Fakhrey Alam v. State of UP-Whether Default Bail Can Be Treated As A Fundamental Right

DATE: 15th March, 2021

JUDGES:

• Sanjay Kishan Kaul
• R. Subhash Reddy

PARTIES

• Fakhrey Alam (APPELLANT)
• State of UP (RESPONDENT)

SUBJECT: In the following judgement, the Supreme Court deals with section 167(2) of Cr.P.C. which lays down the provisions for bail to the accused. The question before the court was whether the decision of the High Court concerning the second charge sheet was correct or not.

AN OVERVIEW

1. In the present case the Supreme Court is hearing an appeal against the order of High Court in which the court stated that the second chargesheet was a supplementary chargesheet and thus, held that default bail is inadmissible.

2. The appellant was arrested on March 8, 2017 and was charged for offences under Sections 420,467, 468, 471 and 120-B, IPC and 3/25/30 of the Arms Act and under Section 18 of the UAPA Act, 1967. The Chief Judicial Magistrate, Lucknow granted 180 days to the police for filing the chargesheet.

3. Sanction from the State Government was not forthcoming till the date of filing of the charge sheet, so the police filed the chargesheet under the said provisions except under UAPA Act for which the state sanction was compulsory.

4. After obtaining sanction of the State Government, a second chargesheet was filed on 5/10/2017. Two days before the filing of second chargesheet, the appellant had filed an application for default bail under section 167 of Cr.P.C. The appellant argued that the chargesheet was filed after 180 days. Thus, he was entitled to default bail.

5. The court, however, was not impressed by the argument and held that the default bail was inadmissible. The said decision was then confirmed by the High Court also.

6. In the present appeal, the appellant relying on the judgement of Bikramjit Singh v. State of Punjab contends that the jurisdiction in respect of offences under the UAPA Act, which cases are entrusted to NIA, vests only with the special courts. Thus, the Chief Judicial Magistrate should not have granted 180 days for filing of chargesheet. It was further argued that even though the magistrate granted 180 days, the chargesheet was not filed during that period giving a cause to the appellant to file an application for bail.

7. Relying on the judgement of Vinay Tyagi vs. Irshad Ali @ Deepak & Ors., the respondent contended that the second chargesheet is a supplementary chargesheet and that there is no restriction on the number of supplementary charge sheets

IMPORTANT PROVISIONS

CRIMINAL PROCEDURE CODE

• Section 167- Procedure when investigation cannot be completed in twenty four hours.

(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

i. ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
ii. sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released.

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

ISSUES: The key issue before the court in the present case are as below:-

• Whether supplementary chargesheet can extend the time limit for bail under section 167 Cr.P.C?
• Whether the Cheif Judicial Magistrate has the jurisdiction to hear cases relating to offences under UAPA?
• Whether the appellant is entitled to bail or not?

ANALYSIS OF THE JUDGEMENT

• While answering the issue of jurisdiction, the court observed that there were notified special courts in existence in the state of Uttar Pradesh. Thus, the Chief Judicial Magistrate’s court had the jurisdiction to entertain the case.
• To answer the contention of the appellant regarding the time, the court looked into the object of section 167 Cr.P.C and stated that the section provides for time period within which the investigation should be completed, depending upon the nature of offences for the circumstances in which investigation could not completed within 24 hours. The court further stated that liberty is a Constitutional right, time periods were specified in the default of which the accused will have a right to default bail, a valuable right.
• The court noted that as per section 167 Cr.P.C chargesheet has to be filed within 90 days but, since the offence was under UAPA 180 days were provided. However, the chargesheet was filed only after completion of 211 before which application of bail had been filed. The court expressly stated that the State cannot take advantage of the fact that in one case there is one charge sheet and supplementary charge sheets are used to extend the time period in this manner by seeking to file the supplementary charge sheet qua the offences under the UAPA Act even beyond the period specified under Section 167 of the Cr.P.C beyond which default bail will be admissible, i.e, the period of 180 days. Since the period had expired and chargesheet had not been filed, the appellant is entitled to default bail.
• Quoting Bikramjit case, the court stated that default bail under first proviso of Section 167(2) of the Cr.P.C. is a fundamental right and not merely a statutory right as it is, a procedure established by law under Article 21 of the Constitution. Thus a fundamental right is granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2)of the Cr.P.C. are fulfilled.
• Further, referring to Rakesh Kumar Paul v. State of Assam, the court stated that the consequences of the UAPA Act are drastic in punishment and in that context, it has been held not to be a mere statutory right but part of the procedure established by law under Article 21 of the Constitution of India.
• Therefore, the court set aside the previous order and granted bail to the appellant.

CONCLUSION

• Very often it is heard that a person is innocent until proven guilty. When it comes to the matter of bail, it is very well established that one cannot be detained if the police fails to file chargesheet within the stipulated time limit. Liberty of a person is a right and part of the procedure established by article 21 of the Indian Constitution.
• Default bail is an indefeasible right. The provision aims to protect the accused from the unscrupulous investigation of the police and grant him his liberty.
• In the present judgement, the court rightfully granted bail to the appellant as it has been 211 days since he was arrested and chargesheet still could not be filed. Denial of the same will be an infringement of his constitutional right.
• Further, concerning supplementary chargesheet, the judgement is worth applause. If supplementary chargesheet is allowed to extend the time limit, the police can file numerous supplementary chargesheets to extend the time period of the bail and deprive the accused of his liberty. Therefore, it is rightly held by the court that supplementary chargesheet cannot extend time limit u/s 167 of Cr.P.C.

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