Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that under Section 167 of the Code of Criminal Procedure, 1973 (CrPC), it is mandatory to produce the accused at the time when the Court considers the application for extension and that the accused must be informed that the question of extension of the period of investigation is being considered.

The Court observed,

“The accused may not be entitled to know the contents of the report but he is entitled to oppose the grant of extension of time on the grounds available to him in law.”

Background

Accused were charged under Sections 3(1), 3(2), 3(3), 3(4), 3(5), and 4 of the Gujarat Control of Terrorism and Organised Crime Act, 2015 and were arrested on different dates. Reports were submitted by the Public Prosecutor seeking extension of time up to 180 days to complete the investigation. The prayer for extending the time up to 180 days was allowed by the Special Court on the very day on which the applications were filed.

Being aggrieved by the said orders of the Special Court, separate applications under Section 482 of CrPC were preferred by the appellants. By the impugned common Judgment dated 15.09.2021, the Gujarat High Court rejected the said applications.

It is the case of the appellants that the Special Court passed orders on the reports submitted by the learned Public Prosecutor by which time to complete investigation was extended up to 180 days, the presence of  none of the accused was procured either physically or through video conference and that they were not even informed about the reports submitted by the Public Prosecutor.

Law in question – Explained

Section 167 CrPC has been amended in relation to the cases involving offences punishable under the 2015 Act. By virtue of sub-section (2) of Section 20 of the 2015 Act, a proviso has been added in addition to the existing proviso to sub-section (2) of Section 167 of CrPC which permits the Special Court established under the 2015 Act to extend the period of 90 days provided to complete the investigation up to 180 days. The Special Court is empowered to extend the period up to 180 days on a report of the Public Prosecutor setting out the progress of the investigation and the specific reasons for continuing detention of the accused beyond the period of 90 days.

In a case involving the offences punishable under the 2015 Act, the Special Court is authorized to detain the accused person in custody for a period not exceeding 90 days. The proviso added by sub-section (2) of Section 20 of the 2015 Act to sub-Section (2) of Section 167 of CrPC enables the Special Court to extend the said period to a total of 180 days on the basis of a report of the Public Prosecutor setting out the progress of the investigation and incorporating the specific reasons for the detention of the accused beyond the period of 90 days.

Thus, unless the Special Court exercises the power under the proviso added by the 2015 Act to sub-section (2) of Section 167 of CrPC, on the expiry of the period of 90 days, the accused will be entitled to default bail. When the Special Court exercises the power under the proviso added to sub-section (2) of Section 167 of CrPC and extends the time up to 180 days, the accused will be entitled to default bail only if the charge sheet is not filed within the extended period.

Failure to produce accused before Special Court at the time of considering extension application – Effect of

Clause (b) of sub-section (2) of Section 167 of CrPC lays down that no Magistrate shall authorise the detention of the accused in the custody of the police unless the accused is produced before him in person. It also provides that judicial custody can be extended on the production of the accused either in person or through the medium of electronic video linkage.

Thus, the requirement of the law is that while extending the remand to judicial custody, the presence of the accused has to be procured either physically or virtually. This is the mandatory requirement of law. This requirement is sine qua non for the exercise of the power to extend the judicial custody remand.

The reason is that the accused has a right to oppose the prayer for the extension of the remand. When the Special Court exercises the power of granting extension under the proviso to sub-section (2) of Section 20 of the 2015 Act, it will necessarily lead to the extension of the judicial custody beyond the period of 90 days up to 180 days. Therefore, even in terms of the requirement of clause (b) of sub-section (2) of Section 167 of CrPC, it is mandatory to procure the presence of the accused before the Special Court when a prayer of the prosecution for the extension of time to complete investigation is considered.

The requirement of the report under proviso added by sub-section (2) of Section 20 of the 2015 Act to clause (b) of sub-section (2) of Section 167 of CrPC is two-fold:

  • Firstly, in the report of the Public Prosecutor, the progress of the investigation should be set out; and
  • Secondly, the report must disclose specific reasons for continuing the detention of the accused beyond the said period of 90 days.

Therefore, the extension of time is not an empty formality. The Public Prosecutor has to apply his mind before he submits a report/ an application for extension. The prosecution has to make out a case in terms of both the aforesaid requirements and the Court must apply its mind to the contents of the report before accepting the prayer for grant of extension.

On the submission that the accused has no say in the matter, the Court observed that accepting the same would make the requirement of giving notice by producing the accused an empty and meaningless formality. Moreover, it will be against the mandate of clause (b) of the proviso to sub-section (2) of section 167 of CrPC.

