2017 (8) TMI 1526 - SC - Indian Laws

Petitioner entitled to default bail as charge sheet not filed within 60 days. Trial judge directed to grant bail.

Rakesh Kumar Paul Versus State of Assam

The petitioner was held entitled to 'default bail' as the statutory period of 60 days had expired without a charge sheet being filed, and he had applied ... Grant of Default Bail - whether the Petitioner was entitled to 'default bail' with effect from 3rd or 4th January, 2017 onwards and, in any case on 11th January, 2017 when his application for 'regular bail' was rejected by the Gauhati High Court? Held that:- The right to get 'default bail' is a very important right. Ours is a country where millions of our countrymen are totally illiterate and not aware of their rights. A Constitution Bench of this Court in the case of Sanjay Dutt (supra) has held that the Accused must apply for grant of 'default bail'. As far as Section 167 of the Code is concerned, Explanation I to Section 167 provides that notwithstanding the expiry of the period specified (i.e. 60 days or 90 days, as the case may be), the Accused can be detained in custody so long as he does not furnish bail. Even though the period had expired, the Accused would be deemed to be in legal custody till he does not furnish bail. The requirement is of furnishing of bail. The Accused does not have to make out any grounds for grant of bail. He does not have to file a detailed application. All he has to aver in the application is that since 60/90 days have expired and charge-sheet has not been filed, he is entitled to bail and is willing to furnish bail. This indefeasible right cannot be defeated by filing the charge-sheet after the Accused has offered to furnish bail. This Court in a large number of judgments has held that the right to legal aid is also a fundamental right. Legal aid has to be competent legal aid and, therefore, it is the duty of the counsel representing the Accused whether they are paid counsel or legal aid counsel to inform the Accused that on the expiry of the statutory period of 60/90 days, they are entitled to 'default bail'. In my view, the magistrate should also not encourage wrongful detention and must inform the Accused of his right. In case the Accused still does not want to exercise his right then he shall remain in custody but if he chooses to exercise his right and is willing to furnish bail he must be enlarged on bail. Application allowed. Issues Involved:1. Interpretation of 'imprisonment for a term not less than ten years' in Section 167(2) of the Code of Criminal Procedure (Cr.P.C.).2. Entitlement to 'default bail' under Section 167(2) Cr.P.C..3. Application of the Lokpal and Lokayuktas Act, 2013 to the Prevention of Corruption Act, 1988.4. Procedural requirements for obtaining 'default bail'.5. Impact of filing a charge sheet on the right to 'default bail'.6. Duty of courts to inform accused of their right to legal assistance and 'default bail'.7. Merits of granting regular bail.Issue-wise Detailed Analysis:1. Interpretation of 'imprisonment for a term not less than ten years' in Section 167(2) Cr.P.C.:- The primary question was the interpretation of the phrase 'imprisonment for a term not less than ten years' in Clause (i) of proviso (a) to Section 167(2) Cr.P.C.- The court analyzed the legislative history and intent behind the enactment and amendments to Section 167 Cr.P.C. It was concluded that the phrase 'not less than ten years' should be interpreted to mean a minimum of 10 years imprisonment.- This interpretation aligns with the decision in Rajeev Chaudhary v. State (NCT) of Delhi (2001) 5 SCC 34, where the court held that the words 'not less than' mean that the imprisonment should be 10 years or more.- The court rejected the contrary view expressed in Bhupinder Singh v. Jarnail Singh (2006) 6 SCC 277, which suggested that the phrase could include offences with a maximum punishment of 10 years.2. Entitlement to 'default bail' under Section 167(2) Cr.P.C.:- The court emphasized that the right to 'default bail' is an indefeasible right of the accused if the investigation is not completed within the statutory period (60 or 90 days) and no charge sheet is filed.- The period for completing the investigation is 90 days for offences punishable with death, life imprisonment, or a term not less than 10 years. For other offences, the period is 60 days.- The court held that the petitioner was entitled to 'default bail' after 60 days since the offence alleged did not carry a minimum punishment of 10 years.3. Application of the Lokpal and Lokayuktas Act, 2013 to the Prevention of Corruption Act, 1988:- The court rejected the argument that the amendments to the Prevention of Corruption Act, 1988 by the Lokpal and Lokayuktas Act, 2013 apply only to cases prosecuted under the Lokpal Act.- It was clarified that the amendments apply universally to all cases under the Prevention of Corruption Act, regardless of the prosecuting authority.4. Procedural requirements for obtaining 'default bail':- The court discussed the necessity of filing an application for 'default bail' and whether an oral application or argument could suffice.- It was concluded that in matters of personal liberty, courts should not be overly technical. An oral application or argument for 'default bail' should be considered valid if it meets the statutory requirements.5. Impact of filing a charge sheet on the right to 'default bail':- The court reiterated that the indefeasible right to 'default bail' accrues when the statutory period expires without a charge sheet being filed.- This right continues until a charge sheet is filed, and any application for 'default bail' made during this interregnum must be granted.- The filing of a charge sheet after the expiry of the statutory period does not extinguish the right to 'default bail' if the application was made before the charge sheet was filed.6. Duty of courts to inform accused of their right to legal assistance and 'default bail':- The court stressed that it is the duty of the courts to inform the accused of their right to free legal assistance and 'default bail'.- Failure to inform the accused of these rights would amount to a dereliction of duty by the magistrate or judge.7. Merits of granting regular bail:- The court evaluated the merits of granting regular bail to the petitioner, considering the seriousness of the allegations and the evidence presented.- It was concluded that the petitioner was not entitled to regular bail on merits due to the gravity of the offences and the ongoing investigation.Conclusion:- The petitioner was held entitled to 'default bail' as the statutory period of 60 days had expired without a charge sheet being filed, and he had applied for bail. The trial judge was directed to release the petitioner on 'default bail' on reasonable terms and conditions.- The court allowed the petition, set aside the High Court's judgment, and dismissed the companion petition as infructuous.