TaxTMI 
TaxTMI 
2020 (10) TMI 1105
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.....01.2019, the Appellant (Accused No.11) filed application for bail under Section 167(2) of the Code of Criminal Procedure, 1973 ('CrPC') on 01.02.2019 before the Special Court for Exclusive Trial of Cases under the NDPS Act, Chennai ('Trial Court') on the ground that the investigation was not complete and chargesheet had not yet been filed. Accordingly, on 05.02.2019, the Trial Court granted the order of bail in Crl. M.P. No. 131 of 2019 in R.R. No. 09/2017 pending before the said court. 3.2 The Respondent/complainant, i.e. the Intelligence Officer, Directorate of Revenue Intelligence filed Crl. O.P. No. 9750 of 2019 before the High Court of Judicature at Madras praying to cancel the bail of the Appellant. The High Court, by the impugned judgment, allowed the said appeal and consequently cancelled the order of bail granted by the Trial Court. Being aggrieved, the Appellant has approached this Court questioning the judgment of the High Court. 3.3 It is not in dispute that the Appellant was remanded to judicial custody on 04.08.2018 and hence the mandatory period of 180 days prescribed for filing of final report under Section 167(2), CrPC (excluding the date of remand) was comp....
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....aint by the Respondent; and that subsequent filing of chargesheet/ additional complaint by the investigating authority cannot defeat the indefeasible right of the Appellant. 5. Per contra, Mr. Aman Lekhi, learned Additional Solicitor General argued in support of the judgment of the High Court contending that the additional complaint was lodged while the Appellant was still in custody and prior to the disposal of the application for bail under Section 167(2), CrPC, hence there was no question of the Appellantaccused furnishing the bail and consequently he was liable to continued detention in custody. He contended that the time or date of disposal of the application of bail filed under Section 167(2) is the deciding factor to adjudge whether the accused is entitled to default bail or not. 6. Before we proceed further, it is relevant to note the provisions of Section 167(2), CrPC: "Section 167. Procedure when investigation cannot be completed in twentyfour hours.- (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in s....
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....rson 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." 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. 6.1 It is also relevant to note Section 36A (4) of the NDPS Act for the purpose of this matter: "Section 36A. Offences triable by Special Courts.- (4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in subsection (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days": Provided that, if it is not possible to complete the investigation within the said period ....
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....dged an additional complaint at 4:25 p.m., and thus sought dismissal of the bail petition. 9. Thus the points to be decided in this case are: (a) Whether the indefeasible right accruing to the appellant under Section 167(2), CrPC gets extinguished by subsequent filing of an additional complaint by the investigating agency; (b) 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 while answering (a). I. The Principles Laid Down in Uday Mohanlal Acharya 10. Upon perusal of the relevant jurisprudence, we are unable to agree with Mr. Lekhi's submissions. Rather, we find that both points (a) and (b) mentioned supra have been answered by the majority opinion of a threeJudge Bench of this Court in the case of Uday Mohanlal Acharya (supra) by observing thus: " 13...It is also further clear that that indefeasible right does not survive or remain enforceable on the challan being filed, if already not availed of, as has been held by the Constitution Bench in Sanjay Dutt's case (supra). The crucial question that ari....
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....vision in the Criminal Procedure Code authorising detention of an accused in custody after the expiry of the period indicated in proviso to subsection (2) of Section 167 excepting the contingency indicated in Explanation I, namely, if the accused does not furnish the bail. It is in this sense it can be stated that if after expiry of the period, an application for being released on bail is filed, and the accused offers to furnish the bail and thereby avail of his indefeasible right and then an order of bail is passed on certain terms and conditions but the accused fails to furnish the bail, and at that point of time a challan is filed, then possibly it can be said that the right of the accused stood extinguished. But so long as the accused files an application and indicates in the application to offer bail on being released by appropriate orders of the court then the right of the accused on being released on bail cannot be frustrated on the off chance of the Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refuses to pass an order and the matter is moved to the higher forum and a challan is filed in interregnum. This is the only way h....
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.... accused even beyond the specified period in paragraph (a) will not be unauthorised, and therefore, if during that period the investigation is complete and chargesheet is filed then the socalled indefeasible right of the accused would stand extinguished. 13.6. The expression 'if not already availed of' used by this Court in Sanjay Dutt's case (supra) must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to subsection (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of 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 has not furnished the same." (emphasis supplied) 10.2 In Uday Mohanlal Acharya, the application for default bail filed by the accused was rejected by the Magistrate based on the wrongful assumption that Section 167(2), CrPC is not applicable to cases pertaining to the Maharas....
