[BAIL] Questions & Answers By Justice V. Ramkumar-Default Bail-PART-II

Q.6 Is a Magistrate or a Special Judge obliged to release an accused on default bail (compulsive bail) under the proviso to Sec. 167 (2) Cr.P.C. in a case involving a cognizable offence under the Customs Act, 1962 where the arrest and production before Court were made by a Customs Officer who is not a police officer ?

Ans. Yes. Although, applying the tests laid down by the Supreme Court, a Customs Officer is not a police officer, he is an officer invested with the powers of an officer-in-charge of a police station to whom Section 167 Cr.P.C. applies. (Vide –

Supdt. of Customs v. Ummerkutty 1984 KLT 1; Ayoob v. Supdt. Of Customs – 1984 KLT 215 – U. L. Bhat - J.

Approved in Directorate of Enforcement v. Deepak Mahajan (1994) 3 SCC 440 = AIR 1994 SC 1775 – S. Ratnavel Panidan, K. Jayachandra Reddy – JJ).

But see Jeevan Kumar Raut v. CBI – (2009) 7 SCC 526 = AIR 2009 SC 2763 – S. B. Sinha, Asok Kumar Ganguly – JJ, where it is held that since under Section 22 of the Transplantation of Human Organs Act, 1994, filing of a Police

Report by the authorised Police Officer is forbidden and the said Police Officer can only file a complaint before the Court, Section 167 (2) Cr.P.C. is not attracted.

Arrest need not necessarily be by a Police Officer alone but may be by an authorised officer or an officer including a Magistrate empowered to arrest. (Vide Directorate of Enforcement v. Deepak Mahajan – (1994) 3 SCC 440 = AIR 1994 SC 1775 - S. Ratnavel Panidan, K. Jayachandra Reddy – JJ).

Q.7 If the offence is punishable with imprisonment for a term not less than 10 years then the maximum remand period under clause (a) (i) of the proviso to Sec. 167 (2) Cr.P.C. is 90 days. An offence under Sec. 386 I.P.C. is punishable with imprisonment for a term which may extend to 10 years. Does that offence fall under clause (a) (i) of the proviso to Sec. 167(2) Cr.P.C. which prescribes 90 days ?

Ans. No. For Clause (a) (i) of the proviso to Section 167(2) Cr.P.C. to be attracted, 10 year’s imprisonment should be the minimum i.e. the offence should be punishable with imprisonment for “10 years or more”. If the offence, as in the case of Section 386 IPC is punishable with imprisonment for “10 years or less”, it will fall under Section 167 (2) proviso (a) (ii) Cr.P.C where the default period is 60 days. (Vide—

Rajeev Chaudhary v. State (NCT of Delhi (2001) 5 SCC 34 = AIR 2001 SC 2369 – M. B. Shah, S. N. Variava - JJ;

Rakesh Kumar Paul v. State of Assam – AIR 2017 SC 3948 – 3 Judges – Madan B. Lokur, Profulla C. Pant, Deepak Gupta – JJ.)

NOTE BY VRK: The above interpretation does not appear to be legally and grammatically correct. (Vide My Article titled “TEN IS NOT, AND CAN NEVER BE, LESS THAN TEN”).

There is some confusion regarding the verdict in Rajeev Chaudhary’s case. Going by paragraph 6 of the verdict, the discussion proceeds to hold that the expression not less than 10 years in para (i) of Clause (a) of the proviso to Section 167 (2) Cr.P.C., would mean imprisonment for a clear period of “10 years or more” and not “10 years or less”. If so, Section 386 IPC which prescribes a maximum period of imprisonment for 10 years, would fall only under para (ii) of the aforesaid clause under Section 167 (2) Cr.P.C. where the maximum period is 60 days. But then, the Supreme Court was dismissing the appeal preferred by the accused Rajeev Chaudhary against the verdict of the Bombay High Court which had held that the period applicable was 90 days as prescribed under para (i) of Clause (a) of Section 167 (2) Cr.P.C.

