Code of Criminal Procedure, 1973:
s. 167(2) r/w s. 36A of Narcotic Drugs and Psychotropic Substances Act, 1985 – Default bail/ Compulsive bail – Application for – After completion of 180 days from the remand date – Bail granted by trial court – High Court set aside the bail order on the ground that since additional complaint was filed before disposal of the bail application, bail could not have been granted – Appeal to Supreme Court – Held: Section 167(2) was enacted with the objectives of ensuring fair trial, expeditions investigation and trial and reasonable procedure prior to depriving any person of his personal liberty, which is intrinsically linked to Art. 21 of the Constitution – Section 167(2) has to be interpreted keeping in mind the aforesaid objectives – If the accused applies for bail u/s. 167(2) r/w. s. 36 A (4) NDPS Act upon expiry of 180 days or the extended period, Court has to release him on bail forthwith – Prosecution cannot defeat enforcement of such right of accused by subsequently filing a final report, additional complaint or report seeking extention to time – However, actual release on bail is contingent upon the directions passed by the competent court granting bail – In the present case, accused was deemed to have availed the right to bail, the moment he filed the application seeking bail and offered to abide by the terms and conditions of the bail order – He was entitled to be released on bail notwithstanding the subsequent additional complaint – Constitution of India – Art. 21.
Interpretation of Statutes:
Interpretation of penal statutes – Held: In case of any ambiguity in the construction of penal statute, courts must favour the interpretation which leans towards protecting the right of the accused – Such principle is applicable not only in the case of substantive penal statute, but also in cases of procedures providing for curtailment of liberty of the accused.
Allowing the appeal, the Court
HELD: 1. In common legal parlance, the right to bail under the Proviso to Section 167(2) of Cr. P.C. is commonly referred to as ‘default bail’ or ‘compulsive bail’ 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. [Para 6][929-A-B]
2. Section 36A of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) prescribes modified application of the CrPC as indicated therein. The effect of Sub-Clause (4) 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 category of offences. This is augmented by a further Proviso that 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 present matter, it is admitted that the Public Prosecutor had not filed any such report within the 180-day period for seeking extension of time up to one year for filing final report/additional complaint before the Trial Court. The final report was required to be filed within 180 days from the first date of remand. [Para 6.2][929-E-H; 930-A]
3. While computing the period under Section 167(2) Cr.P.C., 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. [Para 7][930-B] Ravi Prakash Singh @ Arvind Singh v. State of Bihar (2015) 8 SCC 340 : [2015] 2 SCR 241 – referred to.
4. Article 21 of the Constitution of India provides that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Such a procedure cannot be arbitrary, unfair or unreasonable. The history of the enactment of Section 167(2) Cr. P.C. and the safeguard of ‘default bail’ contained in the Proviso thereto is intrinsically linked to Article 21 promising protection of life and personal liberty against unlawful and arbitrary detention. This is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law. This must be interpreted in a manner which serves this purpose. The Courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Article 21. [Paras 11.1 and 11.6][935-B-C; 938-G]
Maneka Gandhi v. Union of India (1978) 1 SCC 248 : [1978] 2 SCR 621 – followed.
The Law Commission of India Report No. 14 on Reforms of the Judicial Administration (Vol. II, 1948, pages 758760); Law Commission Report No. 41 on The Code of Criminal Procedure, 1898 (Vol. I, 1969, pages 76-77) – referred to.
