Section 167(2) CrPC -Holidays Will Be Counted In Computing Statutory Period For Default Bail: Chhattisgarh High Court

The Chhattisgarh High Court arrived at a computation for the delay in filing the charge sheet, where the date of arrest is to be excluded and the date when charge-sheet was filed is to be included. It also held that the grant of default bail is an indefensible right under Section 167(2) CrPC, and the same cannot be defeated by filing a subsequent charge sheet.

The petitioner, represented by Advocate Shailendra Dubey, presented their case to be that pursuant to the arrest and remand of the petitioners, they have been in in judicial custody. As the charge sheet was filed by the prosecution only after a two-day expiration period, the petitioners moved an application under Sections 167(2) Cr.P.C. seeking bail. The Trial Court vide impugned order rejected the application holding that the two days of delay were Government Holidays and on the first working post-holidays, the challan has been filed.

The order was challenged before the High Court leading to the following questions of law:

• Whether grant of bail as provided under Section 167(2) of the Cr.P.C. the indefeasible right of the accused and prosecution can defeat the same by filing a final report after the expiry of the maximum period prescribed under the provisions?
• Whether the holidays will be accountable in computing the period of 60 days for granting benefit of bail and from which date the maximum period for filing of charge sheet is countable?

To answer the first issue, the High Court, in addition to Section 167(2) Cr. P.C., the Court perused Section 36A of the NDPS Act that lays down the offences triable by the Special Court. It also relied on the Supreme Court judgment in M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, to hold that,

'Right of the accused is the integral part of personal liberty, as per the provisions, and are an indefeasible link to safeguard under Article 21 of the Constitution of India."

A bench of Justice Narendra Kumar Vyas also held that,

"It is quite clear that if challan on the specified period is not submitted, the accused is entitled to be enlarged on bail. As per the provisions of Section 167(2) of Cr.P.C., default bail is the right of the accused. The object of the provisions of Section 167(2) of Cr.P.C. is that State authority should not take any malafide belated action against accused persons. Right of the accused is the integral part of personal liberty, as per the provisions, and are an indefeasible link to safeguard under Article 21 of the Constitution of India."

On the second issue, the petitioner argued that the maximum period for filing of charge-sheet would be 60 days as the offences are under Section 22(B) of the NDPS Act, where the maximum punishment is ten years, and no life imprisonment has been prescribed. On the contrary, the Counsel for the State, Advocate Rakesh Sahu, argued that the maximum period for filing a charge-sheet is 180 days under NDPS Act; therefore, the order by Trial Court is justifies warranting no interference by this Court.

To settle the issue, the Court perused the case diary to note that an offence under Section 22(B) of the NDPS Act, 1985 has been alleged against applicants, which carries the minimum sentence of fewer than ten years and the maximum sentence is not death or life imprisonment. In such a situation, Rakesh Kumar Paul v. the State of Assam lays that Section 167(2) (a) (ii) Cr. P.C. will be applicable, and the accused will be entitled to grant of default bail after 60 days in case the charge-sheet is not filed. In the Rakesh Kumar Paul case, it was held that,

"Section 167(2)(a)(i) of the Code is applicable only in cases where the accused is charged with (i) offences punishable with death and any lower sentence; (ii) offences punishable with life imprisonment and any lower sentence and (iii) offences punishable with minimum sentence of 10 years; 84.3. In all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment then Section 167(2) (a)(ii) will apply and the accused will be entitled to grant of 'default bail' after 60 days in case charge-sheet is not filed."

The Court held that the two days of delay being Government Holidays would be counted for calculating 60 days as the case does not attract Section 10 of the General Clauses Act. Section 10 of the General Clauses Act lays that when any action is to be taken within a prescribed period, the Court is closed on the last day of the period. However, if the act is done or taken on the next day afterward on which the Court is open, it shall be considered as done or taken in due time.

However, the Court decided against applying Section 10 of the General Clauses Act. The Court held that the last day of filing the charge sheet within 60 days would include the computation of two days of holiday. It relied on the decision in Chaganti Satyanarayana Vs. The State of A.P. where it was observed as under,

"As the terms of proviso (a) with reference to the total periods of detention can be interpreted on the plain language of the proviso itself we do not think it is necessary to invoke the provisions of the General Clauses Act or seek guidance from the Limitation Act to construe the terms of the proviso."

To decide the day from which the period for filing of the charge sheet would begin to run, the Court relied on the Central Bureau of Investigation vs. Nazir Ahmed Sheikh. In this case, the Supreme Court held that the period for filing of the charge sheet would be counted from the next date of arrest, excluding the date on which the accused is sent on remand. However, the date on which the charge sheet was filed is to be included.

Therefore, excluding the first day of remand and including the day of filing of challan, the Court concluded that the charge-sheet was filed on the 61st day in the present case.

Further on, the State argued that as per Section 36A of the NDPS Act, the extended period of filing of the final report is 180 days. On the other hand, the applicants argued that the period of 180 days for invoking the provision of Section 167(2) Cr. P.C. is applicable for offences punishable under Section 19 or Section 24 or Section 27 A or for offences involving commercial quantity. In the present case, an offence is alleged to be committed under Section 22(B) of the Act, and the quantity seized from the applicants is less than commercial. Thus, the High Court held,

"From the provision of Sections 22 (B) & 36-A of NDPS Act and considering facts of the case that quantity seized from the Applicants is less than commercial as such provision of Section 36 A(4) is not attracted. Therefore contention of State counsel in this regard is liable to be rejected and accordingly it has been rejected."

The Court observed,

"Hence, it is crystal clear that the charge-sheet was not filed within the maximum period of 60 days. As per the law laid down by the Hon'ble Supreme Court right of the accused to get default bail is accrued and it is an indefeasible right of the accused which cannot be defeated by the prosecution after completion period as per provisions of Section 167(2) Cr. P.C."

Therefore, the Court granted bail, setting aside the decision of the Additional Sessions Judge and Special Judge(NDPS).

Title: Vinay Dubey v. State of Chhattisgarh

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