AND VINEET SARAN, JJ.]
Code of Criminal Procedure, 1973:
C
s. 167(2) r/w s. 36A of Narcotic Drugs and Psychotropic
Substances Act, 1985 – Default bail/ Compulsive bail – Application
for – After completion of 180 days from the remand date – Bail
granted by trial court – High Court set aside the bail order on the
ground that since additional complaint was filed before disposal of
D
the bail application, bail could not have been granted – Appeal to
Supreme Court – Held: Section 167(2) was enacted with the
objectives of ensuring fair trial, expeditions investigation and trial
and reasonable procedure prior to depriving any person of his
personal liberty, which is intrinsically linked to Art. 21 of the
Constitution – Section 167(2) has to be interpreted keeping in mind E
the aforesaid objectives – If the accused applies for bail u/s. 167(2)
r/w. s. 36 A (4) NDPS Act upon expiry of 180 days or the extended
period, Court has to release him on bail forthwith – Prosecution
cannot defeat enforcement of such right of accused by subsequently
filing a final report, additional complaint or report seeking extention
F
to time – However, actual release on bail is contingent upon the
directions passed by the competent court granting bail – In the
present case, accused was deemed to have availed the right to bail,
the moment he filed the application seeking bail and offered to abide
by the terms and conditions of the bail order – He was entitled to be
released on bail notwithstanding the subsequent additional G
complaint – Constitution of India – Art. 21.
Interpretation of Statutes:
Interpretation of penal statutes – Held: In case of any
ambiguity in the construction of penal statute, courts must favour
H
915
916 SUPREME COURT REPORTS [2020] 12 S.C.R.
A the interpretation which leans towards protecting the right of the
accused – Such principle is applicable not only in the case of
substantive penal statute, but also in cases of procedures providing
for curtailment of liberty of the accused.
Allowing the appeal, the Court
B HELD: 1. In common legal parlance, the right to bail under
the Proviso to Section 167(2) of Cr. P.C. is commonly referred to
as ‘default bail’ or ‘compulsive bail’ as it is granted on account of
the default of the investigating agency in not completing the
investigation within the prescribed time, irrespective of the merits
C of the case. [Para 6][929-A-B]
2. Section 36A of the Narcotic Drugs and Psychotropic
Substances Act (NDPS Act) prescribes modified application of
the CrPC as indicated therein. The effect of Sub-Clause (4) of
Section 36A NDPS Act is to require that investigation into certain
D offences under the NDPS Act be completed within a period of
180 days instead of 90 days as provided under Section 167(2)
CrPC. Hence the benefit of additional time limit is given for
investigating a more serious category of offences. This is
augmented by a further Proviso that the Special Court may extend
time prescribed for investigation up to one year if the Public
E Prosecutor submits a report indicating the progress of
investigation and giving specific reasons for requiring the
detention of accused beyond the prescribed period of 180 days.
In the present matter, it is admitted that the Public Prosecutor
had not filed any such report within the 180-day period for seeking
F extension of time up to one year for filing final report/additional
complaint before the Trial Court. The final report was required
to be filed within 180 days from the first date of remand. [Para
6.2][929-E-H; 930-A]
3. While computing the period under Section 167(2) Cr.P.C.,
G the day on which accused was remanded to judicial custody has
to be excluded and the day on which challan/charge-sheet is filed
in the court has to be included. [Para 7][930-B]
Ravi Prakash Singh @ Arvind Singh v. State of Bihar
(2015) 8 SCC 340 : [2015] 2 SCR 241 – referred to.
H
917
4. Article 21 of the Constitution of India provides that “no A
person shall be deprived of his life or personal liberty except
according to procedure established by law”. Such a procedure
cannot be arbitrary, unfair or unreasonable. The history of the
enactment of Section 167(2) Cr. P.C. and the safeguard of ‘default
bail’ contained in the Proviso thereto is intrinsically linked to
B
Article 21 promising protection of life and personal liberty against
unlawful and arbitrary detention. This is nothing but a legislative
exposition of the constitutional safeguard that no person shall be
detained except in accordance with rule of law. This must be
interpreted in a manner which serves this purpose. The Courts
cannot adopt a rigid or formalistic approach whilst considering C
any issue that touches upon the rights contained in Article 21.
[Paras 11.1 and 11.6][935-B-C; 938-G]
Maneka Gandhi v. Union of India (1978) 1 SCC 248 :
[1978] 2 SCR 621 – followed.
The Law Commission of India Report No. 14 on Reforms D
of the Judicial Administration (Vol. II, 1948, pages 758-
760); Law Commission Report No. 41 on The Code of
Criminal Procedure, 1898 (Vol. I, 1969, pages 76-77)
– referred to.
5. Section 167(2) Cr.P.C. was enacted within the present- E
day CrPC, providing for time limits on the period of remand of
the accused, proportionate to the seriousness of the offence
committed, failing which the accused acquires the indefeasible
right to bail. The intent of the legislature was to balance the need
for sufficient time limits to complete the investigation with the F
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 G
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. [Para 11.5][936-G-H; 937-
A-C] H
918 SUPREME COURT REPORTS [2020] 12 S.C.R.
A 6. In case of any ambiguity in the construction of a penal
statute, the Courts must favour the interpretation which leans
towards protecting the rights of the accused, given the ubiquitous
power disparity between the individual accused and the State
machinery. This is applicable not only in the case of substantive
penal statutes but also in the case of procedures providing for
B
the curtailment of the liberty of the accused. The right of the
accused to be set at liberty takes precedence over the right of
the State to carry on the investigation and submit a chargesheet.
[Paras 11.7 and 11.8][939-A-C]
7. With respect to the CrPC particularly, the Statement of
C Objects and Reasons is an important aid of construction. Section
167(2) has to be interpreted keeping in mind the three-fold
objectives expressed by the legislature namely ensuring a fair
trial, expeditious investigation and trial, and setting down a
rationalized procedure that protects the interests of indigent
D sections of society. These objects are nothing but subsets of the
overarching fundamental right guaranteed under Article 21. [Para
11.8][939-D]
8. The Court cannot suo motu grant bail without considering
whether the accused is ready to furnish bail or not. This is an in-
E built safeguard within Section 167(2) Cr. P.C. 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. There could be rare occasions where the accused
voluntarily forfeits his right to bail on account of threat to his
F personal security outside of remand or for some other reasons.
Once a chargesheet is filed, such waiver of the right by the accused
becomes final and Section 167(2) ceases to apply. [Para 12.4][942-
C-E]
9. It cannot be said that even where the accused has
G promptly exercised his right under Section 167(2) and indicated
his willingness to furnish bail, he can be denied bail on account of
delay in deciding his application or erroneous rejection of the
same. Nor can he be kept detained in custody on account of
subterfuge of the prosecution in filing a police report or additional
H
919
complaint on the same day that the bail application is filed. A
[Para 12.4][942-F]
10. The interpretation of the expression “availed of” as
actual release after furnishing the necessary bail would cause
grave injustice to the accused and would defeat the very purpose
of the Proviso to Section 167(2) CrPC. There will be many B
instances where the Public Prosecutor might prolong the hearing
of the application for bail so as to facilitate the State to file an
additional complaint or investigation report before the Court
during the interregnum. In some cases, the Court may also delay
the process for one reason or the other. In such an event, the
indefeasible right of the accused to get the order of bail in his C
favour would be defeated. This could not have been the intention
of the legislature. If such a practice is permitted, the same would
amount to deeming illegal custody as legal. After the expiry of
the stipulated period, the Court has no further jurisdiction to
remand the accused to custody. The prosecution would not be D
allowed to take advantage of its own default of not filing the
investigation report/complaint against the appellant within the
stipulated period. [Para 12.5][942-G-H; 943-A-C]
11. As a cautionary measure, the counsel for the accused
as well as the Magistrate ought to inform the accused of the E
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 any dilatory tactics
by the prosecution and also ensure that the obligations spelled F
out under Article 21 of the Constitution and the Statement of
Objects and Reasons of the CrPC are upheld. [Para 12.7][943-
G-H; 944-A-B]
Rakesh Kumar Paul v. State of Assam (2017) 15 SCC
67 : [2017] 8 SCR 785 – relied on. G
12. It is true that Explanation I to Section 167(2) Cr. P.C.
provides that the accused shall be detained in custody so long as
he does not furnish bail. However, Explanation I to Section 167(2)
