The Supreme Court has retierated that indefeasible right of an accused to seek statutory bail under Section 167(2) of the CrPC arises only if the charge-sheet has not been filed before the expiry of the statutory period of 60/90 days.

The bench comprising of Justice L. Nageswara Rao and Justice BR Gavai observed that an accused cannot seek default bail merely on the ground that cognizance has not been taken before the expiry of statutory period, as the case may be, from the date of remand if chargesheet was already filed.

Brief Facts of the Case

In the present appeal, the Punjab and Haryana High Court order of granting bail to the directors of Adarsh Group of Companies and LLPs  (Respondent Nos. 1 and 2 herein) has been assailed by the Serious Fraud Investigation Office (SFIO).

The Respondents were accused of committing an offence under Section 447 of the Companies Act, 2013, Section 120-B read with Sections 417, 418, 420, 406, 463, 467, 468, 471, 474 of the Indian Penal Code, 1860. The Special Court dismissed their applications filed for statutory bail on the ground that the charge-sheet was filed before the expiry of 60 days. However, the High Court granted them default bail on the ground that cognizance had not been taken by the Court before the expiry of 60 days which entitled them to statutory bail, as a matter of indefeasible right, as observed in the impugned order.

The learned ASG submitted that the High Court committed a serious error in granting statutory bail to Respondent Nos. 1 and 2, in spite of the fact that the complaint was filed well before the expiry of 60 days from the date of the remand. An egregious error has been committed by the High Court in holding that cognizance also has to be taken before the expiry of the 60-day period, or else, the accused would be entitled to statutory bail under Section 167(2), CrPC. He stated that the mischief that is sought to be addressed under Section 167(2) is failure to complete the investigation. According to the scheme of the CrPC, on completion of investigation, the final report/complaint is filed under Section 173(2), CrPC. Statutory bail under Section 167(2), CrPC can be granted only in a case where investigation is not complete within the prescribed period and not otherwise. He submitted that the judgment of the High Court is contrary to the law laid down by this Court in Suresh Kumar Bhikamchand Jain v. State of Maharashtra & Anr.

On the other hand, the Learned Counsel for Respondent the justified the High Court in granting statutory bail to them as cognizance was not taken before the expiry of the 60-day period. Reliance was placed SC Judgements in Sanjay Dutt Vs. State of Maharashtra, 1995 Latest Caselaw 557 SC . Further arguing that the maximum period of detention that the accused can be remanded to under Section 167, CrPC is 60 days, beyond which detention can be extended only if the accused is unable to furnish bail, he placed relaince on Mohamed Iqbal Madar Sheikh & Ors. v. State of Maharashtra. The arguement that an accused has a right to seek statutory bail under the provision to Section 167(2) even after the chargesheet is filed, till the court takes cognizance, has also been put forth.

An application for intervention was filed by Rahul Kothari. The Intervenor filed an application for statutory bail which was rejected by the trial court and upheld by the High Court. Mr. Mukul Rohatgi, learned Senior Counsel appearing for the Intervenor, submitted that there is a conflict of opinion regarding the interpretation of Section 167(2), CrPC. According to him, this Court in Madar Sheikh (supra) has taken a view that an has taken a view that an accused can invoke his right for statutory bail if the court has not taken cognizance of the complaint before the expiry of the statutory period from the date of remand and in Bhikamchand Jain (supra) has taken a different view without referring to the judgment of this Court in Madar Sheikh (supra). He referred to M RAVINDRAN vs. INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE, 2020 Latest Caselaw 569 SC wherein same view as that of this Court in Madar Sheikh (supra), without reference to the judgment in Bhikamchand Jain (supra).

Supreme Court Observation

As understood from the arguements and facts of the case, the question for consideration before the Court was whether an accused is entitled for statutory bail under Section 167(2), CrPC on the ground that cognizance has not been taken before the expiry of 60 days or 90 days, as the case may be, from the date of remand under Section 167(2), CrPC.

The Court noted that the scheme of the provisions relating to remand of an accused first during the stage of investigation and thereafter, after cognizance is taken, indicates that the legislature intended investigation of certain crimes to be completed within the period prescribed therein, as per SC view in Bhikamchand Jain (supra). It was held that in the event of investigation not being completed by the investigating authorities within the prescribed period, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail.

"This Court was of the firm opinion that if on either the 61st day or the 91st day, an accused makes an application for being released on bail in default of charge-sheet having been filed, the court has no option but to release the accused on bail. However, once the chargesheet was filed within the stipulated period, the right of the accused to statutory bail came to an end and the accused would be entitled to pray for regular bail on merits. It was held by this Court that the filing of charge-sheet is sufficient compliance with the provisions of proviso (a) to Section 167(2), CrPC and that taking of cognizance is not material to Section 167. The scheme of CrPC is such that once the investigation stage is completed, the court proceeds to the next stage, which is the taking of cognizance and trial."
"During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced, with such Magistrate being vested with power to remand the accused to police custody and/or judicial custody, up to a maximum period as prescribed under Section 167(2). Acknowledging the fact that an accused has to remain in custody of some court, this Court concluded that on filing of the charge-sheet within the stipulated period, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309, CrPC. This Court clarified that the two stages are different, with one following the other so as to maintain continuity of the custody of the accused with a court."

In view of the above, Court observed that the accused continues to be in the custody of the Magistrate till such time cognizance is taken by the court trying the offence, which assumes custody of the accused for the purpose of remand after cognizance is taken.

The Court also clarified that a close scrutiny of the judgments in Sanjay Dutt (supra), Madar Sheikh (supra) and M. Ravindran (supra) would show that there is nothing contrary to what has been decided in Bhikamchand Jain (supra). In all the above judgments which are relied upon by either side, this Court had categorically laid down that the indefeasible right of an accused to seek statutory bail under Section 167(2), CrPC arises only if the charge-sheet has not been filed before the expiry of the statutory period.

Read Judgement Here:

Share this Document :

Picture Source :

 
Sheetal Joon