“It cannot be accepted that the accused is not entitled to raise any objection to the application for extension. The scope of the objections may be limited. The accused can always point out to the Court that the prayer has to be made by the Public Prosecutor and not by the investigating  agency.   Secondly, the accused can always point out the twin requirements of the report in terms of proviso added by sub-section (2) of Section 20 of the 2015 Act to sub¬section (2) of Section 167 of CrPC.  The accused can always point out to the Court that unless it is satisfied that full compliance is made with the twin requirements, the extension cannot be granted.”

The logical and legal consequence of the grant of extension of time is the deprivation of the indefeasible right available to the accused to claim a default bail.

“The grant of the extension of time takes away the right of the accused to get default bail which is   intrinsically connected with the fundamental rights guaranteed under Article 21 of the Constitution. The procedure contemplated by Article 21 of the Constitution which is required to be followed before the liberty of a person is taken away has to be a fair and reasonable procedure. In fact, procedural safeguards play an important role in protecting the liberty guaranteed by Article 21.”

Hence, the failure to procure the presence of the accused either physically or virtually before the Court and the failure to inform him that the application made by the Public Prosecutor for the extension of time is being considered, is not a mere procedural irregularity. It is gross illegality that violates the rights of the accused under Article 21.

Ruling on facts

In the case at hand, the reports were submitted by the Public Prosecutor nearly a week before the expiry of the period of 90 days. In every case, period of seven days or more was available for completion of the period of ninety days. The orders were passed by the Special Court on the reports of the Public Prosecutor on the very day on which reports were submitted.

In such circumstances, the Court held that there was no reason for such hurry. The Special Court could have always granted time of a couple of days to the prosecution to procure the presence of the accused either physically or through video conference. Hence, in the facts of the present case, the grant of extension of time without complying with the requirements laid down by the Constitution Bench had deprived the accused of their right to seek default bail and had resulted in the failure of justice.

The Court, hence, held that the orders passed by the Special Court of extending the period of investigation to be illegal on account of the failure of the respondents to produce the accused before the Special Court either physically or virtually when the prayer for grant of extension made by the Public Prosecutor was considered. Consequently, the Court directed the accused to be enlarged on default bail.

[Jigar v. State of Gujarat, 2022 SCC OnLine SC 1290, decided on 23.09.2022]


*Judgment by: Justice Abhay S. Oka


For appellants: Senior Advocate Nitya Ramakrishnan

For Respondent: SG Tushar Mehta and ASG Aman Lekhi

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a criminal appeal filed challenging the extension of the remand period from 90 days to 180 days and for grant of bail to the appellants, P.N. Prakash and RMT Teekaa Raman, JJ. held that for extending the period of remand, materials must be placed before the court to show the progress of the investigation and reasons for the remand or extension of remand; and it was reiterated that the ‘indefeasible right’ of the accused to be released on bail is a right which is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed.

The Court noted that the ninety days remand envisaged by Section 167 of Code of Criminal Procedure was to expire on 31.12.2021 and anticipating that it would not be possible to complete the investigation before the date, the public prosecutor filed a report under the first proviso to Section 43-D(2) of Unlawful Activities Prevention Act (‘UAPA’) for the extension of the remand period. The Special Court by order dated 03.01.2022 accepted the report of the public prosecutor and extended the remand to a further period of 90 days from 31.12. 2021.Further, the appellants submitted that the order dated 03.01.2022 was passed without hearing the accused.

The Court on perusal of the relevant records has observed that the report under first proviso to Section 43-D(2) of UAPA has been filed by the public prosecutor, therefore, the contention of the appellants that Special Public Prosecutor had not filed any report in terms of proviso to Section 43-D(2) is factually incorrect.

The Court placed reliance on the decision in Selvanathan v. State, 1988 SCC OnLine Mad 335 wherein it was held that “the accused will not be entitled to a copy of the requisition for remand” and observed that when a request for remand under Section 167 of CrPC with a report is filed by the public prosecutor under the proviso to subsection (2) of Section 43-D of UAPA, for extending the period of remand, materials must be placed before the court to show the progress of the investigation and reasons for the remand / extension of remand, and for this several material particulars and trajectory of the investigation would be disclosed including the names of some suspects whom the investigation agency would have to nab. Further, if the copies of these documents are furnished to the accused, then, it would be easy for those who are in the radar to just escape from the clutches of law.

