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2017 (8) TMI 1526
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....e need not go into them in any great detail since we are really concerned with the interpretation of the words "imprisonment for a term not less than ten years" appearing in Clause (i) of proviso (a) to Section 167(2) of the Code of Criminal Procedure, 1973 as amended in 1978. A few facts 3. A First Information Report No. 936 of 2016 was lodged on 27th October, 2016 in respect of allegations made under the provisions of the Prevention of Corruption Act, 1988 (PC Act) and the Indian Penal Code, 1860 (IPC). Although the Petitioner was not named in the First Information Report, investigations seemed to implicate him in a very large and structured conspiracy. Accordingly, on 5th November, 2016 the Petitioner was taken into custody pending further investigation. 4. Ordinarily, the maximum period of detention during the course of investigation (without a charge sheet or challan being filed) would be 60 days in terms of Clause (ii) of proviso (a) to Section 167(2) of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.'). In the Petitioner's case, this period would come to an end on 3rd January, 2017. However according to the State, since the Petitioner had co....
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....7 that is after 60 days of his detention but before completion of 90 days of detention. 9. In view of the charge sheet having been filed, the modified question before us is 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. History behind the enactment of Section 167 of the Code of Criminal Procedure 10. The Code of Criminal Procedure enacted in 1898 contained Section 167 which laid down the procedure to be followed in the event the investigation into an offence is not completed within twenty-four hours. What is significant is that the legislative expectation was that the investigation would ordinarily be completed within twenty-four hours. Incidentally, this legislative expectation continues till today. Whatever be the anxiety of the Legislature in 1898, there can be no gainsaying that investigation into an offence deserves an early closure, one way or the other. Therefore, when Section 167 was enacted in the Code of Criminal Procedure, 1898 it was premised on the conclusion of investigations wi....
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....trate to keep the Accused in custody. The Law Commission of India noted this in its 41st Report (after carefully studying several earlier Reports) and proposed to increase the time limit for completion of investigations to 60 days, acknowledging that "such an extension may result in the maximum period becoming the Rule in every case as a matter of routine: but we trust that proper supervision by the superior courts will prevent that." (Emphasis supplied by us). The view expressed by the Law Commission of India and its proposal is as follows: 14.19. 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 "....
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....produced before him; (b) no Magistrate of the second class not specially empowered in this behalf by the High Court shall authorise detention in the custody of the police. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate. 12. The recommendations of the Law Commission of India were carefully examined and then accepted. The basic considerations for acceptance, as mentioned in the Statement of Objects and Reasons dated 7th November, 1970 for introducing the (new) Code of Criminal Procedure, 1973 were: 3. The recommendations 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; (ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society; and (iii) the procedure should not be complicated and should, to the utmost extent possible, ensure f....
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.... detention in any custody under this Section unless the Accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. Explanation.-If any question arises whether an Accused person was produced before the Magistrate as required under paragraph (b), the production of the Accused person may be proved by his signature on the order authorising detention. (3) to (6) Not relevant for the present purposes. 14. A few years later in 1978, a need was felt to amend Section 167 of the Code of Criminal Procedure by not only extending the period for completing investigation but also relating that period to the offence. Therefore, a shift was proposed to grant an aggregate period of 90 days for completing the investigation in cases relating to offences punishable with death, imprisonment for life or "imprisonment for not less than ten years or more" and up to 60 days in any other case, as stated in the Notes on Clauses accompanying the Statement of Objects and Reasons dated 9th May, 1978 for amending the statute. What is of significance (for our p....
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.... Provided that,-- (a) the Magistrate may authorise the detention of the Accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the Accused person in custody under this paragraph for a total period exceeding,-- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the Accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this Sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention of the Accused in custody of the police under this Section unless the Accused is produced before him in person for the first time and subsequently every time till the Accus....
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....s. Consequently, was the Petitioner entitled to 'default bail' after 60 days? According to the Petitioner the answer is in the affirmative since he had not committed an offence punishable with imprisonment for not less than ten years, but according to the State he had committed an offence punishable with imprisonment for ten years. 18. So what was the offence allegedly committed by the Petitioner? According to the State he was liable for punishment for an offence, inter alias, Under Section 13(1) of the PC Act, the offence being "punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years" and fine. Therefore, the view of the State is that since the Petitioner could face imprisonment that could extend to 10 years, the date for applying for 'default bail' would commence on the expiry of 90 days. However, according to the Petitioner the date for obtaining 'default bail' would commence on the expiry of 60 days that is on or about 3rd January, 2017. (On the facts of this case, we need not quibble on the exact date). To this extent there is no dispute between the Petitioner and the State. Discussion on i....
