[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 61^st 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 91^st 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 Report

The 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 the indefeasible right of the accused to bail does not survive or remain enforceable on the challan being filed, if already not availed of, must be understood to mean that the accused must have filed an application for default bail after the lapse of the periods under Section 167 (2) Cr.P.C. and before the filing of the aforesaid application by which the accused has availed of his right, then the indefeasible right of the accused will not be frustrated or extinguished.

If, however, the accused is unable to furnish bail as directed by the Magistrate, then on a conjoint reading of Explanation 1 to Section 167 (2) Cr.P.C. and the provisions of Section 167 (2) Cr.P.C., the continued custody of the accused even beyond the period specified in para (a) of the proviso to Section 167 (2) Cr.P.C., will not be unauthorized. If during that period the investigation is completed and the charge sheet is filed, then the so called indefeasible right of the accused would stand extinguished. (Vide – para 13 of Uday Mohanlal Acharya (Supra - AIR 2001 SC 1910 ). In such a case the accused can be released on bail only on merits.

A contrary view had been taken by a two – Judge Bench in paras 21 & 23 of Pragyna Singh Thakur v. State of Maharashtra – (2011) 10 SCC 445 = 2011 (4) KLT 321 (SC) – J. M. Panchal, H. L. Gokhale - JJ. But a three-Judges Bench of the Supreme Court in Sayed Mohd. Ahmed Kazmi (Supra - AIR 2013 SC 152), has held that the indefeasible right of the accused cannot be defeated by filing a charge sheet while the application for default bail filed after the expiry of the default period, is pending. See also Rakesh Kumar Paul (Supra - AIR 2017 SC 3948).

Q.14 An accused person was granted bail on merits on the 58th day of his detention. The final report was not filed till then. The bail was subject to conditions. The offence was one in respect of which the period for default bail under Section 167 (2) Cr.P.C was 60 days. For the reason that the accused violated the bail conditions, his bail was cancelled and he was remanded to judicial custody. Even after 10 days of his second spell of judicial custody, the final report has not been filed. Is not the accused entitled to tack on this second spell of judicial custody and claim the indefeasible right to default bail under Section 167 (2) Cr.P.C ?

Ans. No. Since the accused had misused his liberty once, he cannot contend that he has an indefeasible right to default bail. Even in the case of a bailable offence falling under Section 436 Cr.P.C. where the accused is entitled to bail as of right, sub-section (2) of Section 436 empowers the Court to refuse bail to an accused person who has failed to comply with the conditions of the bail bond regarding the time and place of attendance. The decisions in Nishil v. Station House Officer 2007 (4) KLT 870 – R. Basanth - J, supports this view.

Q.15 The accused is alleged to have committed an offence punishable under Section 22(c) of the NDPS Act for having been found in possession of commercial quantity of heroin. The accused is in judicial custody for more than the period prescribed under proviso (a) (i) to Sec. 167 (2) of Cr.P.C. read with Section 36(4) of the NDPS Act and the proviso there to. Even though the charge sheet is not filed the Special Judge is convinced that there are no reasonable grounds for believing that the accused is not guilty of the offence alleged and that he will not commit any offence while on bail within the meaning of Clause (ii) of Section 37(1)(b) of the NDPS Act. Is the accused entitled to default bail ?

Ans. Yes. Section 37 of the N.D.P.S. Act will be applicable only when the question of granting bail on merits arises for consideration. But the provision for compulsive bail under the proviso to Section 167 (2) Cr.P.C. when attracted renders the grant of bail automatic on account of the default in filing the police report or complaint within the maximum period permitted therein. When the provision for compulsive bail under Section 167 (2) Cr.P.C. is invoked, the Court is not examining the case on the merits. The purpose of the non-obstante clause in Sec. 37 of the N.D.P.S. Act is for indicating that the limitations on granting bail contained therein are in addition to the limitation in Section 437 Cr.P.C. Hence the proviso to Sec. 167 (2) Cr.P.C. overrides Sec. 37 of the N.D.P.S. Act.

(Vide –

Union of India v. Thamisharasi – (1995) 4 SCC 190 – J. S. Verma, Sujata V. Manohar - JJ;

Manoj v. State of M.P. – (1999) 3 SCC 715 = AIR 1999 SC 1403 – K. T. Thomas, M. B. Shah - JJ). But, if it is regular bail under Section 439 (1) Cr.P.C., then the bail granted without considering the parameters of Section 37 (1) (b) (ii) of NDPS Act, will be invalid. (Vide –

N.R. Mon v. Mohd. Nazimuddin (2008) 6 SCC 721 = AIR 2008 SC 2576 – Dr. Arijit Pasayat, P. Sathasivam - JJ;

Union of India v. Ram Sanujh (1999) 9 SCC 429 – K. T. Thomas, M. B. Shah - JJ).