The time of filing of the application for bail to be considered in matters relating to extinguishment of the right to default bail: High court of Himachal Pradesh

 Hig h C o urt of H.P on 05 07 CIS IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.P.No. 8321 Date of decision: 28.6.2021 Om Prakash. …Petitioner. Versus The State of Himachal Pradesh. …Respondent. Coram The Hon’ble Mr. Justice Vivek Singh Thakur Judge. Whether approved for reporting 1 Yes. For the Petitioner: Mr.Vishal Gupta Advocate through Video Conferencing. For the Respondent: Mr.Desh Raj Thakur Additional Advocate General through Video Conferencing. Vivek Singh Thakur JudgePetitioner herein has been arrested on 17.3.2021 in case FIR No. 221 dated 17.3.2021 registered in Police Station Parwanoo District Solan H.P. under Section 20 of the Narcotic Drugs and Psychotropic Substances Act 1985No. 8321 2with respect to filing of challan. On 21.6.2021 it was informed that challan has been presented in Court on 17.6.2021. 3. Petitioner in present case has been arrested on 17.3.2021 and he was produced before the Magistrate on the same day and since then he is in judicial custody. 4. As per prosecution case petitioner has been found in possession of 522 grams charas which is intermediate quantity of contraband under NDPS Act for which punishment has been provided in Section 21(b) of NDPS Act as rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees. As per section 167(2) of Cr.P.C. the maximum period to which Magistrate may authorize the detention of the accused person in such a case is sixty days as in present case offence is not punishable with death imprisonment for life or imprisonment for a terms not less than ten years. Sixty days of detention period of petitioner has completed on 16.5.2021. 5. As per instructions received by learned Additional Advocate General challan has been presented on 17.6.2021 but without any extension of time to file the challan beyond sixty days. 6. Learned counsel for the petitioner seeking default bail has placed reliance upon Rakesh Kumar Paul Vs. State of Assam 2017(15) SCC 67 Bikramjit Singh Vs. State of Punjab 10 SCC 616 and M. Ravindran Vs. Intelligence Officer Directorate of Revenue Intelligence 2 SCC 485. 7. In Rakesh Kumar Paul’s case relevant paras referred by learned counsel for the petitioner read as under: Hig h C o urt of H.P on 05 07 CIS Cr.M.P.No. 8321 3“38. This Court also dealt with the decision rendered in Sanjay Dutt and noted that the principle laid down by the Constitution Bench is to the effect that if the charge sheet is not filed and the right for ‘default bail’ has ripened into the status of indefeasibility it cannot be frustrated by the prosecution on any pretext. The accused can avail his liberty by filing an application stating that the statutory period for filing the charge sheet or challan has expired and the same has not yet been filed and therefore the indefeasible right has accrued in his or her favour and further the accused is prepared to furnish the bail bond. 39. This Court also noted that apart from the possibility of the prosecution frustrating the indefeasible right there are occasions when even the court frustrates the indefeasible right. Reference was made to Mohamed Iqbal Madar Sheikh v. State of Maharashtra1 SCC 722 wherein it was observed that some courts keep the application for ‘default bail’ pending for some days so that in the meantime a charge sheet is submitted. While such a practice both on the part of prosecution as well as some courts must be very strongly and vehemently discouraged we reiterate that no subterfuge should be resorted to to defeat the indefeasible right of the accused for ‘default bail’ during the interregnum when the statutory period for filing the charge sheet or challan expires and the submission of the charge sheet or challan in court. Procedure for obtaining default bail 40. In the present case it was also argued by learned counsel for the State that the petitioner did not apply for “default bail” on or after 4 1.2017 till 24 1 2017 on which date his indefeasible right got extinguished on the filing of the charge sheet. Strictly speaking this is correct since the petitioner applied for regular bail on 11 1 2017 in the Gauhati High Court he made no specific application for grant of ‘default bail’. However the application for regular bail filed by the accused on 11 1 2017 did advert to the statutory period for filing a charge sheet having expired and that perhaps no charge sheet had in fact being filed. In any event this issue was argued by learned counsel for the petitioner in the High Court and it was considered but not accepted by the High Court. The High Court did not reject the submission on the ground of maintainability but on merits. Therefore it is not as if the petitioner did not make any application for default bail such an application was definitely madethen at least orally before the High Court. In our opinion in matters of personal liberty we cannot and should not be too Hig h C o urt of H.P on 05 07 CIS Cr.M.P.No. 8321 4technical and must lean in favour of personal liberty. Consequently whether the accused makes a written application for ‘default bail’ or an oral application for ‘default bail’ is of no consequence. The concerned court must deal with such an application by considering the statutory requirements namely whether the statutory period for filing a charge sheet or challan has expired whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail. 41. We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court. 