applies only to those situations where the accused has availed of
H
920 SUPREME COURT REPORTS [2020] 12 S.C.R.
A his right to default bail and undertaken to furnish bail as directed
by the Court, but has subsequently failed to comply with the terms
and conditions of the bail order within the time prescribed by the
Court. In such a scenario, if the prosecution subsequently files a
chargesheet, it can be said that the accused has forfeited his right
to bail under Section 167(2) Cr. P.C.. Explanation I is only a
B
safeguard to ensure that the accused is not immediately released
from custody without complying with the bail order. [Para 13][944-
B-D]
13. The expression ‘the accused does furnish bail’ in Section
167(2) and Explanation I thereto cannot be interpreted to mean
C that if the accused, in spite of being ready and willing, could not
furnish bail on account of the pendency of the bail application
before the Magistrate, or because the challenge to the rejection
of his bail application was pending before a higher forum, his
continued detention in custody is authorized. If such an
D interpretation is accepted, the application of the Proviso to Section
167(2) would be narrowly confined only to those cases where the
Magistrate is able to instantaneously decide the bail application
as soon as it is preferred before the Court, which may sometimes
not be logistically possible given the pendency of the docket
across courts or for other reasons. Moreover, the application for
E bail has to be decided only after notice to the public prosecutor.
Such a strict interpretation of the Proviso would defeat the rights
of the accused. Hence his right to be released on bail cannot be
defeated merely because the prosecution files the chargesheet
prior to furnishing of bail and fulfil the conditions of bail of
F furnishing bonds, etc., so long as he furnishes the bail within the
time stipulated by the Court. [Para 13.1][944-E-H]
14. The observations made in *Hitendra Vishnu Thakur and
**Sanjay Dutt Cases to the effect that the application for default
bail and any application for extension of time made by the Public
G Prosecutor must be considered together are only applicable in
situations where the Public Prosecutor files a report seeking
extension of time prior to the filing of the application for default
bail by the accused. In such a situation, notwithstanding the fact
that the period for completion of investigation has expired, both
H
921
applications would have to be considered together. However, A
where the accused has already applied for default bail, the
Prosecutor cannot defeat the enforcement of his indefeasible right
by subsequently filing a final report, additional complaint or report
seeking extension of time. [Para 14.1][946-B-C]
15. It is well settled that issuance of notice to the State on B
the application for default bail filed under the Proviso to Section
167(2) is only so that the Public Prosecutor can satisfy the Court
that the prosecution has already obtained an order of extension
of time from the Court; or that the challan has been filed in the
designated Court before the expiry of the prescribed period; or
that the prescribed period has actually not expired. Such issuance C
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 D
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. [Para 14.2][946-D-F]
16. The decision in **Sanjay Dutt case only lays down as a E
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 F
that the accused is deemed to have exercised his right to bail
once he makes an application for the same. [Para 15.1][948-B-C]
17. 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 G
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
H
922 SUPREME COURT REPORTS [2020] 12 S.C.R.
A 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. Such prompt
action will restrict the prosecution from frustrating the legislative
mandate to release the accused on bail in case of default by the
investigative agency. [Para 18.1][954-C-E]
B
18. The right to be released on default bail continues to
remain enforceable if the accused has applied for such bail,
notwithstanding pendency of the bail application; or subsequent
filing of the chargesheet or a report seeking extension of time by
the prosecution before the Court; or filing of the chargesheet
C during the interregnum when challenge to the rejection of the
bail application is pending before a higher Court. [Para 18.2][954-
E-F]
19. However, where the accused fails to apply for default
bail when the right accrues to him, and subsequently a
D chargesheet, additional complaint or a report seeking extension
of time is preferred before the Magistrate, the right to default
bail would be extinguished. The Magistrate would be at liberty
to take cognizance of the case or grant further time for completion
of the investigation, as the case may be, though the accused may
E still be released on bail under other provisions of the CrPC.
[Para 18.3][954-G-H]
20. Notwithstanding the order of default bail passed by the
Court, by virtue of Explanation I to Section 167(2), the actual
release of the accused from custody is contingent on the
F directions passed by the competent Court granting bail. If the
accused fails to furnish bail and/or comply with the terms and
conditions of the bail order within the time stipulated by the Court,
his continued detention in custody is valid. [Para 18.4][955-A-B]
21.1 In the present case, admittedly the appellant-accused
G had exercised his option to obtain bail by filing the application at
10:30 a.m. on the 181st day of his arrest, i.e., immediately after
the court opened, on 01.02.2019. It is not in dispute that the
Public Prosecutor had not filed any application seeking extension
of time to investigate into the crime prior to 31.01.2019 or prior
H
923
to 10:30 a.m. on 01.02.2019. The Public Prosecutor participated A
in the arguments on the bail application till 4:25 p.m. on the day
it was filed. It was only thereafter that the additional complaint
came to be lodged against the Appellant. Therefore, 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
B
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. [Para 17][953-B-E]
21.2. In the present case, apart from furnishing the sureties
as directed by the Trial Court, the appellant-accused should also C
surrender his passport, undertake to report to the Respondent
Directorate when required for purposes of investigation, and also
undertake to not leave Chennai city limits without the leave of
the Trial Court. [Para 19][955-C]
Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC D
67 : [2017] 8 SCR 785; S. Kasi v. State Through The
Inspector of Police Samaynallur Police Station Madurai
District (2020) SCC OnLine SC 529; Uday Mohanlal
Acharya v. State of Maharashtra (2001) 5 SCC 453 :
[2001] 2 SCR 878; Mohamed Iqbal Madar Sheikh v. E
State of Maharashtra (1996) 1 SCC 722 : [1996] 1
SCR 183; Dr. Bipin Shantilal Panchal v. State of Gujarat
(1996) 1 SCC 718 : [1996] 1 SCR 193; State through
CBI v. Mohd. Ashraft Bhat (1996) 1 SCC 432 : [1995]
6 Suppl. SCR 300; Ateef Nasir Mulla v. State of
Maharashtra (2005) 7 SCC 29 : [2005] 2 Suppl. SCR F
919; Mustaq Ahmed Mohammed Isak v. State of
Maharashtra (2009) 7 SCC 480 : [2009] 8 SCR 465;
Sayed Mohd. Ahmad Kazmi v. State (Government of NCT
of Delhi) (2012) 12 SCC 1 : [2012] 9 SCR 836; Union
of India v. Nirala Yadav (2014) 9 SCC 457 : [2014] 6 G
SCR 148; Bikramjit Singh v. State of Punjab (2020)
SCC OnLine SC 824 - relied on.
