RIGHT TO HAVE DEFAULT BAIL: INDEFEASIBLE RIGHT?

In this article, we will study about the present laws regarding

“right of default bail”

“whether after filing of Charge-Sheet and before cognizance by the magistrate, can accused apply for default bail ?”

“Is there any provision regarding the extension of filing of charge-sheet in Cr.P.C. or any Special Act”.

Law on the completion of investigation

Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty­ four hours as fixed by section 57 of Cr.P.C. and there are grounds for believing that the accusation or information is well­ founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub­-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

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:

The magistrate may authorized  the detention of the accused persons, otherwise  than in the custody of the police, beyond the period of 15 days, if he satisfied that the adequate ground exist for doing so, but no magistrate  shall authorised the detention of the accused person in custody for total period exceeding 90 days, where the investigation related to an offence punishable with death, imprisonment for the term of not less than  10 years and 60 days, where the investigation relates to any other offence.  

And, on the expiry of said period of 90 days/60 days, as the case may be accused shall be released on bail if he prepared and do furnish the bail as deemed provisions of chapter XXXIII of Cr.P.C. i.e. Provisions as to bail bonds.

According to the provision of the NDPS, 1985, section 36A (4), the subject to the reference offences punishable under section 19 or section 24 or section 27A or for the offences involving the commercial quantity,   the time limit for the filing of Charge-sheet is mentioned as 180 days and same can be extended to  up to one year on  the report of public prosecutor indicating the  progress of the investigation and the specific  reasons for the dentation of the accused beyond the said period of 180 days.  

And as per the provisions of the TADA, the time limit of the investigation is 180 days and same can be extended to up to one year on the report of public prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

As per the provisions of the “Gujarat Control of Terrorism and Organised Crime Act, 2015” permits the Special Court established under this 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.

By the perusal of the above provisions of the different laws i.e. Cr.P.C. which is a procedural laws for the criminal laws in India have no such provision of the extension of the mandatory period of 90 days or 60 days which are mentioned in the section 167 of the Cr.P.C. whereas the other provisions i.e. NDPS, TADA and GCTOC which are special Acts have provisions for the extension for the period of Investigation.

The rule of law is special law prevails over general law. Therefore, for the crime related with the Special Act, the provisions of  Special law will prevail over the provision of Cr.P.C. 

But as far as the right to have default bail is concern it is govern by the same principal, i.e. if the investigation is not completed within the specified time as mentioned in the provision of Cr.P.C i.e. 90 days in case of the offences punishable at least for minimum period of 10 years and 60 days in case of any other offence and in the case of Special Acts as per the provisions of Special Act.

If the concerned I.O. has not filed the charge-sheet within the time specified, the accused who is laying the custody has right apply for default. And he will be granted bail, if he furnished the bail bonds.

Can period for investigation be extended ?

Again the question arises, can the period of investigation be extended by the concern magistrate or session court?  And answer to question is if the law mandates.

As far as the provisions of the Cr.P.C is concern, there is no such provision for the extension for the period of investigation. But the provisions of Special Acts are concern.

They do have the provision for the period of extension of investigation on the report of the public prosecutor indicating the progress of the investigation and the specific  reasons for the dentation of the accused beyond the said period.

Now the Hon’ble Apex Court and various Hon’ble High Courts has time and again has explain the term “report of public prosecutor indicating the progress of the investigation”.

The provision of section 167 (2) Cr.P.C is integrally linked to the constitutional guarantee under Article 21 of the Constitution of India promising protection of the personal liberty against unlawful and arbitrary detention. The time mentioned in the provision for the completion of investigation is balance between the time for investigation and personal civil liberties of the accused.

Therefore, in the case of extension of request, the report of the public prosecutor is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements.  

The contents of the report to be submitted by the public prosecutor, after proper application of his mind, are designed to assist the Designated Court to independently decide whether or not extension should be granted in a given case.

Keeping in view the consequences of the grant of extension i.e. keeping an accused in further custody, the Designated Court must be satisfied for the justification, from the report of the public prosecutor, to grant extension of time to complete the investigation. (Jigar versus State of Gujrat 2022 Scconline SC 1290). The opportunity of hearing has to be given to the accused persons before the time is extended to complete the investigation.