42 43. … … …. 44. Strong words indeed. That being so we are of the clear opinion that adapting this principle it would equally be the duty and responsibility of a court on coming to know that the accused person before it is entitled to ‘default bail’ to at least apprise him or her of the indefeasible right. A contrary view would diminish the respect for personal liberty on which so much emphasis has been laid by this Court as is evidenced by the decisions mentioned above and also adverted to in Nirala Yadav. 45 48 … … … 49. The petitioner is held entitled to the grant of ‘default bail’ on the facts and in the circumstances of this case. The Trial Judge should release the petitioner on ‘default bail’ on such terms and conditions as may be reasonable. However we make it clear that this does not prohibit or otherwise prevent the arrest or re arrest of the petitioner on cogent grounds in respect of the subject charge and upon arrest or re arrest the petitioner is entitled to petition for grant of regular bail which application should be considered on its own merit. We also make it clear that this will not impact on the arrest of the petitioner in any other case.” 8. In Bikramjit Singh’s case relevant paras read as under: “36. A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 daysbefore a charge sheet is filed the right to default bail becomes Hig h C o urt of H.P on 05 07 CIS Cr.M.P.No. 8321 5complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days default bail being an indefeasible right of the accused under the first proviso to Section 167(2) kicks in and must be granted. 37. …. … …. 38. This being the case we set aside the judgment of the High Court. The Appellant will now be entitled to be released on “default bail” under Section 167(2) of the Code as amended by Section 43 D of the UAPA. However we make it clear that this does not prohibit or otherwise prevent the arrest or re arrest of the petitioner on cogent grounds and upon arrest or re arrest the petitioner is entitled to petition for the grant of regular bail which application should be considered on its own merit. We also make it clear that this judgment will have no impact on the arrest of the petitioner in any other case.” 9. In M. Ravindran’s case the Supreme Court after considering its earlier pronouncements including judgments in Rakesh Kumar Paul’s and Bikramjit Singh’s cases referred supra has concluded that indefeasible right accruing to the accused under Section 167Cr.P.C. does not get extinguished by subsequent filing of additional complaint by investigating agency and Court should take into consideration the time of filing of the application for bail based on default of investigating agency but not the time of disposal of application for bail. The conclusion drawn by the Court is as under: “25.1 Once the accused files an application for bail under the proviso to Section 167(2) he is deemed to have ‘availed of’ or enforced his right to be released on default bail accruing after expiry of the stipulated time limit for investigation. Thus if the accused applies for bail under Section 167(2) CrPC read with Section 36ANDPS Act upon expiry of 180 days or the extended period as the case may be the Court must release him on bail forthwith without any unnecessary delay after getting Hig h C o urt of H.P on 05 07 CIS Cr.M.P.No. 8321 6necessary information from the public prosecutor as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency. 25.2 The right to be released on default bail continues to remain enforceable if the accused has applied for such bail notwithstanding pendency of the bail application or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court. 25.3 However where the accused fails to apply for default bail when the right accrues to him and subsequently a chargesheet additional complaint or a report seeking extension of time is preferred before the Magistrate the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation as the case may be though the accused may still be released on bail under other provisions of the CrPC. 25.4 Notwithstanding the order of default bail passed by the Court by virtue of Explanation I to Section 167(2) the actual release of the accused from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and or comply with the terms and conditions of the bail order within the time stipulated by the Court his continued detention in custody is valid.” 