The Lucknow Bench of the Allahabad High Court recently said in an important decision that if the chargesheet is not filed within the stipulated 60 or 90 days then the accused has an indefeasible right to get compulsory (default) bail under Section 167(2) of the Code of Criminal Procedure.
A single-judge Bench of Justice Rajesh Singh Chauhan passed this mandate while hearing a Petition U/S 482/378/407 filled by Varun Tiwari. The Court noted that the precise question for consideration in the petition is as to whether the accused has an indefeasible right to ‘compulsive bail’ i.e. ‘default bail’ under proviso to section 167(2) Cr.P.C. on the expiry of the period of 90 days, (or 60 days as the case may be), if the charge-sheet has not been filed within aforesaid stipulated time.
The applicant is an accused in Sessions Trial, Crime u/s 342, 376D, 372, 506 IPC, & section 5/6 POCSO Act, P.S. Mahanagar, District Lucknow. He was sent to judicial custody on January 14, 2021.
As per counsel for the applicant, this is a case wherein the investigation should be completed within a period of 90 days and charge-sheet should have been filed within period under Section 167 Cr.P.C.
The 90-day period has expired on April 14, 2021 but no charge sheet has been filed before the trial court i.e. Special Judge, POCSO Act, Lucknow.
On April 22, 2021, an application under Section 167(2) Cr.P.C. was filed before the trial court through physical filing. However, at that point of time filing of physical application was not allowed in terms of restriction being imposed by the High Court as a Covid -19 Protocol.
Thereafter, the petitioner filed an online application. The counsel for the applicant was appointed to file such application before the Court of Sessions Judge as this is a case relating to session trial.
Counsel for the applicant has filed the certified copy of those applications with the petition.Both the applications are of April 22, 2021.
In both the applications before the trial court and before the sessions court it has been indicated that after expiry of 90 days period no charge-sheet has been filed, therefore, the applicant may be granted bail under section 167(2) Cr.P.C. as ‘default bail’.
Anurag Verma, AGA-I, submitted that even if the applicant has filed an application under section 167(2) Cr.P.C. on April 22, 2021, he would not be entitled for default bail under section 167(2) in as much as the charge-sheet was filed before the trial court on April 22, 2021 and the cognizance thereof has been taken.
Having heard Counsel for the parties and having perused the material available on record, the court opined that the right of the accused under Section 167(2) if by that time the charge-sheet has not been filed by the prosecution within stipulated period so indicated under Section 167(1).
In view of the above, the Court found that the order passed by the trial court dated June 7, 2021 is patently illegal and unwarranted in as much as the appropriate order in an application u/s 167(2) Cr.P.C. must have been disposed of promptly and such application should have not been treated as if it is a regular bail application filed by the applicant. Had it been a regular bail application, such application should have been presented before the Sessions Court then it should be heard by the trial court which is special court in the case but so far as the issue of default bail is concerned, it should be decided by the trial court inasmuch as the charge-sheet is presented by the prosecution before the trial court.
“Further, the fact as to whether the mandatory period of filing charge-sheet as per section 167(1) has expired or not can only be seen by the trial court and if after expiry of such mandatory period and till the filing of an appropriate application u/s 167(2) Cr.P.C. the charge-sheet has not been filed, even the trial court should not extend the remaining period and if any request on behalf of accused applicant is made by his counsel even orally to the extent that he is ready to submit sureties / bail bonds as per satisfaction of the court seeking default bail, the trial court may not refuse bail to the accused as the right of default bail emanates from Article 21 of the Constitution of India which guarantees right to life and personal liberty. Such liberty guaranteed under chapter 3 of the Constitution of India may not be circumvented, ignored or violated by the trial court,” the Court said while allowing the petition.
The Court ordered, “The order dated June 7, 2021 passed by the Special Judge, POCSO Act / Additional Sessions Judge, Lucknow rejecting the bail application of the applicant u/s 167(2) Cr.P.C. is hereby quashed.
“The trial court is directed to release the applicant on default bail u/s 167(2) Cr.P.C. in Crime u/s 342, 376D, 372, 506 IPC & Section 5/6 POCSO Act, P.S. Mahanagar, District Lucknow in the case ‘The State vs. Upreta Kumar Rasail & others, pending in the court of Special Judge, POCSO Act, Lucknow on on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.”