Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Narendra Kumar Vyas J. allowed the petition and set aside the impugned order.

The facts of the case are such that the petitioner was found in possession of 145 strips of Spasmo Proxyvon Plus total of 1160 capsules and 90 strips total 720 capsules of Spasmo Proxyvon Plus which are prohibited psychotropic drugs. The seized quantity of the psychotropic drugs was higher than minimum quantity but less than commercial quantity.

The petitioners were charged with offence punishable under Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (i.e. NDPS Act). The petitioners were thereby arrested and a bail application was filed under Sections 167(2) Criminal Procedure Code i.e. Cr.PC seeking bail on the ground of non-filing of charge-sheet within 60 days from the date of police custody of accused. The Trial Court rejected the bail application. Assailing which present application was filed.

Issues

(i) Whether grant of bail as provided under Section 167(2) of the CrPC indefeasible right of the accused and prosecution can defeat the same by filing final report after expiry of maximum period prescribed under the provisions. ?

(ii) Whether the holidays will be accountable in computing the period of 60 days for granting benefit of bail and from which date the maximum period for filing of charge sheet is countable?

Issue 1

The Court relied on judgment M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485 and observed that from perusal of Section 167(2) CrPC it is quite clear that if challan on the specified period is not submitted, accused is entitled to be enlarged on bail. As per the provisions of Section 167(2) of CrPC, default bail is the right of accused. The object of the provisions of Section 167(2) of CrPC is that State authority should not take any malafide belated action against accused persons.

Issue 2:

The Court relied on judgment Central Bureau of Investigation v. Nazir Ahmed Sheikh, (1996) 2 SCC 367 and observed that with regard to counting of holidays for counting 60 days when 10-04-2021 and 11-04-2021 were Government Holidays, it is submitted that holidays will be counted for calculating 60 days as provisions of Section 10 of General Clauses Act are not attracted. The Court in the instant case held that period for filing of charge sheet would begin to run and be counted from the next date of arrest of the accused. However, the date of accused being sent on remand would be excluded but the date on which charge-sheet was filed is to be included.

The court observed that it is crystal clear that charge-sheet was not filed within the maximum period of 60 days. As per the law laid down by the Supreme Court right of the accused to get default bail is accrued and it is indefeasible right of the accused which cannot be defeated by the prosecution after completion period as per provisions of Section 167(2) CrPC.

The Court held “the trial Court is not justified in dismissing the aforesaid application by saying that 10.04.2021 and 11.04.2021 were holidays, therefore, charge-sheet on 12.04.2021 is filed within 60 days and by subsequent filing of charge-sheet the right of the accused was forfeited.”

[Vinay Dubey v. State of Chhattisgarh, 2021 SCC OnLine Chh 1974, decided on 09-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Petitioners: Mr. Shailendra Dubey

For State: Mr. Rakesh Sahu

Case BriefsHigh Courts

Karnataka High Court: S. Vishwajith Shetty, J. quashed the extension order and granted bail under Section 167 (2) Criminal Procedure Code.

The instant writ petitions are filed by the accused persons in an FIR pending before the Special N.I.A. Court, Bangalore registered for the offences punishable under Sections 15, 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 i.e. UAPA and Sections 143, 147, 148, 353, 333, 332, 436, 427 and 149 of the Penal Code, 1860 i.e. IPC and Section 4 of the Prevention of Damage to Public Property Act, 1984 registered at Kadugondanahalli Police Station (hereinafter referred to as “the K.G. Halli P.S.”) Bengaluru, challenging the order dated 03.11.2020 passed by the said court on an application filed by the respondent – National Investigating Agency i.e. NIA under first proviso to Section 43- D(2)(b) of UAPA seeking extension of time for completion of investigation and the order dated 05.01.2021 passed by the said court rejecting the applications filed by the petitioners under Section 167(2) of the Code of Criminal Procedure, 1973 i.e. CrPC seeking statutory/default bail.

Counsel for the petitioners  Mr.  M.S. Shyam Sundar submitted that the application under Section 43-D(2)(b) of UAPA seeking extension of time for completion of investigation has been filed much prior to expiry of 90 days from the date of remand of the petitioners and therefore, the said application is premature. It was further submitted that said application is filed only to deny the right to statutory bail of the petitioners. He also submitted that the petitioners were not heard by the trial court before passing orders on application under Section 43-D (2) (b) of UAPA and the copy of the application was also not served on the petitioners or on their Advocates.