It was also viewed that the decision in Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 wherein it was stated that the accused would be heard, has been reviewed by a Constitution Bench of the Supreme Court in Sanjay Dutt v. State through CBI, Bombay (II), (1994) 5 SCC 410, wherein the Court has held that “the requirement of notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein and production of the accused at that time in the court informing him that the question of extension of the period for completing the investigation is being considered, is alone sufficient for the purpose, further, it was also held that the ‘indefeasible right’ of the accused to be released on bail is a right which ensures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed”. It was observed that the Special Court has substantially complied with the directions of the Supreme Court in Sanjay Dutt’s case (supra).

The Court observed that the NIA completed the investigation and filed a final report on 29.03.2022, and on the same day, the appellant filed an application seeking default bail. The present appeal challenging the order dated 03.01.2022 has been filed only on 04.04.2022. Therefore, after the filing of the final report on 29.03.2022, the indefeasible right for default bail stood extinguished.

Placing reliance on the ruling in State of Punjab v. Okara Grain Buyers Syndicate Ltd., (1964) 5 SCR 387 wherein it was held that “even if the language used in the two enactments were identical which is not even the case here the same conclusion would not necessarily follow having regard to the differing scopes of the two pieces of legislation” thus, the observations in Sanjay Kumar Kedia v. Narcotics Control Bureau, (2009) 17 SCC 631 cannot be mechanically applied to the present case. Thus, the criminal appeals were dismissed being devoid of merits.

[T. Keeniston Fernando v. State of Madras, 2022 SCC OnLine Mad 4771, decided on 28.09.2022]


Advocates who appeared in this case:

For Appellants: Advocate. Radhakrishnan

Advocate P. Pugalenthi

For Respondents: Special Public Prosecutor R. Karthikeyan

Case BriefsSupreme Court

Supreme Court: As Congress MP Karti P. Chidambaram has sought review of the 3-judge bench verdict on the Prevention of Money Laundering Act, 2002, the 3-judge bench of NV Ramana, CJ and Dinesh Maheshwari and CT Ravikumar, JJ has agreed to hear the review petition after observing that prima facie, it appears that at least two of the issues raised in the petition require consideration. The Court has hence issued notice in the matter.

In the judgment dated 27.07.2022 in Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929, the bench of AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar, JJ has, in 545-pages-long judgments, has dealt with various aspects of the Prevention of Money Laundering Act, 2002 and has upheld the validity of certain impugned provisions by holding that the same have reasonable nexus with the object sought be achieved i.e. combatting the menace of money laundering.

While the judgment runs into 545 pages, the key takeaways of the judgment are:

  1. Unlike FIR, the Enforcement Case Information Report need not be formally registered. It is also not mandatory to supply it to the accused.
  2. The twin conditions provided under Section 45, though restrict the right of the accused to grant of bail, do not impose absolute restraint on the grant of bail. Not just regular bails but this section also applies to anticipatory bail.
  3. The Court has suggested that the feasibility of placing ED Manual on the official website of ED may be explored.
  4. The power of arrest given to high-ranking officials under Section 19 is not arbitrary.
  5. The summon issued under Section 50 is in connection with the inquiry regarding proceeds of crime which may have been attached and pending adjudication before the Adjudicating Authority. It is not necessarily for initiating a prosecution against the noticee as such and hence, not violative of Articles 20(3) and 21 of the Constitution.
  6. The inclusion of minor offences as scheduled offence is reasonable as the offence of money-laundering is an independent offence and the persons involved in the commission of such offence are grouped together as offenders under this Act. There is no reason to make distinction between them insofar as the offence of money-laundering is concerned.
  7. Same reasoning has been applied to uphold Section 4 that makes no distinction between person directly involved in the process or activity connected with the proceeds of crime and the other not so directly involved. It has been held that the punishment under Section 4 is not in relation to the predicate offence, but offence of money-laundering under Section 3 of the 2002 and hence valid.
  8. The vacancies at the appellate Tribunal must be filled at the as otherwise the aggrieved persons have to rush to the High Court on every occasion which indeed is avoidable.
  9. Whether the amendments to PMLA are Finance Bill/Money Bill is a question already pending for consideration by a larger bench in another case. Hence, it was not taken up in this case.

The comprehensive analysis of the judgment can be read here.

