The provision of bail as laid down in Section 167 of the Cr.P.C. has been held to be a mandatory provision and is termed as the “default bail”: Gauhati High Court

Page No.# 1 4 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet. 668 2021 HANUFA NASRIN D O HANIF ALI CHOUDHURY R O HOWLY TOWN WARD NO. 3 P.S. HOWLY DIST. BARPETA ASSAM PIN 781316 THE STATE OF ASSAM AND ANR REP. BY THE PP ASSAM S O ABDUL MALEK R O CHAPRA P.S. BARPETA ASSAM PIN 78130 Advocate for the Petitioner : MR. S C BISWAS Advocate for the Respondent : PP ASSAM B E F O R E Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI Date of hearing & judgment : 23.11.2021 Judgment & OrderPage No.# 2 4 Heard Shri S.C. Biswas learned counsel along with Shri F.A. Hassan learned counsel for the petitioner. The respondent No. 1 State is represented by Shri R.J. Baruah learned Additional Public Prosecutor Assam. Though the informant has been arrayed as the respondent No. 2. In view of the settled law holding the field this Court is of the view that no notice is required to be issued to the respondent No. 2. In fact the time which would be consumed for such notice to be served immense prejudice would be suffered by the 2. The instant application has been field under Section 482 of the Cr.P.C. challenging a series of orders namely orders dated 30.09.2021 26.10.2021 and 11.11.2021 passed by the learned Court of Sessions Judge Barpeta in Sessions Case No. 129 2021. By the impugned order dated 26.10.2021 while framing charges against the petitioner he was again remanded to the judicial custody till 11.10.2021 on the same date the petition filed for releasing the petitioner on bail has been rejected. By the second order dated 26.10.2021 the prayer for bail has been rejected with the observation that the offence was grave and the evidentially material in the record and the quantum of punishment likely to be inflicted upon the accused if she is convicted do not justify the grant of bail. By the order dated 11.11.2021 the petition filed on behalf of the petitioner for allowing to submit the bail bond pursuant to the order of the learned CJM granting bail has been rejected on the ground that trial has already commenced and bail petition filed before that Court was rejected. 3. It is the case of the petitioner that in connection with Barpeta P.S. Case No. 413 2021 under Section 302 of the IPC the petitioner who was arrested had filed an application seeking bail. The said bail was considered on 28.05.2021 and coming to a conclusion that the Final Form was yet to be submitted and the mandatory period was over the petitioner was allowed to go on bail of Rs.10 000 with one surety of like amount It is the case of the petitioner that though default bail was granted to him he was not in a position to arrange the surety and other formalities and the same could be done only on 30.09.2021. However the learned CJM Barpeta had rejected the prayer by the aforesaid Page No.# 3 4 the present proceeding. 4. It is the legality and validity of the orders which is the subject matter of challenge in 5. Considering the settled law in subject this Court is of the opinion that the present petition is required to be disposed of at the motion stage itself as issuing notice would not serve any purpose and would rather be to the prejudice of the petitioner. 6. The law in this field is well settled by a number of Judgments by the Hon’ble Supreme Court as well as various High Courts. The provision of bail as laid down in Section 167 of the Cr.P.C. has been held to be a mandatory provision and has been termed as the “default bail” It has been settled that if the investigation is not over and the charge sheet is not able to be filed within the prescribed period depending on the nature of the offence the accused would be entitled to the privilege of default bail. In this connection the following case laws may be referred to: Maharashtra i. AIR 2001 Supreme Court 1910 : Uday Mohanlal Acharya Vs. State of ii. AIR Online 2020 SC 607: S. Kasi Vs. State 7. In the case of Uday Mohanlal Acharaythe Hon’ble Supreme Court has held that the right to be released on bail under Section 167Provisois indefeasible right and subsequent filing of charge sheet does not distinguish the right accrued by an accused to be released on bail. 8. In the case of S. Kasithe Hon’ble Supreme Court has reiterated the aforesaid position of law. In fact the Hon’ble Court has held that denial of bail on the ground that charge sheet could not be submitted within the prescribed period due to restrictions imposed during lockdown is clearly erroneous and not an accordance with law. 9. In the instant case it is seen that indeed the petitioner was granted default bail by the learned CJM Barpeta vide the order dated 28.05.2021. However due to the fact that the petitioner could not arrange the surety and other formalities he was not released from custody. However once the formality is fulfilled including the bail bond the learned Court was Page No.# 4 4 clearly in error holding that since the charge sheet has been filed in the meantime the provisions of default bail would not be applicable. The said finding is not on the erroneous but against the settled law laid down by the Hon’ble Supreme Court while interpreting the provisions of the Section 167of the Cr.P.C. as indicated above. 10. In view of the above the present application is allowed and the impugned orders dated 30.09.2021 26.10.2021 and 11.11.2021 are set aside. 11. Since it is seen that the petitioner had fulfilled the conditions imposed by the learned CJM Barpeta while granting default bail vide the order dated 28.05.2021 the petitioner be released forthwith by the learned Court by reconfirming the fulfillment of the conditions. It is needless to state that the petitioner shall continue to render full cooperation in the trial and or not indulge any activities detrimental to the same. JUDGE

Summary: The right to be released on bail under Section 167 (2) Proviso (a) was indefeasible right and subsequent filing of the charge sheet did not distinguish the right accrued by an accused to be released on bail. Such an opinion was held by The Hon’ble High Court of Gauhati before The Hon’ble Mr. Justice Sanjay Kumar Medhi in the matter of Hanufa Nasrin Vs. The State Of Assam And Anr [Case No. : Crl.Pet./668/2021].  The facts of the case were associated with an application filed under Section 482 of the Cr.P.C. and challenged a series of orders from various dates passed by the learned Court of Sessions Judge, Barpeta. In one of that impugned orders, the petitioner was framed with charges and was again remanded to judicial custody. The petitioner’s bail plea was rejected too. Similarly, the various pleas for bail were rejected. The petitioner was arrested in connection to the case under Section 302 of the IPC. A default bail was granted to him but he was not in a position to arrange the surety and other formalities. The petitioner sought bail after getting arrested. On 28.05.2021 the said bail was considered and it was found that the final form was yet to be submitted and also the mandatory period was over, the petitioner was allowed to go on bail of Rs.10,000/-. However, the said prayer was rejected by the learned CJM, Barpeta. It was stated that the main cause of the present proceeding was to find the legality and validity of the orders. A case reference of AIR Online 2020 SC 607: S. Kasi Vs. State was submitted wherein the Hon’ble Supreme Court stated that denial of bail by submitting that due to restrictions imposed during the lockdown, charge sheet could not be submitted within the prescribed period was clearly erroneous and not in accordance with the law. The Hon’ble Court examining all the submissions held that “ In view of the above, the present application is allowed and the impugned orders dated 30.09.2021, 26.10.2021 and 11.11.2021 are set aside.  Since, it is seen that the petitioner had fulfilled the conditions imposed by the learned CJM, Barpeta while granting default bail vide the order dated 28.05.2021, the petitioner be released forthwith by the learned Court by reconfirming the fulfillment of the conditions. It is needless to state that the petitioner shall continue to render full cooperation in the trial and / or not indulge any activities detrimental to the same.”