10. Applying the provisions of law in light of principles propounded by the Supreme Court to the facts of present case where challan has been filed after expiry of statutory period of sixty days without any extension of time from the concerned Court Magistrate and also after the oral submission made by learned counsel for the petitioner for enlarging the petitioner on default bail by invoking provisions of Section 167 Cr.P.C. coupled with the fact that petition for bail has been filed on behalf of petitioner in April 2021 undertaking therein to abide by any condition imposed upon him by the court and Hig h C o urt of H.P on 05 07 CIS Cr.M.P.No. 8321 7learned counsel for the petitioner is constantly contending that petitioner is ready to furnish bail bonds for extending his undertaking averred in para 6 of the application petition I find that petitioner is entitled for ‘default bail’ under Section 167(2) Cr.P.C. and accordingly in case of furnishing personal bond in the sum of `50 000 with one surety in the like amount to the satisfaction of trial Court Special Judge petitioner is ordered to be enlarged on bail subject to following further conditions: That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required that the petitioner shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him her from disclosing such facts to Court or to any Police Officer or tamper with the evidence. He shall not in any manner try to overawe or influence or intimidate the prosecution witnesses that the petitioner shall not obstruct the smooth progress of the investigation trial that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected that the petitioner shall not misuse his liberty in any manner that the petitioner shall not jump over the bail that the petitioner shall keep on informing about the change in address landline number and or mobile number if any for his availability to Police and or during trial that the petitioner shall not leave India without permission of the Court. 11. It will be open to the prosecution to apply for imposing and or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice. Hig h C o urt of H.P on 05 07 CIS Cr.M.P.No. 8321 812. In case the petitioner violates any conditions imposed upon him his bail shall be liable to be cancelled. In such eventuality prosecution may approach the competent Court of law for cancellation of bail in accordance with law. 13. It is made clear that enlargement of petitioner on default bail shall not prohibit or otherwise prevent the arrest or re arrest of the petitioner on cogent grounds in respect of the subject charge and upon arrest or re arrest the petitioner is entitled to file petition for grant of regular bail which application should be considered on its own merit. 14. Learned trial Court is directed to comply with the directions issued by the High Court vide communication No.HHC.VIG. Misc. Instructions 93 IV.7139 dated 18.03.2013. 15. Observations made in this petition hereinbefore shall not affect merits of the case in any manner and are strictly confined for the disposal of the bail application. 16. The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order however it may verify the order from the High Court website or otherwise. The petition stands disposed of in the aforesaid terms. Dasti copy on usual terms. 28th June 2021 Judge. 

Summary: The right to default bail would not be extinguished by subsequent filing of additional complaint by the investigating agency and importance must be given to the time of filing of the application for bail based on default of investigating agency, but not the time of disposal of application for bail. This was held by The Hon’ble Mr. Justice Vivek Singh Thakur in the case of, Om Prakash Vs. The State of Himachal Pradesh[Cr.M.P. (M) No. 838 of 2021] on 28th of June 2021. The brief facts of the case are, the petitioner was found in possession of 522 grams of charas which is a contraband under the NDPS act. The punishment under this act for such an action is an imprisonment for the term which can extend to a period of 10 years. The maximum period of detention is 60 days for the offence and this was completed on 16.05.2021. During the pendency of the petition, the counsel for the petitioner applied for a default bail by invoking the provisions of Section 167 of the CrPC. However, the matter was adjourned 2 times. Petitioner in present case had been arrested on 17.3.2021 and he was produced before the Magistrate on the same day and since then he is in judicial custody. Asper the counsel for the respondent, challan has been presented on 17.6.2021, but without any extension of time to file the challan beyond sixty days and thus the right of default bail is extinguished. The court after listening to both the counsels applied the rules held by the court in Rakesh Kumar Paul Vs. State of Assam, 2017(15) SCC 67, wherein it was held that, “In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for ‘default bail’ or an oral application for ‘default bail’ is of no consequence. The concerned court must deal with such an application by considering the statutory requirements namely, whether the statutory period for filing a charge sheet or challan has expired, whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail.” The court also made connections with article 21 of the constitution and held that it is not advisable to be formalistic or technical in matters relating to personal liberty. Applying the rationale of the above-mentioned case, the court in the present case held that although the challan had been filed after the expiry of 60 days and no extension was sought from the court, it was observed that the counsel for he petitioner constantly made efforts to get bail and undertook therein to abide by any condition imposed upon him by the court and is ready to furnish bail bonds for extending his undertaking averred in para 6 of the application/petition. Thus, the court found that the petitioner was entitled for default bail and disposed he petition by imposing conditions and a bail bond of Rs.50,000.