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TMI Blog2020 (10) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... application for bail under Section 167(2) of the 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. 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 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional complaint by the investigating authority cannot defeat the indefeasible right of the Appellant. 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 Appellantaccused furnishing 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 of Section 167(2), CrPC: "Section 167. Procedure when investigation cannot be completed in twentyfour hours.- (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution." In common legal parlance, the right to bail under the Proviso to 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 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 subsection (2) of section 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, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble right accruing to the appellant 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 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 a threeJudge 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 Dutt's case (supra). The crucial question that arises for consideration, therefore, is what is the true meaning of the expression 'if already not availed of'? Does it mean that an accused files an application for bail and offers his willi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 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 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 socalled indefeasible right of the accused on failure on the part of the prosecution to file a challan within the specified period and the interest of the society, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould stand extinguished. 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 subsection (2) of Section 167 if the 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." (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 Establishments) Act, 1999. The chargesheet was filed while the application challenging rejection of bail was pending before the High Court. Hence the High Court held that the right to def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttled by a Constitution Bench of this Court in Maneka Gandhi v. Union of India, (1978) 1 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. 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 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 was filed. The Law Commission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evaluating the recommendations of the Law Commission: "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; (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 the community." 11.5 It was in this backdrop that Section 167(2) was enacted within the presentday 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 evident from the recommendations of the Law Commission mentioned 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 man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and also to hold the investigating agency accountable that timelimits have been laid down by the legislature... xxx 32...Such views and opinions over a prolonged period have 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 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 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 formalist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... III. The meaning of " if not already availed of " in Sanjay Dutt 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 twoJudge 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 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 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 days or the 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 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 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 availed of" used by this Court in Sanjay Dutt (supra) must be understood to mean "when the accused files an application and is prepare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right by the accused becomes final and Section 167(2) ceases to 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 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" 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 out under Article 21 of the Constitution and the Statement of Objects and Reasons of the CrPC are upheld. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under clause (bb). In this view of the matter, it is immaterial whether the application for bail on ground of 'default' under 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 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 chargesheet 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 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 seems to have given rise to the misconception that Sanjay Dutt (supra) endorses the view that the prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision 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 application for bail had been filed by the appellants. Hence the Court 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 threeJudge 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, 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 threeJudge Bench in Mohamed Iqbal Madar Sheikh had also been part of the Constitution Bench in Sanjay Dutt. 15.1 Similarly, in Dr. Bipin Shantilal Panchal (supra), it was admitted that the accused had not filed an application for bail a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ('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 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 application for default bail on 17.7.2012. The Chief Metropolitan Magistrate, instead of hearing the application on the said date, renotified the hearing for 18.7.2012. On 18.7.2012, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Additional Solicitor General, could only be distinguished ( sic extinguished) once the chargesheet had been filed in the case and no application has been made prior thereto for grant of statutory bail. It is wellestablished that if an accused does not exercise his right to grant of statutory bail before the chargesheet is filed, he loses his right to such benefit once such chargesheet 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that case that the chargesheet had been filed within 90 days from the first order of remand 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 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 twoJudge Bench in Nirala Yadav (supra) has already illuminated that the principles stated by the earlier coordinate 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 on an erroneous interpretation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tailing 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 expeditiously, and that the accused should not be detained for an 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 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 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. 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 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 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. 18.4 Notwithst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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