No Default Bail U/S 167 CrPC If Chargesheet Filed Before Arrest: Karnataka HC Rejects Accused Plea In Gauri Lankesh Murder Case

A single judge bench of Justice Suraj Govindaraj said that the accused would not be entitled to the benefit under Section 167(2) CrPC if the charge sheet was filed before his arrest (since he was absconding).

It also rejected the contention that no supplementary charge sheet was filed against him even 90 days after his arrest. It held that when the accused has been tried for offences under Karnataka Control of Organized Crimes Act, 2000, it is only after the expiry of the 180 days period extended as per proviso of Section 22(2) of the Act, that the right to seek for statutory/default bail would arise.

Case details:

Petitioner is accused no 18 in the case. Initial FIR had been registered by the Rajarajeshwari Nagar Police station on 5.09.2017 for offences under Section 302 of IPC and Section 25 of the Arms Act against unknown persons.

Upon investigation a charge sheet had been laid on 29.05.2018 implicating two accused. Thereafter, a further charge sheet was laid on 23.11.2018 implicating certain others including the petitioner, who was arraigned as accused No.18. However, he was absconding and not traceable at the time.

In the charge sheet which had been laid on 23.11.2018, offences under Section 302, 120B, 114, 118, 109, 201, 203, 204 and 35 of IPC were invoked along with Section 25(1), 5(1)(b) and 27(1) of the Indian Arms Act, 1959, as also Section 3(1)(1), 3(2), 3(3) and 3(4) of the KCOCA. Permission had been sought to submit the charge sheet insofar as accused No.18 after he was traced. A further charge sheet was submitted on 25.06.2020 against accused No.18.

The prosecution argued that once in the charge sheet the provisions of KCOCA were invoked, the period for the investigation came to be extended to a period of 180 days by referring to Section 22 (2) (a) and proviso thereof since charge sheet has been laid insofar as accused No.18 on 25.06.2020, the arrest having been made on 9.01.2020, a charge sheet having been laid within the said extended period, there is no question of statutory/default bail.

Further it said that the first charge sheet against the petitioner/accused No.18 was submitted on 23.11.2018 itself, even prior to the arrest of the petitioner, the charge sheet which was submitted subsequently was upon further investigation being an additional charge sheet or supplementary charge sheet. Therefore, the question of invoking either subsection (2) of Section 167 as regards the default bail does not arise at all.

The petitioner absconded from the year 2018, when the charge sheet was laid on 23.11.2018 and having not cooperated with the investigation, the petitioner is not entitled for any relief under subsection (2) of Section 167 of Cr.P.C.

Findings:

The bench noted in terms of proviso to Subsection (2) of Section 22, the said period of 90 days can be extended up to 180 days by the said court on a report of the Public Prosecutor indicating the progress of the investigation and specific reasons for detention of the accused beyond a period of 90 days.

It observed, "Thus, an accused in crimes other than under KCOCA could seek for statutory/default bail in terms of proviso (2) to Subsection (2) of Section 167 of Cr.P.C, if investigation is not completed within the prescribed period of 60 or 90 days as contained therein."

Following which it held, "An accused would not be entitled to the benefit under Subsection (2) of Section 167 of Cr.P.C, in the event of charge sheet having already been filed before his arrest."

Further it held, "If the accused has been tried for offences under KCOCA, it is only after the expiry of the period, if any extended by the Special Court under proviso of Subsection (2) of Section 22 of KCOCA that the right to seek for statutory/default bail would arise."

Finally answering the question of could an absconder claim benefit of Sub section(2) of Section 167 of Cr.P.C, the bench said, "A reading of Subsection (2) of Section 167 of Cr.P.C does not make any distinction between an absconder or a person arrested at the initial stage itself. Section 167 of Cr.P.C. deals with a situation where a person has been arrested, investigation not being completed within 24 hours, accused is required to be remanded to Custody."

It then held, "Section 167 of Cr.P.C, would come into play only upon arrest and not at a time when person is absconding i.e. to say it is only when the petitioner was arrested that the benefit and/or entitlement under Section 167 accrued to the accused and as per the time period fixed therein at least 24 hours, 15 days, 60 days or 90 days as the case may be, certain rights would accrue to the accused to seek for statutory/default bail."

It added, "It is after the accused is arrested and available in custody, the investigation is required to be completed in a time bound manner as contained in Subsection (2) of Section 167 of Cr.P.C."

Accordingly it dismissed the petition.

Case Title: HRISHIKESH DEVDIKAR v. STATE OF KARNATAKA.

Case No: WRIT PETITION NO. 2997 OF 2021

Citation: 2022 LiveLaw (Kar) 426

Date of Order: 21ST DAY OF OCTOBER, 2022

Appearance: KIRAN.B.S, ADVOCATE for petitioner

ASHOK N.NAIK, SPL. PP for respondent.

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