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....fence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not cover the offence for which punishment could be imprisonment for less than 10 years. Under Section 386 Indian Penal Code, imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years. This decision certainly supports the contention of learned Counsel and there is also a feeling of dij` vu in the use of the words "or more" in the decision, those words having been used in the Notes on Clauses when the Code of Criminal Procedure was sought to be amended in 1978. 21. In contrast, learned Counsel for the State referred to and relied upon Bhupinder Singh v. Jarnail Singh (2006) 6 SCC 277. That case concerned an offence Under Section 304-B of the Indian Penal Code where the punishment provided is not less than 7 years but which may extend to imprisonment for life.3 In other words, the 'punishment range' or 'punishable range' available to a sentencing judge varied from not less than 7 years extending to life imprisonment. Keeping this in mind, it was noted that wha....
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....gations would be 90 days before the provision for 'default bail' kicks in. It was said in paragraph 15 of the Report: Where minimum and maximum sentences are prescribed, both are imposable depending on the facts of the cases. It is for the court, after recording conviction, to impose appropriate sentence. It cannot, therefore, be accepted that only the minimum sentence is imposable and not the maximum sentence. Merely because minimum sentence is provided that does not mean that the sentence imposable is only the minimum sentence. 25. While it is true that merely because a minimum sentence is provided for in the statute it does not mean that only the minimum sentence is imposable. Equally, there is also nothing to suggest that only the maximum sentence is imposable. Either punishment can be imposed and even something in between. Where does one strike a balance? It was held that it is eventually for the court to decide what sentence should be imposed given the range available. Undoubtedly, the Legislature can bind the sentencing court by laying down the minimum sentence (not less than) and it can also lay down the maximum sentence. If the minimum is laid down, the....
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....tion during investigations which must be concluded expeditiously. The cut-off, whether one likes it or not, is based on the wisdom of the Legislature and must be respected. Discussion from personal liberty perspective 28. We may also look at the entire issue not only from the narrow interpretational perspective but from the perspective of personal liberty. Ever since 1898, the legislative intent has been to conclude investigations within twenty-four hours. This intention has not changed for more than a century, as the marginal notes to Section 167 of the Code of Criminal Procedure suggest. However, the Legislature has been pragmatic enough to appreciate that it is not always possible to complete investigations into an offence within twenty-four hours. Therefore initially, in the Code of Criminal Procedure of 1898, a maximum period of 15 days was provided for completing the investigations. Unfortunately, this limit was being violated through the subterfuge of taking advantage of Section 344 of the Code of Criminal Procedure of 1898. The misuse was recognized in the 41st Report of the Law Commission of India and consequently the Law Commission recommended fixing a maximum perio....
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....er II of the Report. 32. Even this Court had occasion to consider this issue and looked into several reports including those of the National Police Commission in Prakash Singh v. Union of India (2006) 8 SCC 1. In paragraphs 20 and 21 of the decision, this Court noted that the Home Minister, all the commissions and committees have concluded that there is an urgent need for police reforms and that there is convergence of views on the need, inter alia, to separate investigation work from law and order. Such views and opinions over a prolonged period have prompted the Legislature for more than a century to ensure expeditious conclusion of investigations so that an Accused person is not unnecessarily deprived of his or her personal liberty by remaining in prolonged custody for an offence that he or she might not even have committed. In our opinion, the entire debate before us must also be looked at from the point of view of expeditious conclusion of investigations and from the angle of personal liberty and not from a purely dictionary or textual perspective as canvassed by learned Counsel for the State. Default bail as an indefeasible right 33. It was submitted by learned Couns....
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....Section 20(4)(bb) of the TADA Act read with Section 167 of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the Accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the Accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the Accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage. 37. This Court had occasion to review the entire case law on the subject in Union of India v. Nirala Yadav (2014) 9 SCC 457. In that decision, reference was made to Uday Mohanlal Acharya v. ....
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....trictly speaking this is correct since the Petitioner applied for regular bail on 11th January, 2017 in the Gauhati High Court-he made no specific application for grant of 'default bail'. However, the application for regular bail filed by the Accused on 11th January, 2017 did advert to the statutory period for filing a charge sheet having expired and that perhaps no charge sheet had in fact being filed. In any event, this issue was argued by learned Counsel for the Petitioner in the High Court and it was considered but not accepted by the High Court. The High Court did not reject the submission on the ground of maintainability but on merits. Therefore it is not as if the Petitioner did not make any application for default bail-such an application was definitely made (if not in writing) then at least orally before the High Court. In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the Accused makes a written application for 'default bail' or an oral application for 'default bail' is of no consequence. The concerned court must deal with such an application ....