5. Section 167(2) Cr.P.C. was enacted within the presentday CrPC, providing for time limits on the period of remand of the accused, proportionate to the seriousness of the offence committed, failing which the accused acquires the indefeasible right to bail. The intent of the legislature was to balance the need for sufficient time limits to complete the investigation with the need to protect the civil liberties of the accused. Section 167(2) provides for a clear mandate that the investigative agency must collect the required evidence within the prescribed time period, failing which the accused can no longer be detained. This ensures that the investigating officers are compelled to act swiftly and efficiently without misusing the prospect of further remand. This also ensures that the Court takes cognizance of the case without any undue delay from the date of giving information of the offence, so that society at large does not lose faith and develop cynicism towards the criminal justice system. [Para 11.5][936-G-H; 937A-C]
6. In case of any ambiguity in the construction of a penal statute, the Courts must favour the interpretation which leans towards protecting the rights of the accused, given the ubiquitous power disparity between the individual accused and the State machinery. This is applicable not only in the case of substantive penal statutes but also in the case of procedures providing for the curtailment of the liberty of the accused. The right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a chargesheet. [Paras 11.7 and 11.8][939-A-C]
7. With respect to the CrPC particularly, the Statement of Objects and Reasons is an important aid of construction. Section 167(2) has to be interpreted keeping in mind the three-fold objectives expressed by the legislature namely ensuring a fair trial, expeditious investigation and trial, and setting down a rationalized procedure that protects the interests of indigent sections of society. These objects are nothing but subsets of the overarching fundamental right guaranteed under Article 21. [Para 11.8][939-D]
8. The Court cannot suo motu grant bail without considering whether the accused is ready to furnish bail or not. This is an inbuilt safeguard within Section 167(2) Cr. P.C. 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. There could be rare occasions where the accused voluntarily forfeits his right to bail on account of threat to his personal security outside of remand or for some other reasons. Once a chargesheet is filed, such waiver of the right by the accused becomes final and Section 167(2) ceases to apply. [Para 12.4][942C-E]
9. It cannot be said that even where the accused has promptly exercised his right under Section 167(2) and indicated his willingness to furnish bail, he can be denied bail on account of delay in deciding his application or erroneous rejection of the same. Nor can he be kept detained in custody on account of subterfuge of the prosecution in filing a police report or additional complaint on the same day that the bail application is filed. [Para 12.4][942-F]
10. The interpretation of the expression “availed of” as actual release after furnishing the necessary bail would cause grave injustice to the accused and would defeat the very purpose of the Proviso to Section 167(2) CrPC. There will be many instances where the Public Prosecutor might prolong the hearing of the application for bail so as to facilitate the State to file an additional complaint or investigation report before the Court during the interregnum. In some cases, the Court may also delay the process for one reason or the other. In such an event, the indefeasible right of the accused to get the order of bail in his favour would be defeated. This could not have been the intention of the legislature. If such a practice is permitted, the same would amount to deeming illegal custody as legal. After the expiry of the stipulated period, the Court has no further jurisdiction to remand the accused to custody. The prosecution would not be allowed to take advantage of its own default of not filing the investigation report/complaint against the appellant within the stipulated period. [Para 12.5][942-G-H; 943-A-C]
11. As a cautionary measure, the counsel for the accused as well as the Magistrate ought to inform the accused of the availability of the indefeasible right under Section 167(2) once it accrues to him, without any delay. This is especially where the accused is from an underprivileged section of society and is unlikely to have access to information about his legal rights. Such knowledge-sharing by magistrates will thwart any dilatory tactics by the prosecution and also ensure that the obligations spelled out under Article 21 of the Constitution and the Statement of Objects and Reasons of the CrPC are upheld. [Para 12.7][943G-H; 944-A-B] Rakesh Kumar Paul v. State of Assam (2017) 15 SCC
67 : [2017] 8 SCR 785 – relied on.
12. It is true that Explanation I to Section 167(2) Cr. P.C. provides that the accused shall be detained in custody so long as he does not furnish bail. However, Explanation I to Section 167(2) applies only to those situations where the accused has availed of his right to default bail and undertaken to furnish bail as directed by the Court, but has subsequently failed to comply with the terms and conditions of the bail order within the time prescribed by the Court. In such a scenario, if the prosecution subsequently files a chargesheet, it can be said that the accused has forfeited his right to bail under Section 167(2) Cr. P.C.. Explanation I is only a safeguard to ensure that the accused is not immediately released from custody without complying with the bail order. [Para 13][944B-D]
