Application For Default Bail Filed Through E-Filing Valid, Cannot Ignore It For Want Of Physical Copy: Kerala High Court

The Kerala High Court on Thursday held that an application for default bail, filed timely through e-filing mode, cannot be ignored by the trial courts for want of production of physical copy of the same. 

Justice A. Badharudeen, said: 

"Now we are in the E-world. In many Courts e-filing is made mandatory and steps to complete mandatory e-filing in all Courts in India are on its final call. Such being the scenario, how can a court ignore an application filed through e-filing mode to hold that there was no petition filed within time for want of production of physical copy of the same within time". 

The court added that the legal position on the default bail is so flexible that even an oral application would suffice.

"Further the Court has a duty to point out the accused of his legal right under Section 167(2)(a) of Cr.P.C, since it is an indispensable right of personal liberty, guaranteed by the Constitution of India," said the bench.

The court was dealing with appeals filed by accused persons against the decision of the the Special Court for Trial of offences under Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989, Mannarkkad in a case a double murder. One of the victims belonged to the SC/ST Community.

The Special Court had dismissed the default bail application submitted by the accused persons on the ground that the physical copy of the bail applications had not been filed before the final report was filed by the prosecution.

The trial court had taken note of the judgment of the Kerala High Court in State of Kerala v. Muneer (2021) to hold that "even if the investigating agency had not filed final report/charge sheet within the period prescribed under Section 167 (60 days or 90 days as the case may be, from the day of remand), so long as investigating agency, thereafter, files final report but before remand of the accused and the accused had made his plea to be released on statutory default bail, then the right of the accused to be released on statutory bail would get extinguished." 

It was contended by Advocates T.K. Sandeep, Veena Harikumar, and Swetha R., on behalf of the two accused persons, who had been denied the statutory bail, that they had filed an application for statutory bail through e-filing mode and therefore, even though a physical copy of the application was not filed, the accused would still be liable to be released on statutory bail.

Public Prosecutor G. Sudheer on the other hand contended that since no application in physical form was filed before filing of the final report, the accused could not press for statutory bail. He also argued that it is a case of double murders and allegations against the accused are very serious.

The court noted that other than the two accused, all other accused were released on statutory bail on account of prosecution's failure to file final report within 90 days as contemplated under Section 167 (2) CrPC. Perusing the Special Judge's order, the bench said it records that the two accused had e-filed the bail application on October 10 but they failed to bring it to the notice of the Special Court.

Perusing Section 167(2), the court said the question is whether the two accused were prepared to furnish bail on expiry of 90 days before the filing of the final report.

Relying upon apex court's decision in Rakesh Kumar Paul v. State of Assam, the court said it was held that "in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty".

"Consequently, whether the accused makes a written application for `default bail' or an oral application for `default bail' is of no consequence. The concerned Court must deal with such an application by considering the statutory requirements namely, whether the statutory period for filing a charge sheet or challan has expired, whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail. The history of the personal liberty jurisprudence of this Court and other Constitutional Courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court."

Noting that the two accused filed their application through e-filing mode on October 10 before the filing of the chargesheet, the court further observed the application for statutory bail was physically submitted before the court on October 11 at 11 a.m, while charge sheet was filed at 10 a.m that day.

"No doubt, in such a case involving the question as to whether the accused filed an application for statutory bail within time, by filing the same in e-filing mode, it has to be held that the accused expressed his preparedness to be released on statutory bail within time and to furnish bail, by filing application for bail through the e-filing mode," the court added. 

Setting aside the order of the Special Judge, the court directed that the appellants be released on bail by the Court subject to conditions. 

Advocate P.V. Jeevesh appeared on behalf of the petitioner/11th accused person in Crl. A. No. 1121/2022. 

Case Title: Akshay@Ajeesh@Ananthu v. State of Kerala & Anr and Akhila A.P. @ Lalu & Anr v. State of Kerala & Anr. 

Citation: 2022 LiveLaw (Ker) 597

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