S.167(2) CrPC | Accused Eligible For Default Bail Irrespective Of Whether They Were Absconding Earlier: MP High Court

The Bench comprising Justice Subodh Abhyankar made it clear that the relevant consideration is only whether the chargesheet was filed within stipulated period of 60/90 days as the case may be, from the date of arrest of accused. It observed,

"A perusal of the aforesaid provision clearly reveals that it does not distinguish between a person who was arrested on earlier point of time and the person/accused arrested subsequently on account of his absconsion, and after the charge sheet has been filed against the person/accused persons who whereas earlier arrested. And, on the contrary, it applies', "Whenever any person is arrested and detained in custody" i.e., regardless of the time he or she is arrested."

The bench emphasized that Section 167(2) CrPC deals with personal liberty of a person and should thus be construed strictly as any other interpretation would violate the fundamental right of the accused under Article 21 of the Constitution of India.

Facts of the case were that the Appellants and three other persons were accused of offences punishable under Sections 302, 307, 323, 294, 147, 148, 149 IPC and under Sections 3(2)5 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. While three of the co-accused were arrested, the Appellants remained absconding. Whereas the chargesheet against the other co-accused were submitted, the investigation against the Appellants was kept open. Later, the Appellants were also arrested but the chargesheet against them was not submitted within ninety days from the date of their arrest.

The Appellants moved an application under Section 167(2) CrPC but the same was rejected by the trial court on the ground that the benefit of default bail cannot be invoked by accused persons who have absconded earlier as they cannot be allowed to take advantage of their own wrong. Aggrieved, the Appellants preferred an appeal before the Court against the dismissal of their application.

The Appellants submitted before the Court that they were within their rights to seek default bail since the police did not submit the chargesheet within the 90 days period. Per contra, the State argued that the Appellants were rightly denied the benefit of bail since they were absconding for a period of around 4 years and that they could not be allowed to take advantage of their own wrong. To strengthen their stand, the State relied on the decision of the Bombay High Court in Anil Somdatta Nagpal & Anr v. State of Maharashtra.

Examining the submissions of parties and documents on record, the Court found merit in the arguments put forth by the Appellants . Scrutinizing the provision under Section 167(2) CrPC, the Court expressed its disagreement with the decision of the Bombay High Court in Anil Somdatta Nagpal case-

On due consideration of the aforesaid finding, viz-a-viz the provisions of Section 167 (2) Cr.P.C., read with Article 21 of the Constitution of India which provides that, 'No person shall be deprived of his life and personal liberty except according to procedure established by law', with due respect to the learned Judge of the Bombay High Court, this Court begs to differ with the finding recorded in the case of Anil Somdatta Nagpal (Supra) by the Bombay High Court and is of the opinion that Section 167 (2) Cr.P.C. has to be construed strictly and its benefit cannot be denied by referring to Section 173 of Cr.P.C. and no other interpretation is permissible under law when it comes to personal liberty of a person.

With the aforesaid observations, the Court held that the Appellants were eligible for bail under Section 167(2) CrPC since the chargesheet in their case was submitted beyond the 90 days limit. Accordingly, the appeal was allowed and the Appellants were extended the benefit of default bail.