Professional Documents
Culture Documents
STAUTORY BAIL MUST BE GRANTED - Judgement - 26-Apr-2023
STAUTORY BAIL MUST BE GRANTED - Judgement - 26-Apr-2023
VERSUS
JUDGMENT
KRISHNA MURARI, J.
has been filed by the writ petitioner herein seeking the release of her
husband on default bail. The writ petition also raises an issue of grave
Constitution of India.
1
FACTS
2. Briefly, the facts relevant to the present writ petition are that an FIR was
lodged under Section 120(B) read with Section 420 of the Indian Penal
Code, 1860 (for short, ‘IPC’) along with Sections 7,12 and 13(2) read with
and the accused was not named in any of the said chargesheets.
the accused was then arrested by CBI and was remanded to custody on
wherein the accused herein was named as a suspect, and the remand of the
(for short, ‘Cr.PC’) was renewed and was continued from time to time,
2
5. Subsequently, vide I.A No. 37424/2023, the petitioner sought to
incorporate additional grounds and prayers for seeking bail in the writ
petition, which was allowed by this Court vide order dated 20.02.2023,
default bail, the petitioner herein has filed the present writ. Every
same the trial court ought not to have issued process and remanded the
progress. For this, the learned counsel relied on the judgment in the
3
case of M. Ravindran Vs. The Intelligence Officer, Directorate of
Revenue Intelligence.1
I. The present writ is not maintainable, and for the grant of bail, the
accused herein should have either approached the High Court against
II. The contention of the petitioner that the accused is not named in the
document, and is only the first step to set the criminal procedure in
4
ISSUES
for the parties, the following three issues arise for our consideration:-
default bail?
III. Whether the remand of an accused can be continued by the trial court
PRELIMINARY OBJECTION
10. A preliminary objection has been raised by the learned counsel appearing
on behalf of the respondent stating that the present writ is not maintainable
before this court on grounds that no relief at such an early stage of the
5
Constitution has entrusted the Supreme Court with the most important task
rights, are what allow the people of this country to effectively negotiate
with the state and maintain the parity in power in the social contract
between the people and the state. If this Court refuses to exercise its
6
(4) The right guaranteed by this article shall not be suspended
except as otherwise provided for by this Constitution.”
Article 32 falls within Part III of the Constitution which deals with
right in itself, that exists to protect and safeguard the other fundamental
the case of K.S. Puttaswamy & Anr. vs. Union Of India & Ors.3 :-
Kochunni, Moopil Nayar vs. State of Madras & Ors. 4 as early as 1959,
has observed that the Court must exercise its jurisdiction in matters where
3 (2017) 10 SCC 1
4 1959 Supp (2) SCR 316
7
“Further, even if the existence of other adequate legal remedy
may be taken into consideration by the High Court in deciding
whether It should issue any of the prerogative writs on an appli-
cation under Article 226 of the Constitution, as to which we say
nothing now - this Court cannot, on a similarground, decline to
entertain a petition under Article 32, for the right to move this
Court by appropriate proceedings for the enforcement of the
rights conferred by Part I of the Constitution is itself a guaran-
teed right. It has accordingly been held by this Court in Romesh
Thappar v. State of Madras [1950 SCC 436 1950 SCR 594] that
under the Constitution this Court is constituted the protector
and guarantor of fundamental rights and it cannot, consistently
with the responsibility so laid upon it, refuse to entertain appli-
cations seeking the protection of this Court against infringement
of such rights, although such applications are made to this
Court in the first instance without resort to a High Court having
concurrent jurisdiction in the matter. The mere existence of an
adequate alternative legal remedy cannot per se be a good and
sufficient ground for throwing out a petition under Article 32, if
the existence of a fundamental right and a breach, actual or
threatened, of such right is alleged and is prima facie estab-
lished on the petition."
14. It is also pertinent to note that the relief of statutory bail under Section
agree with the preliminary objections raised by the learned counsel for the
8
ANALYSIS
15.Before we deal with the issues framed, we find it pertinent to mention that
in the present case, this Court is not dealing with the merits of the case and
Every court, when invoked to exercise its powers, must be mindful of the
relief sought, and must act as a forum confined to such relief. In the
present case at hand, this Court is not a court of appeal, but a court of writ,
and therefore is inclined to limit its jurisdiction only to the personal liberty
appropriate to trace the history of the provision of default bail, and the
the new statute. Under Section 167 of the Code of Criminal Procedure,
1898, which was the Act that governed criminal procedure before the
For a ready reference Section 167 of the 1898 Code is being reproduced
herein:-
9
detained in custody, and it appears that the investigation cannot
be completed within the period of twenty-four hours fixed by
Section 61, 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 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 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.
(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. If he has not
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 no Magistrate of the third class, and no
Magistrate of the second class not specially empowered in this
behalf by the State Government shall authorise detention in the
custody of the police.
(3) A Magistrate authorising under this section detention in the
custody of the police shall record his reasons for so doing.
(4) If such order is given by a Magistrate other than the District
Magistrate or Sub-Divisional Magistrate, he shall forward a
copy of his order, with his reasons for making it, to the
Magistrate to whom he is immediately subordinate.”
17.This period of 15 days, however, more often than not, was inadequate to
the expiry of the remand period, and subsequently request the magistrate
10
to postpone the commencement of trial and remand the accused under
Section 344 of the 1898 Act for a further time, till the final chargesheet
was filed.
18. This practice of filing preliminary chargesheets was first pointed out by
accused persons, without the filing of any detailed reports before the
urgent need for a provision that provided for an appropriate time frame for
report were again emphasized by the Law Commission in its Report No.
