Section 167(2)CrPC: Accused Is Entitled To Default Bail Even After Statutory Period If He Files Application Before Filing Charge-sheet : Kerala HC

Justice B. Sudheendra Kumar, while allowing a petition filed by a man accused of NDPS offence, summarized the legal position as follows:

• The accused has indefeasible right to get 'default bail' under proviso to Section 167(2) of the Code, if the investigation is not complete within the statutory period as provided under proviso (a) to Section 167(2) of the Code. Therefore, if the accused is prepared to execute the bail, he shall be released on bail if the investigation is not complete within the statutory period.

• If the accused files any application for 'default bail' after the statutory period and before filing the final report, the accused is entitled to 'default bail' under proviso (a) to Section 167(2) of the Code.

• If the accused files application for 'default bail' after filing the final report, if at all the final report is filed after the expiry of the statutory period provided under proviso (a) to Section 167(2) of the Code, the accused is not entitled to get 'default bail' as the 'indefeasible right ' of the accused to be released on bail in accordance with the provisions of proviso to Section 167(2) of the Code is enforceable by the accused only from the time of default till the filing of the charge-sheet and it does not survive or remain enforceable after filing the charge-sheet.

• Once the accused is released on bail under proviso to Section 167(2) of the Code, he cannot be taken into custody merely on the filing of the charge-sheet.

In the present case [Roy @ Compan Roy vs. State of Kerala], even though the accused filed the application before the filing of the final report, the Sessions Court dismissed it on the ground the final report was filed before the court before disposing of the said application and thus he was not entitled to 'default bail'.

While considering his plea, the High Court noted that the accused in a case registered for the offence under the provisions of the NDPS Act is entitled to get 'default bail' under proviso to Section 167 (2) of the Code as Section 37 of the NDPS Act does not exclude the application of proviso to Section 167(2) of the Code. The Apex Court judgment in Bipin Shantilal v. State of Gujarat was taken note of.

Taking note of the aforesaid legal position, the bench allowed his plea and observed:

"In this case, the accused filed Crl.M.C. when the indefeasible right of the accused was subsisting. Therefore, the accused was entitled to be granted the 'default bail' under proviso to Section 167(2) of the Code. In the said circumstances, the court below is directed to release the petitioner under Section 167(2) of the Code on such terms and conditions as the court below deems fit and necessary"

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