Pragyna Singh Thakur v. State of Maharashtra, (2011)
10 SCC 445 : [2011] 14 SCR 617 – held per in curiam.
H
924 SUPREME COURT REPORTS [2020] 12 S.C.R.
A Uday Mohanlal Acharya v. State of Maharashtra (2001)
5 SCC 453 : [2001] 2 SCR 878; Sanjay Dutt v. State
through C.B.I. (1994) 5 SCC 410 : [1994] 3 Suppl. SCR
263; Hitendra Vishnu Thakur v. State of Maharashtra
(1994) 4 SCC 602 : [1994] 1 Suppl. SCR 360; State
through CBI v. Mohd. Ashraft Bhat (1996) 1 SCC 432
B
: [1995] 6 Suppl. SCR 300; Dr. Bipin Shantilal Panchal
v. State of Gujarat (1996) 1 SCC 718 : [1996] 1 SCR
193; Mohamed Iqbal Madar Sheikh v. State of
Maharashtra (1996) 1 SCC 722 : [1996] 1 SCR 183 –
referred to.
C Case Law Reference
[2015] 2 SCR 241 referred to Para 7
[2001] 2 SCR 878 referred to Para 10
[1994] 3 Suppl. SCR 263 referred to Para 10
D
[1994] 1 Suppl. SCR 360 referred to Para 10
[1995] 6 Suppl. SCR 300 referred to Para 10
[1996] 1 SCR 193 referred to Para 10
[1996] 1 SCR 183 referred to Para 10
E
[1978] 2 SCR 621 followed Para 11.1
[2017] 8 SCR 785 relied on Para 11.6
[2001] 2 SCR 878 relied on Para 12.6
F [2017] 8 SCR 785 relied on Para 12.7
[1996] 1 SCR 183 relied on Para 15
[1996] 1 SCR 193 relied on Para 15.1
[1995] 6 Suppl. SCR 300 relied on Para 15.2
G [2005] 2 Suppl. SCR 919 relied on Para 15.2
[2009] 8 SCR 465 relied on Para 15.2
[2012] 9 SCR 836 relied on Para 15.3
[2014] 6 SCR 148 relied on Para 15.4
H [2011] 14 SCR 617 held per in curiam Para 16
925
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. A
699 of 2020.
From the Judgment and Order dated 21.11.2019 of the High Court
of Judicature at Madras in Crl.O.P. No. 9750 of 2019.
Aman Lekhi, ASG, Ms. Arunima Singh, K. Paari Vendhan, Rupesh
Kumar, Abhishek Kumar, Piyush Beriwal, Ujjawal Sinha, B. Krishna B
Prasad, Advs. for the appearing parties.
The Judgment of the Court was delivered by
MOHAN M. SHANTANAGOUDAR, J.
1. Leave granted. C
2. The judgment dated 21.11.2019 passed in Crl. O.P. No. 9750
of 2019 by the High Court of Judicature at Madras is called into question
in this appeal.
3. The brief facts leading to this appeal are as follows:
D
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 E
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. F
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 G
the said appeal and consequently cancelled the order of bail granted by
the Trial Court. Being aggrieved, the Appellant has approached this Court
questioning the judgment of the High Court.
3.3 It is not in dispute that the Appellant was remanded to judicial
custody on 04.08.2018 and hence the mandatory period of 180 days H
926 SUPREME COURT REPORTS [2020] 12 S.C.R.
A prescribed for filing of final report under Section 167(2), CrPC (excluding
the date of remand) was completed on 31.01.2019. This is made amply
clear by the calculation of days as per the Gregorian calendar as stated
below:
“August 2018 (from 05.08.2018 to 31.08.2018) - 27 days
B September 2018 - 30 days
October 2018 - 31 days
November 2018 - 30 days
December 2018 - 31 days
C
January 2019 - 31 days
---------------------------
Total - 180 days
---------------------------”
D 3.4 Accordingly, the Appellant filed his bail application on
01.02.2019 at 10:30 a.m. before the Trial Court. During the course of
hearing of the bail application-after completion of the arguments of the
counsel for the Appellant, to be precise-the Respondent/complainant filed
an additional complaint against the Appellant at 4:25 p.m. on 01.02.2019
E and sought for dismissal of the bail petition on the said basis. However,
the Trial Court allowed the bail application on the ground that the Court
has no power to intervene with the indefeasible right of the Appellant
conferred on him by the legislative mandate of Section 167(2).
3.5 The said judgment of the Trial Court was set aside by the
F High Court on the ground that the additional complaint was filed on
01.02.2019 itself and since the application for bail under Section 167(2),
CrPC was not disposed of by the time the additional complaint was filed,
the Appellant could not take advantage of the fact that he had filed his
bail petition prior in time. The High Court further reasoned that the Court
of Session conducts work from the time it sits till the time it rises and
G hence the Appellant could not avail of any specific benefit for having
filed the application at 10:30 a.m. inasmuch as the additional complaint
was lodged during the course of hearing of the bail application, before
the Court rose for the day.
H
927
4. Ms. Arunima Singh, learned counsel appearing for the Appellant, A
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
B
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. C
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 Appellant-accused furnishing D
the bail and consequently he was liable to continued detention in custody.
He contended that the time or date of disposal of the application of bail
filed under Section 167(2) is the deciding factor to adjudge whether the
accused is entitled to default bail or not.
6. Before we proceed further, it is relevant to note the provisions E
of Section 167(2), CrPC:
“Section 167. Procedure when investigation cannot be
completed in twenty-four hours.—
(2) The Magistrate to whom an accused person is forwarded
under this section may, whether he has or has not jurisdiction to F
try the case, from time to time, authorise the detention of the
accused in such custody as such Magistrate thinks fit, for a term
not exceeding fifteen days in the whole; and if he has no jurisdiction
to try the case or commit it for trial, and considers further detention
unnecessary, he may order the accused to be forwarded to a G
Magistrate having such jurisdiction:
Provided that-
(a) the Magistrate may authorise the detention of the accused
person, otherwise than in the custody of the police, beyond the
period of fifteen days, if he is satisfied that adequate grounds H
928 SUPREME COURT REPORTS [2020] 12 S.C.R.
A 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
B 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
C 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
D 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;
E (c) no Magistrate of the second class, not specially empowered
in this behalf by the High Court, shall authorise detention in the
custody of the police.
Explanation I.- For the avoidance of doubts, it is hereby declared
that, notwithstanding the expiry of the period specified in paragraph
F (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
G
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.”
H
929
In common legal parlance, the right to bail under the Proviso to A
Section 167(2) is commonly referred to as ‘default bail’ or ‘compulsive
bail’ as it is granted on account of the default of the investigating agency
in not completing the investigation within the prescribed time, irrespective
of the merits of the case.
6.1 It is also relevant to note Section 36A(4) of the NDPS Act for B
the purpose of this matter:
“Section 36A. Offences triable by Special Courts.—
(4) In respect of persons accused of an offence punishable under
section 19 or section 24 or section 27A or for offences involving
commercial quantity the references in sub-section (2) of section C
167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof
to “ninety days”, where they occur, shall be construed as reference
to “one hundred and eighty days”:
Provided that, if it is not possible to complete the
investigation within the said period of one hundred and eighty days, D
the Special Court may extend the said period up to one year on
the report of the Public Prosecutor indicating the progress of the
investigation and the specific reasons for the detention of the
accused beyond the said period of one hundred and eighty days.”
(emphasis supplied) E
6.2 Section 36A of the NDPS Act prescribes modified application
of the CrPC as indicated therein. The effect of Sub-Clause (4) of Section
36A, NDPS Act is to require that investigation into certain offences
under the NDPS Act be completed within a period of 180 days instead
of 90 days as provided under Section 167(2), CrPC. Hence the benefit F
of additional time limit is given for investigating a more serious category
of offences. This is augmented by a further Proviso that the Special
Court may extend time prescribed for investigation up to one year if the
Public Prosecutor submits a report indicating the progress of investigation
and giving specific reasons for requiring the detention of accused beyond
G
the prescribed period of 180 days. In the matter on hand, it is admitted
that the Public Prosecutor had not filed any such report within the 180-
day period for seeking extension of time up to one year for filing final
report/additional complaint before the Trial Court.