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....y rigid pattern or straight-jacket formula". In People's Union for Democratic Rights v. Union of India AIR 1982 SC 1473 a letter addressed to a learned Judge of this Court concerning violation of various labour laws in the construction projects connected to the Asian Games was treated as a writ petition. In Dr. Upendra Baxi (I) v. State of Uttar Pradesh (1983) 2 SCC 308 a letter relating to inhuman conditions in the Agra Protective Home for Women was treated as a writ petition and in Sheela Barse v. State of Maharashtra (1983) 2 SCC 96 a letter addressed by a journalist complaining of custodial violence against woman prisoners in Bombay was treated as a writ petition. These cases are merely illustrative of the personal liberty jurisprudence of this Court and in matters pertaining to Article 21 of the Constitution of India this Court has consistently taken the view that it is not advisable to be ritualistic and formal. However, we must make it clear that we should not be understood to suggest that procedures must always be given a go-by-that is certainly not our intention. Duty of the Courts 43. This Court and other constitutional courts have also taken the view that in th....
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....concerned liable to departmental proceedings. 44. Strong words indeed. That being so we are of the clear opinion that adapting this principle, it would equally be the duty and responsibility of a court on coming to know that the Accused person before it is entitled to 'default bail', to at least apprise him or her of the indefeasible right. A contrary view would diminish the respect for personal liberty, on which so much emphasis has been laid by this Court as is evidenced by the decisions mentioned above, and also adverted to in Nirala Yadav. Application of the law to the Petitioner 45. On 11th January, 2017 when the High Court dismissed the application for bail filed by the Petitioner, he had an indefeasible right to the grant of 'default bail' since the statutory period of 60 days for filing a charge sheet had expired, no charge sheet or challan had been filed against him (it was filed only on 24th January, 2017) and the Petitioner had orally applied for 'default bail'. Under these circumstances, the only course open to the High Court on 11th January, 2017 was to enquire from the Petitioner whether he was prepared to furnish bail and if so then t....
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.... the Petitioner since he is not covered by the provisions of the Lokpal and Lokayuktas Act, 2013 and therefore the maximum sentence that could be awarded to him would be 7 years under the Prevention of Corruption Act, 1988. This argument of desperation is recorded only to be summarily rejected. Even if the Petitioner is not within the purview of the Lokpal and Lokayuktas Act, 2013 he is certainly not outside the purview of the PC Act and can be prosecuted and punished for a violation of Section 13(1) thereof. There is absolutely no cogent reason for excluding the Petitioner from the rigours of the PC Act as amended by the Lokpal and Lokayuktas Act, 2013. Conclusion 49. The Petitioner is held entitled to the grant of 'default bail' on the facts and in the circumstances of this case. The Trial Judge should release the Petitioner on 'default bail' on such terms and conditions as may be reasonable. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the Petitioner on cogent grounds in respect of the subject charge and upon arrest or re-arrest, the Petitioner is entitled to petition for grant of regular bail which a....
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....illegal activities to recruit persons for government service in connivance and conspiracy of other persons. Investigation revealed that the Appellant being the Chairman of the APSC was involved in running a network to recruit people to government services in the state in connivance and conspiracy with others. He was found having direct access to the said Nabakanta Patir. During the search at the residence of the Appellant, cash amounting to Rs. 10,00,000/- (Rupees ten lacs only) answer scripts of the APSC Examination were recovered which contained extra marks bearing the signature of the invigilator including the APSC tabulation sheet, master paper of answer scripts, draft copy of APSC answer booklets including instructions part from a particular printing press of the brother of the Appellant. The Papers were supposed to be printed at the Government Printing Press as per the APSC provisions, but they were made to be printed at the private press without any authority. Telephonic conversation records revealed that Nabakanta Patir was in contact with a candidate regarding appointment for the post of BDO also for the year 2016. Some other recoveries were also made from his office and t....