(The framers of the Code could have avoided any ambiguity by adopting the wording in Part II of the First Schedule to Cr.P.C. in the case of offences under other laws).

Q.8 If within the period of expiry of the default period no charge sheet is filed by the police, is there any obligation on the part of the Magistrate to inform the accused that the accused has got an indefeasible right to apply for default bail (compulsive bail) and to ensure that the accused is provided with free legal aid for the purpose of filing the necessary bail application ?

Ans. Yes. See Hussainara Khatoon v. State of Bihar – (1980) 1 SCC 108 = AIR 1979 SC 1377 - 3 Judges - P. N. Bhagwati, O. Chinnappa Reddy, A. P. Sen - JJ). It is the duty and responsibility of the Court to apprise the accused of his/her indefeasible right (Vide Rakesh Kumar Paul v. State of Assam – (2017) 15 SCC 67 = AIR 2017 SC 3948 – 3 Judges – Madan B. Lokur, Profulla C. Pant, Deepak Gupta – JJ.)

Q.9 Is the provision for default bail in the proviso to 167(2) Cr.P.C applicable to an accused who has not been arrested by the Police, but who surrenders before the court and is remanded to judicial custody ?

Ans. Yes, provided the surrender is before the proper Court to which copies of the entries in the police diary have been sent (Para 8 of Manoj v. State of M.P. (1999) 3 SCC 715 = AIR 1999 SC 1403 – K. T. Thomas, M. B. Shah - JJ). When an accused surrenders before the Court he is submitting himself to its custody. (See Niranjan Singh v. Prabhakar Rajaram Kharote – (1980) 2 SCC 559 = AIR 1980 SC 785 – V. R. Krishna Iyer, A. P. Sen – JJ and State of Haryana v. Dinesh Kumar – AIR 2008 SC 1083 – C. K. Thakkar, Altamas Kabir - JJ). The proviso to Section 167 (2) Cr.P.C. is applicable to such a person also. (See Bhaskaran Nair v. State of Kerala 1986 KLT 485 – Padmanabhan, Balakrishnan - JJ).

In paras 8 to 10 and 16 of Sundeep Kumar Bafna v. State of Maharashtra (2004) 16 SCC 623 = AIR 2014 SC 1745 – K. S. Radhakrishnan, Vikramajit Sen – JJ, it has been held that in a case falling under Clause (i) of Section 437 (1) Cr.P.C., the accused whose application under Section 438 Cr.P.C. had been dismissed, can surrender to the custody of the Sessions Court or High Court under Section 439 (1) Cr.P.C. and seek bail.

Q.10 Accused in a rape and murder case, after evading his arrest by the police, surrenders before a Magistrate to whom neither the report under Section 157 (1) Cr.P.C. nor copies of the entries in the police diary, have been forwarded. The accused is remanded to Judicial custody. Is he entitled to default bail on the expiry of 90 days if no police report is filed ?

Ans. Yes. Such a Magistrate should not have exercised his power under Section 167 (2) Cr.P.C. in view of para 8 of Manoj v. State of M.P. (1999) 3 SCC 715 = AIR 1999 SC 1403 – K. T. Thomas, M. B. Shah – JJ. The proper course for the Magistrate would have been to follow the procedure laid down by a Division Bench of the Madras High Court in Ayyappan v. State Represented by Inspector of Police 2016 (1) MLJ (Crl.) 641 (DB-Madras) – S. Nagamuthu, V. S. Ravi - JJ. But the fact remains that the liberty of the accused was curtailed by the remand order. Even if the SHO having jurisdiction is not aware of the surrender by the accused and remand by the Magistrate, that will not absolve the police from not completing the investigation and filing the final report within the time allowed by law which is 24 hours as indicated by Section 57 read with Section 167 (1) Cr.P.C.

Part 1: [BAIL] Questions & Answers By Justice V. Ramkumar-Default Bail-PART-I