Whether cognizance of the Charge-Sheet Was Necessary To Prevent The Accused From Seeking Default Bail Or Whether Mere Filing Of The Charge-Sheet Would Suffice For The Investigation To Be Deemed Complete ?

In the matter of “Suresh Kumar Bhikamchan Jain versus  State of Maharastra and Anr. (2013) 3 SCC 77” the question was dealt with the issue that “whether cognizance of the charge-sheet was necessary to prevent the accused from seeking default bail or whether mere filing of the charge-sheet would suffice for the investigation to be deemed complete. The court was of the firm view that if on either the 61st day or the 91st day, an accused makes an application for being released on bail in default if charge-sheet  having been filed, the court as no option but to release the accused on bail. However, once the charge-sheet  was filed within the stipulated period,  the right of the accused to statutory/default bail came to an end and the accused would entitled to pray for regular bail on merits. It was held by this court that he filing of charge-sheet is sufficient compliance with the provisions of provisions of proviso (a) to section 167(2)  of the Cr.P.C. and that taking of cognizance is not material to section 167 of the Cr.P.C.”     

The Suresh Kumar Bhikamchand Jain (supra) has been referred and relied upon by  the apex court in the case of Serious Fraud Investigation Office versus Rahul Modi and Ors. (2022) SCC.

Default bail in case of filing of Incomplete Charge-sheet ?

Now, the question arises, can the right of default bail will still remain, if the case of filing of incomplete charge-sheet. In the matter of “Ritu Chhabaria versus UOI and Ors. Writ Petition (Criminal) no. 60 of 2023 decided on 26 April 2023”, the apex court has relied upon to fortify the submission that  right of an accused to seek default bail cannot be defeated by filing of incomplete charge-sheet. In para 25 of the said judgment the apex court held that “It is thus axiomatic that first investigation is to be completed, and then can a charge-sheet or a compliant  be filed within the stipulated period, and failure to do sp would trigger the statutory right of default bail under section 167(2) of Cr.P.C.”

In the matter of Judgebir Singh @ Jasbir Singh Samra @ jasbir & Ors. Versus NIA, Crl. Appeal No. 1011 of 2023, decided on 1 May 2023 the apex court has referred various judgments and held that “there  is a marked distinction in the stage of investigation  and prosecution. The prosecution starts when the cognizance of the offence  is taken.

It is also to be kept in the mind that the cognizance is taken of the offence and not of the offender. It cannot be said that obtaining  sanction from the competent authorities is the part of investigation.

The moment, the final report is filed along with the documents that may be relied on by the prosecution, then the investigation will be deemed to have been completed.

What is contemplated under section 167 (2) of the Cr.P.C is that the Magistrate or designated courts has no power to order detention of the accused beyond the period of  180 days or 90 days or 60 days  as the case may be.

If the investigation is concluded within the prescribed period, no right accrues to the accused concerned to be released on bail under the proviso to section 167 of the Cr.P.C.

Conclusion:-

The right to default bail enshrined under article 21 of the constitution and directly linked to the right to life and liberty of the accused.

Therefore, it is an indefeasible right of the accused in case of the non-filing of challan/charge-sheet within the period of 180 days or 90 days or 60 days as the case may be. Even in the case, when the investigating authority has filed the incomplete charge-sheet, the right to default bail exist as held in the case of Ritu Chhabaria (supra) by this apex court.

The sanction is not necessary in case of compliance of section 167(2) of the Cr.P.C.

 Even in the case of filing of charge-sheet without sanction, the right of default bail vanish. Moreover, in case of extension in filing of charge-sheet as mentioned in different special laws of like NDPS, TADA etc., it should be filed within the extended time.

The extension for filing of the charge-sheet should be made to the magistrate by public prosecutor on the report indicating the progress of the investigation and the specific  reasons for the dentation of the accused beyond the said period of 180 days and proper opportunity shall be given to the accused to oppose the application of extension.

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