S.167(2) CrPC | Non-Production Of Accused For Extension Of Judicial Custody Alone Wouldn’t Entitle Them To Default Bail: Madhya Pradesh High Court

Madhya Pradesh High Court has recently clarified that mere non-production of the accused at the time of extension of judicial custody does not automatically make them entitled to the grant of default bail under Section 167(2) CrPC.

A single-judge bench of Justice Dinesh Kumar Paliwal further explained that when the accused has not moved any application for grant of default bail before the chargesheet is filed or before an application is moved for an extension of judicial custody, the accused cannot be released on default bail solely on the ground of non-production of the accused physically or virtually before the special judge.

“…it is apparent that petitioners cannot be released on default bail merely because they were not produced before the Special Court on some dates and there is non-compliance of the provision of producing through video linkage or physical appearance. In the absence of any corresponding provision for grant of bail when the charge sheet is not filed within the mandatory period, petitioners cannot claim to be released on default bail”, the judge sitting at the principal seat of the High Court noted.

However, the court has also made a pertinent direction to the Director General (Prison) M.P to ensure that the Superintendents of the jail and the courts seized with the matters take necessary steps to procure the presence of the accused who are lodged in jail either in person or through video conferencing at time of extending the duration of remand. Complying with the provisions of Section 167(2) CrPC is of utmost importance in cases where the investigation is going on and a charge sheet has not been filed, and also in cases when remand is extended under section 309 of the Code, the court added.

“In the State of Madhya Pradesh, facility of video conferencing has been provided to all courts and jails… Superintendent of Jail shall also make all attempts to adduce such accused before the court through virtual mode till charge sheet is filed and even after filing of charge sheet when accused are remanded under section 309 of Cr.P.C and are not produced in-person before the court, they will be produced through medium of electronic linkage and factum of their production be recorded in the order-sheet by the Judges/Magistrates seized with the matter”, the court added while directing all courts that are extending custody period to ‘make all efforts to procure the presence of the accused’ in order to preserve the personal liberty of the accused persons.

The court has also directed the Principal Registrar (Judicial) of the High Court to place the order before the Chief Justice and circulate the instructions so enunciated amongst judges/magistrates to ensure compliance with Section 167(2) CrPC.

Background & Further Observations

In this case, nineteen persons were accused of offences under Sections 121A, 153A, 120B, 201 of the Indian Penal Code,1860 and Sections 13(1)(b) and 18 of the Unlawful Activities (Prevention) Act, 1967. The orders allowing the extension of their judicial custody were challenged by them on the grounds that they were absent and not produced in person or through electronic video linkage when such orders were made. While dismissing their petitions, the court also pointed out that Section 167 CrPC makes physical production mandatory in so far as the accused is in police custody and it is the first time of production before the judge/magistrate. Thereafter, production can either be virtual/or physical for an extension of duration in judicial custody.

Moreover, Section 43-D of UAPA which is also applicable to the accused stipulates that the investigating agency can avail up to 180 days for investigation. Given the statutory provision and its scope, the court noted that the application for extending the judicial remand of the accused was duly filed. The counsels for the accused have also appeared on such dates and received copies of applications filed, despite the occasional absence of the accused themselves. Additionally, all the accused persons have also filed replies to such applications.

The court also referred to Raj Narain v. Superintendent. Central Jail, New Delhi 1971 AIR 178, where the apex court has clearly held that the presence of the accused is not a prerequisite in a case of extension of remand by Magistrate. Ramesh Kumar Ravi @ Ram Prasad & etc. v. State of Bihar & Ors. etc. (1987) was also mentioned by the single judge bench to bolster the established position that though the production of the accused before the Magistrate is desirable, the failure to do per se would not vitiate the remand order.

“In the case at hand, an extension of time was granted by the court on 20.12.2022 by passing a detailed order and the same was passed after hearing the applicants/ accused herein. It is also noteworthy that in this case petitioners/ accused never exercised their right to grant of default bail before the charge sheet was filed, they have lost their right to such benefit once charge sheet is filed. As they never moved any application exercising their right to grant of statutory bail before the charge sheet was filed they are not entitled to be released for default bail only on the ground that they were not produced before the trial court on some dates either physically or through video linkage”, the court further added.

Case Title: Abdul Jamil & Ors. v. The State of Madhya Pradesh Through Police Station STF/ATF Bhopal

Case No: Miscellaneous Criminal Case No.12249 of 2023

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