Mr. Anees Khan appearing on behalf of the petitioners submitted that none of the accused were present before the court on the date when the application under Section 43-D (2) (b) of UAPA was filed by the prosecution. He submits that in the event of this court holding that the order passed by the trial court extending the time for investigation is not in accordance with law, then the petitioners’ application under Section 167(2) of the Code merits consideration and as a matter of right, they are entitled to statutory bail.

Counsel for the respondents submitted that a reading of Section 43-D (2)(b) of UAPA would make it clear that there is no necessity of hearing the accused persons before passing any orders on the application filed by the prosecution seeking extension of time for completion of the investigation. He submitted that in the absence of the statute providing any such right to the accused persons in black and white, on the ground of principles of natural justice, they cannot claim such a right.

It was further submitted that as per Section 16 of the National Investigation Agency Act, 2008 and the said Act being a special enactment over-rides the provisions of the Code and therefore, the petitioners are not entitled to the relief of statutory bail under Section 167(2) of the Code.

The Court perused and concluded that Section 20(4) (bb) of the TADA Act, Section 36A (4) of the NDPS Act and Section 43-D(2)(b) of UAPA are three provisions of law which are pari materia.

The Court observed that the requirement of a notice to the accused before granting extension of time for completing the investigation need not be a written notice giving reasons therein, but production of 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.

The Court further observed that the petitioners were not given an opportunity of being heard before passing an order on the application filed by the prosecution for extension of time for completion of the investigation and since the petitioners were not kept present before the court when the application filed by the prosecution for extension of time for completion of the investigation was being considered and since the petitioners were not notified that such an application filed by the prosecution was being considered by the court for the purpose of extending the time for completion of the investigation.

The Court thus held the order passed by the trial court on the application filed by the prosecution under the first proviso to Section 43-D (2)(b) of UAPA extending the time to complete the investigation is legally unsustainable”

The Court relied on judgment Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616 and observed that a right to default bail becomes complete and indefeasible as soon as application for grant of default bail (regardless of its form, even if it is oral) is made on expiry of the maximum prescribed period before a charge sheet is filed. Thereafter, this indefeasible right, firstly, cannot be defeated by filing of charge sheet; secondly, it cannot be defeated whether there is non-disposal or wrong disposal of the application for default bail, before or after filing of charge sheet and thirdly filing of a subsequent application for default bail will not defeat the indefeasible right already standing accrued to accused based on the first application.

The Court also observed that in the case on hand, immediately after completion of 90 days period prescribed under Section 167(2) of the Code for completion of the investigation, an application has been filed by the petitioners seeking statutory bail, which is also known as “default bail” on the ground that the prosecution had not completed the investigation and filed the charge sheet. Hence, merely for the reason that the charge sheet has now been filed, it will not take away the indefeasible right to default bail of the petitioners, if it has accrued in their favour.

The Court held the application filed by the petitioners under Section 167(2) of the Code immediately after completion of the first 90 days of period is required to be allowed.[Muzammil Pasha v. National Investigating Agency, W.P.No. 1417 of 2021, decided on 20-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Additional Read: https://www.scconline.com/blog/post/2020/09/05/ori-hc-default-bail-granted-under-s-1672-crpc-in-case-of-non-compliance-of-notice-under-s-36-a-4-ndps-act/


Appearances before the Court

Petitioners: Mr. Shyam Sundar, and Mr. Mohammed Tahir

Respondents: Mr. M.B.Naragund and Mr. Prasanna Kumar

Op EdsOP. ED.

A man of courage never needs weapons, but he may need bail.”

– Lewis Mumford
(American historian, architect, philosopher, literary critic)

The present article focuses on the aspect of “default/statutory/compulsory bail”, in terms of the provisions of Section 167 of the Code of Criminal Code, 1973. The moot question that the present article tries to address is that “whether various prisoners who are lodged in various prisons all over the country, irrespective of the nature and gravity of the offences alleged, are entitled to avail “default/statutory/compulsory bail”, if no final report is filed against them under Section 173 CrPC and the prescribed period as per Section 167(2) CrPC is over?”