Your cheat sheet to Supreme Court’s 545 pages long Money Laundering verdict

Also read: Supreme Court holds “twin conditions” under Section 45 of PMLA reasonable: Applicability to anticipatory bail, non-cognizable offences discussed; Exception highlighted

Video Explainer: Your cheat sheet to Supreme Court’s 545 pages long Money Laundering verdict 


[Karti P. Chidambaram v. Directorate of Enforcement, 2022 SCC OnLine SC 1084, order dated 26.08.2022]

For Petitioner(s): Senior Advocates Kapil Sibal, Dr. Abhishek Manu Singhvi, Sidharth Luthra, Advocates Arshdeep Singh Khurana, Prateek Chadha, Adit Pujari, Amit Bhandari, Akshat Gupta, Harsh Mittal, Harsh Srivastava, Madhavi Agarwal, Rupali Samuel, Shubhangni Jain, Pankaj Singhal, Hitesh Rai, Aditya Chopra, Ayush Agarwal, Tannavi Sharma, Shally Bhasin (AOR)

For Respondent(s):  Solicitor General Tushar Mehta, Advocates M. K. Maroria (AOR), Deepabali Dutta, Kanu Agarwal, Zoheb Hossain, Rajat Nair

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ has, in 545-pages-long judgments, has dealt with various aspects of the Prevention of Money Laundering Act, 2002 and has held that the twin conditions provided under Section 45 of the 2002 Act, though restrict the right of the accused to grant of bail, do not impose absolute restraint on the grant of bail. The discretion vests in the Court which is not arbitrary or irrational but judicial, guided by the principles of law as provided under Section 45 of the 2002 Act.

The Twin Conditions under Section 45 for release on bail

  • that there are reasonable grounds for believing that the accused is not guilty of such offence; and
  • that he/she is not likely to commit any offence while on bail.

The Court has held that the provision in the form of Section 45 of the 2002 Act, as applicable post amendment of 2018, is reasonable and has direct nexus with the purposes and objects sought to be achieved by the 2002 Act to combat the menace of money-laundering having transnational consequences including impacting the financial systems and sovereignty and integrity of the countries.

It is also important to note that similar twin conditions have been provided in several other special legislations validity whereof has been upheld by the Supreme Court being reasonable and having nexus with the purposes and objects sought to be achieved by the concerned special legislations. Besides the special legislation, even the provisions in the general law, such as 1973 Code stipulate compliance of preconditions before releasing the accused on bail. The grant of bail, even though regarded as an important right of the accused, is not a mechanical order to be passed by the Courts. The prayer for grant of bail even in respect of general offences, have to be considered on the basis of objective discernible judicial parameters as delineated by this Court from time to time, on case-to-case basis.

Non-cognizable offence

The Court has rejected the argument that the scheduled offence in a given case may be a non-cognizable offence and yet rigors of Section 45 of the 2002 Act would result in denial of bail even to such accused.

Stating that such an argument was founded on clear misunderstanding of the scheme of the 2002 Act, the Court observed that the offence of money-laundering is one wherein a person, directly or indirectly, attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime. The fact that the proceeds of crime have been generated as a result of criminal activity relating to a scheduled offence, which incidentally happens to be a non-cognizable offence, would make no difference.

“The person is not prosecuted for the scheduled offence by invoking provisions of the 2002 Act, but only when he has derived or obtained property as a result of criminal activity relating to or in relation to a scheduled offence and then indulges in process or activity connected with such proceeds of crime. Suffice it to observe that the argument under consideration is completely misplaced and needs to be rejected.”

Anticipatory Bail

Holding that Section 45 applies to anticipatory bail as well, the Court explained that anticipatory bail is nothing but a bail granted in anticipation of arrest, hence, the principles governing the grant of bail in both cases are more or less on the same footing, except that in case of anticipatory bail the investigation is still underway requiring the presence of the accused before investigation authority. Thus, ordinarily, anticipatory bail is granted in exceptional cases where the accused has been falsely implicated in an offence with a view to harass and humiliate him. Therefore, it would not be logical to disregard the limitations imposed on granting bail under Section 45 of the 2002 Act, in the case of anticipatory bail as well.

“Investigation in an economic offence, more so in case of money-laundering, requires a systematic approach. Further, it can never be the intention of the Parliament to exclude the operation of Section 45 of 2002 Act in the case of anticipatory bail, otherwise, it will create an unnecessary dichotomy between bail and anticipatory bail which not only will be irrational but also discriminatory and arbitrary. Thus, it is totally misconceived that the rigors of Section 45 of the 2002 Act will not apply in the case of anticipatory bail.”

The Court went on to state that it would be preposterous and illogical to hold that if a person applies for bail after arrest, he/she can be granted that relief only if the twin conditions are fulfilled in addition to other stipulations predicated in the 1973 Code; but another person, who is yet to be arrested in connection with the same offence of money-laundering, will not be required to fulfil such twin conditions whilst considering application for grant of bail under Section 438 of the 1973 Code.

