SC: Right to be released on default bail unaffected by filing of chargesheet during its pendency

The Hon’ble Supreme Court, on 26th October 2020, in the matter of M. Ravindran v. The Intelligence Officer, Directorate of Revenue Intelligence pronounced  that 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.

Questions before the Hon’ble Supreme Court:

Whether the indefeasible right accruing under Section 167(2), CrPC gets extinguished by subsequent filing of an additional complaint by the investigating agency?

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?

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.

The Hon’ble Supreme Court’s observations:

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. (Para 6) 

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 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 the prescribed period of 180 days. (Para 6.2) 

While computing the period under Section 167(2) CrPC, the day on which accused was remanded to judicial custody has to be excluded and the day on which challan/charge­sheet is filed in the court has to be included. (Para 7)

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.(Para 11.1)

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 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)

The Courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Article 21. (Para 11.6)

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 the curtailment of the liberty of the accused. (Para 11.8)

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 sections of society. These objects are nothing but subsets of the overarching fundamental right guaranteed under Article 21. (Para 11.8)

The majority opinion in Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 clarified this ambiguity by holding that the expression “if not already availed of” used by the Supreme Court in Sanjay Dutt v. State through C.B.I., (1994) 5 SCC 410 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 conditions of bail, and the accused is yet to furnish the same. (Para 12.2)

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. (Para 12.4)

The Court cannot suo motu grant bail without considering whether the accused is ready to furnish bail or not. This is an in­built 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 the case may be. (Para 12.4)

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. 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)

The Constitution Bench decision in Sanjay Dutt (supra) 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. (Para 12.4) 

The arguments 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 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 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 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. (Para 12.5)

Delay in deciding the bail application could be due to a number of factors and there may not be a clear­cut 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. (Para 12.6)

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 section of society and is unlikely to have access to information about his legal rights. Such knowledge­sharing 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. (Para 12.7)

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 (supra) 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 chargesheet, it can be said that the 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.(Para 13)

The expression ‘the accused does furnish bail’ in Section 167(2) and Explanation I thereto cannot be interpreted to mean 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 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 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.(Para 13.1)

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 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)

Issuance of notice to the State on 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. The prosecution can accordingly urge 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 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. (Para 14.2)

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 expiry of the stipulated time limit for investigation. (Para 18.1)

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 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. (Para 18.1)

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. (Para 18.2)

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. (Para 18.3)

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 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)

Copy of judgement: Judgement_26-Oct-2020

-Adv. Tushar Kaushik

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