Right To Default Bail Is Enforceable Even If Charge Sheet/Report Seeking Extension Of Time Is Subsequently Filed: SC [Read Judgment]

The Supreme Court has observed that where the accused has already applied for default bail, the Prosecutor cannot defeat the enforcement of his indefeasible right by subsequently filing a final report, additional complaint or report seeking extension of time.The bench comprising Justices Uday Umesh Lalit, Mohan M. Shantanagoudar and Vineet Saran, while allowing an appeal against a Madras High Court judgment, summarized the legal position in this regard, as follows: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. 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.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.However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC. Notwithstanding the order of default bail passed by the Court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the Court, his continued detention in custody is valid. In this case, the High Court had dismissed the default bail application observing that merely because the said application was not disposed of by the time the additional complaint was filed, the accused could not take advantage of the fact that he had filed his bail petition prior in time. In appeal, the Apex Court considered the following issues: (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).The Court noted that both these issues have been answered in the judgment Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453. It said that Section 167(2) is integrally linked to the constitutional commitment under Article 21 promising protection of life and personal liberty against unlawful and arbitrary detention, and must be interpreted in a manner which serves this purpose."With respect to the CrPC particularly, the Statement of Objects and Reasons (supra) is an important aid of construction. Section 167(2) has to be interpreted keeping in mind the threefold objectives expressed by the legislature namely ensuring a fair trial, expeditious investigation and trial, and setting down a rationalized procedure that protects the interests of indigent sections of society. These objects are nothing but subsets of the overarching fundamental right guaranteed under Article 21."The Court noted that the Constitution Bench in Sanjay Dutt v. State through C.B.I., (1994) 5 SCC 410, has held that the indefeasible right accruing to the accused [to a default bail] is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. The bench then discussed the meaning of " if not already availed of " in Sanjay Dutt judgment. ...

Right To Default Bail Is Enforceable Even If Charge Sheet/Report Seeking Extension Of Time Is Subsequently Filed: SC [Read Judgment]

Ashok Kini

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