It was observed that any other view would be counterproductive and defeat the purposes and objects behind the stringent provision enacted by the Parliament for prevention of money-laundering and to combat the menace on account of such activity which directly impacts the financial systems, including the sovereignty and integrity of the country.

Hence, in whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the Criminal Procedure Code, 1973 or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of moneylaundering.

Exception to strict compliance of the twin conditions

The Court held that Section 436A CrPC, which has come into being on 23.6.2006 vide Act 25 of 2005, is an exception to the strict compliance of the twin conditions under Section 45 of the 2002 Act, which was inserted recognizing the deteriorating state of undertrial prisoners so as to provide them with a remedy in case of unjustified detention.

As the Section 436A of the 1973 Code was inserted after the enactment of the 2002 Act, it would not be appropriate to deny the relief of Section 436A of the 1973 Code which is a wholesome provision beneficial to a person accused under the 2002 Act. However, Section 436A CrPC, does not provide for an absolute right of bail as in the case of default bail under Section 167 CrPC. For, in the fact situation of a case, the Court may still deny the relief owing to ground, such as where the trial was delayed at the instance of accused himself.

The Court explained that this provision is comparable with the statutory bail provision or, so to say, the default bail, to be granted in terms of Section 167 CrPC consequent to failure of the investigating agency to file the chargesheet within the statutory period and, in the context of the 2002 Act, complaint within the specified period after arrest of the person concerned. In the case of Section 167 of the 1973 Code, an indefeasible right is triggered in favour of the accused the moment the investigating agency commits default in filing the chargesheet/complaint within the statutory period. The provision in the form of Section 436A CrPC, as has now come into being is in recognition of the constitutional right of the accused regarding speedy trial under Article 21 of the Constitution.

While this was argued before the Court that this view would impact the objectives of the 2002 Act and is in the nature of super imposition of Section 436A CrPC over Section 45 of the 2002 Act and that the same logic may be invoked in respect of other serious offences, including terrorist offences which would be counterproductive, the Court was unimpressed.

It observed,

“For, it is the constitutional obligation of the State to ensure that trials are concluded expeditiously and at least within a reasonable time where strict bail provisions apply. If a person is detained for a period extending up to one-half of the maximum period of imprisonment specified by law and is still facing trial, it is nothing short of failure of the State in upholding the constitutional rights of the citizens, including person accused of an offence.”

It was hence, held that Section 436A CrPC needs to be construed as a statutory bail provision and akin to Section 167 of the 1973 Code.

[Vijay Madanlal Choudhary v. Union of India, SPECIAL LEAVE PETITION (CRIMINAL) NO. 4634 OF 2014, decided on 27.07.2022]


*Judgment by: Justice AM Khanwilkar

For private parties:  Senior Advocates Kapil Sibal, Sidharth Luthra, Dr. Abhishek Manu Singhvi, Mukul Rohatgi, Amit Desai, S. Niranjan Reddy, Dr. Menaka Guruswamy, Aabad Ponda, Senior Counsel 9Siddharth Aggarwal, Mahesh Jethmalani, N. Hariharan, Vikram Chaudhari, and Advocates Abhimanyu Bhandari and Akshay Nagarajan,

For Union of India:  Tushar Mehta, Solicitor General of India and S.V. Raju, Additional Solicitor General of India

Case BriefsSupreme Court

Supreme Court: In a major verdict, the bench of UU Lalit and KM Joseph*, JJ has held that it is open for Courts to order house arrest under Section 167 CrPC in appropriate cases. The order comes as a milestone for curbing the problem of overcrowded prisons and high cost for their maintenance.

Indicating the criteria for house arrest, the Court highlighted factors like like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody, the ability to enforce the terms of the house arrest, etc.

Upon being found guilty instead of sentencing the convict to a term in prison and in lieu of incarceration, as a condition of probation, the convict is compelled to confine himself to his place of residence. Such confinement is called House Arrest.

According to the data published by the National Crime Records Bureau (NCRB), there were a total number of 1350 prisons as of the year 2019, consisting of 617 Sub Jails, 410 District Jails, 144 Central Jails, 86 Open Jails, 41 Special Jails, 31 Women Jails, 19 Borstal School and 2 Other than the above jails.

The occupancy rate of these prisons has climbed to 118.5 percent in 2019 as on 31st December. The occupancy rate is alarming for male prisoners. In fact, during 2019, a total of 18,86,092 inmates were admitted in the jails. The figure of 4,78,600 prisoners as on 31st December, 2019 is the figure obviously after considering the number of prisoners who would have been inter alia bailed out. The number of under trial prisoners in 2019 was 3,30,487 which in fact constituted 69.05 per cent of the total no. of prisoners. Delhi had the highest occupancy rate of 174.9 percent followed by Uttar Pradesh which came second with 167.9 percent. This means that in Delhi a prison which was meant to be occupied by 100 persons, was used for accommodating 174 persons.