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....hable with imprisonment which may extend to 10 years imprisonment, the provisions of Section 167(2)(a)(i) of the Code would be applicable and the Accused is not entitled to his bail due to the default of the prosecution in not filing the chargesheet within a period of sixty days Under Section 167(2)(a)(ii) of the Code. The High Court did not consider it a fit case to grant bail on the merits either. 58. Thereafter, on 24.01.2017, the police filed charge sheet in FIR No. 936 of 2017 for the offences Under Sections 7, 13(1)(a)(b) (d) and 13(2) of the PC Act and Sections 120B, 420, 462, 468, 471, 477(A), 201 of the Indian Penal Code (IPC) against the Appellant and other co-accused. After filing the chargesheet, the Appellant moved bail application No. 136 of 2017 before the High Court of Guwahati seeking bail on merits. This bail application also came to be rejected on 13.2.2017. These two orders of the High Court dated 11.1.2017 and 13.2.2017 are challenged before this Court in these present appeals. 59. Heard Shri Abhishek Manu Singhvi, senior counsel for the Appellant and Shri Mukul Rohtagi, senior counsel for the State of Assam. 60. The primary argument advanced by the le....
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....ction 167(2) was taken by the counsel before the High Court. He argued that this cannot be said to be in conformity with the procedure provided Under Section 167(2) of the Code for availing the bail on the default of the investigation to file the charge sheet. Further, since the charge sheet came to be filed on 24.01.2017, he is no longer entitled to such relief. On merits it was argued that it is not a fit case for bail. 62. At the outset, it may be stated that the argument taken by the counsel for the Accused that the Amendment made to the Prevention of Corruption Act 1988 by the Lokpal and Lokayukta Act, 2013 has not been enforced, has no legs to stand on. The Amendment has been enforced with effect from 16.01.2014 which has been accepted by this Court in the case of Kiran Chander Asri v. State of Haryana (supra). The challenge to the power of the parliament to amend the provisions of the Prevention of Corruption Act 1988 by way of the Lokpal and Lokayuktas Act, 2013 is neither substantiated nor further pressed and is thus liable to be rejected. 63. The three main questions that arise in these appeals for our consideration are as under: I. Whether in a case regard....
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.... Provided that- (a) The Magistrate may authorize the detention of the Accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the Accused person in custody under this paragraph for a total period exceeding- (i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) Sixty days, where the investigation relates to any other offence. 66. The question that arises in the instant case is whether for the offence which is punishable with imprisonment for a term which may extend to ten years, the Accused will be entitled to be released on bail for default in not filing charge sheet within sixty days from the date of remand. The learned Counsel of the Accused has relied on the case of Rajeev Chaudhary (supra) wherein a Division Bench of this Court was dealing with the permissible period of custody for an offence Under Section 386 Indian Penal Code, which is punishable with imprisonment which may extend t....
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....the Accused would be entitled to bail on default in filing charge sheet in a case for offence Under Section 304B Indian Penal Code. The offence Under Section 304B is punishable with imprisonment of not less than seven years but may extend to imprisonment for life. While holding that the permissible period in filing challan is ninety days in a case for offence Under Section 304B Indian Penal Code, the court observed that the significant word used in the proviso is "punishable". And since life imprisonment was a punishable sentence, the permissible period for filing challan was for the offence Under Section 304B Indian Penal Code was held to be ninety days. While holding so, the Court observed as under: Where minimum and maximum sentences are prescribed both are imposable depending on the facts of the cases. It is for the Court, after recording conviction, to impose appropriate sentence. It cannot, therefore, be accepted that only the minimum sentence is imposable and not the maximum sentence. Merely because minimum sentence is provided that does not mean that the sentence imposable is only the minimum sentence......... 69. The main ambiguity in the interpretation of the ....
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....rt II), 240, 251, 304 (part II), 306, 307 (part I), 314, 315, 316, 327, 328, 331, 333, 363A (part I), 366, 366A, 366B, 367, 372, 373, 382, 386, 388 (part I), 389 (part I), 392 (part I), 399, 437, 439, 450, 454 (part II), 455, 493 and 495 Indian Penal Code. 71. A perusal of the figure of eight, forty eight, and thirty six mentioned in his speech by the then Hon'ble Minister of State in the Ministry of Home Affairs, Shri S.D. Patil, in the light what I have mentioned in preceding para shows that the Hon'ble Minister classified cases which are "punishable" with a particular sentence as a separate class. His statistics shows that he had classified the cases punishable with death sentence in one group, cases punishable with life imprisonment were classified in another group and cases punishable with imprisonment of upto ten years were classified in the third group. The reference he was making to the 36 cases that fall in the category of "imprisonment of not less than ten years" in Section 167(2)(a)(i) of the Code, were in fact the offences for which the punishment was of imprisonment for a period which may extend to ten years. It can further be inferred that, when he stated "....
