[BAIL] Questions & Answers By Justice V. Ramkumar-Default Bail-PART-III

Q.11 The default period applicable for the offence is 60 days. The accused is arrested on 02-09-2012. He is remanded to judicial custody on 03-09-2012. The Charge sheet is filed on 02-11-2012. If Rule 22 of the Kerala Criminal Rules of Practice were to be applied then the charge sheet will be deemed to have been files on the 61st day. How is the period to be computed ? Is the charge sheet filed within time?Ans. Yes. The charge sheet is filed within time. The period is to be counted from the date of remand and not the date of arrest. The date of remand should be excluded and the date of filing the charge sheet is to be included. Sections 9 and 10 of the General Clauses Act, 1897 is to be applied while computing the period. (See State of M.P. v. Rustam – (1995) Supp. 3 SCC 221 - – M. M. Punchhi, K. Jayachandra Reddy – JJ). Rule 22 of the Kerala Criminal Rules of Practice which enjoins that both the date of remand as well as the date of production are to be included, does not reflect the correct position of law. Q.12 Is not the accused entitled to default bail on the expiry of the period under the proviso to Section 167(2) Cr.P.C even without a written application for bail? Ans. Yes. The view taken in H.V. Thakkoor v. State of Maharashtra – AIR 1994 SC 2623 – Dr. A. S. Anand, Faizan Uddin – JJ, that there should be a written application since the accused can be released on bail only if he is prepared to give bail is no more good law in view of Rakesh Kumar Paul v. State of Assam – AIR 2017 SC 3948 -3 Judges– Madan B. Lokur, Profulla C. Pant, Deepak Gupta – JJ, which has held that the application can be either oral or written.NOTE BY VRK: Rakesh Kumar Paul has overlooked the observations in paras 30 and 31 of Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453 = AIR 2001 SC 1910 – 3 Judges – G. B. Pattanaik, U. C. Banerjee, B. N. Agrawal - JJ, wherein, relying on the proviso to Section 167 (2) Cr.P.C. and Explanation 1 thereto, the 3 Judge Bench held that mere filing of an application for default bail is not enough but that he should also furnish bail and if he does not furnish bail, his detention in custody can be continued until he furnishes bail. Sayed Mohd. Ahmad Kazmi v. State (NCT of Delhi) (2012) 12 SCC 1 = AIR 2013 SC 152 – 3 Judges – Altamas Kabir – CJI, S. S. Nijjar, Chelameswar - JJ, also proceeded on the basis that a written application is necessary. This verdict was binding on Rakesh Kumar Paul (Supra). In Hussainara Khatoon v. Home Secretary, State of Bihar AIR 1979 SC 1369 – P. N. Bhagwati, D. A. Desai - JJ and Hussainara Khatoon v. Home Secretary, State of Bihar AIR 1979 SC 1377 – 3 Judges – P. N. Bhagwati, O. Chinnappa Reddy, A. P. Sen – JJ, the Supreme Court held that the accused has a right to the informed of his indefeasible right to seek default bail and that the State has even a responsibility to provide legal aid to the accused so as to enable him to make an application for default bail. The right to make an oral application for default bail is impracticable also. If in a given case, noticing that the charge sheet has not been filed within 90 days the accused orally seeks bail on the 91st day and soon thereafter the charge sheet is filed and thereupon the Court asks the accused to file a regular bail application, the accused will be disabled from moving the superior Court for default bail as he would not be able to substantiate his contention that he had made an oral request for default bail before the filing of the Police ReportThe statutory right to default bail of the accused under Section 167 (2) Cr.P.C. should not be defeated by keeping the bail application pending till the charge sheet is filed. The Magistrate has to dispose of the application for default bail, forthwith. (Vide –Mithabhai Pashabhai Patel v. State of Gujarat (2009) 6 SCC 332 = 2009 KHC 655 (SC) – S. B. Sinha, Dr. Mukundakam Sharma - JJ;Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453 = AIR 2001 SC 1910 – 3 Judges (Supra - AIR 2001 SC 1910);Mohamed Iqbal Madar Sheikh v. State of Maharashtra (1996) 1 SCC 722 = 1996 KHC 1405 (SC) – 3 Judges – A. M. Ahmadi – CJI, B. P. Jeevan Reddy, N. P. Singh - JJ;Union of India v. Nirala Yadav (2014) 9 SCC 457 = AIR 2014 SC 3036 – Dipak Misra, N. V. Ramana - JJ). Q.13 Due to the non-filing of the Police report within 90 days of detention, the accused files an application for default bail under Section 167(2) Cr.P.C. on the 91st day. Before consideration of the said application a charge sheet is filed on the 92nd day of remand. Is the accused entitled to default bail ?Ans. Yes. The Magistrate is obliged to grant default bail even if after the filing of the application for default bail by the accused a charge sheet has been filed. The view of the Constitution Bench in Sanjay Dutt v. State through CBI (1994) 5 SCC 410 = 1995 Cri.L.J. 477 (SC) – 5 Judges - A. M. Ahmadi, J. S. Verma, P. B. Sawant, B. P. Jeevan Reddy, N. P. Singh – JJ, that...

[BAIL] Questions & Answers By Justice V. Ramkumar-Default Bail-PART-III

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