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930 SUPREME COURT REPORTS [2020] 12 S.C.R.
A From the aforementioned, it is clear that in the Appellant’s case,
the final report was required to be filed within 180 days from the first
date of remand.
7. This Court ina catena of judgments including Ravi Prakash
Singh @ Arvind Singh v. State of Bihar, (2015) 8 SCC 340, has ruled
B that while computing the period under Section 167(2), the day on which
accused was remanded to judicial custody has to be excluded and the
day on which challan/charge-sheet 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
C 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/
D 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
E 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
F for bail while answering (a).
I. The Principles Laid Down in Uday Mohanlal Acharya
10. Upon perusal of the relevant jurisprudence, we are unable to
agree with Mr. Lekhi’s submissions. Rather, we find that both points (a)
and (b) mentioned supra have been answered by the majority opinion of
G a three-Judge Bench of this Court in the case of Uday Mohanlal
Acharya (supra) by observing thus:-
“13…It is also further clear that that indefeasible right does not
survive or remain enforceable on the challan being filed, if already
not availed of, as has been held by the Constitution Bench in Sanjay
H Dutt’s case (supra). The crucial question that arises for
931
consideration, therefore, is what is the true meaning of the A
expression ‘if already not availed of’? Does it mean that an
accused files an application for bail and offers his willingness for
being released on bail or does it mean that a bail order must be
passed, the accused must furnish the bail and get him released on
bail? In our considered opinion it would be more in consonance
B
with the legislative mandate to hold that an accused must be held
to have availed of his indefeasible right, the moment he files an
application for being released on bail and offers to abide by the
terms and conditions of bail. To interpret the expression “availed
of” to mean actually being released on bail after furnishing the
necessary bail required would cause great injustice to the accused C
and would defeat the very purpose of the proviso to Section 167(2)
of the Criminal Procedure Code and further would make an illegal
custody to be legal, inasmuch as after the expiry of the stipulated
period the Magistrate had no further jurisdiction to remand and
such custody of the accused is without any valid order of remand.
D
That apart, when an accused files an application for bail indicating
his right to be released as no challan had been filed within the
specified period, there is no discretion left in the Magistrate and
the only thing he is required to find out is whether the specified
period under the statute has elapsed or not, and whether a challan
has been filed or not. If the expression “availed of” is interpreted E
to mean that the accused must factually be released on bail, then
in a given case where the Magistrate illegally refuses to pass an
order notwithstanding the maximum period stipulated in Section
167 had expired, and yet no challan had been filed then the accused
could only move to the higher forum and while the matter remains
F
pending in the higher forum for consideration, if the prosecution
files a charge-sheet then also the so-called 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 G
interpreting the expression “if not availed of” in a manner which
is capable of being abused by the prosecution….
…There is no provision in the Criminal Procedure Code authorising
detention of an accused in custody after the expiry of the period
indicated in proviso to sub-section (2) of Section 167 excepting H
932 SUPREME COURT REPORTS [2020] 12 S.C.R.
A 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
B
the bail, and at that point of time a challan is filed, then possibly it
can be said that the right of the accused stood extinguished. But
so long as the accused files an application and indicates in the
application to offer bail on being released by appropriate orders
of the court then the right of the accused on being released on bail
C cannot be frustrated on the off chance of the Magistrate not being
available and the matter not being moved, or that the Magistrate
erroneously refuses to pass an order and the matter is moved to
the higher forum and a challan is filed in interregnum. This is the
only way how a balance can be struck between the so-called
indefeasible right of the accused on failure on the part of the
D
prosecution to file a challan within the specified period and the
interest of the society, at large, in lawfully preventing an accused
from being released on bail on account of inaction on the part of
the prosecuting agency”.
(emphasis supplied)
E
While holding so, this Court considered and discussed in depth the
catena of judgments on right of the accused to default bail including
Sanjay Dutt v. State through C.B.I., (1994) 5 SCC 410; Hitendra
Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602; State
through CBI v. Mohd. Ashraft Bhat, (1996) 1 SCC 432; Dr. Bipin
F Shantilal Panchal v. State of Gujarat, (1996) 1 SCC 718; and
Mohamed Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1
SCC 722.
10.1 We also find it relevant for the present purpose to quote the
following conclusions of the Court in the said judgment: -
G
“13.3. On the expiry of the said period of 90 days or 60 days, as
the case may be, an indefeasible right accrues in favour of the
accused for being released on bail on account of default by the
investigating agency in the completion of the investigation within
the period prescribed and the accused is entitled to be released on
H
933
bail, if he is prepared to and furnishes the bail as directed by the A
Magistrate.
13.4. When an application for bail is filed by an accused for
enforcement of his indefeasible right alleged to have been accrued
in his favour on account of default on the part of the investigating
agency in completion of the investigation within the specified B
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 C
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 D
to sub-section 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 charge-sheet is filed then the so-
called indefeasible right of the accused would stand extinguished. E
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 sub-section (2) of Section 167 if the F
accused files an application for bail and offers also to furnish the
bail, on being directed, then it has to be held that the accused has
availed of his indefeasible right even though the Court has not
considered the said application and has not indicated the terms
and conditions of bail, and the accused has not furnished the same.”
G
(emphasis supplied)
10.2 In Uday Mohanlal Acharya, the application for default bail
filed by the accused was rejected by the Magistrate based on the wrongful
assumption that Section 167(2), CrPC is not applicable to cases pertaining
to the Maharashtra Protection of Interest of Depositors (in Financial
H
934 SUPREME COURT REPORTS [2020] 12 S.C.R.
A Establishments) Act, 1999. The charge sheet was filed while the
application challenging rejection of bail was pending before the High
Court. Hence the High Court held that the right to default bail was no
longer enforceable.
Based on the abovementioned principles, the majority opinion held
B that the accused is deemed to have exercised his right to default bail
under Section 167(2), CrPC the moment he files the application for bail
and offers to abide by the terms and conditions of bail. The prosecution
cannot frustrate the object of Section 167(2), CrPC by subsequently
filing a charge sheet or additional complaint while the bail application is
pending consideration or final disposal before a Magistrate or a higher
C forum. Accordingly, this Court granted relief to the appellant-accused in
that case.
However, it appears that in spite of the conclusions stated by the
majority in Uday Mohanlal Acharya (supra), there continues to be
confusion as to in what specific situations default bail ought to be granted,
D particularly with respect to paragraphs 13.5 and 13.6 of the decision.
Hence, for the purpose of removing all doubts, we find it necessary to
clarify the circumstances in which this entitlement may be claimed by
the accused.
II. Section 167(2) and the Fundamental Right to Life and
E Personal Liberty
11. Before we proceed to expand upon the parameters of the
right to default bail under Section 167(2) as interpreted by various
decisions of this Court, we find it pertinent to note the observations made
by this Court in Uday Mohanlal Acharya on the fundamental right to
F personal liberty of the person and the effect of deprivation of the same
as follows:-
“13…Personal liberty is one of the cherished objects of the Indian
Constitution and deprivation of the same can only be in accordance
with law and in conformity with the provisions thereof, as stipulated
G 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
sub-section (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
H
935
conformity with the provisions of the Criminal Procedure Code, A
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 B
SCC 248, that such a procedure cannot be arbitrary, unfair or
unreasonable. The history of the enactment of Section 167(2), CrPC
and the safeguard of ‘default bail’ contained in the Proviso thereto is
intrinsically linked to Article 21 and is nothing but a legislative exposition
of the constitutional safeguard that no person shall be detained except in
accordance with rule of law. C
11.2 Under Section 167 of the Code of Criminal Procedure, 1898
(‘1898 Code’) which was in force prior to the enactment of the CrPC,
the maximum period for which an accused could be remanded to custody,
either police or judicial, was 15 days. However, since it was often
unworkable to conclude complicated investigations within 15 days, a D
practice arose wherein investigative officers would file ‘preliminary
chargesheets’ after the expiry of the remand period. The State would
then request the magistrate to postpone commencement of the trial and
authorize further remand of the accused under Section 344 of the 1898
Code till the time the investigation was completed and the final chargesheet E
was filed. The Law Commission of India in Report No. 14 on Reforms
of the Judicial Administration (Vol. II, 1948, pages 758-760) 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 F
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, G
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 treason could not be indefinitely detained in H
prison till commencement of the trial.
