Prosecutor cannot file a final report to defeat the default bail by the accused: Supreme Court

The judgment dated 21.11.2019 passed in Crl. O.P. No Section 8(c) read with Sections 22(c) 23(c) 25A and 29 of the Narcotic Drugs and Psychotropic Substances Act 1985 filed application for bail under Section 167(2) of the Code of Criminal Procedure 1973 on 01.02.2019 before the Special Court for Exclusive Trial of Cases under the NDPS Act Chennai on the ground that the investigation was not complete and chargesheet had not yet been filed. Accordingly on No. 131 of 2019 in R.R. No. 09 2017 pending before the said The Respondent complainant i.e. the Intelligence Officer Directorate of Revenue Intelligence filed Crl. O.P. No 9750 of 2019 before the High Court of Judicature at Madras the impugned judgment allowed the said appeal and consequently cancelled the order of bail granted by the Trial Court. Being aggrieved the Appellant has approached this Court of 180 days prescribed for filing of final report under Section 01.02.2019 at 10:30 a.m. before the Trial Court. During the arguments of the counsel for the Appellant to be precise­the Respondent complainant filed an additional complaint against the Appellant at 4:25 p.m. on 01.02.2019 and sought for has no power to intervene with the indefeasible right of the Section 167(2) CrPC was not disposed of by the time the additional complaint was filed the Appellant could not take the Appellant could not avail of any specific benefit for having filed the application at 10:30 a.m. inasmuch as the additional complaint was lodged during the course of hearing of the bail 4. Ms. Arunima Singh learned counsel appearing for the heavily on the observations of this Court in the case of Uday Mohanlal Acharya v. State of Maharashtra 5 SCC merits of the matter that the legislative mandate conferred by prior to filing of the chargesheet additional complaint by the Respondent and that subsequent filing of chargesheet Per contra Mr. Aman Lekhi learned Additional Solicitor General argued in support of the judgment of the High Court contending that the additional complaint was lodged while the Appellant was still in custody and prior to the disposal of the application for bail under Section 167(2) CrPC hence there was no question of the Appellant­accused furnishing the bail and Before we proceed further it is relevant to note the 2) The Magistrate to whom an accused person is not jurisdiction to try the case from time to time case or commit it for trial and considers further a) the Magistrate may authorise the detention of the accused person otherwise than in the custody of the police beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so but no Magistrate shall authorise the detention of the accused i) ninety days where the investigation relates to an offence punishable with death imprisonment for life or offence and on the expiry of the said period of ninety days or sixty days as the case may be the accused in custody of the police under this section unless the accused is produced before him in person for the first in the custody of the police but the Magistrate may c) no Magistrate of the second class not specially empowered in this behalf by the High Court shall declared that notwithstanding the expiry of the period person was produced before the Magistrate as required under clause the production of the accused person Provided further that in case of a woman under In common legal parlance the right to bail under the the investigating agency in not completing the investigation under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub­section of section 167 of the Code of Criminal Procedure 1973 thereof to "ninety days" Provided that if it is not possible to complete the investigation within the said period of one hundred and up to one year on the report of the Public Prosecutor 6.2 Section 36A of the NDPS Act prescribes modified Clause of Section 36A NDPS Act is to require that investigation into certain offences under the NDPS Act be completed within a period of 180 days instead of 90 days as provided under Section 167(2) CrPC. Hence the benefit of additional time limit is given for investigating a more serious the Special Court may extend time prescribed for investigation up to one year if the Public Prosecutor submits a report indicating the progress of investigation and giving specific reasons for requiring the detention of accused beyond the prescribed period of 180 days. In the matter on hand it is year for filing final report additional complaint before the Trial case the final report was required to be filed within 180 days This Court in a catena of judgments including Ravi Prakash Singh @ Arvind Singh v. State of Bihar 8 SCC 340 has ruled that while computing the period under Section 167(2) the day on which accused was remanded to judicial custody has to be excluded and the day on which 8. As mentioned supra it is not disputed that in compliance of the aforementioned statutory provisions and judgments of this and thereafter filed application for bail under Section 167(2) CrPC at 10:30 a.m. on 01.02.2019 complainant had not yet filed final report additional complaint against the Appellant. On the same day as mentioned supra during the course of hearing of the bail application the the appellant under Section 167(2) CrPC additional complaint by the investigating b) Whether the Court should take into consideration the time of filing of the investigating agency or the time of disposal the application for bail 10. Upon perusal of the relevant jurisprudence we are unable being filed if already not availed of as has been held by the Constitution Bench in Sanjay Dutt s case supra). The crucial question that arises for consideration therefore is what is the true meaning of the expression if already not availed of Does it mean his willingness for being released on bail or does it mean that a