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TMI Blog2023 (10) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... usband and the impugned points of law. Under Section 167 of the Code of Criminal Procedure, 1898, which was the Act that governed criminal procedure before the enactment of CrPC presently in force, an accused, either under judicial or police custody, could be remanded only for a maximum period of 15 days. Reliance placed in SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION ANR. [ 2021 (10) TMI 1296 - SUPREME COURT ], wherein it was held that Section 167(2) of the Cr.P.C. is a limb of Article 21 of the Constitution of India, and as such, the investigating authority is under a constitutional duty to expedite the process of investigation within the stipulated time, failing which, the accused is entitled to be released on default bail. It is also to be noted that as per the scheme of Cr.PC, an investigation of a cognizable case commences with the recording of an FIR under Section 154 Cr.PC. If a person is arrested and the investigation of the case cannot be completed within 24 hours, he has to be produced before the magistrate to seek his remand under Section 167(2) of the Cr.PC during continued investigation. There is a statutory time frame then prescribed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar Sharma, AOR, for the Respondent. JUDGMENT The present writ petition under Article 32 of the Constitution of India has been filed by the writ petitioner herein seeking the release of her husband on default bail. The writ petition also raises an issue of grave importance of personal liberty enshrined under Article 21 of the Constitution of India. FACTS 2. Briefly, the facts relevant to the present writ petition are that an FIR was lodged under Section 120(B) read with Section 420 of the Indian Penal Code, 1860 (for short, IPC ) along with Sections 7, 12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, wherein the writ petitioner s husband was not named. 3. Subsequently, two supplementary chargesheets were filed, wherein the writ petitioner s husband (hereinafter referred to as accused ) was made a prosecution witness in the supplementary chargesheet dated 26-5-2020. Multiple other supplementary chargesheets were later filed, and the accused was not named in any of the said chargesheets. 4. The investigation was then transferred to another investigating officer, and the accused was then arrested by CBI and was remanded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt the contention, Learned Counsel relied on the case of State of Bihar Others v. J.A.C. Saldanha Ors., (1980) 1 SCC 554. (III) The supplementary chargesheet filed on 25-6-2022 is a complete document in respect to the offence committed by the persons arraigned in the said supplementary chargesheet, therefore no right to default bail has been accrued in favour of the petitioner s husband. ISSUES 9. In light of the abovementioned arguments raised by the Learned Counsel for the parties, the following three issues arise for our consideration :- (I) Can a chargesheet or a prosecution complaint be filed in piecemeal without first completing the investigation of the case? (II) Whether the filing of such a chargesheet without completing the investigation will extinguish the right of an accused for grant of default bail? (III) Whether the remand of an accused can be continued by the trial court during the pendency of investigation beyond the stipulated time as prescribed by the CrPC? PRELIMINARY OBJECTION 10. A preliminary objection has been raised by the Learned Counsel appearing on behalf of the respondent stating that the present writ is not ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nr. v. Union of India Ors., (2017) 10 SCC 1 :- A constitutional democracy can survive when citizens have an undiluted assurance that the Rule of Law will protect their rights and liberties against any invasion by the State and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these, most precious rights. 13. Further, another Constitution Bench of this Court in the case of K.K Kochunni, Moopil Nayar v. State of Madras Ors. - 1959 Supp (2) SCR 316 as early as 1959, has observed that the Court must exercise its jurisdiction in matters where there is an abuse of fundamental rights. The relevant paragraphs of the said judgment are being extracted hereunder : Further, even if the existence of other adequate legal remedy may be taken into consideration by the High Court in deciding whether it should issue any of the prerogative writs on an application under Article 226 of the Constitution, as to which we say nothing now - this Court cannot, on a similarground, decline to entertain a petition under Article 32, for the right to move this Court by appropriate proceedings for the enforcement of the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Procedure, 1898, which was the Act that governed criminal procedure before the enactment of CrPC presently in force, an accused, either under judicial or police custody, could be remanded only for a maximum period of 15 days. For a ready reference Section 167 of the 1898 Code is being reproduced herein :- Procedure when investigation cannot be completed in twenty-four hours . - (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 61, and there are grounds for believing that the accusation or information is well-founded, the officer in-charge of the police station or the police officer in-charge of the police station or the police officer making the investigation if he is not below the rank of sub-inspector shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the 1898 Act, wherein the accused persons, on grounds of a preliminary report and pending investigation, were remanded to custody indefinitely. The relevant paragraphs from the said report