Right to Default Bail not defeated even if Chargesheet is filed on 61st, 91st or 181st day: HC

  

In one of its recent judgements, the Madras High Court has thought out on one key question standing from long as regard to time constraints applicable to the accused for availing the Right to Default Bail and to the Investigating Agency for filing of charge-sheet before the court.

The single-judge bench of Justice K. Murali Shankar after digging deep onto statutory provisions and precedents that determine the four corners of default bail under Section 167(2) of CrPC and Section 36(A)(4) of NDPS Act has held that subsequent or even simultaneous filing of the charge sheet doesn't disentitle an accused from claiming default bail under CrPC.

The Court particularly discarded the misconception that in cases where the bail petition under Section 167(2) Cr.P.C and the charge sheet are being filed on the same day, then the time at which, bail petition or the charge sheet is filed, is the deciding factor and that if the charge sheet is filed earlier to the bail petition, then the accused is not entitled to get the statutory bail or in case, if the bail petition is filed before laying of charge sheet, then the bail application has to be allowed.

The Court clarified that if an Investigating Agency require the detention of the accused beyond the prescribed period of 60 or 90 or 180 days, then it has to file the charge-sheet 'before' the expiry of the same period.

A charge-sheet filed simultaneously or even prior to filing of the bail petition upon expiring of the stipulated period wouldn't defeat the right already accrued to the accused and he/ she shall be applicable for grant of bail.

The Court observed:

"If the charge sheet is filed on 61st or 91st or 181st day, as the case may be, even prior to the filing of the bail petition on the same day, the said filing of the charge sheet will not defeat the right already accrued to the accused and if such an interpretation is not given, then that will lead to a proposition that the investigating agency can file a charge sheet even on 61st or 91st or 181st day as the case may be, as of right and detain the accused in judicial custody."

 Brief Facts of the Case

The petitioner herein is an accused under the NDPS Act. His application for default bail was dismissed by the Trial Court on the ground of seriousness, gravity of the offence, serious objections on prosecution side and huge quantity of the contraband.

One key observation by the High Court was that the charge sheet was filed on the same day as the application for default bail, but the investigating agency did that in time.

High Court Observation

The facts and circumstances of the case presented the Court with key questions to decide on:

(i) Whether the indefeasible right accrued to the petitioner/accused under Section 167(2) Cr.P.C can be defeated by filing charge sheet simultaneously or subsequently on the same day, by the prosecution?

The Court on the outset noted that Section 167(2) Cr.P.C., contemplates that if the charge sheet is not laid within the period of 60 days or 90 days as the case may be, the accused isentitled to get default bail. Section 36(A) (4) of NDPS Act prescribes a period of 180 days for investigating certain offences under the NDPS Act instead of 90 days as provided under Section 167(2) Cr.P.C.

"The proviso to Section 36(A)(4) of NDPS Act permits the Special Court to extend the time from 180 days upto one year, if the Public Prosecutor submits a report indicating the progress of investigation and giving specific reasons for requiring the detention of the accused beyond the prescribed period of 180 days."

 Relying on SC Judgements in Rakesh Kumar Paul Vs. State of Assam, 2017 Latest Caselaw 574 SC , M. Raveendran v. The Intelligence Officer, Director of Revenue Intelligence, 2020 Latest Caselaw 569 SC, Bikramjit Singh vs. STATE OF PUNJAB, 2020 Latest Caselaw 549 SC, the Court held that in case of any ambiguity in the construction of a penal statue, the Courts must favour the interpretation which leans towards protecting the rights of the accused, given the ubiquitous power disparity between the individual accused and the State machinery and the same is applicable not only in the case of substantive penal statutes but also in the case of procedures providing for the curtailment of the liberty of the accused.

Answering the moot point as to what is the time available for the accused to apply statutory bail, after the expiry of the period prescribed for filing the final report by the investigating agency, the Court observed that the the investigating agency is duty bound to file their final report before expiry of 60 or 90 or 180 days, as the case may be, and on the next day i.e, 61st or 91st or 181st day only, the right to apply for statutory bail gets accrued to the accused and there must be some reasonable time limit enabling him to apply for the default bail.

With regard to the present case, the Court commented:

"In Tamil Nadu, all the Courts shall ordinarily sit at 10.30.am. If the investigating agency files the charge sheet by 10.30 am, on the next day, after the expiry of the period prescribed under Section 167(2) Cr.P.C, can we say that the accused has lost his right of filing the petition for default bail subsequently, on the same day? In my considered view, the accused can exercise his right to apply the default bail on the whole day, on which, the indefeasible right to apply the statutory bail accrues to him",

 The Court put it straight that laying of the charge-sheet by Investigating Agency, after expiry of period prescribed, the time of filing the charge sheet cannot be considered as a relevant criteria for deciding the statutory bail.

It also reffered to the Sanjay Dutt judgement to reiterate that the accused must apply for default bail the moment the right under Section 167(2) Cr.P.C accrues to him, and if he/she fails to do so then the said right cannot be claimed at a subsequent stage of the proceedings after the prosecution has filed a charge sheet or additional complaint.

Reinterpreting the precautionary principle laid down in SC Judgement in famous case of Sanjay Dutt, the Court clarified that the Constitutional Bench decision in that case cannot be interpreted so as to mean that even where the accused has promptly exercised his right under Section 167(2) and indicated his willingness to furnish bail, he can be denied bail on account of delay in deciding his application or erroneous rejection of the same. Nor can he be kept detained in custody on account of subterfuge of the prosecution in filing a police report or additional complaint on the same day that the bail application is filed.

Read Judgement Here: 

 

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(With input from news agency language)

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