bail order must be passed the accused with the legislative mandate to hold that an accused actually being released on bail after furnishing the proviso to Section 167(2) of the Criminal Procedure legal inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart when an specified period there is no discretion left in the that the accused must factually be released on bail then in a given case where the Magistrate illegally pending in the higher forum for consideration if the right accruing to the accused because of inaction on the part of the investigating agency would get to negate the same by interpreting the expression “if authorising detention of an accused in custody after the expiry of the period indicated in proviso to sub­ section of Section 167 excepting the contingency indicated in Explanation I namely if the accused does that if after expiry of the period an application for furnish the bail and thereby avail of his indefeasible right and then an order of bail is passed on certain the bail and at that point of time a challan is filed then possibly it can be said that the right of the moved or that the Magistrate erroneously refuses to called indefeasible right of the accused on failure on specified period and the interest of the society at large on bail on account of inaction on the part of the While holding so this Court considered and discussed in bail including Sanjay Dutt v. State through C.B.I. 5 SCC 410 Hitendra Vishnu Thakur v. State of Maharashtra 1994) 4 SCC 602 State through CBI v. Mohd. Ashraft Bhat 1996) 1 SCC 432 Dr. Bipin Shantilal Panchal v. State of Gujarat 1 SCC 718 and Mohamed Iqbal Madar Sheikh We also find it relevant for the present purpose to quote the following conclusions of the Court in the said 60 days as the case may be an indefeasible right 13.4. When an application for bail is filed by an accused for enforcement of his indefeasible right of default on the part of the investigating agency in completion of the investigation within the specified period the Magistrate court must dispose of it by the investigating agency. Such prompt action on the part of the Magistrate court will not enable the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation 13.5. If the accused is unable to furnish bail as of Explanation I and proviso to sub­section 2 of Section 167 the continued custody of the accused not be unauthorised and therefore if during that is filed then the so­called indefeasible right of the 13.6. The expression if not already availed of used by this Court in Sanjay Dutt s case must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words on expiry of the period bail and offers also to furnish the bail on being availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail In Uday Mohanlal Acharya the application for The chargesheet was filed while the application challenging High Court held that the right to default bail was no longer opinion held that the accused is deemed to have exercised his Section 167(2) CrPC by subsequently filing a chargesheet or additional complaint while the bail application is pending consideration or final disposal before a Magistrate or a higher forum. Accordingly this Court granted relief to the appellant­ However it appears that in spite of the conclusions 11. Before we proceed to expand upon the parameters of the right to default bail under Section 167(2) as interpreted by the Indian Constitution and deprivation of the same proviso to sub­sectionof Section 167 any further with the provisions of the Criminal Procedure Code and as such could be violative of Article 21 of the person shall be deprived of his life or personal liberty except of India 1 SCC 248 that such a procedure cannot be nothing but a legislative exposition of the constitutional remanded to custody either police or judicial was 15 days investigations within 15 days a practice arose wherein investigative officers would file ‘preliminary chargesheets’ after the magistrate to postpone commencement of the trial and final chargesheet was filed. The Law Commission of India in II 1948 pages 758­760) pointed out that in many cases the Hence the Law Commission in Report No. 14 manner that “while meeting the needs of a full and proper investigation in cases of serious crime will still safeguard the liberty of the person of the individual.” Further that the legislature should prescribe a maximum time period beyond by the Law Commission in Report No. 41 on The Code of Criminal Procedure 1898an accused person should get a fair trial in accordance with the accepted principles of natural ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to iii) the procedure should not be complicated and should to the utmost extent possible ensure fair deal It was in this backdrop that Section 167(2) was the period of remand of the accused proportionate to the acquires the indefeasible right to bail. As is evident from the intent of the legislature was to balance the need for sufficient the civil liberties of the accused. Section 167(2) provides for a clear mandate that the investigative agency must collect the the accused can no longer be detained. This ensures that the without misusing the prospect of further remand. This also that society at large does not lose faith and develop cynicism Therefore as mentioned supra Section 167(2) is integrally linked to the constitutional commitment under manner which serves this purpose. In this regard we find it Court in Rakesh Kumar Paul v. State of Assam 15 SCC 67 which laid down certain seminal principles as to the interpretation of Section 167(2) CrPC though the questions of were whether firstly the 90 day remand extension under Section maximum period of imprisonment was 10 years though the application for default bail even though the expiry of the 90 day limit is only available in respect of offences where a minimum ten year imprisonment period is stipulated and that