are being reproduced hereunder :- Section 167 provides for remands. The total period for which an arrested person may be remanded to custody-police or judicial-is 15 days. The assumption is that the investigation must be completed within 15 days and the final report under section 173 sent to court by then. In actual practice, however, this has frequently been found unworkable. Quite often, a complicated investigation cannot be completed within 15 days, and if the offence is serious, the police naturally insist that the accused be kept in custody. A practice of doubtful legal validity has therefore grown up. The police file before a magistrate a preliminary or incomplete report, and the magistrate, purporting to act under Section 344, adjourns the proceedings and remands the accused to custody. In the Fourteenth Report, the Law Commission doubted if such an order could be made under Section 344, as that section is intended to operate only after a magistrate has taken cognizance of an offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Magistrate. 20. On the recommendation made by the Law Commission through the aforesaid reports recommending to curtail the abuse of such power Section 167(2) as it exists today in the statute was incorporated in the Cr.PC, 1973, which provides for a longer period of maximum remand, but also guarantees default bail, to ensure that accused persons are bereft of arbitrary detention. The Statement of Objects and Reasons of Cr.P.C., 1973 also refer to the 41st law Commission Report and inter alia reads as follows :- (2) .. A comprehensive report for the revision of the Code, namely, the Forty-first Report, was presented by the Law Commission in September, 1969. This report took into consideration the recommendations made in the earlier Reports of the Commission dealing with specific matters namely, the Fourteenth, Twenty-fifth, Thirty-second, Thirty-third, Thirty-sixth, Thirty-seventh and Fortieth Reports. (3) The recommendation 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; (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... default bail. The relevant observations made in the said judgment are as under:- Section 167(2) was introduced in the year 1978, giving emphasis to the maximum period of time to complete the investigation. This provision has got a laudable object behind it, which is to ensure an expeditious investigation and a fair trial, and to set down a rationalised procedure that protects the interests of the indigent sections of society. This is also another limb of Article 21. Presumption of Innocence is also inbuilt in this provision. An investigating agency has to expedite the process of investigation as a suspect is languishing under incarceration. Thus, a duty is enjoined upon the agency to complete the investigation within the time prescribed and a failure would enable the release of the accused. The right enshrined is an absolute and indefeasible one, ensuring to the benefit of suspect. As a consequence of the right flowing from the said provision, courts will have to give due effect to it, and thus any detention beyond this period would certainly be illegal, being an affront to the liberty of the person concerned. Therefore, it is not only the duty of the investigating agency b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution of India, and it was further held that even the twin limitation on grant of bail would not apply. 26. Further, in the case of Ashok Munilal Jain Anr. v. Assistant Director, Directorate of Enforcement, (2018) 16 SCC 158 = 2018 (360) E.L.T. 13 (S.C.), it was held that the right of default bail under Section 167(2) CrPC was held to be an indefeasible right of the accused even in matters under PMLA. 27. Therefore, in light of the abovementioned discussions, it can be seen that the practice of filing preliminary reports before the enactment of the present CrPC has now taken the form of filing chargesheets without actually completing the investigation, only to scuttle the right of default bail. If we were to hold that chargesheets can be filed without completing the investigation, and the same can be used for prolonging remand, it would in effect negate the purpose of introducing Section 167(2) of the CrPC and ensure that the fundamental rights guaranteed to accused persons is violated. 28. We have carefully perused the judgments relied upon by the Learned Counsel for the respondent, however, none of the judgments relied upon permit the abuse of remand under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sheets were filed by the Investigation Agency just before the expiry of 60 days, with the purpose of scuttling the right to default bail accrued in favour the accused. This factual position was missed by the trial Court, and instead of offering default bail to the accused, the trial court mechanically accepted the incomplete chargesheets filed by the Investigating Agency, and further continued the remand of the accused beyond the maximum period specified. The Investigating Agency and the trial Court, thus, failed to observe the mandate of law, and acted in a manner which was manifestly arbitrary and violative of the fundamental rights guaranteed to the accused. 34. Even at the cost of repetition, we find it pertinent to mention that the right of default bail under Section 167(2) of the CrPC is not merely a statutory right, but a fundamental right that flows from Article 21 of the Constitution of India. The reason for such importance being given to a seemingly insignificant procedural formality is to ensure that no accused person is subject to unfettered and arbitrary power of the state. The process of remand and custody, in their practical manifestations, create a huge disparity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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