Person Not Named In FIR But Arrested During Course Of Further Investigation Can Seek Default Bail U/S 167(2) CrPC: Madras High Court

“If an accused person is subsequently arrested in the course of further investigation and such accused person was not shown as an accused either in the FIR or in the final report that was filed, insofar as he is concerned, it must be construed as a stage of investigation under Chapter XII of the Code and as a consequence, Section 167(2) of Cr.P.C., can be made applicable,” Justice Anand Venkatesh held.

The court was hearing a petition filed by Gnanasekaran Thiyagaraj to set aside an order passed by the Special Court under Tamil Nadu Protection of Interest of Depositors Act dismissing his application for statutory bail under Section 167 (2) CrPC.

The Special Judge had noted that since the court had already taken cognisance of the final report and since Thiyagaraj had been arrested in the course of further investigation, he could not claim statutory bail under Section 167(2) CrPC and could only file an application for regular bail.

On the other hand, the State challenged the petition saying that the remand of Thiyagaraj was one in the nature of remand under Section 309(2) CrPC since it was post cognizance of the final report, the provisions of Section 167(2) of CrPC will not be applicable in the present case. It was further submitted that even assuming that he was entitled to bail under Section 167(2) CrPC, the dismissal of the bail application was in the nature of a final order and only a criminal revision could lie against the same.

The court however held that the order rejecting statutory bail was an intermediate order. The court noted that though the dismissal meant that he could not be let out on statutory bail, it did not take away his right completely and he could still file an application for regular bail.

“If a statutory bail application is dismissed, it certainly involves the determination of an indefeasible right given to the accused person and such an order cannot be considered to be an interlocutory order and such order is more than a purely interlocutory order and less than a final disposal. The reason for rendering such a finding is that the accused person loses his right of being let out on a statutory bail and that right is lost by virtue of the dismissal of the application. However, that does not mean that the accused person is going to be kept under detention forever. The accused person can always file an application seeking for a regular bail and the same will be considered on merits and the Court may be satisfied that the accused can be enlarged on bail pending the main case,” the court said.

The court also noted that in the present case, the indefeasible right of the accused person to be enlarged on bail was rejected by the Court which affected his right to liberty guaranteed under Article 21 of the Constitution. Thus, the court observed that it could exercise its jurisdiction under Section 482 CrPC, even with subsistence of alternate remedy.

The court also observed that the Special Judge had erred in rejecting the statutory bail application as Thiyagaraj was not an accused when the court took cognisance of the final report. Thus, the court held that Thiyagaraj was entitled to his indefeasible right to statutory bail.

“In the light of the settled law, the Court below was not right in rejecting the statutory bail application filed by the petitioner under Section 167(2) of Cr.P.C., since the petitioner was not an accused before the Court when the final report was filed and the cognizance was taken and the petitioner is now being added as an accused and arrested in the course of further investigation under Section 173(8) of Cr.P.C., before the supplementary charge sheet is filed. In view of the fact that the detention of the petitioner is continuing beyond 90 days and the supplementary charges sheet has not been filed, the petitioner is certainly entitled for the indefeasible right provided under Section 167(2) of Cr.P.C., and the petitioner must be enlarged on statutory bail if he is prepared to and does furnish bail,” the court said.

Case Title: Gnanasekaran Thiyagaraj v State

Citation: 2023 LiveLaw (Mad) 237

Counsel for the Petitioner: Mr.R.Murali for Mr.M.Raja

Counsel for the Respondent: Mr.A.Damodaran Additional Public Prosecutor