S. 167 (2) CrPC| Date Of Remand To Be Included While Considering Plea For Default Bail: Madras High Court Reiterates

Reiterating that the date of remand will be computed while considering an application for statutory bail, Madras High Court observed that the right to default bail is part of the procedure established by law under Article 21 of the Constitution, hence an indefeasible fundamental right.

The single-judge bench of Justice M. Nirmal Kumar was considering the plea by a POCSO accused, seeking directions to the Special Court For Exclusive Trial under POCSO Act to grant default bail on an application filed under Section 167(2) CrPC.

Placing reliance on Bikramjit Singh v. The State of Punjab, 2020 10 SCC 616 and Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, the court also held that,

"... the fact that the appellant filed yet another application for "default bail" would not mean that this application would wipe out the effect of the earlier application that had been wrongly decided. The dictum, therefore, is that in the matters of personal liberty of an accused not to be too technical and be in favour of personal liberty. The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled."

The court also referred to Sanjay Dutt vs. State through C.B.I (1994) to further add that once the accused has exercised the right to default bail under Section 167(2) and expressed his willingness to furnish bail, then that person can't be denied bail on account of prosecution deceivingly filing a police report or additional complaint on the same day. Therefore, when an application for bail is submitted after 60 days in a case and no alteration report has been filed till then, the accused will be entitled to his indefeasible right to statutory bail, the court clarified.

In the case at hand, the accused also filed a second statutory bail plea that was declined by the Special Court citing that only 89 days had elapsed since the accused was remanded in judicial custody. However, the High Court pointed out that the Criminal Rules of Practice 2019, Rule 6 (8) specifies that the date of remand must be included while considering a bail application. The single-judge bench also referred to Enforcement Directorate, Government of India, Vs. Kapil Wadhawan & Anr,  LL 2021 SC 118 to bolster this position in law when the charge sheet has not been filed within 90 days.

Based on the above reasons, the court granted bail to the accused upon executing his own bond before the Superintendent of Puzhal Central Prison and executing two sureties for the sum of Rs 10,000 before the Special Court for Exclusive Trial under POCSO Act, Chennai. The two sureties must be executed within 15 days from lifting of lockdown and the commencement of court's normal functioning.

Background

In a POCSO case that pertains to sexual assault and harassment inflicted on a girl child for over a time span of 9 years, the four accused includes her uncle, a pastor from the Church and another relative of the uncle alleged to have been involved in the crime. According to the prosecution, the maternal aunt who was the caretaker of the now 15-year-old child has also been a silent spectator to the atrocities committed. The commission of the offence by the accused came into light when her own mother (de facto complainant) took the child to a psychologist for consultation.

The second accused in the case, a pastor,  was booked for offences under Sections 10 r/w 9(1) (m) (n) and Section 17 of POCSO Act and Section 506(ii) of IPC based on the complaint dated 12th April, 2021. The petitioner was arrested on 23rd April, 2021 and remanded to Judicial Custody on 24th April, 2021. Though the petitioner accused filed a statutory bail application on 22nd June since the charge sheet was not filed even after 60 days, it was dismissed by the Special Court citing the reason that the offence under Section 6 of the POCSO Act has been made out from the statement of the girl child under Section 164 CrPC received on 10th June. Therefore, relying on the decision of the Bombay High Court in the case of Kapil Wadhawan, the special court held that it has sufficient power to examine whether the period of filing the final report is 90 days or 60 days. However, the alteration report came to be filed only on 25th June, i.e, after 62 days.

The second statutory bail application was filed on 22nd July which was again dismissed by the trial court by excluding the day of remand while computing the mandatory 90 day period. The refusal to grant bail on the above-ground became a bone of contention before the High Court.

In addition to the above, the court has noted in its order that the lower court erred in assuming on its own that Section 6 of the POCSO Act will be attracted based on the Section 164 CrPC Statement of the girl child:

"It is seen that in the remand order, Section 6 of POCSO Act is not found... The trial Court in its order in Crl.MP.No.562 of 2021 dated 28.06.2021, on its own, gives reason that 164 statement of the victim girl dated 10.06.2021, was received by the trial Court on 18.06.2021 and the statement reveals commission of offence under Section 6 of POCSO Act. In the First Information Report, remand report and in remand order, there is no mention of inclusion of Section 6 of POCSO Act... Likewise, the alteration report with Section 6 of POCSO Act was filed only on 25.06.2021, the date of considering the first statutory bail application is on 22.06.2021. On that date, no charge sheet was \ filed. Hence, this Court is of the view that the order passed by the Magistrate dismissing the first statutory bail... is not proper."

Case Title: R. Henry Paul v. the State of Tamil Nadu

Case No: Crl.O.P.No.14316 of 2021

Citation: 2022 LiveLaw (Mad) 51

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