2018 (6) TMI 1810 - HC - Indian Laws

Seeking grant of default bail - time limitation - statutory period for filing the charge sheet or Challan expired or not - HELD THAT - The law is fairly settled at least from the Constitution Bench expression of the Apex Court in SANJAY DUTT VERSUS STATE THRU. C.B.I. BOMBAY 1994 (9) TMI 351 - SUPREME COURT . Undisputedly in these cases the punishment provided for any of the offences is only up to 10 years and for one of the offences upto life and thus the charge-sheet must be filed from the very wording of Section 167 of Cr.P.C. within 90 days from the date of respective remand and if not filed for that default in non-compliance with the statutory period to file the final report under Section 173 Cr.P.C. read with 167(2) Cr.P.C the accused are entitled to the default bail which is an indefeasible right to avail. Even there is no any controversy as to the default bail is to be granted is not from the date of default till filing of charge-sheet as a default bail once granted will enure till end of trial that cloud is also cleared by the Apex Court. It is the duty of the Court if charge-sheet not filed within the statutory period to release the detenu on bail. For that even an oral application is enough if at all accused wants to apply. There are some expressions saying even default bail granted when there is a subsequent filing of charge-sheet the procedure contemplated if at all to cancel the bail and to take custody is as per Cr.P.C. It is crystal clear therefrom of only the bail sought to be cancelled as contemplated by Section 439(2) and 437(4) Cr.P.C. once the default bail is availed by the accused for non submission of the charge-sheet. Thus once an application is made by the accused after expiry of the statutory period of remand from non-filing of the charge sheet he is entitled to the default bail and such a right cannot even be defeated by filing of charge sheet thereafter. So the filing of the application either orally or in writing is a prerequisite if not the Court chosen to grant the default bail and once such an application is there in recognition of his indefeasible right he is entitled to the default bail and that can no way be delayed even in its disposal - the petitioners/accused Nos. 5 6 8 9 10 and 12 respectively are entitled to the default bail. Thereby the dismissal of the applications by the trial Court despite the petitioners-accused have chosen in filing written applications to avail the default bail is un-sustainable Petition allowed.

Summary

Issues Involved:
1. Entitlement to default bail under Section 167 of Cr.P.C.
2. Indefeasible right to bail due to non-filing of charge-sheet within the statutory period.
3. Conditions for granting default bail.
4. Judicial precedents and guidelines on default bail.

Detailed Analysis:

1. Entitlement to Default Bail Under Section 167 of Cr.P.C.:
The petitioners, accused in a criminal case, sought default bail under Section 167 of Cr.P.C. due to the non-filing of the charge-sheet within the statutory period. They contended that they had an "indefeasible right" to bail, which was not properly considered by the Special Judge-cum-Principal District Judge, Kadapa, leading to the dismissal of their applications. The petitioners argued that the law on default bail is settled and that their right to bail should be recognized without delving into the merits of the case.

2. Indefeasible Right to Bail Due to Non-Filing of Charge-Sheet Within Statutory Period:
The court examined the legal framework and judicial precedents on default bail. It referred to the Constitution Bench judgment in *Sanjay Dutt v. State through C.B.I. Bombay (1994) 5 SCC 410*, which clarified that if the charge-sheet is not filed within 90 days (or 60 days for lesser offenses), the accused is entitled to default bail. This right is "indefeasible" and must be granted promptly upon application by the accused. The court also cited *Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453*, which laid down specific guidelines for granting default bail, emphasizing the need for prompt action by the Magistrate/Court to prevent the prosecution from frustrating the legislative mandate.

3. Conditions for Granting Default Bail:
The court reiterated that once the statutory period for filing the charge-sheet lapses, the accused must be released on bail if they apply for it. The court emphasized that even an oral application is sufficient to trigger this right. The court also discussed the procedure for canceling default bail if a charge-sheet is subsequently filed, highlighting that such cancellation must follow the provisions of Section 439(2) and 437(4) Cr.P.C.

4. Judicial Precedents and Guidelines on Default Bail:
The judgment extensively reviewed various Supreme Court decisions, including *Mohamed Iqbal Madar Sheikh v. State of Maharashtra (1996) 1 SCC 722*, *Union of India v. Nirala Yadav (2014) 9 SCC 457*, and *Rakesh Kumar Paul v. State of Assam 2017 (3) ALT (Crl.) 141 (SC)*. These cases reinforced the principle that the right to default bail is automatic upon the expiry of the statutory period without the filing of a charge-sheet, provided the accused applies for it. The court noted that the failure to grant default bail promptly undermines the accused's personal liberty, as protected under Article 21 of the Constitution.

Conclusion:
The court concluded that the petitioners were entitled to default bail as their applications were filed after the statutory period had lapsed without the filing of a charge-sheet. The dismissal of their applications by the trial court was deemed unsustainable. Consequently, the court granted default bail to the petitioners, subject to specific conditions, including the execution of a self-bond, regular reporting to the investigating officer, and restrictions on leaving the state without permission.

Conditions for Bail:
1. Execution of a self-bond for ?25,000 with two sureties.
2. Regular reporting to the investigating officer and attending court proceedings.
3. Restrictions on leaving the state without prior permission.
4. Submission of full address, property, and bank account details, and surrendering passports if any.

In conclusion, the court allowed the criminal petitions and granted statutory bail to the petitioners, emphasizing the importance of upholding the indefeasible right to default bail and ensuring compliance with the procedural safeguards outlined in the judicial precedents.