936 SUPREME COURT REPORTS [2020] 12 S.C.R.
A 11.3 The suggestion made in Report No. 14 was reiterated by the
Law Commission in Report No. 41 on The Code of Criminal Procedure,
1898 (Vol. I, 1969, pages 76-77). The Law Commission re-emphasized
the need to guard against the misuse of Section 344 of the 1898 Code by
filing ‘preliminary reports’ for remanding the accused beyond the statutory
period prescribed under Section 167. It was pointed out that this could
B
lead to serious abuse wherein “the arrested person can in this manner
be kept in custody indefinitely while the investigation can go on in
a leisurely manner.” Hence the Commission recommended fixing of a
maximum time limit of 60 days for remand. The Commission considered
the reservation expressed earlier in Report No. 37 that such an extension
C 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
D 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:
E “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;
F (ii) every effort should be made to avoid delay in investigation and
trial which is harmful not only to the individuals involved but also
to society; and
(iii) the procedure should not be complicated and should, to the
utmost extent possible, ensure fair deal to the poorer sections of
G the community.”
11.5 It was in this backdrop that Section 167(2) was enacted within
the present-day CrPC, providing for time limits on the period of remand
of the accused, proportionate to the seriousness of the offence committed,
failing which the accused acquires the indefeasible right to bail. As is
H
937
evident from the recommendations of the Law Commission mentioned A
supra, the intent of the legislature was to balance the need for sufficient
time limits to complete the investigation with the need to protect the civil
liberties of the accused. Section 167(2) provides for a clear mandate
that the investigative agency must collect the required evidence within
the prescribed time period, failing which the accused can no longer be
B
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. C
11.6 Therefore, as mentioned supra, Section 167(2) is integrally
linked to the constitutional commitment under Article 21 promising
protection of life and personal liberty against unlawful and arbitrary
detention, and must be interpreted in a manner which serves this purpose.
In this regard we find it useful to refer to the decision of the three-Judge D
Bench of this Court in Rakesh Kumar Paul v. State of Assam, (2017)
15 SCC 67, which laid down certain seminal principles as to the
interpretation of Section 167(2), CrPC though the questions of law
involved were somewhat different from the present case. The questions
before the three-Judge Bench in Rakesh Kumar Paul were whether,
firstly, the 90 day remand extension under Section 167(2)(a)(i) would be E
applicable in respect of offences where the maximum period of
imprisonment was 10 years, though the minimum period was less than
10 years. Secondly, whether the application for bail filed by the accused
could be construed as an application for default bail, even though the
expiry of the statutory period under Section 167(2) had not been F
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 G
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 twenty-four hours and also within an otherwise
H
938 SUPREME COURT REPORTS [2020] 12 S.C.R.
A time-bound 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
B
and also to hold the investigating agency accountable that time-
limits have been laid down by the legislature…
xxx
32…Such views and opinions over a prolonged period have
C prompted the legislature for more than a century to ensure
expeditious conclusion of investigations so that an accused person
is not unnecessarily deprived of his or her personal liberty by
remaining in prolonged custody for an offence that he or she might
not even have committed. In our opinion, the entire debate before
us must also be looked at from the point of view of expeditious
D conclusion of investigations and from the angle of personal liberty
and not from a purely dictionary or textual perspective as
canvassed by the learned counsel for the State.
xxx
E 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
F Justice or the Court.”
(emphasis supplied)
Therefore, the Courts cannot adopt a rigid or formalistic approach
whilst considering any issue that touches upon the rights contained in
Article 21.
G
11.7 We may also refer with benefit to the recent judgement of
this Court in S. Kasi v. State Through The Inspector of Police
Samaynallur Police Station Madurai District (Criminal Appeal No.
452 of 2020 dated 19th June, 2020), 2020 SCC OnLine SC 529, wherein
it was observed that the indefeasible right to default bail under Section
H
939
167(2) is an integral part of the right to personal liberty under Article 21, A
and the said right to bail cannot be suspended even during a pandemic
situation as is prevailing currently. It was emphasized that the right of
the accused to be set at liberty takes precedence over the right of the
State to carry on the investigation and submit a chargesheet.
11.8 Additionally, it is well-settled that in case of any ambiguity in B
the construction of a penal statute, the Courts must favour the
interpretation which leans towards protecting the rights of the accused,
given the ubiquitous power disparity between the individual accused and
the State machinery. This is applicable not only in the case of substantive
penal statutes but also in the case of procedures providing for the
curtailment of the liberty of the accused. C
With respect to the CrPC particularly, the Statement of Objects
and Reasons (supra) is an important aid of construction. Section 167(2)
has to be interpreted keeping in mind the three-fold objectives expressed
by the legislature namely ensuring a fair trial, expeditious investigation
and trial, and setting down a rationalized procedure that protects the D
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 E
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
F
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 two-Judge Bench in Hitendra Vishnu Thakur (supra). In that case,
the Court was called upon to construe the scope of Section 20(4)(bb) of
the Terrorist and Disruptive Activities (Prevention) Act, 1987 (‘TADA’)
which is in pari materia with the Proviso to Section 36A (4) of the G
NDPS Act. The Court held that an accused person seeking bail under
Section 20(4) of the TADA read with Section 167(2) has to make an
application for such default bail and the Court shall release the accused
on bail if the period for filing a chargesheet has expired, after notice to
the public prosecutor, uninfluenced by the merits of the case. That unless
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940 SUPREME COURT REPORTS [2020] 12 S.C.R.
A the Court grants extension in time based on the report of the Public
Prosecutor, the Designated Court under TADA would have no jurisdiction
to deny to the accused his indefeasible right to default bail if the accused
seeks and is prepared to furnish the bail bonds as directed by the Court.
Further that in such a scenario, the Court is obligated to decline any
request for further remand. However, it was also expressly stated that
B
the Court cannot release the accused on its own motion if the accused
does not file any such application.
12.1 Subsequently the question of the proper construction of
Section 20(4)(bb) was referred to a Constitution Bench of this Court in
Sanjay Dutt (supra). Reservation was expressed before this Court that
C the decision in Hitendra Vishnu Thakur (supra) should not be held as
conferring an indefeasible right on the accused to be released on default
bail even after the final report or challan has been filed. To settle this
point, the Constitution Bench held that:
“48…The indefeasible right accruing to the accused in such a
D situation is enforceable only prior to the filing of the challan and it
does not survive or remain enforceable on the challan being filed,
if already not availed of. Once the challan has been filed, the
question of grant of bail has to be considered and decided only
with reference to the merits of the case under the provisions
E relating to grant of bail to an accused after the filing of the challan.
The custody of the accused after the challan has been filed is not
governed by Section 167 but different provisions of the Code of
Criminal Procedure. If that right had accrued to the accused but
it remained unenforced till the filing of the challan, then there is no
question of its enforcement thereafter since it is extinguished the
F moment challan is filed because Section 167 CrPC ceases to
apply…It is settled by Constitution Bench decisions that a petition
seeking the writ of habeas corpus on the ground of absence of a
valid order of remand or detention of the accused, has to be
dismissed, if on the date of return of the rule, the custody or
G 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
H
941
the investigation and filing of the challan within the time allowed, A
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
B
extended period, as the case may be, then he has to be released
on bail forthwith. The accused, so released on bail may be arrested
and committed to custody according to the provisions of the CrPC.