Also, a very large sum (Rs. 6818.1 crore) was the budget on prisons. Both aspects are relevant in the context of the possibilities that house arrest offer.

[Gautam Navlakha v. National Investigation Agency, 2021 SCC OnLine SC 382, decided on 12.05.2021]


*Judgment by: Justice KM Joseph

For Appellant: Senior Advocates Kapil Sibal and Nitya Ramakrishnan, Advocate Shadan Farasat

For Respondent: Additional Solicitor General S.V. Raju

Case BriefsSupreme Court

Supreme Court: Interpreting Section 167(2) CrPC, the 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Sarah, JJ has said that the Courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Article 21. It said,

“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.”

Going into the legislative intent, the Court noticed that Section 167(2) was enacted providing for time limits on the period of remand of the accused, proportionate to the seriousness of the offence committed, failing which the accused acquires the indefeasible right to bail.

“… the intent of the legislature was to balance the need for sufficient time limits to complete the investigation with the need to protect the civil liberties of the accused.”

Section 167(2) provides for a clear mandate that the investigative agency must collect the required evidence within the prescribed time period, failing which the accused can no longer be detained. This ensures that the investigating officers are compelled to act swiftly and efficiently without misusing the prospect of further remand. This also ensures that the Court takes cognizance of the case without any undue delay from the date of giving information of the offence, so that society at large does not lose faith and develop cynicism towards the criminal justice system. Hence,

“Section 167(2) has to be interpreted keeping in mind the threefold objectives expressed by the legislature namely ensuring a fair trial, expeditious investigation and trial, and setting down a rationalized procedure that protects the interests of indigent sections of society. These objects are nothing but subsets of the overarching fundamental right guaranteed under Article 21.”

Further, in case of any ambiguity in the construction of a penal statute, 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. This 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.

The Court, hence, concluded as follows:

  • 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 may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor. 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.
  • 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.

Earlier this month, in Bikramjit Singh v. State of Punjab2020 SCC OnLine SC 824, the 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

[M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, 2020 SCC OnLine SC 867, decided on 26.10.2020]

Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha, J., while allowing the present application for bail under Section 439 Criminal Procedure Code, 1973 made significant observations with respect to default bail under Section 167(2) Criminal Procedure Code and protection guaranteed by Article 21 of the  Constitution of India.

 Brief Facts

The facts of the case are briefly enumerated hereunder;

  1. That the petitioner accused 2 and 3 were arrested and produced before the Court on 28-12-2019 on the charge of committing offences punishable under Sections 22(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”)
  2. That as per Section 36A(4), the respondent was required to file charge-sheet by 27-06-2020 but an application was filed before the Special Judge for NDPS cases, seeking an extension of time.
  3. That an order with respect to the aforementioned application was passed, dated 1-06-2020, granting an extension of time by another 90 days, to the respondent authority.
  4. That the present petition is moved under Section 439 CrPC, praying to enlarge the petitioner on bail exercising right against the same under Section 167(2) CrPC.

 Issue

  1. Whether the petitioners are entitled to grant of bail as per Section 167(2) r/w Section 36A(4) of the NDPS Act due to non-completion of the investigation?

 Observation

The Court cited the following cases pursuant to its decision;

  • Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602; Highlighting the prerequisite of granting an extension of time to the investigative authorities, the Court said, “when a report is submitted by the Public Prosecutor to the designated Court, for extension under Clause (bb), notice shall be issued to the accused before granting such an extension so that the accused may have an opportunity to oppose the extension of time on legitimate grounds available to him.”
  • Sanjay Dutt v. State, (1994) 5 SCC 410; Clarifying on what shall be considered as an aforementioned notice, the Court held, “requirement of such notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. Production of the accused at that time in the Court informing him that the question of extension of the period for completing the investigation is being considered is sufficient for the purpose.”
  • Sanjay Kumar Kedia v. Intelligence Officer, NCB,2010 Cri.L.J 2054; In this case, the Court relying on the decision in Hitendra Vishnu, said that the proviso inserted as (bb) in sub-section (4) of Section 20 of TADA was pari-pateria with proviso to sub-section (4) of Section 36A of NDPS Act and an extension in such cases can be granted only upon satisfaction of certain conditions.
  • Kasi v. State; 2020 SCC OnLine SC 529, wherein considering the extension given by the High Court of Madras on the ground that the time period under section 167(2) CrPC is eclipsed by the judgment of the Supreme Court dated, 23-03-2020 in Suo Moto WP(C) No. 3 of 2020, it was held “Para 17. The order dated 23-03-2020 cannot be read to mean that it ever intended to extend the period of filing charge sheet by police as contemplated under Section 167(2) of the Code of Criminal Procedure. The IO could have submitted/filed the charge sheet before the Magistrate.” Therefore, even during the lockdown as has been done in so many cases the chargesheet could have been filed/submitted and the IO was not precluded from filing the same. There is no contradiction at all with respect to the extension of limitation order by the Supreme Court order dated 23-03-2020 and the statutory protection granted under Section 167(2) CrPC.
  • The Court also observed that the right of accused under Section 167 CrPC can be denied only when the accused fails to furnish bail as mentioned under Explanation I to the said Section. It was further said that proviso to Section 167(2) CrPC is beneficial legislation made to cure the mischiefs of the preliminary investigation.

Decision

While allowing the present petition, securing bail bond and sureties, the Court reiterated the observation of the Supreme Court where it was categorically stated, “Personal Liberty is too precious a fundamental right. Article 21 states that no person shall be deprived of his personal liberty except according to the procedure established by Law. So long as the language of Section 167(2) of CrPC remains as it is, I have to necessarily hold that denial of compulsive bail to the petitioner herein will definitely amount to violation of his fundamental right under Article 21 of the Constitution of India. The noble object of the Hon’ble Supreme Court’s direction is to ensure that no litigant is deprived of his valuable rights.” The Court further said that the present instance is an indirect frustration of the petitioner’s right under Section 167(2) CrPC and it is “really shocking to note that even after expiry of the extended period of 90 days, neither the charge sheet has been filed nor the accused has been produced before the Court.” [Sayeed Majid Ahamad v. State of Karnataka, Crl Pet. No. 4398 of 2020, decided on 05-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

Right to default bail

Explaining the law on grant of default bail, the Court said that so long as an application for grant of default bail is made on expiry of the period of 90 days, which application need not even be in writing, before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed.

“So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.”

Power of the Court to extend the period of 90 days up to a maximum period of 180 days

The Court was dealing with the question relating to extension of time from 90 days to 180 days under Section 167 of the Code of Criminal Procedure, 1973 as amended by the Unlawful Activities (Prevention) Act, 1967 (UAPA). It, hence, discussed at length, the scheme of the statutes.

Section 167 CrPC

Section 167 CrPC makes it clear that whenever a person is arrested and detained in custody, the time for investigation relating to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, cannot ordinarily be beyond the period of 15 days, but is extendable, on the Magistrate being satisfied that adequate grounds exist for so doing, to a maximum period of 90 days. The first proviso (a)(i) to Section 167(2) of the Code goes on to state that the accused person shall be released on bail if he is prepared to and does furnish bail on expiry of the maximum period of 90 days, and every person so released on bail be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.

Section 43-D(2)(b) of UAPA

Under the first proviso in Section 43-D(2)(b), the 90 day period indicated by the first proviso to Section 167(2) of the Code can be extended up to a maximum period of 180 days if “the Court” is satisfied with the report of the public prosecutor indicating progress of investigation and specific reasons for detention of the accused beyond the period of 90 days.

“Court” under UAPA

Before the National Investigation Agency Act, 2008 (NIA Act) was enacted, offences under the UAPA were of two kinds – those with a maximum imprisonment of over 7 years, and those with a maximum imprisonment of 7 years and under. Under the Code as applicable to offences against other laws, offences having a maximum sentence of 7 years and under are triable by the Magistrate’s Courts, whereas offences having a maximum sentence of above 7 years are triable by Courts of Sessions.

However, this Scheme has been completely done away with by the NIA Act as all scheduled offences i.e. all offences under the UAPA, whether investigated by the National Investigation Agency or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under that Act.

“In the absence of any designated Court by notification issued by either the Central Government or the State Government, the fall back is upon the Court of Sessions alone.”

Hence, for offences under the UAPA, the Magistrate’s jurisdiction to extend time under the first proviso in Section 43-D(2)(b) is non-existent, “the Court” being either a Sessions Court, in the absence of a notification specifying a Special Court, or the Special Court itself.