416, wherein it was explicitly stated that there was an urgent need to
protect the civil liberties of accused persons against the misuse of Section
11
indefinitely. The relevant paragraphs from the said report are being
reproduced hereunder:-
“Section 167 provides for remands. The total period for which
an arrested person may be remanded to custody-police or
judicial-is 15 days. The assumption is that the investigation
must be completed within 15 days and the final report under
section 173 sent to court by then. In actual practice, however,
this has frequently been found unworkable. Quite often, a
complicated investigation cannot be completed within 15 days,
and if the offence is serious, the police naturally insist that the
accused be kept in custody. A practice of doubtful legal validity
has therefore grown up. The police file before a magistrate a
preliminary or "incomplete" report, and the magistrate,
purporting to act under section 344, adjourns the proceedings
and remands the accused to custody. In the Fourteenth Report,
the Law Commission doubted if such an order could be made
under section 344, as that section is intended to operate only
after a magistrate has taken cognizance of an offence, which
can be properly done only after a final report under section 173
has been received, and not while the investigation is still
proceeding. We are of the same view, and to us also it appears
proper that the law should be clarified in this respect. The use
of section 344 for a remand beyond the statutory period fixed
under section 167 can lead to serious abuse, as an arrested
person can in this manner be kept in custody indefinitely while
the investigation can go on in a leisurely manner. It is,
therefore, desirable, as was observed in the Fourteenth Report
that some time limit should be placed on the power of the police
to obtain a remand, while the investigation is still going on: and
if the present time limit of 15 days is too short, it would be
better to fix a longer period rather than countenance a practice
which violates the spirit of the legal safe-guard. Like the earlier
Law Commission, we feel that 15 days is perhaps too short and
we propose therefore to follow the recommendation in the
Fourteenth Report that the maximum period under section 167
should be fixed at 60 days. We are aware of the danger that
such an extension may result in the maximum period becoming
the rule in every case as a matter of routine: but we trust that
12
proper supervision by the superior courts will prevent that. We
propose accordingly to revise sub-sections (2) and (4) of section
167 as follows :-
Provided that-
Cr.PC, 1973, which provides for a longer period of maximum remand, but
also guarantees default bail, to ensure that accused persons are bereft of
13
also refer to the 41st law Commission Report and inter alia reads as
follows:-
indicates that Section 167(2) of the Cr.PC was enacted to ensure that the
14
time limit, failing which no accused could be detained if they are willing
22.Further, this legal position was again reiterated in Satendar Kumar Antil
vs CBI & Anr.8, wherein it was held that Section 167(2) of the Cr.PC is a
15
accused is entitled to be released on default bail. The relevant observations
154 Cr.PC. If a person is arrested and the investigation of the case cannot
magistrate to seek his remand under Section 167(2) of the Cr.PC during
16
for remand of the accused for the purposes of investigation, however, the
death, imprisonment for life or imprisonment for a term of not less than
may be, the accused has a right to be released on default bail in case he is
supplementary chargesheet u/s 173(8) of the Cr.PC only arises after the
default bail, for then, the entire purpose of default bail is defeated, and the
formality, and a tool, to ensue that the right of default bail is scuttled.
17
and failure to do so would trigger the statutory right of default bail under
& Ors.9, which was a case under the Narcotic Drugs and Psychotropic
Substances Act, 1985, on finding that the investigation was not complete
and a chargesheet was not filed within the prescribed period, denial of
India, and it was further held that even the twin limitation on grant of bail
26.Further, in the case of Ashok Munilal Jain & Anr. Vs. Assistant Director,
present CrPC has now taken the form of filing chargesheets without
the investigation, and the same can be used for prolonging remand, it
18
CrPC and ensure that the fundamental rights guaranteed to accused
persons is violated.
28.We have carefully perused the judgments relied upon by the learned
counsel for the respondent, however, none of the judgments relied upon
statutory bail.
29.The judgment in State of West Bengal vs. Salap Service Station & Ors. 11
relied upon by the respondent was rendered, not in the context of default
bail, but only in the context of entitlement u/s. 173(8) of the CrPC to place
30.Further, the judgment of Dharam Pal vs. State Of Haryana & Ors.12,
also does not talk about default bail and the misuse of the filing of
19
supplementary chargesheets. It is also important to note that the judgment
of Ram Narain Popli vs. CBI13 and Rajesh Ranjan Yadav vs. CBI14 have
also not dealt with the issues being considered by us in the present matter.
the learned counsel for the respondent are clearly distinguishable as issues
being considered herein were not considered therein and reliance placed
totally misfounded.
32.In view of the above mentioned discussions, the issues framed by us stand
answered as under:-
20
III. The trial court, in such cases, cannot continue to remand an arrested
CONCLUSION
33.In the instant case, it is clear from the facts that during the pendency of the
Agency just before the expiry of 60 days, with the purpose of scuttling the
right to default bail accrued in favour the accused. This factual position
was missed by the trial court, and instead of offering default bail to the
filed by the Investigating Agency, and further continued the remand of the
and the trial court, thus, failed to observe the mandate of law, and acted in
34.Even at the cost of repetition, we find it pertinent to mention that the right
of default bail under Section 167(2) of the CrPC is not merely a statutory
21
seemingly insignificant procedural formality is to ensure that no accused
accused. While there is no doubt in our minds that arrest and remand are
place certain checks and balances upon the Investigation Agency in order
35.With the above findings and conclusions, the interim order of bail passed
in favor of the accused is made absolute, and the present writ petition is,
....…......…….................…,J.
(KRISHNA MURARI)
..….......….....................…,J.
(C. T. RAVIKUMAR)
NEW DELHI;
26th APRIL, 2023
22