The Delhi High Court has reiterated that the right of an accused for default bail is a fundamental right and the it takes precedence over the right of the prosecution to carry on investigation and submit a chargesheet.
The single-judge Bench of Justice Manoj Kumar Ohri in a detailed judgement mentioned that the Courts have been repeatedly seized with various nuances of the above provision time and again, and each time have emphasized on the need to secure the personal liberty of an individual as guaranteed under Article 21 of the Constitution of India.
Brief Facts of Case
The accused has filed the present petition against a Trial Court Order by which his revision petition seeking default bail was dismissed. The man was arrested in January, 2020 in a dowry death case and sent to judicial custody the next day. A Magistrate Court kept extending his custody during the pandemic.
The Learned Cousel of the petitioner accused Investigating Officer of misleading them with misinformation on filing of charge-sheet which resulted in their bail application being not taken up.
On the other hand, Learned APP has opposed the same by contending that neither of the bail applications filed by the petitioner were maintainable.
High Court's Observation
Upon hearing both the parties and examining material placed on record, the Court observed on the outset read the provisions laid down under Section 167(2) CrPC for 'default bail' and observed:
The Court cited SC Judgement in S. Kasi v. State through the Inspector of Police Samaynallur Police Station Madurai District, 2020 Latest Caselaw 408 SC which substantiate the above principle .
The Court further mentioned the guiding principles on liberty of an individual as guaranteed under Article 21 of the Constitution of India by the Supreme Court in various decisions and one such case being Rakesh Kumar Paul v. State of Assam, 2017 Latest Caselaw 574 SC, wherein the Court took note of the 41st Report of the Law Commission of India, which in view of an anomaly created by the then prescribed limit of 15 days to complete investigation, recommended fixing a maximum period of 60/90 days for completing the investigation depending upon the seriousness of the offence.
The Court also mentioned the famous Constitution Bench judgement in Sanjay Dutt v. State through C.B.I., Bombay, 1995 Latest Caselaw 557 SC as well as its decisions in Uday Mohanlal Acharya v. State of Maharashtra, 2001 Latest Caselaw 183 SC and Union of India through Central Bureau of Investigation v. Nirala Yadav alias Raja Ram Yadav alias Deepak Yadav,2014 Latest Caselaw 402 SC
In view of the above, the Court noted that the maximum period for which the petitioner could have been put under judicial custody was 90 days and if the chargesheet was not filed within that time, the accused was entitled to default bail. In this case, the period came to an end on April 18, 2020.
The Court noted that in the above judgements, the practice adopted by the prosecution as well as by some Courts in defeating the purpose of the provision inhering in Section 167(2) Cr.P.C. has been criticized and has been reiterated by SC in its judgement in Bikramjit Singh v. State of Punjab, 2020 Latest Caselaw 549 SC.
Giving a more recent example, the Court mentioned the SC Judgement in Saravanan v. State represented by the Inspector of Police, 2020 Latest Caselaw 563 SC where the appellant was inside jail for more than 101 days but the investigation was not completed and the police didn't file the final report within the period prescribed under Section 167 Cr.P.C and the latest being Fakhrey Alam v. State of Uttar Pradesh, the Top Court upheld the fundamental right of the accused to be released on bail.
Obligation of the Magistrate to inform the accused of accural of a Right to seek bail
Taking on the other aspect of the case, the obligation of the Magistrate to inform the accused of accural of a right to seek bail the Court remarked that while extending the custody of an undertrial prisoner, the magistrate/court should not mechanically extend it for the maximum period of 15 days as prescribed under Section 167(2) CrPC.
It said the custody should be extended while keeping in mind the 60th, 90th or 180th day of completing the investigation and submission of chargesheet.
Furthermore, the Court also directed the District Legal Services Authority to ensure that the remand advocates/legal aid counsels were instructed to keep an undertrial informed of his right to seek default bail and the date of accrual of such right. The jail authorities would also have a corresponding obligation to inform the undertrial of the same, the Court added.
Notably, the Court also modified the format of custody warrant and included a column indicating the day on which the right of “default bail” would accrue.
Read Judgement Here:
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