Filing Incomplete Chargesheet Without Completing Investigation Would Not Extinguish The Right Of Accused To Get Default Bail: Supreme Court

A Bench comprising Justice Krishna Murari and Justice CT Ravikumar held the same while considering a criminal writ petition filed by Ritu Chhabaria (of the Radius Group) seeking the release of her husband on default bail. Upon consideration of the petition, the Bench made the interim order, granting bail to the petitioner's husband/accused, absolute.

Discussing the history of CrPC and the reason why amendments have been brought in for Section 167 CrPC for default bail, the Bench noted that if the Investigating Agency files a chargesheet without completing the investigation, the same would not extinguish the right of the accused to get default bail. It further observed that the Trial Court, in such cases, cannot continue to remand the arrested person beyond the maximum stipulated time without opting arrested person default bail.

The case in brief

An FIR was lodged under Section 120(B) read with Section 420 of the IPC along with Sections 7,12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, wherein the writ petitioner’s husband was not named. Subsequently, supplementary chargesheets were filed, wherein the writ petitioner’s husband (accused) was made a prosecution witness in a supplementary chargesheet, however, in such chargesheets, the accused was not named.

Thereafter, the investigation of the case was transferred to another investigating officer, and the accused was then arrested by CBI and remanded to custody on April 28, 2022. Multiple other supplementary chargesheets were then filed, wherein he was named as a suspect, and his remand under Section 309(2) of CrPC was renewed and continued from time to time, and he was never released on default bail.

Against the backdrop of these facts, the wife of the accused moved the instant criminal writ plea before the Supreme Court against his continuation of custody, and the scuttling of relief of default bail contending that every Supplementary chargesheet filed in the case was an attempt to ensure that her husband is not released on default bail. Hearing the plea, the Supreme Court granted him interim bail on March 20 this year. 

Arguments advanced

Before the SC, the counsel for the petitioner argued that the Fundamental rights of the accused were being prejudiced due to continued custody on the grounds of the investigation not being completed.

It was contended that he was kept in jail beyond the period of 60 days, even though the provisions of the CrPC do not empower continued remand to custody beyond 60 days if the investigation is still in progress.

On the other hand, the Counsel for the respondent argued that the writ was not maintainable as for grant of bail, the accused should have either approached the High Court against the order of the Magistrate refusing default bail or filed a Special Leave Petition against the said order invoking provisions of Article 136 of the Constitution of India.

It was also argued that the supplementary chargesheet filed on June 25, 2022, is a complete document in respect to the offence committed by the persons arraigned in the said supplementary chargesheet (including the accused), therefore no right to default bail has been accrued in his favour.

Supreme Court's observations

At the outset, the Court rejected the preliminary objection regarding the maintainability of the writ plea in the facts of the case as it observed that relief of statutory bail under Section 167(2) of the CrPC is a fundamental right directly flowing from Article 21, and the violation of such a right directly attracts consideration under Article 32.

"If this Court refuses to exercise its jurisdiction on technicalities in cases of violations of fundamental rights, it will lead to a ripple effect that will result in a dysfunctional social contract, wherein the people of this country would become subject to an arbitrary and unfettered tyranny of the state," the Court said.

Further, in light of the arguments raised by the counsel for the parties, the Court formed the following three issues for its consideration:-

I. Can a chargesheet or a prosecution complaint be filed in piecemeal without first completing the investigation of the case?

II. Whether the filing of such a chargesheet without completing the investigation will extinguish the right of an accused for grant of default bail?

III. Whether the remand of an accused can be continued by the trial court during the pendency of investigation beyond the stipulated time as prescribed by the CrPC?

To examine the questions framed, the Court perused Section 167(2) of the CrPC to note that the provision was enacted to ensure that the investigating agency completes the investigation within the prescribed time limit (60 days or 90 days as the case may be) failing which no accused could be detained if they are willing to avail bail.

In this regard, the Court also referred to the ruling of Satender Kumar Antil vs Central Bureau Of Investigation 2022 LiveLaw (SC) 577, wherein it was held that Section 167(2) of the CrPC is a limb of Article 21 of the Constitution of India, and as such, the investigating authority is under a constitutional duty to expedite the process of investigation within the stipulated time, failing which, the accused is entitled to be released on default bail.

Against this backdrop, the Court categorically held that first, the investigation has to be completed, and only then, can a chargesheet or a complaint be filed within the stipulated period, and failure to do so would trigger the statutory right of default bail under Section 167(2) of CrPC.

"The question of resorting to a supplementary chargesheet u/s 173(8) of the Cr.PC only arises after the main chargesheet has been filed, and as such, a supplementary chargesheet, wherein it is explicitly stated that the investigation is still pending, cannot under any circumstance, be used to scuttle the right of default bail, for then, the entire purpose of default bail is defeated, and the filing of a chargesheet or a supplementary chargesheet becomes a mere formality, and a tool, to ensue that the right of default bail is scuttled."

The Court further said that if it were to be held that chargesheets can be filed without completing the investigation, and the same can be used for prolonging remand, it would in effect negate the purpose of introducing section 167(2) of the CrPC and ensure that the fundamental rights guaranteed to accused persons is violated.

In view of this, the Court answered the issues framed by it as under:

I. Without completing the investigation of a case, a chargesheet or prosecution complaint cannot be filed by an investigating agency only to deprive an arrested accused of his right to default bail under Section 167(2) of the CrPC.

II. Such a chargesheet, if filed by an investigating authority without first completing the investigation, would not extinguish the right to default bail under Section 167(2) CrPC.

III. The trial court, in such cases, cannot continue to remand an arrested person beyond the maximum stipulated time without offering the arrested person default bail.

With this, finding that in the instant case, during the pendency of the investigation, supplementary chargesheets were filed by the Investigation Agency just before the expiry of 60 days, with the purpose of scuttling the right to default bail accrued in favour of the accused, the Court made its interim bail order, absolute.

"...right of default bail under Section 167(2) of the CrPC is not merely a statutory right, but a fundamental right that flows from Article 21 of the Constitution of India. The reason for such importance being given to a 21 seemingly insignificant procedural formality is to ensure that no accused person is subject to unfettered and arbitrary power of the state. The process of remand and custody, in their practical manifestations, create a huge disparity of power between the investigating authority and the accused. While there is no doubt in our minds that arrest and remand are extremely crucial for the smooth functioning of the investigation authority for the purpose of attaining justice, however, it is also extremely important to be cognizant of a power imbalance. Therefore, it becomes essential to place certain checks and balances upon the Investigation Agency in order to prevent the harassment of accused persons at their hands," the Court further remarked as it parted with the case.

[Case Title: Ritu Chhabaria v. Union of India And Ors. WP(Crl) No. 60/2023]

Citation : 2023 LiveLaw (SC) 352