The judgement concerns itself with the right to be released on bail when the additional complaint is filed subsequently by the investigating agency. Thisjudgement speaks about the right to indefeasible bail under Section 167(2) of Criminal Procedure Code,1973. This Section deals with provision of bail.
1. The Court in this judgement relied upon various previous judgements to decide on the right of the accused to be released when the investigation agency failed to file a charge sheet in the prescribed period.
2. The Court here relied upon Sanjay Dutt v. State through C.B.I., (1994); Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602; State through CBI v. Mohd. Ashraft Bhat, (1996) 1 SCC 432; Dr. Bipin Shantilal Panchal v. the State of Gujarat, (1996) 1 SCC 718; and Mohamed Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1 SCC 722, to precisely decide and comment on the role of Magistrate in situations like these.
3. It relied on principles where the majority opinion held that the accused is deemed to have exercised his right to default bail under Section 167(2), CrPC the moment he files the bail application and offers to abide by the terms and conditions of bail. The prosecution cannot frustrate the object of Section 167(2), CrPC by subsequently filing a charge sheet or additional complaint while the bail application is pending consideration or final disposal before a Magistrate or a higher forum.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no 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) 1 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 under the provisions of Chapter XXXIII for the purposes of that Chapter;
(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. 1 Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;]. 2 Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—
(a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;
(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate: Provided that in cases which are triable by the Special Court where such Magistrate considers—
(i) when such person is forwarded to him as aforesaid; or
(ii) upon or at any time before the expiry of the period of detention authorised by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;
(c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section;
(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial.
(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.
(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under section 36.
(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as a reference to "one hundred and eighty days": Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.
(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.
The major issues raised in this case were-
* (1)Whether the indefeasible right accruing to the appellant under Section 167(2), CrPC gets extinguished by the subsequent filing of an additional complaint by the investigating agency?
* 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(1)?
1. The appellant, in this case, was arrested and remanded to judicial custody on 04.08.2018 for the alleged offence punishable under Section 8(c) read with Sections 22(c), 23(c), 25A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’). Further, after completion of 180 days from the remand date that is, 31.01.2019, the Appellant (Accused No.11) filed an application for bail under Section 167(2) of the Code of Criminal Procedure, 1973 ('CrPC') on 01.02.2019 before the Special Court for Exclusive Trial of Cases under the NDPS Act, Chennai ('Trial Court') on the ground that the investigation was not complete and a charge sheet had not yet been filed. The Trial Court granted bail to the appellant which led to the filing of an application by the respondent in the High Court praying to cancel the bail of the appellant and in which the HC ordered the cancellation of the bail. Thus, the appellant approached the SC challenging the order of the Madras HC.
2. The HC set aside the orders of the Trial Court on the basis that since the application for bail under Section 167(2), CrPC was not disposed of by the time the additional complaint was filed, the Appellant could not take advantage of the fact that he had filed his bail petition prior in time.
3. The counsel appearing for the Appellant relied on the case of Uday Mohanlal Acharya v. the State of Maharashtra, (2001) 5 SCC 453 where it argued that the HC misconstrued the mandate of Section 167(2), CrPC and had gravely erred in entering into the merits of the matter; that the legislative mandate conferred by Section 167(2), CrPC was lightly brushed aside by the High Court though the Appellant had rightly invoked the provisions thereof after completion of the mandatory period of 180 days, that too before the filing of the charge sheet/additional complaint by the Respondent.
4. The Respondent by supporting the judgement of the HC contended that the additional complaint was lodged while the Appellant was still in custody and prior to the disposal of the application for bail under Section 167(2), CrPC, hence there was no question of the Appellant-accused furnishing the bail and consequently he was liable to continued detention in custody. It was contended that the time or date of disposal of the application of bail filed under Section 167(2) is the deciding factor to adjudge whether the accused is entitled to default bail or not.
5. The Court opined that there exists no provision in the CrPc that authorises the detention of an accused in custody after the expiry of the period indicated in the proviso to sub- section (2) of Section 167 excepting certain contingencies. It also mentioned that when an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. It said that such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated. It was mentioned that 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.
6. The Court also held that the circumstances, in this case, were different in that the appellant had exercised his right to statutory bail on the very same day on which his custody was held to be illegal and such an application was left undecided by the Chief Metropolitan Magistrate till after the application filed by the prosecution for extension of time to complete investigation was taken up and orders were passed thereupon. The Court noted that the prosecution had not filed any application for an extension prior to the date of expiry of 90 days. It was further observed that "had an application for extension been filed, then the matter would have been totally different". The Court ultimately held that the Magistrate was obligated to deal with the application for default bail on the day it was filed. Hence the Court, in reliance upon Uday Mohanlal Acharya, upheld the order of the High Court granting default bail to the accused. It was opined that Appellant-accused had exercised his option to obtain bail by filing the application at 10:30 a.m. on the 181st day of his arrest, i.e., immediately after the court opened, on 01.02.2019. It is not in dispute that the Public Prosecutor had not filed any application seeking an extension of time to investigate into the crime prior to 31.01.2019 or prior to 10:30 a.m. on 01.02.2019. The Public Prosecutor participated in the arguments on the bail application till 4:25 p.m. on the day it was filed. It was only thereafter that the additional complaint came to be lodged against the Appellant. Therefore, applying the aforementioned principles, the Appellant-accused was deemed to have availed of his indefeasible right to bail, the moment he filed an application for being released on bail and offered to abide by the terms and conditions of the bail order, i.e. at 10:30 a.m. on 01.02.2019. He was entitled to be released on bail notwithstanding the subsequent filing of an additional complaint.
The SC, in this case, struck down the judgement passed by the HC on the grounds that the right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding the pendency of the bail application; or subsequent filing of the charge sheet or a report seeking an extension of time by the prosecution before the Court; or filing of the charge sheet during the interregnum when the challenge to the rejection of the bail application is pending before a higher Court. It, however, mentioned that where the accused fails to apply for default bail and when the right accrues to him, subsequently a charge sheet, additional complaint or a report seeking an 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. It ordered that notwithstanding the order of default bail passed by the Court, 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.
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