The right of the accused to be released on bail after filing of the
challan, notwithstanding the default in filing it within the time
allowed, is governed from the time of filing of the challan only by C
the provisions relating to the grant of bail applicable at that stage.”
(emphasis supplied)
It appears that the term “if not already availed of” mentioned
supra has become a bone of contention as Courts have differed in their
opinions as to whether the right to default bail is availed of and enforced D
as soon as the application for bail is filed; or when the bail petition is
finally disposed of by the Court; or only when the accused actually
furnishes bail as directed by the Court and is released from custody.
12.2 The majority opinion in Uday Mohanlal Acharya (supra)
clarified this ambiguity by holding that the expression “if not already E
availed of” used by this Court in Sanjay Dutt (supra) must be understood
to mean “when the accused files an application and is prepared to
offer bail on being directed”. In that case, it has to be held that the
accused has enforced his indefeasible right even though the Court has
not considered the said application and has not indicated the terms and F
conditions of bail, and the accused is yet to furnish the same.
12.3 However, B.N. Agrawal, J. in his minority opinion partly
dissented with the majority, particularly with respect to the conclusions
expressed in paragraph 13.6 of Uday Mohanlal Acharya (supra). He
opined that the phrase “the accused person shall be released on bail G
if he is prepared to and does furnish bail” in Section 167(2)(a)(ii)
(emphasis supplied) and “the accused shall be detained in custody so
long as he does not furnish bail” in Explanation I to Section 167(2)
indicated that the right to be released on default bail could be exercised
only on actual furnishing of bail. Further, that the decision of the
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942 SUPREME COURT REPORTS [2020] 12 S.C.R.
A Constitution Bench in Sanjay Dutt (supra) should be interpreted to have
held that if the challan is filed before any order directing release on bail
is passed and before the bail bonds are furnished, the right under Section
167(2) would cease to be available to the accused.
12.4 Having considered both opinions, we have arrived at the
B conclusion that the majority opinion in Uday Mohanlal Acharya (supra)
is the correct interpretation of the decision rendered by the Constitution
Bench in Sanjay Dutt (supra). The decision in Sanjay Dutt merely casts
a positive corresponding obligation upon the accused to promptly apply
for default bail as soon as the prescribed period of investigation expires.
As the decision in Hitendra Vishnu Thakur (supra) expressly cautions,
C the Court cannot suo motu grant bail without considering whether the
accused is ready to furnish bail or not. This is an in-built 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
D 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
E apply.
However, the Constitution Bench decision in Sanjay Dutt cannot
be interpreted so as to mean that even where the accused has promptly
exercised his right under Section 167(2) and indicated his willingness to
furnish bail, he can be denied bail on account of delay in deciding his
F application or erroneous rejection of the same. Nor can he be kept
detained in custody on account of subterfuge of the prosecution in filing
a police report or additional complaint on the same day that the bail
application is filed.
12.5 The arguments of the State that the expression “availed of”
G would only mean actual release after furnishing the necessary bail would
cause grave injustice to the accused and would defeat the very purpose
of the Proviso to Section 167(2), CrPC. If the arguments of Mr. Lekhi
are accepted, there will be many instances where the Public Prosecutor
might prolong the hearing of the application for bail so as to facilitate the
H State to file an additional complaint or investigation report before the
943
Court during the interregnum. In some cases, the Court may also delay A
the process for one reason or the other. In such an event, the indefeasible
right of the accused to get the order of bail in his favour would be defeated.
This could not have been the intention of the legislature. If such a practice
is permitted, the same would amount to deeming illegal custody as legal.
After the expiry of the stipulated period, the Court has no further
B
jurisdiction to remand the accused to custody. The prosecution would
not be allowed to take advantage of its own default of not filing the
investigation report/complaint against the appellant within the stipulated
period.
12.6 It was noted by B.N.Agrawal, J. in his minority opinion in
Uday Mohanlal Acharya (supra) that a distinction can be made between C
cases where the Court has adopted dilatory tactics to defeat the right of
the accused and where the delay in deciding the bail application is bona
fide and unintentional. In case of the former, the accused could move
the superior Court for appropriate direction. Whereas in case of the
latter, the Court must dismiss the bail petition if the prosecution files the D
challan in the meantime. In a similar manner, the Respondent/complainant
in the present case has also sought to distinguish Uday Mohanlal
Acharya and subsequent decisions of this Court pertaining to Section
167(2) on the ground that the Trial Court considered the bail application
on the same day it was filed, and hence there was no unjust delay which
would make the accused entitled to be released on bail. E
In our considered opinion, such a distinction cannot be adopted
as it would give rise to parallel litigations necessitating separate inquiries
into the motivation of the Court for delaying a bail application, or for
posting it for hearing on a particular date at a particular time. Delay in
deciding the bail application could be due to a number of factors and F
there may not be a clear-cut 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. G
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 H
944 SUPREME COURT REPORTS [2020] 12 S.C.R.
A section of society and is unlikely to have access to information about his
legal rights. Such knowledge-sharing by magistrates will thwart any
dilatory tactics by the prosecution and also ensure that the obligations
spelled out under Article 21 of the Constitution and the Statement of
Objects and Reasons of the CrPC are upheld.
B IV. The Import of Explanation I to Section 167(2), CrPC
13. It is true that Explanation I to Section 167(2), CrPC provides
that the accused shall be detained in custody so long as he does not
furnish bail. However, as mentioned supra, the majority opinion in Uday
Mohanlal Acharya expressly clarified that Explanation I to Section
C 167(2) applies only to those situations where the accused has availed of
his right to default bail and undertaken to furnish bail as directed by the
Court, but has subsequently failed to comply with the terms and conditions
of the bail order within the time prescribed by the Court. We find ourselves
in agreement with the view of the majority. In such a scenario, if the
prosecution subsequently files a chargesheet, it can be said that the
D accused has forfeited his right to bail under Section 167(2), CrPC.
Explanation I is only a safeguard to ensure that the accused is not
immediately released from custody without complying with the bail order.
13.1 However, the expression ‘the accused does furnish bail’ in
Section 167(2) and Explanation I thereto cannot be interpreted to mean
E that if the accused, in spite of being ready and willing, could not furnish
bail on account of the pendency of the bail application before the
Magistrate, or because the challenge to the rejection of his bail application
was pending before a higher forum, his continued detention in custody is
authorized. If such an interpretation is accepted, the application of the
F Proviso to Section 167(2) would be narrowly confined only to those
cases where the Magistrate is able to instantaneously decide the bail
application as soon as it is preferred before the Court, which may
sometimes not be logistically possible given the pendency of the docket
across courts or for other reasons. Moreover, the application for bail has
to be decided only after notice to the public prosecutor. Such a strict
G interpretation of the Proviso would defeat the rights of the accused.
Hence his right to be released on bail cannot be defeated merely because
the prosecution files the chargesheet prior to furnishing of bail and fulfil
the conditions of bail of furnishing bonds, etc., so long as he furnishes
the bail within the time stipulated by the Court.
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945
13.2 Hence we reject Mr. Lekhi’s argument that the Appellant- A
accused 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 B
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 C
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 D
Section 20(4) is filed first or the report as envisaged by clause
(bb) is filed by the public prosecutor first so long as both are
considered while granting or refusing bail. If the period prescribed
by clause (b) of Section 20(4) has expired and the court does not
grant an extension on the report of the public prosecutor made
under clause (bb), the court shall release the accused on bail as E
it would be an indefeasible right of the accused to be so released.