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....and as such, could be violative of Article 21 of the Constitution." 11.1 Article 21 of the Constitution of India provides that "no person shall be deprived of his life or personal liberty except according to procedure established by law". It has been settled by a Constitution Bench of this Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that such a procedure cannot be arbitrary, unfair or unreasonable. 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. 11.2 Under Section 167 of the Code of Criminal Procedure, 1898 ('1898 Code') which was in force prior to the enactment of the CrPC, the maximum period for which an accused could be remanded to custody, either police or judicial, was 15 days. However, since it was often unworkable to conclude complicated investigations within 15 days, a practice arose wherein investigative officers would file 'preliminary chargesheets' after the expiry of the remand period. The Sta....
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....nt while drafting the Code of Criminal Procedure Bill in 1970. Ultimately, the 1898 Code was replaced by the present CrPC. The Statement of Objects and Reasons of the CrPC provides that the Government took the following important considerations into account while evaluating the recommendations of the Law Commission: "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 fair deal to the poorer sections of the community." 11.5 It was in this backdrop that Section 167(2) was enacted within the presentday CrPC, providing for time limits on the period of remand of the accused, proportionate to the seriousness of the offence committed, failing which the accused acquires the indefeasible right to bail.....
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....is majority opinion, pertinently observed as follows: "29. Notwithstanding this, the basic legislative intent of completing investigations within twentyfour hours and also within an otherwise timebound period remains unchanged, even though that period has been extended over the years. This is an indication that in addition to giving adequate time to complete investigations, the legislature has also and always put a premium on personal liberty and has always felt that it would be unfair to an accused to remain in custody for a prolonged or indefinite period. It is for this reason and also to hold the investigating agency accountable that timelimits have been laid down by the legislature... xxx 32...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 investigatio....
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....ndamental right guaranteed under Article 21. 11.9 Hence, it is from the perspective of upholding the fundamental right to life and personal liberty under Article 21 that we shall clarify and reconcile the various judicial interpretations of Section 167(2) for the purpose of resolving the dilemma that has arisen in the present case. III. The meaning of " if not already availed of " in Sanjay Dutt 12. One of the relevant decisions dealing with the question of accrual and extinguishment of the right under Section 167(2) is that of the twoJudge Bench in Hitendra Vishnu Thakur (supra). In that case, the Court was called upon to construe the scope of Section 20(4)(bb) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 ('TADA') which is in pari materia with the Proviso to Section 36A (4) of the NDPS Act. The Court held that an accused person seeking bail under Section 20(4) of the TADA read with Section 167(2) has to make an application for such default bail and the Court shall release the accused on bail if the period for filing a chargesheet has expired, after notice to the public prosecutor, uninfluenced by the merits of the case. That unless the Court grants ex....
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....d 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 CrPC. 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." (emphasis supplied) It appears that the term "if not already availed of" mentioned supra has become a bone of contention as Courts have differed in their opinions as to 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; o....
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.... for trial, as the case may be. Further, as the majority opinion in Rakesh Kumar Paul (supra) pointed out, 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. The decision in Sanjay Dutt clarifies that once a chargesheet is filed, such waiver of the right by the accused becomes final and Section 167(2) ceases to apply. However, the Constitution Bench decision in Sanjay Dutt 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. 12.5 The arguments of the State 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....
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....defeasible right upon filing of the bail application, though his actual release from custody is inevitably subject to compliance with the order granting bail. 12.7 We agree with the view expressed in Rakesh Kumar Paul (supra) that 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 knowledge -sharing 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. IV. The Import of Explanation I to Section 167(2), CrPC 13. 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 expressly clarified that Explanation I to Section 167(2) applies on....
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.... seeking extension of time for investigation. The Court held that: "30...It is, however, permissible for the public prosecutor to resist the grant of bail by seeking an extension under clause (bb) by filing a report for the purpose before the court. However, no extension shall be granted by the court without notice to an accused to have his say regarding the prayer for grant of extension under clause (bb). In this view of the matter, it is immaterial whether the application for bail on ground of 'default' under Section 20(4) is filed first or the report as envisaged by clause ( bb ) is filed by the public prosecutor first so long as both are considered while granting or refusing bail. If the period prescribed by clause (b) of Section 20(4) has expired and the court does not grant an extension on the report of the public prosecutor made under clause (bb), the court shall release the accused on bail as it would be an indefeasible right of the accused to be so released. Even where the court grants an extension under clause (bb) but the chargesheet is not filed within the extended period, the court shall have no option but to release the accused on bail if he seeks it and is p....