application. This was based on the reasoning that the Court B. Lokur J. in his majority opinion pertinently observed as “29. Notwithstanding this the basic legislative intent and also within an otherwise time­bound period remains unchanged even though that period has been extended over the years. This is an indication investigations the legislature has also and always put a premium on personal liberty and has always have prompted the legislature for more than a century to ensure expeditious conclusion of investigations so that an accused person is not he or she might not even have committed. In our opinion the entire debate before us must also be looked at from the point of view of expeditious conclusion of investigations and from the angle of textual perspective as canvassed by the learned it is not always advisable to be formalistic or technical. The history of the personal liberty and for other writs being entertained even on the Therefore the Courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches of this Court in S. Kasi v. State Through The Inspector of Appeal No. 452 of 2020 dated 19th June 2020) 2020 SCC OnLine SC 529 wherein it was observed that the indefeasible prevailing currently. It was emphasized that the right of the Additionally it is well­settled that in case of any favour the interpretation which leans towards protecting the rights of the accused given the ubiquitous power disparity trial expeditious investigation and trial and setting down a rationalized procedure that protects the interests of indigent Hence it is from the perspective of upholding the fundamental right to life and personal liberty under Article 21 that we shall clarify and reconcile the various judicial The meaning of “ 12. One of the relevant decisions dealing with the question of that of the two­Judge Bench in Hitendra Vishnu Thakur scope of Section 20(4)(bb) of the Terrorist and Disruptive the public prosecutor uninfluenced by the merits of the case That unless the Court grants extension in time based on the report of the Public Prosecutor the Designated Court under TADA would have no jurisdiction to deny to the accused his indefeasible right to default bail if the accused seeks and is prepared to furnish the bail bonds as directed by the Court stated that the Court cannot release the accused on its own should not be held as conferring an indefeasible right on the of the challan and it does not survive or remain availed of. Once the challan has been filed the question of grant of bail has to be considered and under the provisions relating to grant of bail to an the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced the moment challan is filed because Section 167 CrPC ceases to apply…It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid be dismissed if on the date of return of the rule the 53…(2)(b) The indefeasible right of the accused to be of the challan within the time allowed as held in Hitendra Vishnu Thakur is a right which enures to survive or remain enforceable on the challan being filed. If the accused applies for bail under this extended period as the case may be then he has to be released on bail forthwith. The accused so released on bail may be arrested and committed to It appears that the term “if not already availed of” mentioned supra has become a bone of contention as Courts is filed or when the bail petition is finally disposed of by the Court or only when the accused actually furnishes bail as The majority opinion in Uday Mohanlal Acharya must be understood to mean “when the accused files an case it has to be held that the accused has enforced his However B.N. Agrawal J. in his minority opinion partly dissented with the majority particularly with respect to be detained in custody so long as he does not furnish bail” in Explanation I to Section 167(2) indicated that the right to be released on default bail could be exercised only on actual Having considered both opinions we have arrived at the conclusion that the majority opinion in Uday Mohanlal Acharya is the correct interpretation of the decision decision in Sanjay Dutt merely casts a positive corresponding soon as the prescribed period of investigation expires. As the the Court cannot suo motu grant bail without considering in­built safeguard within Section 167(2) to ensure that the accused is not automatically released from custody without obtaining the satisfaction of the Court that he is able to guarantee his presence for further investigation or for trial as the case may be. Further as the majority opinion in Rakesh Kumar Paul pointed out there could be rare occasions chargesheet is filed such waiver of the right by the accused However the Constitution Bench decision in Sanjay accused has promptly exercised his right under Section 167(2 The arguments of the State that the expression necessary bail would cause grave injustice to the accused and file an additional complaint or investigation report before the Court during the interregnum. In some cases the Court may expiry of the stipulated period the Court has no further filing the investigation report complaint against the appellant It was noted by B.N. Agrawal J. in his minority opinion in Uday Mohanlal Acharya that a distinction appropriate direction. Whereas in case of the latter the Court in the meantime. In a similar manner the Respondent Uday Mohanlal Acharya and subsequent decisions of this Court considered the bail application on the same day it was In our considered opinion such a distinction cannot be adopted as it would give rise to parallel litigations particular date at a particular time. Delay in deciding the bail not be a clear­cut answer to the same in all circumstances application the accused is deemed to have exercised his actual release from custody is inevitably subject to compliance Paul that as a cautionary measure the counsel for the accused is from an underprivileged