Even where the court grants an extension under clause (bb) but
the charge-sheet is not filed within the extended period, the
court shall have no option but to release the accused on bail if he
seeks it and is prepared to furnish the bail as directed by the F
court...”
(emphasis supplied)
This was affirmed by the Constitution Bench in Sanjay Dutt
(supra), wherein it was held that the grant of default bail is subject to
refusal of the prayer for extension of time, if such a prayer is made. This G
seems to have given rise to the misconception that Sanjay Dutt (supra)
endorses the view that the prosecution may seek extension of time (as
provided for under the relevant special statute) for completing the
investigation or file a final report at any time before the accused is released
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946 SUPREME COURT REPORTS [2020] 12 S.C.R.
A on bail, notwithstanding the fact that a bail application on ground of default
has already been filed.
14.1 The observations made in Hitendra Vishnu Thakur (supra)
and Sanjay Dutt (supra) to the effect that the application for default
bail and any application for extension of time made by the Public
B Prosecutor must be considered together are, in our opinion, only applicable
in situations where the Public Prosecutor files a report seeking extension
of time prior to the filing of the application for default bail by the accused.
In such a situation, notwithstanding the fact that the period for completion
of investigation has expired, both applications would have to be considered
together. However, where the accused has already applied for default
C bail, the Prosecutor cannot defeat the enforcement of his indefeasible
right by subsequently filing a final report, additional complaint or report
seeking extension of time.
14.2 It must also be added and it is well settled that issuance of
notice to the State on the application for default bail filed under the
D Proviso to Section 167(2) is only so that the Public Prosecutor can satisfy
the Court that the prosecution has already obtained an order of extension
of time from the Court; or that the challan has been filed in the designated
Court before the expiry of the prescribed period; or that the prescribed
period has actually not expired. The prosecution can accordingly urge
E 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
F 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
G 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 prior
H
947
application for bail had been filed by the appellants. Hence the Court A
held, relying upon Sanjay Dutt, that the right to bail could not be exercised
once the chargesheet has been submitted and cognizance has been taken.
However, at the same time, the three-Judge Bench also expressed
with consternation that Courts cannot engage in practices such as keeping
the applications for bail pending till the time chargesheets are submitted, B
so that the statutory right which has accrued to the accused is defeated.
If the Court deliberately does not decide the bail application but adjourns
the case by granting time to the prosecution, it would be in violation of
the legislative mandate. It may be pertinent to note that the three-Judge
Bench in Mohamed Iqbal Madar Sheikh had also been part of the
Constitution Bench in Sanjay Dutt. C
15.1 Similarly, in Dr. Bipin Shantilal Panchal (supra), it was
admitted that the accused had not filed an application for bail at the time
the right under Section 167(2), CrPC had accrued to him. The chargesheet
had already been filed by the time the accused sought to avail of his
right. Incidentally, the same three-Judge Bench which had delivered the D
opinion in Mohamed Iqbal Madar Sheikh (supra), and which was part
of the original Constitution Bench in Sanjay Dutt (supra), rendered
judgment as follows:
“4…But it is an admitted position that the charge-sheet has been
filed on 23-5-1994 and now the appellant is in custody on the E
basis of orders of remand passed under the other provisions of
the Code. Whether the accused who was entitled to be released
on bail under proviso to sub-section (2) of Section 167 of the
Code, not having made an application when such right had accrued,
can exercise that right at a later stage of the proceeding, has been F
examined by a Constitution Bench of this Court in the case
of Sanjay Dutt v. State through CBI…
…Therefore, if an accused person fails to exercise his right to be
released on bail for the failure of the prosecution to file the charge-
sheet within the maximum time allowed by law, he cannot contend G
that he had an indefeasible right to exercise it at any time
notwithstanding the fact that in the meantime the charge-sheet is
filed. But on the other hand if he exercises the right within the
time allowed by law and is released on bail under such
circumstances, he cannot be rearrested on the mere filing of the
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948 SUPREME COURT REPORTS [2020] 12 S.C.R.
A charge-sheet, as pointed out in Aslam Babalal Desai v. State of
Maharashtra.”
(emphasis supplied)
The above-mentioned discussion clearly corroborates our view,
and the view taken by the majority in Uday Mohanlal Acharya, that
B 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
C 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,
D (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 Nasir Mulla the Court held that since the order granting extension
of time under Section 49(2)(b) of the Prevention of Terrorism Act, 2002
E (‘POTA’), which is in pari materia with the Proviso to Section 36A (4)
of the NDPS Act, had been passed prior to the application for default
bail, the accused would not be entitled to bail. In Mustaq Ahmed
Mohammed Isak, the Court similarly rejected the application for bail
under Section 21(2)(b) of the Maharashtra Control of Organised Crime
F Act, 1999 as the chargesheet was filed on the same day, but which was
the last day of the extended period granted by the Special Court and
hence within the statutory time limit.
15.3 On the other hand in Sayed Mohd. Ahmad Kazmi v. State
(Government of NCT of Delhi), (2012) 12 SCC 1, the accused filed an
G application for default bail on 17.7.2012. The Chief Metropolitan
Magistrate, instead of hearing the application on the said date, re-notified
the hearing for 18.7.2012. On 18.7.2012, the State filed an application
seeking extension of remand under Section 43-D (2)(b) of the Unlawful
Activities (Prevention) Act, 1967 (‘UAPA’) which is also in pari materia
with the Proviso to Section 36A (4) of the NDPS Act. The Magistrate
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949
took up both matters on 20.7.2012 and allowed the application for A
extension of custody with retrospective effect from 2.6.2012 without
considering the application under Section 167(2), CrPC. Subsequently,
the chargesheet was filed on 31.7.2012. It was contended by the learned
Additional Solicitor General, in reliance upon Sanjay Dutt, that the right
to statutory bail stood extinguished once the application for extension of
B
time was filed.
The three-Judge Bench rejected the aforesaid contention and held
that the right of the accused to statutory bail, which was exercised at the
time his bail application was filed, remained unaffected by the subsequent
application for extension of time to complete investigation. Further, the
Court expressly censured the dilatory tactic adopted by the Magistrate C
in that case in the following words:
“25. Having carefully considered the submissions made on behalf
of the respective parties, the relevant provisions of law and the
decision cited, we are unable to accept the submissions advanced
on behalf of the State by the learned Additional Solicitor General D
Mr Raval. There is no denying the fact that on 17-7-2012, when
CR No. 86 of 2012 was allowed by the Additional Sessions Judge
and the custody of the appellant was held to be illegal and an
application under Section 167(2) CrPC was made on behalf of
the appellant for grant of statutory bail which was listed for hearing. E
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 20-7-2012 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 F
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 G
cases cited by the learned Additional Solicitor General, could only
be distinguished (sic extinguished) once the charge-sheet had been
filed in the case and no application has been made prior thereto
for grant of statutory bail. It is well-established that if an accused
does not exercise his right to grant of statutory bail before the
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950 SUPREME COURT REPORTS [2020] 12 S.C.R.
A charge-sheet is filed, he loses his right to such benefit once such
charge-sheet is filed and can, thereafter, only apply for regular
bail.
26. The circumstances in this case, however, are different in that
the appellant had exercised his right to statutory bail on the very
B same day on which his custody was held to be illegal and such an
application was left undecided by the Chief Metropolitan
Magistrate till after the application filed by the prosecution for
extension of time to complete investigation was taken up and orders
were passed thereupon.
