Right To Default Bail Not Extinguished With 'Simultaneous' Filing Of Chargesheet: Madras High Court
In a pertinent ruling, the Madurai Bench of Madras High Court has delved deep into the statutory provisions and precedents that determine the four corners of default bail under Section 167(2) of CrPC and Section 36(A)(4) of NDPS Act.Thereby, the court has clarified the long-standing confusion about the time constraints applicable to the accused for availing the right to default bail and to...
In a pertinent ruling, the Madurai Bench of Madras High Court has delved deep into the statutory provisions and precedents that determine the four corners of default bail under Section 167(2) of CrPC and Section 36(A)(4) of NDPS Act.
Thereby, the court has clarified the long-standing confusion about the time constraints applicable to the accused for availing the right to default bail and to the investigating agency for filing of charge sheet before the court.
Justice K. Murali Shankar has held that subsequent or even simultaneous filing of the charge sheet does not disentitle an accused from claiming default bail under CrPC.
The Bench observed that there is a misconception that in cases where the bail petition under Section 167(2) Cr.P.C and the charge sheet are being filed on the same day, then the time at which, bail petition or the charge sheet is filed, is the deciding factor and that if the charge sheet is filed earlier to the bail petition, then the accused is not entitled to get the statutory bail or in case, if the bail petition is filed before laying of charge sheet, then the bail application has to be allowed.
It is made clear that the investigating agency has to file the charge sheet "before" the expiry of 60 days, 90 days (mentioned in CrPC) or 180 days (mentioned in NDPS Act) as the case may be, if they require the detention of the accused beyond the prescribed period of 60 or 90 or 180 days.
The Court observed,
"If the charge sheet is filed on 61st or 91st or 181st day, as the case may be, even prior to the filing of the bail petition on the same day, the said filing of the charge sheet will not defeat the right already accrued to the accused and if such an interpretation is not given, then that will lead to a proposition that the investigating agency can file a charge sheet even on 61st or 91st or 181st day as the case may be, as of right and detain the accused in judicial custody."
Background
The petitioner in this case is an accused under the NDPS Act. His application for default bail was dismissed by the trial court, considering the seriousness, gravity of the offence, serious objections on prosecution side and huge quantity of the contraband. It had also noted that the charge sheet was filed on the same day as the application for default bail, but the former was filed by the investigating agency before in time.
Right Of Accused To Statutory Bail & Effect Of Prosecution Filing Chargesheet Simultaneously
Relying primarily on M. Raveendran v. The Intelligence Officer, Director of Revenue Intelligence, and Bikramjit Singh v. State of Punjab, the High Court underscored that if there arises any ambiguity with regards to the construction of substantive penal statutes and procedural law, the interpretation that leans towards the protection of the rights of the accused. This approach is in light of "the ubiquitous power disparity between the individual accused and the State machinery'.
While interpreting the procedural law, there must be some reasonable time limit, be it under the Criminal Procedural Code or the specific provisions under Narcotic Drugs and Psychotropic Substances Act, enabling the accused to apply for statutory bail upon the expiry of a period of time, the court observed.
"In Tamil Nadu, all the Courts shall ordinarily sit at 10.30.am. If the investigating agency files the charge sheet by 10.30 am, on the next day, after the expiry of the period prescribed under Section 167(2) Cr.P.C, can we say that the accused has lost his right of filing the petition for default bail subsequently, on the same day? In my considered view, the accused can exercise his right to apply the default bail on the whole day, on which, the indefeasible right to apply the statutory bail accrues to him", the court lays down in the order.
The court also made it clear that when the investigating agency files the charge sheet after expiry of the said period, but the accused also invokes the right to default bail simultaneously, the time of filing the charge sheet cannot be considered as a relevant criterion for deciding the statutory bail.
