On 18th October, a bench of Delhi High Court consisting of Justice Manoj Kumar Ohri held that according to Section 167(2) Cr.P.C. once the maximum period provided for an investigation prescribed under the first proviso (a) to Section 167(2) Cr.P.C. is over and no charge sheet is filed, the accused becomes entitled to be released on bail, more appropriately called the ‘default bail’. The right to seek default bail under Section 167(2) Cr.P.C. is a fundamental right and not merely a statutory right, which flows from Article 21 of the Constitution of India.

Facts of the case:

The present petition has been filed under Section 482 Cr.P.C. on behalf of the petitioner assailing the order dated 29.10.2020 passed by the learned Addl. Sessions Judge-02, Central District, Tis Hazari Courts, Delhi. Vide the aforesaid order, the petitioner’s revision petition, challenging dismissal of his application seeking default bail under Section 167(2) Cr.P.C. by the learned Metropolitan Magistrate, has been dismissed. Briefly stated, the facts involved in the present case are that on 16.01.2020, a case bearing FIR No. 37/2020 came to be registered against the petitioner and his family members under Sections 304B/498A/406/34 IPC at Police Station Burari, Delhi, on a complaint filed by his father-in-law i.e., father of the deceased.

Contention of the petitioner:

The following contention has been submitted by the petitioner:

  1. It was averred that after the email of the petitioner containing bail application no response was received by the petitioner’s counsel from the concerned AO (J).
  2. It was further averred that the Investigating Officer misled the petitioner by informing that he had filed the charge sheet within time, because of which the application was not further pursued believing the same to have become infructuous.
  3. It was averred that subsequently on resumption of physical hearing in Courts, the applicant became aware that the charge sheet was in fact filed on 20.04.2020 i.e., the same day on which the petitioner had preferred his default bail application under Section 167(2) Cr.P.C. by way of an email. On gaining this knowledge, the petitioner preferred a second application under Section 167(2) Cr.P.C. on 15.09.2020 which came to be dismissed by the learned Metropolitan Magistrate on 16.09.2020.

Contention of the respondent:

The following contention has been submitted by the respondent:

  1. Learned APP had opposed the same by contending that neither of the bail applications filed by the petitioner were maintainable as the Investigating Officer filed the charge sheet on the same date which is 20.04.2020.
  2. It was submitted that the bail application never saw the light of the day as neither any steps were taken on behalf of the petitioner for listing or hearing of the said application nor any notice ever came to be issued to the public prosecutor.
  3. It was further submitted that the petitioner’s second application seeking default bail dated 15.09.2020 was not maintainable as his right to seek statutory bail already stood extinguished by filing of the charge sheet on 20.04.2020.

Observation and judgment of the court:

The following observation has been made by the hon'ble court:

  1. Once the conditions of the first proviso to Section 167(2) Cr.P.C. are fulfilled, the accused person gets a fundamental right to be released on bail.
  2. The 60th or 90th day of custody assumes great significance as in the event of non-filing of charge sheet, a right under Section 167(2) Cr.P.C., which is held to be an indefeasible and fundamental right, accrues in favour of the accused.
  3. In the entire petition as well as the submissions made on behalf of the petitioner, the entire thrust is on the non-filing of charge sheet by the prosecution till 18.04.2020 and accrual of right in favour of the petitioner.
  4. The rights of an undertrial prisoner guaranteed under Article 21 of the Constitution of India cannot be allowed to be defeated on technicalities of procedure.

Keeping in view the aforesaid, the court held that it was inclined to release the petitioner on default bail, subject to his furnishing a personal bond in the sum of Rs.25,000/- with one surety of the like amount.

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