[Bikramjit Singh v. State of Punjab, 2020 SCC OnLine SC 824, decided on 12.10.2020]

Case BriefsHigh Courts

Madras High Court: A Division Bench of M. Sathyanarayanan and P. Rajamanickam, JJ., while addressing the matter of Custodial Death of “Jayaraj & Bennicks” appealed the members of media to not conduct “Media Trial” as that may affect the prosecution and accused both.

Petition was filed to direct respondent 1 to submit a report on the death of Bennicks and Jayaraj, accused in Sathankulam and or pass any other order/direction.

No Media Trial

Bench appealed to members of the Print, Visual and Social Media not to misinterpret the proceedings or observations made during the course of hearing with the further appeal, not to conduct media trial as it may affect both the prosecution as well as the accused.

Additional Advocate General for the State submitted that pursuant to the directions of this Court, Anil Kumar, Deputy Superintendent of police, CBCID had taken over the investigation and effected arrest of the following under Sections 302, 342 and 201 IPC:

  • Raghu Ganesh, Sub Inspector of Police
  • Balakrishnan, Sub Inspector of Police
  • Murugan, Head Constable
  • Muthurajan, Gr-I Police Constable
  • Sridhar, Inspector of Police/Station House Officer, Sathankulam Police Station
  • Pauldurai, Special Sub Inspector of Police
  • Samidurai, Head Constable
  • Vail Muthu, Gr-I Police Constable
  • Chelladurai, Gr-I Police Constable
  • Thomas Fransous, Gr-I Police Constable and steps have already been taken to get their police custody before the expiry of initial period of remand of 15 days.

Assistant Solicitor General of India, V. Kathirvelu submitted that CBI had registered two separate cases under Sections 176 (1-a)(i) CrPC and Additional Superintendent of Police, CBI V.K. Shukla had been nominated as investigating officer.

Bench passed the following orders pertaining to the present petition:

CBCID shall filed a status report as to the investigation carried out so far in a sealed cover before this Court on the next date of hearing.

CBI while investigating the cases registered shall take into account, the materials collected by CBCID so far, for the purpose of carrying out the effective and quality investigation and if it feels that custodial interrogation of any of the accused is necessary, it may take appropriate steps.

Investigating Agency either CBCID or CBI, may take immediate step to file applications for getting police custody of the arrested persons, within fifteen days of remand before the jurisdictional Magistrate as contemplated under Section 167 CrPC.

Matter to be listed on 28-07-2020. [Registrar (Judicial) v. State of Tamil Nadu, 2020 SCC OnLine Mad 1332 , decided on 9-07-2020]


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Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J. allowed a criminal petition filed under Section 482 read with Section 439(2) CrPC and set aside the order of District and Sessions Judge whereby the accused was granted “default bail” in terms of Section 167(2)(a)(ii) CrPC on the ground that the prosecution failed to file the chargesheet within the stipulated period of 60 days from the date of the first remand.

The proceedings arose out of an FIR registered against the accused under Section 506, 409, 420 and 120-B IPC. The accused was a member of the governing body of one Vedanta Welfare Society. He, along with others, was accused of misrepresenting the victims that the membership of the Society was planned to be increased. It was alleged that for the passage of time, neither the money was refunded nor any share certificate allotted to them.

The controversy in the present petition related to the interpretation of Section 167 CrPC vis-a-vis Section 409 IPC. In other words, whether for an offence punishable under Section 409 IPC, the stipulated period for filing the chargesheet from the date of the first remand is 60 days or 90 days?

Perusing Section 409, the High Court noted that under the section, an accused could be punished with a sentence which is either imprisonment for life or for a term which may extend to 10 years. Thus, it is in the domain of the Court whether to impose the maximum or the minimum sentence, depending on the facts and circumstances of the case. It was observed: “The offences which are punishable with sentence of death or life imprisonment or a sentence of not less than 10 years are serious and grave offences where an extensive investigation is required and thus an extended time to file the charge-sheet has been granted by the Legislature.”

Relying on Supreme Court decision in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, the High Court held: “the ratio in the case of Rakesh Kumar Paul is unambiguous as to the applicability of Section 167(a)(i) [sic 167(2)(a)(i) CrPC to the offence punishable under Section 409 IPC. Accordingly, I am of the view that the stipulated period for filing the charge sheet for an offence punishable under Section 409 IPC would be 90 days and not 60 days.”

In the status report filed on behalf of the State, it was mentioned that the chargesheet had already been filed i.e., within the stipulated period of 90 days. In such view of the atter, the petition was allowed and the impugned order of the District and Sessions Judge granting default bail to the accused was set aside.[Lalita Saini v. State, 2019 SCC OnLine Del 9651, decided on 14-08-2019]