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.... of the Code before the High Court of Guwahati. This bail application was disposed on 11.01.2017 which was after sixty days of arrest, but prior to filing of charge sheet. A perusal of this bail application shows that this bail application was moved Under Section 439 of the Code for regular bail on merits and not as a bail claiming the statutory right Under Section 167 of the Code. In none of the grounds taken in the bail application, the Appellant has pleaded for default bail as a result of non filing of the charge sheet. All the grounds urged are on merits. The prayer is also for regular bail. It appears that, prior to the time of hearing, the counsel for the Appellant has realised that the Accused was entitled for default bail Under Section 167(2) and has taken the plea in the oral arguments in the High Court that since sixty days for filing charge sheet has expired, he is entitled to bail as matter of right Under Section 167(2) of the Code. The question thus arises, whether such application on merits can be equated to be an application seeking enforcement of statutory right Under Section 167(2) of the Code and whether such practice of taking such oral arguments directly before ....
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.... In this case (Dr. Bipin Shantilal Panchal), the Accused had not made application for enforcement of his right accruing under proviso to Section 167(2) of the Code. But raised the contention only in the Supreme Court. This Court, therefore, formulated the question thus-Whether the Accused who was entitled to be released on bail under proviso to Sub-section (2) of Section 167 of the Code, not having made an application when such right had accrued, can exercise that right at a later stage of the proceeding, and answered in the negative. 76. The requirement for making the application for seeking enforcement of the right Under Section 167(2) has been recognised in several cases. In the case of Mohamed Iqbal Madar Sheikh v. State of Maharashtra (1996) 1 SCC 722, this Court rejected the claim for statutory bail Under Section 167(2) of the Code on the ground that no application was made on that ground. In para 11 of the judgment the Court held as under: So far the facts of the present case are concerned, the Appellant Nos. 1 to 6 were taken into custody on 16.1.1993. The charge-sheet was submitted on 30.8.1993; obviously beyond the statutory period Under Section 20(4)(b). Th....
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....t. In my opinion, such application has to be made before the Magistrate for enforcement of the statutory right. In the cases under the Prevention of Corruption Act or other Acts where Special Courts are constituted by excluding the jurisdiction of the Magistrate, it has to be made before such Special Court. In the present case, for the reasons discussed, since the Appellant never sought default bail before the court concerned, as such not entitled to the same. Answer to question III: 79. Now, it is to be seen whether the Appellant is entitled to bail on merits at this stage. Admittedly, the Appellant was the Chairman of the APSC from 11.12.2013. The allegations against him are serious in nature and several recoveries appear to have been made from his residence and other places. The provisions of the APSC with regard to handling of the answer sheets and other procedural illegalities in dealing with the examination are alleged. A network of illegal activities is said to have been operating for huge amounts of illegal gratification. It is submitted by the state that the Investigating Officer has filed an application Under Section 173(8) of the Code seeking permission to carry ou....
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....offence cannot merely be considered as an economic offence, but a fraud on the Constitution itself by the persons appointed to enforce it. 82. In the above circumstances, without expressing any views on the merits of the case pending before the trial court, looking into the nature of allegations, the role attributed to the Appellant, the fact that further investigation regarding the offence is underway, possibility of tampering evidence and influencing witnesses, I am of the opinion that it is not a fit case for grant of bail at this stage even on merits. 83. Therefore both these appeals are liable to be dismissed, and are accordingly dismissed. Deepak Gupta, J. 84. I have had the privilege of going through the judgments authored by my learned brothers Madan B. Lokur and Prafulla C. Pant, JJ. 85. Since the facts of the case and the legislative history of Section 167 of the Code of Criminal Procedure (for short 'the Code') have been set out in detail in the two judgments of my learned brothers, I do not want to burden the file with unnecessary facts. The main issue is whether the Petitioner, who is charged with an offence, which is punishable with imprisonment....
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.... 'default bail'. However, the perusal of the impugned order dated 11.01.2017 whereby this bail application was rejected, clearly shows that main contention of the counsel for the Petitioner was that the Petitioner was entitled to grant of 'default bail' because 60 days had expired but this prayer did not find favour with the High Court, which was of the view that since the offence was punishable by imprisonment up to 10 years, the investigating agency was entitled to get 90 days to complete investigation and the Accused could apply for grant of 'default bail' thereafter. Two issues arise for consideration in this case: (d) When an Accused is charged with an offence in which the punishment imposable is up to 10 years, whether the Accused is entitled to grant of bail in terms of Section 167(2) of the Code if the investigating agency does not file the charge-sheet within a period of 60 days. (e) Whether an Accused can be enlarged on bail Under Section 167(2) even though he may not have made an application in writing Under Section 167(2) of the Code but has orally argued that he is entitled to grant of 'default bail'. 88. Before d....