The relevant provision of Section 167 CrPC reads as follows:

“Section 167. Procedure when investigation cannot be completed in twenty-four hours.–        *                *                   *

(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 under the provisions of Chapter XXXIII for the purposes of that Chapter;”

It is no longer res integra that every accused person who is arrested in a criminal case, is entitled to a default/statutory/compulsory bail as a matter of right, as an “indefeasible right” accrues in his/her favour, the moment, the statutory period of 60 days or 90 days, as the case may be, is over, no charge-sheet/challan is filed against him/her for any reason whatsoever, and the arrestee is willing to furnish the bail bonds, in terms of Section 167(2) CrPC. The said right is absolute, unconditional and beyond the scope of any interpretation and provides a valuable mechanism to safeguard the fundamental rights even that of a prisoner. It is stated that way back in the year 1994, in the landmark case of Sanjay Dutt v. State[1], the  Constitution Bench of the  Supreme Court of India, while reiterating the view taken in Hitendra Vishnu Thakur v. State of Maharashtra[2], held that the said right is an indefeasible right and can be availed of till the challan is filed by the prosecution. Though, it is pertinent to mention that the  Supreme Court on 23.03.2020 took suo motu cognizance of a matter being Suo Moto Civil Writ Petition (Civil) No. 3/2020 titled “In Re: Cognizance for Extension of Limitation”[3] and in view of the present unfortunate coronavirus situation, extended the period of limitation for the litigants and held that, “to obviate such difficulties, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or special laws whether condonable or not shall stand extended w.e.f. 15th March, 2020 till further orders to be passed by this Court in present proceedings“. Even then, the said order dated 23.03.2020 may not be of any help to the investigating agencies inasmuch as the Limitation Act, 1963 is not applicable to Section 167 CrPC. The said section, rather, only confers a power on the Magistrate to commit an accused person to custody for a maximum period as prescribed in the said section. This view finds support from the decision of the High Court of Delhi rendered in Powell Nwawa Ogechi v. The State (Delhi Administration)[4] wherein the  High Court, while agreeing with the view taken by the  High Court of Bombay in State of Maharashtra v. Sharad B. Sarda[5]  held that even if the last day to file final report was a holiday, still, the same could not come to the rescue of the investigating agency therein. The provision of Section 10 of the General Clauses Act, 1897, which is pari materia to Section 4 of the Limitation Act, 1963 was considered and it was held that,

A bare reading of the aforesaid provision of the Code would go to show that this provision merely confers power on the Magistrate to commit to custody an accused person and there is limitation of 90 days and 60 days, as the case may be. This provision of the Code falls under Chapter XII of the Code relating to information to the police and their powers to investigate. It is thus clear that this is a power which is only exercisable during the course of investigation of a case. Any further remand to judicial custody beyond 90 days and 60 days without the charge-sheet being presented before the Court will be without the authority of law.”

The same view has been taken by the High Court of Rajasthan in Hari Singh v. State of Rajasthan[6] and by the High Court of Gujarat in Alamkhan Umarkhan Jatmalek Jenjari v. State of Gujarat[7].

Protection envisaged under the Constitution of India

It is apposite to mention that as per Article 21 of the Constitution of India, “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Admittedly, the prisoners also have the aforesaid fundamental right enshrined under Article 21 of the Constitution of India, which is not only a legal right but also a human right inherent in our society. Therefore, any person can be deprived of his/her life or personal liberty but only according to procedure established by law and Section 167 CrPC provides for the said “procedure established by law” and curtails the aforesaid fundamental right enshrined under Article 21  to that extent. Hence, any non-compliance of Section 167 CrPC on any pretext, would amount to non-compliance of “procedure established by law”, thereby leading to a breach and violation of the fundamental right of the prisoners/arrestees guaranteed under Article 21 . Even in the absence of Article 21, the State has got no power to deprive a person of his or her life or liberty without the authority of law. This is the essential postulate and basic assumption of the Rule of law. Without such sanctity of life and liberty, the distinction between a lawless society and lawful society would cease to exist. Article 21 is rooted in consideration that life and liberty are priceless possessions and they cannot be compromised except with the sanction of law. This right is, as observed by the Supreme Court of India in its nine-Judge Bench judgment passed in Justice K.S. Puttaswamy v. Union of India[8], a primordial right, and cannot be curtailed. It was further held in the said judgment that the landmark case of ADM Jabalpur v. Shivakant Shukla[9] (also known as the Habeas Corpus case), wherein the suspension of Article 21 during the period of Emergency declared in the year 1975 was upheld by the Supreme Court, was a bad law and that, “the human element in the life of the individual is integrally founded on the sanctity of life. Dignity is associated with liberty and freedom. No civilised State can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution. In recognising the right, the Constitution does not become the sole repository of the right. It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the State without either the existence of the right to live or the means of enforcement of the right. The right to life being inalienable to each individual, it existed prior to the Constitution and continued in force under Article 372 of the Constitution.”