section of society and is unlikely to have access to information about his legal rights spelled out under Article 21 of the Constitution and the not furnish bail. However as mentioned supra the majority opinion in Uday Mohanlal Acharya expressly clarified that where the accused has availed of his right to default bail and undertaken to furnish bail as directed by the Court but has scenario if the prosecution subsequently files a chargesheet it that the accused is not immediately released from custody to mean that if the accused in spite of being ready and willing could not furnish bail on account of the pendency of the bail rejection of his bail application was pending before a higher an interpretation is accepted the application of the Proviso to Section 167(2) would be narrowly confined only to those cases application as soon as it is preferred before the Court which may docket across courts or for other reasons. Moreover the application for bail has to be decided only after notice to the public prosecutor. Such a strict interpretation of the Proviso would defeat the rights of the accused. Hence his right to be released on bail cannot be defeated merely because the fulfil the conditions of bail of furnishing bonds etc. so long as he Hence we reject Mr. Lekhi’s argument that the Appellant­accused is not entitled to the protection of Section 167(2) CrPC if he has not furnished bail at the time the Rights of the Prosecutor under Section 167(2) CrPC opinion expressed in Hitendra Vishnu Thakur that the Public Prosecutor may resist grant of default bail by filing a “30…It is however permissible for the public prosecutor to resist the grant of bail by seeking an to have his say regarding the prayer for grant of extension under clause of Section 20(4) has released. Even where the court grants an extension under clause but the charge­sheet is not filed within the extended period the court shall have no This was affirmed by the Constitution Bench in Sanjay prayer is made. This seems to have given rise to the misconception that Sanjay Dutt endorses the view that the prosecution may seek extension of time for completing the is released on bail notwithstanding the fact that a bail The observations made in Hitendra Vishnu Thakur the Public Prosecutor must be considered together are in our files a report seeking extension of time prior to the filing of the notwithstanding the fact that the period for completion of investigation has expired both applications would have to be considered together. However where the accused has already applied for default bail the Prosecutor cannot defeat the It must also be added and it is well settled that of the prescribed period or that the prescribed period has actually not expired. The prosecution can accordingly urge the Court to refuse granting bail on the alleged ground of default Such issuance of notice would avoid the possibility of the accused obtaining default bail by deliberate or inadvertent However Public Prosecutors cannot be permitted to misuse the limited notice issued to them by the Court on bail applications filed under Section 167(2) by dragging on proceedings and filing subsequent applications reports for the 15. We are fortified in our aforementioned conclusions by the three­Judge Bench decision of this Court in Mohamed Iqbal Madar Sheikh v. State of Maharashtra it Madar Sheikh and which was part of the original Constitution Bench in Sanjay Dutt rendered judgment “4…But it is an admitted position that the charge­ sheet has been filed on 23­5­1994 and now the appellant is in custody on the basis of orders of remand passed under the other provisions of the Code. Whether the accused who was entitled to be released on bail under proviso to sub­section of Section 167 of the Code not having made an application when such right had accrued can v. State through Court in the case of Sanjay Dutt right to be released on bail for the failure of the prosecution to file the charge­sheet within the maximum time allowed by law he cannot contend time notwithstanding the fact that in the meantime is released on bail under such circumstances he The above­mentioned discussion clearly corroborates Acharya that the decision in Sanjay Dutt only lays down as a that the accused is deemed to have exercised his right to bail It is useful to refer to the decisions of this Court in Mohd. Ashraft Bhat Ateef Nasir Mulla v. State of Maharashtra 7 SCC 29 and Mustaq Ahmed In Mohd. Ashraft Bhat the Court rejected the application for placed upon Sanjay Dutt of the Prevention of Terrorism Act for default bail the accused would not be entitled to bail. In Mustaq Ahmed Mohammed Isak the Court similarly rejected Control of Organised Crime Act 1999 as the chargesheet was period granted by the Special Court and hence within the State (2012) 12 SCC 1 the accused filed an application for default bail on 17.7.2012. The on the said date re­notified the hearing for 18.7.2012. On 18.7.2012 the State filed an application seeking extension of remand under Section 43­D of the Unlawful Activities Subsequently the chargesheet was filed on 31.7.2012. It was upon Sanjay Dutt that the right to statutory bail stood The three­Judge Bench rejected the aforesaid contention and held that the right of the accused to statutory bail which was exercised at the time his bail application was filed remained unaffected by the subsequent application for extension of time to complete investigation. Further the Court “25. Having carefully considered the submissions provisions of law and the decision cited we are of the State by the learned Additional Solicitor for hearing. Instead of hearing the application the the next day when the Public Prosecutor filed an further period of 90 days with retrospective effect accrued to the appellant on the expiry of 90 days from the date when the appellant was taken into by the learned Additional Solicitor General