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....t and a proposal was made that where the investigation relates to offences punishable with death, imprisonment for life and imprisonment for not less than 10 years or more, the aggregate period for which an Accused could be detained without giving any right of bail would be 90 days and in all other cases, it would be 60 days. The words "or more" in the Bill are obviously superfluous. The other phrase "imprisonment for not less than ten years" obviously means 10 years or more. Section 167 of the Code was amended and relevant portion of it reads as follows: 167. 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 57, 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 making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shal....
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....es whether an Accused person was produced before the Magistrate as required under Clause (b), the production of the Accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the Accused person through the medium of electronic video linkage, as the case may be.] Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution. 91. We are only concerned with interpretation of the phrase "for a term of not less than ten years" occurring in Section 167(2)(a)(i), which provides a period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than 10 years. 92. In my considered view, without indulging in any semantic gymnastics, the meaning of this provision is absolutely clear. It envisages three types of offences: (b) Offences which are punishable with death; (c) Offences which are punishable with imprisonment for life; (d) Offences which are punishable with a term not less than 10 years.....
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....f the statute redundant should be avoided. No doubt, if the natural meaning of the words leads to an interpretation which is contrary to the objects of the Act or makes the provision unworkable or highly unreasonable and arbitrary, then the Courts either add words or subtract words or read down the statute, but this should only be done when there is an ambiguity in the language used. In my view, there is no ambiguity in the wording of Section 167(2) of the Code and, therefore, the wise course would be to follow the principle laid down by Patanjali Shastry, CJI in Aswini Kumar Ghose v. Arabinda Bose AIR 1952 SC 369, where he very eloquently held as follows: It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In Jugalkishore Saraf v. Raw Cotton Co. Ltd AIR 1955 SC 376, S.R. Das, J., speaking for this Court, held as follows: The cardinal Rule of construction of statutes is to read the statutes literally, that is, by giving to the words their ordinary, natural and grammatical meaning. 97. Externa....
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....right of a human being of being free. 102. It has been urged that the Accused is charged with very serious offences and, therefore, he should not be released on bail. We are dealing with 'default bail'. There is no discretion in such matters. At times like this, it would be prudent to remind ourselves of what was said by Benjamin Franklin more than two centuries ago: Any society that would give up a little liberty to gain a little security will deserve neither and lose both. 103. Two judgments have been cited before us which dealt with the interpretation of the words "not less than ten years". In Rajeev Chaudhary v. State (NCT) of Delhi (2001) 5 SCC 34, the Accused was charged with having committed offence punishable Under Section 386 of the Indian Penal Code. The punishment whereof is a term of imprisonment which may extend to 10 years. This Court held that in a case where an offence is punishable with imprisonment for 10 years or more, the Accused could be detained up to 90 days. The Court further held that the expression "not less than ten years" obviously means 10 years or more and would cover only those offences for which punishment could be imprisonment....
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....stigation is done scientifically and efficiently by the police officials, who are earmarked and trained to do investigation work, then I see no reason why investigation cannot normally be completed even within a period of 15 days, as envisaged in the year 1898. 106. The second issue which arises is whether the Petitioner had applied for 'default bail' or not. Admittedly, there is no such plea in the bail application, but it is also not disputed that this was the main argument at the time of hearing and this issue was specifically dealt with in the impugned order. In my opinion, once the High Court permitted the counsel for the Petitioner to argue the petition on the ground of grant of 'default bail' and no objection was raised by the counsel for the State then at this stage it cannot be urged that the Petitioner never applied for 'default bail' and is not entitled to 'default bail'. If this objection had been raised at that stage, either by the Court or by the State, the Accused could have either filed a fresh application for grant of 'default bail' or could have prayed for 'default bail' by adding an additional ground in the exist....
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.... of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the Accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an Accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated. 5. If the Accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to Sub-section (2) of Section 167, the continued custody of the Accused even beyond the specified period in para (a) will not be unauthorised, and therefore, if during that period the investigation is complete and the charge-sheet is filed then the so-called indefeasible right of the Accused would stand exting....