13. The expression ‘the accused does furnish bail’ in Section 167(2) and Explanation I thereto cannot be interpreted 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 application before the Magistrate, or because the challenge to the rejection of his bail application was pending before a higher forum, his continued detention in custody is authorized. If such an interpretation is accepted, the application of the Proviso to Section 167(2) would be narrowly confined only to those cases where the Magistrate is able to instantaneously decide the bail application as soon as it is preferred before the Court, which may sometimes not be logistically possible given the pendency of the 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 prosecution files the chargesheet prior to furnishing of bail and fulfil the conditions of bail of furnishing bonds, etc., so long as he furnishes the bail within the time stipulated by the Court. [Para 13.1][944-E-H]
14. The observations made in *Hitendra Vishnu Thakur and **Sanjay Dutt Cases to the effect that the application for default bail and any application for extension of time made by the Public Prosecutor must be considered together are only applicable in situations where the Public Prosecutor files a report seeking extension of time prior to the filing of the application for default bail by the accused. In such a situation, 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 enforcement of his indefeasible right by subsequently filing a final report, additional complaint or report seeking extension of time. [Para 14.1][946-B-C]
15. It is well settled that issuance of notice to the State on the application for default bail filed under the Proviso to Section 167(2) is only so that the Public Prosecutor can satisfy the Court that the prosecution has already obtained an order of extension of time from the Court; or that the challan has been filed in the designated Court before the expiry of the prescribed period; or that the prescribed period has actually not expired. Such issuance of notice would avoid the possibility of the accused obtaining default bail by deliberate or inadvertent suppression of certain facts and also guard against multiplicity of proceedings. 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 purpose of ‘buying extra time’ and facilitating filling up of lacunae in the investigation by the investigating agency. [Para 14.2][946-D-F]
16. The decision in **Sanjay Dutt case only lays down as a precautionary principle that the accused must apply for default bail the moment the right under Section 167(2) accrues to him. If he fails to do so, he cannot claim the right at a subsequent stage of the proceedings after the prosecution has filed a chargesheet. The words “not having made an application when such right had accrued, can exercise that right at a later stage” clearly indicate that the accused is deemed to have exercised his right to bail once he makes an application for the same. [Para 15.1][948-B-C]
17. 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 36A (4), NDPS 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 necessary information from the public prosecutor. 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. [Para 18.1][954-C-E]
18. 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. [Para 18.2][954E-F]
19. 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. [Para 18.3][954-G-H]
20. 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. [Para 18.4][955-A-B]
21.1 In the present case, admittedly the appellant-accused had exercised his option to obtain bail by filing the application at 10:30 a.m. on the 181st day of his arrest, i.e., immediately after the court opened, on 01.02.2019. It is not in dispute that the Public Prosecutor had not filed any application seeking extension of time to investigate into the crime prior to 31.01.2019 or prior to 10:30 a.m. on 01.02.2019. The Public Prosecutor participated in the arguments on the bail application till 4:25 p.m. on the day it was filed. It was only thereafter that the additional complaint came to be lodged against the Appellant. Therefore, the appellantaccused was deemed to have availed of his indefeasible right to bail, the moment he filed an application for being released on bail and offered to abide by the terms and conditions of the bail order, i.e. at 10:30 a.m. on 01.02.2019. He was entitled to be released on bail notwithstanding the subsequent filing of an additional complaint. [Para 17][953-B-E]
21.2. In the present case, apart from furnishing the sureties as directed by the Trial Court, the appellant-accused should also surrender his passport, undertake to report to the Respondent Directorate when required for purposes of investigation, and also undertake to not leave Chennai city limits without the leave of the Trial Court. [Para 19][955-C]
Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC
67 : [2017] 8 SCR 785; S. Kasi v. State Through The Inspector of Police Samaynallur Police Station Madurai District (2020) SCC OnLine SC 529; Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453 : [2001] 2 SCR 878; Mohamed Iqbal Madar Sheikh v. State of Maharashtra (1996) 1 SCC 722 : [1996] 1 SCR 183; Dr. Bipin Shantilal Panchal v. State of Gujarat (1996) 1 SCC 718 : [1996] 1 SCR 193; State through CBI v. Mohd. Ashraft Bhat (1996) 1 SCC 432 : [1995]
6 Suppl. SCR 300; Ateef Nasir Mulla v. State of Maharashtra (2005) 7 SCC 29 : [2005] 2 Suppl. SCR 919; Mustaq Ahmed Mohammed Isak v. State of
Maharashtra (2009) 7 SCC 480 : [2009] 8 SCR 465; Sayed Mohd. Ahmad Kazmi v. State (Government of NCT of Delhi) (2012) 12 SCC 1 : [2012] 9 SCR 836; Union of India v. Nirala Yadav (2014) 9 SCC 457 : [2014] 6 SCR 148; Bikramjit Singh v. State of Punjab (2020) SCC OnLine SC 824 - relied on.
Pragyna Singh Thakur v. State of Maharashtra, (2011)
10 SCC 445 : [2011] 14 SCR 617 – held per in curiam. Uday Mohanlal Acharya v. State of Maharashtra (2001)
5 SCC 453 : [2001] 2 SCR 878; Sanjay Dutt v. State through C.B.I. (1994) 5 SCC 410 : [1994] 3 Suppl. SCR 263; Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 : [1994] 1 Suppl. SCR 360; State through CBI v. Mohd. Ashraft Bhat (1996) 1 SCC 432 : [1995] 6 Suppl. SCR 300; Dr. Bipin Shantilal Panchal v. State of Gujarat (1996) 1 SCC 718 : [1996] 1 SCR 193; Mohamed Iqbal Madar Sheikh v. State of
Maharashtra (1996) 1 SCC 722 : [1996] 1 SCR 183 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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