2008 (1) TMI 765 - HC - Central Excise

Bail-on-default under Section 167(2) of Code of Criminal Procedure - Writ jurisdiction - Maintainability of

Summary

Issues Involved:
1. Issuance of writ of habeas corpus.
2. Previous bail application under Section 439 Cr. PC.
3. Bail application under Section 167(2) Cr. PC.
4. Maintainability of the present petition.
5. Presumption of innocence and personal liberty.
6. Statutory right to bail under Section 167(2) Cr. PC.
7. Conditions of bail.
8. Preliminary objections raised by the Respondents.

Detailed Analysis:

1. Issuance of writ of habeas corpus:
The petitioner sought a writ of habeas corpus for his release on terms and conditions deemed fit by the Court. The Court examined whether the detention of the petitioner was illegal, concluding that once a bail order is passed by a competent court, continued incarceration due to non-compliance with bail terms does not render the detention illegal. However, this does not affect the statutory right to bail under Section 167(2) Cr. PC if the investigation is not concluded within the prescribed period.

2. Previous bail application under Section 439 Cr. PC:
The petitioner had previously filed a bail application under Section 439 Cr. PC, which was granted on the condition of depositing Rs. 1,00,00,000/- in installments. The petitioner did not avail of this bail order and instead challenged it via a Special Leave Petition (SLP) in the Supreme Court, which was later withdrawn. The Court noted that the propriety of the order dated 4-12-2007 was not under its consideration.

3. Bail application under Section 167(2) Cr. PC:
A bail application under Section 167(2) Cr. PC was filed, and the learned ACMM issued notice on it. The Court emphasized that under Section 167(2), if the investigation is not completed within the stipulated period (60 days in this case), the accused has a statutory right to be released on bail upon furnishing bail. This right is considered an "indefeasible right" and is commonly termed "Bail-on-Default."

4. Maintainability of the present petition:
The Respondents argued that the petition was not maintainable since the petitioner had already been granted bail under Section 439 Cr. PC, and any favorable orders would amount to a second bail order. The Court rejected this argument, stating that Section 167(2) operates independently of Chapter-XXXIII of the Cr. PC, and the statutory right to bail under Section 167(2) is not affected by previous bail orders under Section 439.

5. Presumption of innocence and personal liberty:
The Court reiterated the principle that every person is presumed innocent until proven guilty and should not be detained unnecessarily. The Court emphasized that bail is the rule and jail is the exception, and the personal liberty of an accused should not be interfered with until conviction.

6. Statutory right to bail under Section 167(2) Cr. PC:
The Court highlighted that the statutory right to bail under Section 167(2) arises if the investigation is not completed within the prescribed period (60 days in this case). This right cannot be defeated by the mere filing of a charge sheet after the statutory period has lapsed. The Court cited precedents to support this view, stating that the right to bail under Section 167(2) is an "indefeasible right."

7. Conditions of bail:
The Court examined the imposition of conditions for granting bail, noting that conditions should only ensure the presence of the accused at trial and should not be punitive. The Court referred to various precedents where conditions such as the deposit of money were deemed unreasonable and struck down. The Court concluded that the conditions imposed in the previous bail order (depositing Rs. 1,00,00,000/-) were not justified.

8. Preliminary objections raised by the Respondents:
The Respondents raised preliminary objections regarding the relevance of the previous bail order and the maintainability of the habeas corpus petition. The Court dismissed these objections, reiterating that Section 167(2) operates independently and that a habeas corpus petition is maintainable in cases where personal liberty is at stake. The Court decided to entertain the petition despite the availability of other remedies, considering the fundamental right to personal liberty.

Conclusion:
The Court directed that the petitioner be admitted to bail on furnishing a personal bond of Rs. 50,00,000/- with two sureties of the same amount, ensuring the petitioner's presence at trial. The writ petition and pending application were disposed of accordingly.