Default Bail Cannot Be Granted Merely Because Cognizance Was Not Taken Before Expiry Of Statutory Period ; Filing Of Chargesheet Sufficient Compliance: Supreme Court

The Supreme Court observed that an accused cannot seek default bail merely on the ground that cognizance has not been taken before the expiry of 60 days or 90 days, as the case may be, from the date of remand if chargesheet was already filed.

The indefeasible right of an accused to seek statutory bail under Section 167(2) of the Code of Criminal Procedure arises only if the charge-sheet has not been filed before the expiry of the statutory period, the bench comprising Justices L. Nageswara Rao and BR Gavai observed.

The court added that the accused continues to be in the custody of the Magistrate till such time cognizance is taken by the court trying the offence, which assumes custody of the accused for the purpose of remand after cognizance is taken.

Factual background

The directors of Adarsh Group of Companies and LLPs were accused of committing an offence under Section 447 of the Companies Act, 2013, Section 120-B read with Sections 417, 418, 420, 406, 463, 467, 468, 471, 474 of the Indian Penal Code, 1860. Their applications filed for statutory bail were dismissed by the Special Court on the ground that the charge-sheet was filed before the expiry of 60 days. Later, the High Court, by the impugned order, granted default bail on the ground that cognizance had not been taken by the court before the expiry of 60 days.

Thus, the issue before the Apex Court, was whether an accused is entitled for statutory bail under Section 167(2), CrPC on the ground that cognizance has not been taken before the expiry of 60 days or 90 days, as the case may be, from the date of remand?

The court noted that the issue is squarely covered by a judgment of the Supreme Court in Suresh Kumar Bhikamchand Jain v. State of Maharashtra (2013) 3 SCC 77.

"It was held by this Court that the filing of charge-sheet is sufficient compliance with the provisions of proviso (a) to Section 167(2), CrPC and that taking of cognizance is not material to Section 167. The scheme of CrPC is such that once the investigation stage is completed, the court proceeds to the next stage, which is the taking of cognizance and trial. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced, with such Magistrate being vested with power to remand the accused to police custody and/or judicial custody, up to a maximum period as prescribed under Section 167(2). Acknowledging the fact that an accused has to remain in custody of some court, this Court concluded that on filing of the charge-sheet within the stipulated period, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309, CrPC. This Court clarified that the two stages are different, with one following the other so as to maintain continuity of the custody of the accused with a court."

Relying on the judgments in Sanjay Dutt v. State 1994) 5 SCC 410, Mohamed Iqbal Madar Sheikh & Ors. v. State of Maharashtra (1996) 1 SCC 722 and M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence (2021) 2 SCC 485,  the accused contended that an accused has a right to seek statutory bail under the proviso to Section 167(2) even after the chargesheet is filed, till the court takes cognizance. The court, therefore, examined whether these judgments contradict the dictum in Bhikamchand Jain (supra). The court observed:

"In all the above judgments which are relied upon by either side, this Court had categorically laid down that the indefeasible right of an accused to seek statutory bail under Section 167(2), CrPC arises only if the charge-sheet has not been filed before the expiry of the statutory period. Reference to cognizance in Madar Sheikh (supra) is in view of the fact situation where the application was filed after the charge-sheet was submitted and cognizance had been taken by the trial court. Such reference cannot be construed as this Court introducing an additional requirement of cognizance having to be taken within the period prescribed under proviso (a) to Section 167(2), CrPC, failing which the accused would be entitled to default bail, even after filing of the charge-sheet within the statutory period. It is not necessary to repeat that in both Madar Sheikh (supra) and M. Ravindran (supra), this Court expressed its view that non-filing of the charge-sheet within the statutory period is the ground for availing the 18 | P a g e indefeasible right to claim bail under Section 167(2), CrPC. The conundrum relating to the custody of the accused after the expiry of 60 days has also been dealt with by this Court in Bhikamchand Jain (supra). It was made clear that the accused remains in custody of the Magistrate till cognizance is taken by the relevant court. "

Therefore, by allowing the appeals, the bench set aside the High Court order.

Case Details

Case name: Serious Fraud Investigation Office vs Rahul Modi
Citation: 2022 LiveLaw (SC) 138
Case no.|date: CrA 185-186 of 2022 | 7 Feb 2022
Coram: Justices L. Nageswara Rao and BR Gavai
Counsel:  ASG Aman Lekhi for appellant , Sr. Adv Vikram Choudhri for respondents, Sr. Adv Mukul Rohatgi for the Intervenor

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