Liberty Of Accused Lost If Secured On Body Warrant, That Period Must Be Counted For Seeking Default Bail U/S 167(2) CrPC: Karnataka High Court

A single judge bench of Justice M Nagaprasanna allowed the petition filed by one Comanduru Parthasarathy and set aside the order of the trial court, refusing default bail to the accused.

The bench said, "The right of the accused under Section 167(2) holds that it is an indefeasible right of the accused to be enlarged on bail the moment the statutory period begins to operate, except in statutes where such provision for extension is available."

Case Details:

A crime under several provisions of the Indian Penal Code is registered by the Seshadripuram Police Station against the petitioner. A body warrant and escort memo was issued against the petitioner who was in custody of the Central Crime Station (CCS) in Hyderabad, in a different crime. The body warrant was executed on 20-10-2021 and the accused was produced before the Court at Bangalore on 21-10-2021. On the very day, the petitioner was taken into custody and remanded to police custody in terms of the order passed by the Court.

A preliminary charge sheet against accused Nos. 3 and 12 was filed by the Police on 18-12-2021 but no charge sheet was filed against the petitioner. On 20-01-2022 the period of 90 days from the date on which the petitioner was arrested expired. On the 95th day the petitioner filed an application under Section 167 (2) of the Cr.P.C seeking statutory/default bail, on the ground that no charge sheet was filed against him by the police.

The same was objected to by the State. Considering the application filed under Section 167(2) Cr.P.C. an order was passed by the Magistrate on 29-01-2022 rejecting the statutory bail. On 23-03-2022 another order was passed rejecting a regular bail application also filed under Section 437 of the Cr.P.C.

Petitioner submissions:

It was said the order impugned dated 29-01-2022 passed by the Magistrate is on the face of it erroneous as the Magistrate holds that on a body warrant the petitioner was in police custody for 13 days and that period will have to be excluded for consideration of expiry of 90 days for consideration of application for default bail.

Further, it was said that even today, a charge sheet is not filed against the petitioner and he is languishing in prison for close to 180 days. The right of the petitioner to be enlarged on default bail in terms of Section 167(2) of the Cr.P.C.

Prosecution opposed the plea:

It was said that the chargesheet is filed in the case at hand, though against the other accused. But, once a charge sheet is filed, the petitioner would not be entitled for default bail. The case against the petitioner is still under investigation and, therefore, default bail clause would not be applicable, in the light of the charge sheet already filed in the case of others is his submission.

Further, the permission is taken for further investigation against the petitioner and, therefore, he would not be entitled to be enlarged on bail.

Court findings:

The bench relied on the judgements of the coordinate bench in the case of Vijay Kumar v. State, ILR 2009 KAR 327, Jayabalu v. State of Karnataka, 2012 SCC OnLine Kar 4269 and CBI v. Kenche Mahesh Kumar, ILR 2015 KAR 4054, wherein it is held that even when the accused is secured on body warrant, the liberty of the said accused is lost and that period would come to the aid of the accused for seeking default or statutory bail under Section 167(2) of the Cr.P.C.

Following which it said,

"In the light of the aforesaid findings in the judgments of this Court concerning body warrant, the body warrant against the petitioner was executed on 20-10-2021 and the petitioner was produced before the learned Magistrate on 21-10-2021. Therefore, the clock begins to tick from 21-10-2021 as he was taken into custody and remanded to police custody in terms of the said order. Judicial custody came about on 2.11.2021, the petitioner was by then in police custody and his liberty had been curtailed as he was in the custody of the police on body warrant."

It also rejected the contention of the prosecution that once the charge sheet is filed against any of the accused the other accused also would not be entitled to claim a right under Section 167(2) of the Cr.P.C. It said, "This, on the face of it, is unacceptable, as it is fundamentally flawed."

It added,

"It is the case of the prosecution itself that the matter was pending investigation by the police against the petitioner/accused No.2. Even this day, it is the case of the High Court Government Pleader, that the case against the petitioner is still under investigation and on a plain mathematical calculation the petitioner is now in custody for close to 180 days, twice the period of a right under Section 167(2) of the Cr.P.C."

Accordingly it directed the release of the petitioner on statutory bail under Section 167(2) of the Cr.P.C. in connection with Crime No.82 of 2021 on executing personal bond for a sum of rupees one lakh with one surety of the like amount. The court also imposed a few other conditions while granting bail.

Case Title: Comanduru Parthasarathy v. State of Karnataka

Case No: CRIMINAL PETITION No.2802 OF 2022

Citation: 2022 LiveLaw (Kar) 138

Date of Order: 21ST DAY OF APRIL, 2022

Appearance: Advocate SANDESH CHOUTA, a/w advocate NIKHIL.K for petitioner; Advocate B.J.ROHITH for respondent

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