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....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. VI. Other Relevant Precedents pertaining to the right under Section 167(2) 15. We are fortified in our aforementioned conclusions by the three Judge Bench decision of this Court in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, (supra). In that case, though the chargesheet was submitted after expiry of the statutory period under Section 20(4)(bb) of the TADA Act, it was admitted that no prior application for bail had been filed by the appellants. Hence the Court held, relying upon Sanjay Dutt, that the right to bail could not be exercised once the chargesheet has been submitted and cognizance has been taken. However, at the same time, the threeJudge Bench also expressed with consternation that Courts cannot engage in practices such as keeping the applications for bail pending till the time chargesheets are submitted, so that the statutory right which has accrued to the accused is defeated. If the Court deliberately does not....
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....n has filed a chargesheet. The words "not having made an application when such right had accrued, can exercise that right at a later stage" clearly indicate that the accused is deemed to have exercised his right to bail once he makes an application for the same. 15.2 It is useful to refer to the decisions of this Court in Mohd. Ashraft Bhat (supra); Ateef Nasir Mulla v. State of Maharashtra, (2005) 7 SCC 29; and Mustaq Ahmed Mohammed Isak v. State of Maharashtra, (2009) 7 SCC 480. In Mohd. Ashraft Bhat, the Court rejected the application for bail as the police report already stood submitted. Reliance was placed upon Sanjay Dutt (supra). Similarly, in Ateef Nasir Mulla the Court held that since the order granting extension of time under Section 49(2)(b) of the Prevention of Terrorism Act, 2002 ('POTA'), which is in pari materia with the Proviso to Section 36A (4) of the NDPS Act, had been passed prior to the application for default bail, the accused would not be entitled to bail. In Mustaq Ahmed Mohammed Isak, the Court similarly rejected the application for bail under Section 21(2)(b) of the Maharashtra Control of Organised Crime Act, 1999 as the chargesheet was filed on the sam....
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....pellant for a further period of 90 days with retrospective effect from 2-6-2012. Not only is the retrospectivity of the order of the Chief Metropolitan Magistrate untenable, it could not also defeat the statutory right which had accrued to the appellant on the expiry of 90 days from the date when the appellant was taken into custody. Such right, as has been commented upon by this Court in Sanjay Dutt and the other cases cited by the learned Additional Solicitor General, could only be distinguished ( sic extinguished) once the chargesheet had been filed in the case and no application has been made prior thereto for grant of statutory bail. It is wellestablished that if an accused does not exercise his right to grant of statutory bail before the chargesheet is filed, he loses his right to such benefit once such chargesheet is filed and can, thereafter, only apply for regular bail. 26. The circumstances in this case, however, are different in that the appellant had exercised his right to statutory bail on the very same day on which his custody was held to be illegal and such an application was left undecided by the Chief Metropolitan Magistrate till after the applica....
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.... the prosecution subsequently files a chargesheet before consideration of the application and the release of the accused. Thereafter, the release of the accused on bail can only be on merits. Though the learned Judges in Pragyna Singh Thakur (supra) had referred to the Uday Mohanlal Acharya case, they have expressed a completely contrasting opinion as mentioned supra. 16.1 It ought to be noted that in Pragyna Singh Thakur, the learned Judges had concluded on the facts of that case that the chargesheet had been filed within 90 days from the first order of remand of the accused to custody. The aforementioned observations on the extinguishment of the right to default bail were only made as obiter, in the form of a hypothetical arguendo, and hence cannot be said as laying down a binding precedent as such. However in any case, given that the decision continues to be relied upon by the State, we must clarify that in our considered opinion, the observations made in Pragyna Singh Thakur run counter to the principles laid down in the judgments rendered by larger Benches. 16.2 It is pertinent to note that the twoJudge Bench in Nirala Yadav (supra) has already illuminated that the princ....
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.... charge sheet is filed or disposes of such application wrongly before such charge sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted." This decision in Bikramjit Singh ensures that the rigorous powers conferred under special statutes for curtailing liberty of the accused are not exercised in an arbitrary manner. At the cost of repetition, it must be emphasized that the paramount consideration of the legislature while enacting Section 167(2) and the Proviso thereto was that the investigation must be completed expeditiously, and that the accused should not be detained for an unreasonably long period as was the situation prevailing under the 1898 Code. This would be in consonance with the obligation cast upon the State under Article 21 to follow a fair, just and reasonable procedure prior to depriving any person of his personal liberty. Conclusion 17. In the present case, admittedly the Appellant-accused had exercised his option....
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....re, in conclusion: 18.1 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. 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. 18.2 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. 18....