could only be distinguished extinguished) once the charge­sheet had been filed in the case and no 26. The circumstances in this case however are custody was held to be illegal and such an application was left undecided by the Chief investigation was taken up and orders were passed 27. We are unable to appreciate the procedure the view that the appellant acquired the right for grant of statutory bail on 17­7­2012 when his custody was held to be illegal by the Additional was pending at the time when the application for appellant to grant of statutory bail remained unaffected by the subsequent application and both Similarly in Union of India v. Nirala Yadav 9 SCC 457 the accused filed application for default bail on under Section 49(2)(b) of the POTA on 15.3.2007. However no order was passed on either application. In the meanwhile the chargesheet was filed on 26.3.2007. On 3.4.2007 the Special Government that according to the decision in Sanjay Dutt the application for default bail on the day it was filed. Hence the Court in reliance upon Uday Mohanlal Acharya upheld the Pragyna Singh Thakur v. State of Maharashtra 10 SCC 445 wherein it was held in reliance upon Sanjay Dutt said right to bail would be extinguished if the prosecution subsequently files a chargesheet before consideration of the Judges in Pragyna Singh Thakur had referred to the It ought to be noted that in Pragyna Singh Thakur of remand of the accused to custody. The aforementioned observations on the extinguishment of the right to default bail were only made as obiter in the form of a hypothetical arguendo be relied upon by the State we must clarify that in our considered opinion the observations made in Pragyna Singh It is pertinent to note that the two­Judge Bench in stated by the earlier co­ordinate Bench in Pragyna Singh Thakur particularly in paragraphs 54 and 58 of the decision do not state the correct position of law. Having studied both opinions we are constrained to conclude and hold that the position as stated in Nirala Yadav is correct. We find that the opinion expressed in Pragyna Singh Thakur that the right to bail can be considered only on merits once the chargesheet is of the Constitution Bench in Sanjay Dutt. As mentioned supra the two­Judge Bench in Pragyna Singh Thakur to mean that the accused can only avail of the right to default bail if he is this Court in Uday Mohanlal Acharya has correctly understood and analysed the principles stated in the case of by a subsequent three­Judge Bench in Sayed Mohd. Ahmad Kazmi 2020 SCC OnLine SC 824 dealing with similar UAPA a three­Judge Bench of this Court after considering the “A conspectus of the aforesaid decisions would days he is forthwith without any unnecessary delay after getting necessary information from the public prosecutor as mentioned supra. Such prompt action will restrict the prosecution from accused on bail in case of default by the 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 before the Magistrate the right to default bail would be extinguished. The Magistrate would be released on bail under other provisions of the Notwithstanding the order of default bail 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 directed by the Trial Court the Appellant­accused should also the Trial Court. This should alleviate any concerns about the

Summary: In the case of M. Ravindran versus The Intelligence Officer [S.L.P. (Criminal) No. 2333 of 2020], the Supreme Court of India observed that the right of the defaulter to default bail was enforceable even if the charge sheet or report seeking the extension of time was subsequently filed by the petitioner. The remarkable judgement was passed by the bench comprising Justice Umesh Lalit, Justice Mohan M. Shantanagoudar and Justice Vineet Saran who passed this remarkable judgement that where the accused has already applied for default bail, the Prosecutor cannot defeat the enforcement of his indefeasible right by subsequently filing a final report, additional complaint or report seeking extension of time. The appellant was under custody for the offence punishable under Section 8 (c) read with Sections 22(c),23(c), 25A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’). After completion of 180 days from the remand, the applicant filed a bail application under section 167(2) of the CrPC before the special court for the exclusive trial of cases under the NDPS Act, on the ground that the investigation was not complete and the charge sheet had not yet been filed and was granted bail by the trial court. The respondent prayed before the Madras High Court to cancel the bail and the high court ordered the same. The appellant had duly completed his 180 days of tenure by the Gregorian calendar so the compulsory bail should be granted to him. This court recalled what was told in the section 167 (2) and said that “as it is granted on account of the default of the   investigating   agency   in   not   completing   the   investigation within the prescribed time, irrespective of the merits of the case.” Also as per the section 36A of the NDPS Act the modifications could be done stating that if the investigation needs any extension of date, it would be allowed by the court but in the present case the Public Prosecutor did not file any such report within the 180 days for seeking extension of time up as it was required in this case. The court relied on the judgement disposed in the case of Ravi Prakash Singh @ Arvind Singh v. State of Bihar (2015) 8 SCC 340 that, “has   ruled   that   while   computing   the   period   under Section   167(2), the   day   on   which   accused   was   remanded   to judicial   custody   has   to   be   excluded   and   the   day   on   which challan/charge sheet is filed in the court has to be included” and in the present case the applicant waited for a time period of 180 days before the complainant could file against him.