2020 (11) TMI 511 - HC - Indian Laws

Granting Bail: Upholding Default Bail Right, Emphasizing Procedural Fairness

The court granted bail to the petitioner under Section 167(2) Cr.PC, emphasizing the right to default bail as an indefeasible right under Article 21. The ... Grant of Compulsory Bail - Section 167(2) of the Code of Criminal Procedure - whether an application for a bail under Section 439 Cr.PC would be sufficient for a court to construe that the accused had availed of his right to be released on bail under the provisions of Section 167(2) of the Cr.PC if the condition stipulated therein were met? HELD THAT:- In HUSSAINARA KHANTOON & ORS. VERSUS HOME SECRETARY, STATE OF BIHAR, PATNA [1979 (4) TMI 159 - SUPREME COURT], the Supreme Court had considered affidavits filed by the Superintendent of the Patna Central Jail, Superintendent of Muzaffarpur Jail and the Superintendent of the Ranchi Central Jail which indicated towards prisoners who were confined in the said jails and who had been produced before Magistrates from time to time in compliance with the requirement of the Proviso (a) to Section 167(2) of the Cr.PC. A plain reading of the Proviso (a) to Section 167(2) of the Cr.PC indicates that an accused would necessarily have to be released on bail “if he is prepared to and does furnish bail”. Thus, in cases where the statutory period of sixty days or ninety days has expired, the accused would be entitled to be released on bail provided he meets the condition as set out therein – that is, he is prepared to furnish and does furnish bail. It is important to note that there is no provision requiring him to make any formal application - It is also trite law that there is no inherent power in a court to remand an accused to custody. Such power must be traced to an express provision of law. The petitioner had, unequivocally, stated that he was ready to furnish bail and provide a sound surety. He had further indicated that he would ready and willing to comply with any condition that may be imposed by the Trial Court and had also undertaken to appear before the Trial Court as and when required. Clearly, the Proviso to Section 167(2)(a) of the Cr.PC did not require the petitioner to do anything more except to indicate that he is prepared to furnish bail. In the present case, there is no doubt that the petitioner had applied for being released on bail and had offered to abide by the terms and conditions of bail. Bearing that in mind, it is at once clear that the petitioner would be entitled to default bail even though he had not specifically mentioned the provisions of Section 167(2) of the Cr.PC in his application. There is no dispute that an accused cannot be released on bail by a court on its own motion and it is necessary for the accused to apply and offer to furnish bail. The language of Proviso (a) to Section 167(2) of the Cr.PC also requires an accused to indicate that he is prepared to furnish bail before he can be released on bail - it would be apposite to consider an application for bail filed on expiry of stipulated period of filing chargesheet, as an application for bail under the provisio to Section 167 (2), since it does indicate that the accused is prepared to furnish bail. The Proviso to Section 167(2) of the Cr.PC is intrinsically linked to the right under Article 21 of the Constitution of India that “no person shall be deprived of his life or personal liberty except according to the procedure established by law”. It embodies a safeguard that circumscribes the power to detain an accused pending investigation. This Court considers it apposite to allow the present petition - petitioner is directed to be released on bail on his furnishing a personal bond in the sum of ₹10,000/- with one surety of an equivalent amount to the satisfaction of the concerned Trial Court/Duty Magistrate - Petition allowed subject to conditions imposed. Issues Involved:1. Entitlement to bail under Section 167(2) Cr.PC.2. False implication and lack of material evidence.3. Risk of influencing witnesses or tampering with evidence.4. Delay in filing the chargesheet due to COVID-19 lockdown.5. Legal obligations of courts towards undertrial prisoners.Issue-wise Detailed Analysis:1. Entitlement to bail under Section 167(2) Cr.PC:The petitioner argued for bail under Section 167(2) Cr.PC, claiming that his right to default bail was not informed to him. The court noted that the chargesheet was filed beyond the statutory period of sixty days, and the petitioner had applied for bail twice, albeit not specifically under Section 167(2). The court emphasized that the right to default bail is an indefeasible right under Article 21 of the Constitution. The Supreme Court's rulings in *Hussainara Khatoon v. Home Secretary, State of Bihar* and *Rakesh Kumar Paul v. State of Assam* were cited, underlining the court's duty to inform the accused of their right to default bail. The court concluded that the petitioner’s applications for bail, which indicated his readiness to furnish bail, sufficed to invoke his right under Section 167(2).2. False implication and lack of material evidence:The petitioner contended that he was falsely implicated without any material evidence. The complainant did not identify one of the co-accused, Manoj, during the Test Identification Parade (TIP), which diminished the value of the disclosure statements. The court noted that no recoveries were made from the petitioner and that the complainant did not identify him as the shooter. The court found these factors significant in considering the bail application.3. Risk of influencing witnesses or tampering with evidence:The trial court had initially denied bail, citing the seriousness of the allegations and the potential risk of influencing the complainant. However, the High Court found that the investigation was complete and the principal witness (the complainant) was unlikely to be influenced by the petitioner, thus mitigating the risk.4. Delay in filing the chargesheet due to COVID-19 lockdown:The prosecution justified the delay in filing the chargesheet by citing the COVID-19 lockdown. However, the court held that the lockdown did not eclipse the statutory period for filing the chargesheet under Section 167(2) Cr.PC, as affirmed by the Supreme Court in *S. Kasi v. State*.5. Legal obligations of courts towards undertrial prisoners:The court reiterated the obligations of magistrates to inform undertrial prisoners of their right to default bail upon the expiry of the statutory period, as established in *Hussainara Khatoon* and *Rakesh Kumar Paul*. The court emphasized that the right to default bail is linked to the constitutional guarantee of personal liberty under Article 21.Conclusion:The court allowed the petition, directing the petitioner to be released on bail upon furnishing a personal bond of Rs. 10,000 with one surety of an equivalent amount. The petitioner was also required to comply with conditions such as providing a mobile number, not leaving Delhi without prior intimation, marking presence monthly at the police station, and not contacting the victim or witnesses. The court underscored the importance of safeguarding personal liberty and adhering to procedural fairness in bail matters.