In Sanjay Dutt v. State Through C.B.I., (1994) 5 SCC 410, the apex court had held that the accused must apply for statutory bail under Section 167(2) CrPC the moment such right accrues. According to the 1994 judgment, if the accused fails to do so, the said right cannot be claimed at a subsequent stage of the proceedings after the prosecution has filed a charge sheet or additional complaint.
About the precautionary principle laid down in the Sanjay Dutt case, the court clarified:
"…Supreme Court in M.Ravindran's case, cited supra, has held that the Constitution Bench decision in Sanjay Dutt's case cannot be interpreted so as to mean 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."
Whether Section 10 Of General Clauses Act Can Be Invoked For Computing The Time Period Envisaged Under Section 167(2) of Cr.P.C Or Section 36(A) (4) Of NDPS Act?
The prosecution had also contended that the delay in filing charge sheet, i.e, on 18th October, can be attributed to the intervening court holidays from 14th October to 17th October on account of the Dassera Festival. It was their argument that Section 10 of the General Clauses Act allows the prosecution to file the charge sheet on the next working day, since the date on which, the period prescribed for filing the charge sheet expired on a holiday.
Section 10 of the General Clauses Act clearly mentions that such relaxation will be granted when "any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period".
The question posed before the court was whether Section 10 would be applicable to the investigating agency for filing the charge sheet, if the period contemplated under Section 167(2) Cr.P.C expires on a holiday.
Relying on the Delhi High Court judgment in Powell Nwawa Ogechi v. The State (Delhi Administration) (1986) that agreed with the previous Bombay High Court judgment in State Of Maharashtra v. Sharad B. Sarda (1982), the court answered in negative. The two judgments relied upon by the Madras High Court had concluded that Section 10 "presupposes that there must be a positive act to be performed, in existence and for the performance of which, there is in existence a period prescribed by law".
"It is pertinent to mention that the Code of Criminal Procedure does not prescribe any particular period for laying the charge sheet and the Section 167(2) of Cr.P.C does not prescribe any period of limitation even by implication. The investigating agency is certainly entitled to file the charge sheet, even after expiry of 60 or 90 or 180 days, as the case may be, but they will not have any right to seek extension of remand beyond the period prescribed under Section 167(2) Cr.P.C", the court observed.
In this context, the court also referred to the apex court order in S.Kasi v. State through the Inspector of Police, Samayanallur Police Station, Madurai District (2020), where it was clarified that "the indefeasible right to default bail under Section 167(2) is an integral part of the right to personal liberty under Article 21, and the said right to bail cannot be suspended even during a pandemic situation as is prevailing currently."
Therefore, the Supreme Court observed that the previous order in the suo motu writ petition taking cognisance of the pandemic situation cannot be availed by the investigating agencies. It won't permit the investigative agencies to extend time for filing charge sheet after the stipulated period under Section 167(2) CrPC.
No Power To Go Into Merits While Deciding Statutory Bail
The High Court has held that while considering the application under Section 167(2) Cr.P.C, Court is duty bound to decide the application forthwith without any unnecessary delay, after getting necessary information from the concerned Public Prosecutor and to consider as to whether the ingredients necessary for releasing the accused on default bail are existing and that if the Court is satisfied with the existence of such ingredients, then the Court has to release the accused on bail forthwith.
It added,
"…the Bail Court, while dealing with the petition for statutory bail, is having no power or jurisdiction to go into the merits of the case and to see as to whether the ingredients necessary for granting regular bail are available or not".
Accordingly, the criminal original petition filed under Section 482 r/w 439 of CrPC by the accused was allowed. The order of the Principal Sessions Judge for EC and NDPS Act cases, Madurai was set aside. The accused was granted statutory bail contingent upon the execution of bond and adherence to other bail conditions.
Advocate G. Karuppasamy Pandian appeared for the petitioner accused. Advocate R. Meenakshi Sundaram, Additional Public Prosecutor, represented the Respondent.
Case Title: K. Muthuirul v. The Inspector Of Police
Case No: CRL OP(MD). No.18273 of 2021