No doubt, the present situation is akin to a state of an “Emergency”, however, even during the proclamation of Emergency in terms of Article 356, Article 21 cannot be suspended and in this regard, Article 359 is very clear, which was specifically amended by passing the Constitution (Forty-fourth) Amendment Act, 1978 so as to exclude the provision of Article 21 even from the period of Emergency.

No court can, thus, extend the period prescribed under Section 167 CrPC unless it is specifically provided in the statute like in the Unlawful Activities (Prevention) Act, 1967[10], the Terrorist and Disruptive Activities (Prevention) Act, 1987[11], the Maharashtra Control of Organised Crime Act, 1999[12], etc. The Supreme Court in Achpal v. State of Rajasthan[13] categorically held that even if the charge-sheet is returned for technical fault, the benefit of Section 167 CrPC has to be given to the accused as it is an indefeasible right and that no court can extend the period prescribed.

Therefore, as soon as the period of 60 days or 90 days expires, as the case may be, and the challan is not filed then the accused person’s right ripens and he has to be released on bail, the moment he offers to furnish bail bonds. In  Rakesh Kumar Paul v. State of Assam[14] , Deepak Gupta, J. while upholding the view taken by  Madan B. Lokur, J. categorically reiterated the principle of bail under Section 167 CrPC and held that, “the accused does not have to make out any grounds for grant of bail. He does not have to file a detailed application. All he has to aver in the application is that since 60/90 days have expired and charge-sheet has not been filed, he is entitled to bail and is willing to furnish bail.”

Therefore, all those prisoners, who are in custody beyond the statutory period and charge-sheets/challans are not yet filed, can seek to explore this remedy to be released on statutory bail immediately and the denial thereof, might amount to a violation of their fundamental rights and be against the spirit of law laid by the Supreme Court of India in a number of cases.


*Advocate, Delhi High Court

[1] (1994) 5 SCC 410  

[2] (1994]) 4 SCC 602

[3] 2020 SCC OnLine SC 343 

[4] 1986 SCC OnLine Del 224

[5] 1982 SCC OnLine Bom 287 

[6]1998 SCC OnLine Raj 381

[7] 2015 SCC OnLine Guj 1557 

[8]  (2017) 10 SCC 1  

[9] (1976) 2 SCC 521 

[10] Unlawful Activities (Prevention) Act, 1967 

[11] Terrorist and Disruptive Activities (Prevention) Act, 1987  

[12] Maharashtra Control of Organised Crime Act, 1999 

[13] (2019) 14 SCC 599 

Case BriefsSupreme Court

Supreme Court: In the petition preferred under Article 32 of the Constitution of India by the hapless and helpless widow of Rajdev Ranjan, a senior reporter of a news daily, i.e., ‘Dainik Hindustan’, who was brutally murdered on 13.05.2016 by a group of persons, the Court, after considering the status report filed by the CBI, directed the CBI to complete the investigation within 3 months.

The Court also asked the Sessions Judge, Siwan (Town), Bihar, to submit a report along with the order sheet on the next date of hearing i.e. 28.11.2016, with regard to the status of Mohammad Kaif and Mohammad Javed as regards they are proclaimed offenders or whether there was issue of non-bailable warrants of arrest from the court or any other aspect relating to the case concerned.

The Court, by order dated 23.09.2016, had directed that police protection be given to the petition as people holding party position and position in the political executive were alleged to be involved in the case as Mohammad Kaif, one of the accused, was spotted with Shahabuddin, Vice President, Rashtriya Janta Dal and Tej Pratap Yadav, Health Minister, Government of Bihar.

The bench of Dipak Misra and Amitava Roy, JJ added that the accused persons who have been charge sheeted shall not claim any benefit for enlargement on bail under proviso to Section 167(2) of the Code of Criminal procedure, as the charge sheet has already been filed by the State Police and further investigation is in progress by the CBI. [Asha Ranjan v. State of Bihar, 2016 SCC OnLine SC 1143, decided on 17.10.2016]