2018 (3) TMI 1886 - HC - Indian Laws

High Court Grants 'Default Bail' for Delayed Charge-Sheet; Emphasizes Accused Rights

ARVIND KUMAR SAXENA Versus STATE

The High Court granted 'default bail' to the petitioner as the charge-sheet was not filed within the statutory period of 60 days from arrest. Emphasizing ... Grant of Default Bail - Smuggling - alleged possession of 250 gms. of heroine - Section 167(2) proviso (a)(ii) of the Code of Criminal Procedure, 1973 - applicant sought the grant of bail submitting that he had been detained beyond the statutory period of 60 days in terms of Section 167(2) proviso (a)(ii) of the Code of Criminal Procedure, 1973 and sought that he be released on bail and undertook to furnish the required bail bond submitting to the effect that the prosecution had failed to file any charge-sheet against him within the statutory period prescribed - HELD THAT:- It cannot be overlooked in the instant case on 19.09.2017 when the petitioner sought grant of bail the charge-sheet was not filed before the learned Trial Court and the petitioner was admittedly entitled to the grant of benefit in terms of section 167(2) proviso (a)(ii) thereof as the commission of the offence, if proved, is punishable in terms of section 21(b) of the NDPS Act, 1985 with a maximum term of rigorous imprisonment for a period of 10 years and with a fine. The observations in paragraph 111(28) and paragraph 112 (29) of the concurring judgment in RAKESH KUMAR PAUL VERSUS STATE OF ASSAM [2017 (8) TMI 1526 - SUPREME COURT] categorically spell out that the right to get “default bail” is a very important right and that ours is a country where millions of our countrymen are totally illiterate and are not aware of their rights and that the accused can be detained in custody so long as he does not furnish bail and that the accused is not required to file a detailed application and all he has to aver in the application is that since 60 or 90 days had expired and charge-sheet has not been filed, he is entitled to bail and is willing to furnish bail and that this indefeasible right cannot be defeated by filing the charge-sheet after the accused has offered to furnish bail and did not have any grounds for grant of bail. It is essential to observe that the petitioner though he filed an application under Section 439 of the Criminal Procedure Code, 1973 and stated inter alia that he had been falsely implicated nevertheless stated that he was in judicial custody since 06.03.2017 and was willing to join the investigation and was willing to produce sound surety as directed by the Court. The application was admittedly filed on 19.09.2017 and was listed for 26.09.2017 and was not taken up on 19.09.2017 - It is thus apparent that the contents of the application dated 19.09.2017 had essentially to be considered by the learned Trial Court and the aspect of the charge-sheet having not been filed till the said date which on completion of 60 days from the date of the arrest of the petitioner / the accused on 03.06.2017 had to be filed by 04.08.2017 ought not to have overlooked. The period of incarceration of the petitioner from the date 19.09.2017 when he sought the grant of bail implicitly also on the ground that he was arrested on 03.06.2017 and was willing to continue to join the investigation, indicating thereby that the investigation was not complete and did not set completed till submission of the charge-sheet on 20.09.2017 cannot be overlooked and thus cannot extinguish the indefeasible right of “default bail” to the petitioner. The petitioner is thus directed to be released on bail on submission of a bail bond for a sum of ₹ 50,000/- with one surety of the like amount subject to the satisfaction of the learned Trial Court and subject to the conditions that he shall not leave the country without permission of the learned Trial Court and he shall appear before the learned Trial Court as and when directed and shall submit his present address on an affidavit before the learned Trial Court - Petition allowed. Issues Involved:1. Grant of 'default bail' under Section 167(2) proviso (a)(ii) of the Code of Criminal Procedure, 1973.2. Determination of the quantity of narcotic drugs under the NDPS Act, 1985.3. The statutory period for filing a charge-sheet.4. The indefeasible right to 'default bail' and its implications.5. Obligations of the Court regarding informing the accused of their rights.Detailed Analysis:1. Grant of 'default bail' under Section 167(2) proviso (a)(ii) of the Code of Criminal Procedure, 1973:The petitioner sought 'default bail' under Section 167(2) proviso (a)(ii) of the Code of Criminal Procedure, 1973, as the prosecution failed to file the charge-sheet within the statutory period of 60 days from the date of arrest. The petitioner was arrested on 03.06.2017, and the charge-sheet was filed only on 20.09.2017, thus the right to 'default bail' accrued to him during the interregnum.2. Determination of the quantity of narcotic drugs under the NDPS Act, 1985:The petitioner was arrested for alleged possession of 250 gms of heroin, which falls into the 'intermediary quantity' category under Entry 56 Column 6 of the NDPS Act, 1985. This quantity is lesser than the commercial quantity but greater than the small quantity, making the petitioner liable under Section 21(b) of the NDPS Act, 1985, which provides for rigorous imprisonment for a term that may extend to ten years and a fine.3. The statutory period for filing a charge-sheet:The statutory period for filing a charge-sheet under Section 167(2) proviso (a)(ii) of the Criminal Procedure Code is 60 days for offences punishable with imprisonment for a term of less than ten years. Since the charge-sheet was not filed within this period, the petitioner was entitled to 'default bail.'4. The indefeasible right to 'default bail' and its implications:The Supreme Court's verdict in Rakesh Kumar Paul Vs. State of Assam (2017) emphasized that if a charge-sheet is not filed within the statutory period, an indefeasible right to 'default bail' accrues to the accused. This right cannot be frustrated by the prosecution filing the charge-sheet after the statutory period has expired. The Court must inform the accused of this right, and the accused must be released on bail if they are prepared to furnish it.5. Obligations of the Court regarding informing the accused of their rights:The Court has an obligation to inform the accused of their right to free legal assistance and 'default bail.' In cases concerning personal liberty, the Court must ensure that the accused is aware of their rights and must not resort to technicalities to deny these rights. The Court must also ensure that applications for 'default bail' are not kept pending to allow the prosecution to file a charge-sheet in the meantime.Conclusion:The petitioner's application for 'default bail' was initially rejected by the Trial Court on the grounds that it was filed after the charge-sheet was submitted. However, the High Court emphasized that the right to 'default bail' accrued to the petitioner when the statutory period expired, and the charge-sheet had not yet been filed. The petitioner's application on 19.09.2017 implicitly included a request for 'default bail,' and the subsequent filing of the charge-sheet on 20.09.2017 could not extinguish this right. The High Court directed the petitioner to be released on bail, subject to furnishing a bail bond and complying with other conditions. The Registrar General was also requested to explore the creation of a database to assist in preserving the rights of personal liberties of the accused. The petition was disposed of accordingly.