C 27. We are unable to appreciate the procedure adopted by the
Chief Metropolitan Magistrate, which has been endorsed by the
High Court and we are of the view that the appellant acquired the
right for grant of statutory bail on 17-7-2012, when his custody
was held to be illegal by the Additional Sessions Judge since his
application for statutory bail was pending at the time when the
D application for extension of time for continuing the investigation
was filed by the prosecution. In our view, the right of the appellant
to grant of statutory bail remained unaffected by the subsequent
application and both the Chief Metropolitan Magistrate and the
High Court erred in holding otherwise.”
E (emphasis supplied)
15.4 Similarly, in Union of India v. Nirala Yadav, (2014) 9 SCC
457, the accused filed application for default bail on 14.3.2007. The State
filed application seeking extension of time under Section 49(2)(b) of the
POTA on 15.3.2007. However, no order was passed on either application.
F In the meanwhile, the chargesheet was filed on 26.3.2007. On 3.4.2007
the Special Judge took up both applications and retrospectively extended
the time for filing of the chargesheet. It was contended by the Union
Government that according to the decision in Sanjay Dutt, the indefeasible
right to bail was totally destroyed as no order on bail was passed before
G the chargesheet was filed.
The Court noted that the prosecution had not filed any application
for extension prior to the date of expiry of 90 days. It was further observed
that “had an application for extension been filed, then the matter
would have been totally different”. The Court ultimately held that the
Magistrate was obligated to deal with the application for default bail on
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951
the day it was filed. Hence the Court, in reliance upon Uday Mohanlal A
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 B
an application for bail is filed on the ground of non-filing 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
inPragyna Singh Thakur (supra) had referred to the Uday Mohanlal C
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 D
of the accused to custody. The aforementioned observations on the
extinguishment of the right to default bail were only made as obiter, in
the form of a hypothetical arguendo, and hence cannot be said as laying
down a binding precedent as such. However in any case, given that the
decision continues to be relied upon by the State, we must clarify that in E
our considered opinion, the observations made in Pragyna Singh Thakur
run counter to the principles laid down in the judgments rendered by
larger Benches.
16.2 It is pertinent to note that the two-Judge Bench in Nirala
Yadav (supra) has already illuminated that the principles stated by the F
earlier co-ordinate Bench in Pragyna Singh Thakur, particularly in
paragraphs 54 and 58 of the decision, do not state the correct position of
law. Having studied both opinions, we are constrained to conclude and
hold that the position as stated in Nirala Yadav is correct. We find that
the opinion expressed in Pragyna Singh Thakur that the right to bail
can be considered only on merits once the chargesheet is filed, is based G
on an erroneous interpretation of the conclusions of the Constitution
Bench in Sanjay Dutt. As mentioned supra, the expression “if not already
availed of” used in the Constitution Bench decision has been
misinterpreted by the Courts, including the two-Judge Bench in Pragyna
Singh Thakur, to mean that the accused can only avail of the right to H
952 SUPREME COURT REPORTS [2020] 12 S.C.R.
A default bail if he is actually released prior to the filing of the chargesheet.
However, this Court in Uday Mohanlal Acharya (supra) has correctly
understood and analysed the principles stated in the case of Sanjay
Dutt before coming to its conclusion as stated above.
We are of the firm opinion that the view taken in Uday Mohanlal
B Acharya is a binding precedent. It has been followed by a subsequent
three-Judge Bench in Sayed Mohd. Ahmad Kazmi (supra). Hence,
the opinion rendered by the two-Judge Bench in paragraphs 54 and 58
of Pragyna Singh Thakur, to the effect that “even if an application
for bail is filed on the ground that charge-sheet was not filed within
90 days, but before consideration of the same and before being
C released on bail, the said right to be released on bail would be lost”
or “can only be on merits”, must be held per incuriam.
16.3 Quite recently, in the case of Bikramjit Singh v. State of
Punjab (Criminal Appeal No.667 of 2020 dated 12th October, 2020),
2020 SCC OnLine SC 824, dealing with similar question which arose in
D an application for default bail under 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
E 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
F 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.”
G This decision in Bikramjit Singh ensures that the rigorous powers
conferred under special statutes for curtailing liberty of the accused are
not exercised in an arbitrary manner.
At the cost of repetition, it must be emphasized that the paramount
consideration of the legislature while enacting Section 167(2) and the
Proviso thereto was that the investigation must be completed
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953
expeditiously, and that the accused should not be detained for an A
unreasonably long period as was the situation prevailing under the 1898
Code. This would be in consonance with the obligation cast upon the
State under Article 21 to follow a fair, just and reasonable procedure
prior to depriving any person of his personal liberty.
Conclusion B
17. In the present case, admittedly the Appellant-accused had
exercised his option to obtain bail by filing the application at 10:30 a.m.
on the 181st day of his arrest, i.e., immediately after the court opened, on
01.02.2019. It is not in dispute that the Public Prosecutor had not filed
any application seeking extension of time to investigate into the crime C
prior to 31.01.2019 or prior to 10:30 a.m. on 01.02.2019. The Public
Prosecutor participated in the arguments on the bail application till 4:25
p.m. on the day it was filed. It was only thereafter that the additional
complaint came to be lodged against the Appellant.
Therefore, applying the aforementioned principles, the Appellant- D
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.
E
17.1 It is clear that in the case on hand, the State/the investigating
agency has, in order to defeat the indefeasible right of the accused to be
released on bail, filed an additional complaint before the concerned court
subsequent to the conclusion of the arguments of the Appellant on the
bail application.If such a practice is allowed, the right under Section
167(2) would be rendered nugatory as the investigating officers could F
drag their heels till the time the accused exercises his right and
conveniently files an additional complaint including the name of the
accused as soon as the application for bail is taken up for disposal. Such
complaint may be on flimsy grounds or motivated merely to keep the
accused detained in custody, though we refrain from commenting on the G
merits of the additional complaint in the present case. Irrespective of the
seriousness of the offence and the reliability of the evidence available,
filing additional complaints merely to circumvent the application for default
bail is, in our view, an improper strategy.
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954 SUPREME COURT REPORTS [2020] 12 S.C.R.
A 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
B 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
C 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
D 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 to release the accused on bail in case
of default by the investigative agency.
E 18.2 The right to be released on default bail continues to
remain enforceable if the accused has applied for such bail,
notwithstanding pendency of the bail application; or
subsequent filing of the chargesheet or a report seeking
extension of time by the prosecution before the Court; or
filing of the chargesheet during the interregnum when
F challenge to the rejection of the bail application is pending
before a higher Court.
18.3 However, where the accused fails to apply for default
bail when the right accrues to him, and subsequently a
chargesheet, additional complaint or a report seeking
G extension of time is preferred before the Magistrate, the
right to default bail would be extinguished. The Magistrate
would be at liberty to take cognizance of the case or grant
further time for completion of the investigation, as the case
may be, though the accused may still be released on bail
under other provisions of the CrPC.
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18.4 Notwithstanding the order of default bail passed by the A
Court, by virtue of Explanation I to Section 167(2), the actual
release of the accused from custody is contingent on the
directions passed by the competent Court granting bail. If
the accused fails to furnish bail and/or comply with the terms
and conditions of the bail order within the time stipulated by
B
the Court, his continued detention in custody is valid.
19. Hence the impugned judgment of the High Court stands set
aside and the Trial Court judgment stands confirmed. However, we
additionally direct that apart from furnishing the sureties as directed by
the Trial Court, the Appellant-accused should also surrender his passport,
undertake to report to the Respondent Directorate when required for C
purposes of investigation, and also undertake to not leave Chennai city
limits without the leave of the Trial Court. This should alleviate any
concerns about the Appellant absconding from the jurisdiction of the
Court.
20. The appeal is allowed accordingly. D
Kalpana K. Tripathy Appeal allowed.
E
F
G
H
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