Delhi High Court Issues Directions To Ensure That Custody Of An Undertrial Prisoner Is Not Extended Mechanically

The Delhi High Court on Monday issued slew of directions to ensure that the custody of an undertrial is not extended mechanically in view of sec. 167(2) of Cr.P.C. and also to ensure that the rights of undertrial prisoners to seek default bail are not defeated despite legislative mandate and the principles of law.

Justice Manoj Kumar Ohri also observed that the order of remanding an undertrial or its extension is held to be a judicial function requiring due application of mind.

The Court directed that while extending the custody of an undertrial prisoner, the Magistrate/concerned Court shall not mechanically extend the period of custody for the maximum period of 15 days as prescribed under sec. 167(2) of CrPC.

"The custody shall be extended while keeping in mind the 60th, 90th or 180th day (depending on the nature of offence and applicability of any Special Act) of completing the investigation and submission of charge sheet. If such 60th, 90th or 180th day falls before the maximum extension period of 15 days, then the custody shall be extended only upto the 60th, 90th or 180th, as may be applicable," it added.

The Court also directed that the undertrial prisoner shall be produced before the concerned Court on the next day i.e., on the 61st, 91st or 181st day as the case may be, so that he can be duly informed of his fundamental right to seek default bail if no charge sheet is filed in the maximum period prescribed or the permitted extended period of investigation.

With regards to the format of Custody Warrant, the Court said that the same shall also include a column indicating the day on which the right of 'default bail' will accrue to the undertrial under proviso (a) to sec. 167(2) Cr.P.C.

A direction has also been issued to the District Legal Services Authority to ensure that the remand Advocates/legal aid counsels posted in criminal courts are instructed to keep an undertrial informed of his right to seek default bail and the date of accrual of such right.

The jail authorities are also directed to have a corresponding obligation to inform the undertrial of the date when the right to seek default bail accrues.

"Considering the seriousness of the issue involved, this Court deems it apposite to seek a response from the Registrar General of this Court as well the DG (Prisons) as to the steps being undertaken so that an undertrial is informed of his right to seek 'default bail' and that such right is not defeated but rather timely exercised. The response and suggestions, if any, shall be submitted in light of the 'Inter-operable Criminal Justice System (ICJS)', a platform which came into existence under the aegis of the e-Committee, Supreme Court. Let the response be filed within four weeks from today," the Court added.

The Court directed that a copy of the order be forwarded to all District and Sessions Judges  to ensure strict compliance with the directions passed. 

"The Registry shall also bring the judgment to the notice of the Registrar General and transmit a copy of the same to the DG (Prisons) as well as to the Member Secretary, Delhi State Legal Services Authority," the Court added further.

The development came while the Court was dealing with a plea challenging a Sessions Court order by way of which the petitioner's revision petition, challenging dismissal of his application seeking default bail under Section 167(2) Cr.P.C. was dismissed.

The petitioner was arrested on 18.01.2020 and on being produced before the Metropolitan Magistrate on 19.01.2020, was sent to judicial custody. His judicial custody was extended from time to time, including on 15.04.2020 when his custody was extended till 29.04.2020. The time period of 90 days prescribed for filing the charge sheet expired on 18.04.2020.

Considering the facts of the case, the Court was of the view thus:

"The right to seek default bail under Section 167(2) Cr.P.C. is a fundamental right and not merely a statutory right, which flows from Article 21 of the Constitution of India. It has been held to be an indefeasible part of the right to personal liberty under Article 21 of the Constitution of India, and such a right cannot be suspended even during a pandemic situation. The right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a charge sheet."
"The order remanding an accused to custody is not an empty formality and at that stage, the Magistrate is required to apply his mind for the necessity of remand. The 60th or 90th day of custody assumes great significance as in the event of non-filing of charge sheet, a right under Section 167(2) Cr.P.C., which is held to be an indefeasible and fundamental right, accrues in favour of the accused. To ensure that this right does not get defeated in any manner, an obligation is cast upon the Magistrate to inform an undertrial prisoner about accrual of such right."

The Court therefore granted default bail to the petitioner subject to his furnishing of a bond of Rs. 25,000 with one surety of the like amount.

Title: ABHISHEK v. STATE NCT OF DELHI

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