Friday, June 9, 2023

Default bail, availed of after 180 days is an indefeasible right, rules Supreme Court

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New Delhi (ILNS): The Supreme Court has said if an accused enforced his right to be release on default bail on the expiry of time limit for investigation than the court must release him and such prompt action would restrict the prosecution from frustrating the legislative mandate to release the accused on bail.

A three-judge bench of Justices Uday Umesh Lalit, Mohan M. Shantanagoudar and Vineet Saran has pronounced its verdict on an appeal filed by a man who was accused in the NDPS case and had filed a default bail application upon the expiry of stipulated time period of 180 days for the investigation.

Interestingly, the Respondent/Complainant ‘Intelligence Officer, Directorate of Revenue Intelligence’ had filed another case on the same day when his default bail application was listed but the trial court didn’t consider that compliant and had granted default bail. Following, which the prosecution had appealed in the High Court which overruled the judgment of trial court and cancelled his bail application. The accused challenged the order of High Court in the Supreme Court.

The Supreme Court has framed the two questions of law to be answered in this appeal, the first one (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 Supreme Court has reiterated the principle laid down in the case of Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453, a three-judge bench of the Apex Court had observed, “13…It is also further clear that that indefeasible right does not survive or remain enforceable on the challan being filed, if already not availed of, as has been held by the Constitution Bench in Sanjay Dutt’s case (supra). The crucial question that arises for consideration, therefore, is what is the true meaning of the expression ‘if already not availed of’? Does it mean that an accused files an application for bail and  offers his willingness for being released on bail or does it mean that a bail order must be passed, the  accused  must furnish the bail and get him released on bail? In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail.”

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The Supreme Court said: “Article 21 of the Constitution of India provides that ‘no person shall be deprived of his life or personal liberty except according to procedure established by law.’ It has been  settled by a Constitution Bench of this Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248,  that such  a procedure cannot be arbitrary, unfair or unreasonable. The history of the enactment of Section 167(2), CrPC and the safeguard of ‘default bail’ contained in the Proviso thereto is intrinsically  linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law.”

The Court noted: “In the present case admittedly the appellant/accused had exercised his opinion to obtain bail by filing an application at 10:30 am on the 181st day of his arrest, i.e. immediately after the court opened, on 01.02.2019. It is not disputed that the Public Prosecutor had not filed any application seeking extension of time to investigate into the crime prior to 31.01.2019 or prior to 10:30 am on 01.02.2019. The Public Prosecutor participated in the arguments on the bail application till 4:25 pm on the day it was filed. It was only thereafter that the additional complaint came to be lodged against the Appellant.”

The Supreme Court further stated: “It is thus clear the State/the investigating agency has, in order to defeat the indefensible right of the accused to be released on bail, filed an additional complaint before the concerned court subsequent to the conclusion of the arguments of the appellant on the bail application. If such practice is allowed, the right under Section 167(2) would be rendered nugatory as the investigating officers could drag their heels till the time the accused exercise his right and conveniently files an additional complaint including the name of the accused as soon as the application for bail is taken up for disposal. Such complaint may be on flimsy grounds or motivated merely to keep the accused detained in Custody, though we refrain from commenting on the merits of the additional complaint in the present case. Irrespective of the seriousness of the offence and the reliability of the evidence available, filing additional complaints merely to circumvent the application for default bail is, in our view, an improper strategy. Hence the order of the High Court was not justified and hereby set aside.”

The Supreme Court in Conclusion has held: “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. Thus, 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 maybe, 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.

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“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.

Read the judgment here;


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