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

Ans. Yes. Section 37 of the NDPS Act is pari materia with Section 41(A) of the Kerala Abkari Act. (See Muraleedharan v. State of Kerala – (2001) 4 SCC 638 = AIR 2001 SC 1699 – K. T. Thomas, R. P. Sethi – JJ.)

Q.17 Is an under-trial prisoner who has been in judicial custody for more than the maximum period of imprisonment provided for the offence, entitled to be released unconditionally and if so, is there any specific provision in law?

Ans. Yes. Such a person is entitled to be released unconditionally in view of the 2^nd proviso to Section 436A which enjoins that no such person shall be detained.

Q.18 Is there any other provision for default bail which can be granted by a Magistrate ?

Ans. Yes. Under Section 437 (6) Cr.P.C. if the trial of the accused in a non-bailable offence is not concluded within 60 days from the 1^st date fixed for taking evidence, the Magistrate is empowered to release the accused on bail if such accused has been in custody for the whole of the said period. But for reasons to be recorded in writing, the Magistrate can refuse to release him on bail.

Q.19 Accused is remanded to judicial custody at 8.30 pm. Charge sheet is handed over to the Magistrate at his residence at 8 pm. on the 92nd day after excluding 2 intervening holidays. The P.P. opposes the bail application filed on the 91st day contending inter alia that the prosecution is entitled to exclude the intervening holidays and that each day of detention ends at 8.30 pm.

(a) Is not the PP correct in his contention ?

(b) Is the accused entitled to default bail ?

Ans. (a) No.

(b) Yes. Section 167(2) Cr.P.C. does not prescribe any period of limitation for filing charge sheet before Court. What the said section provides is only that if the investigating agency fails to submit a charge sheet within 90 days, then they cannot seek the continued detention of the accused in custody. Every day starts and ends at midnight. Hence the day of authorised detention must end with the midnight of that day. After midnight the 2^nd day begins. The investigating agency should file the charge sheet during office hours. They are also not entitled to take advantage of the intervening holidays. (Vide Antony v. State of Kerala - 1986 KLT 86 – S. Padmanabhan – J.)

Q.20 The charge sheet is filed within 90 days. But it is returned as defective. The charge sheet is re-presented after curing the defects but beyond 90 days. Is the accused entitled to default bail ?

Ans. No. When the charge sheet was returned as defective, it implied a permission to cure the defects. Since the defects were cured and the charge sheet was re-submitted, it would relate back to the date of original presentation which was within time (vide Prasanth Kumar v. C.I. of Police – 2009 (3) KLT 494 – K. T. Sankaran - J).

NOTE BY VRK: But, Section 173 (5) Cr.P.C. as per which investigating agency should produce before Court all the documents relied on by it, is not mandatory but only directory. It is open to the Investigating Officer to produce, after the filing of the charge-sheet, more documents with the permission of the Court. (Vide CBI v. R.S. Pai (2002) 5 SCC 82 = AIR 2002 SC 1644 – 3 Judges – M. B. Shah, Brijesh Kumar, D. M. Dharmathikari – JJ, and Narendra Kumar Amin v. CBI (2015) 3 SCC 417 = AIR 2015 SC 1002 – V. Gopala Gowda, C. Nagappan - JJ).

If the Police Report or charge-sheet as originally filed contains necessary details so as to enable the Magistrate to take cognizance of the offence and proceed further, it cannot be said that there is failure to compli with Section 173 (5) Cr.P.C. and consequently that the charge-sheet filed by the Police Officer is incomplete. (Vide Swami Premananda @ Prem Kumar @ Ravi v. Inspector of Police XXXIX MLJ (Crl) 702 – Shivappa - J). Even in a case where the investigating officer has chosen to term the police report as 'incomplete', the power of the Magistrate to take cognizance of the offence is not lost. If the police report and the materials produced along with it are sufficient to satisfy the Magistrate that he should take cognizance of the offence, then his power is not fettered by the label which the investigating agency chooses to give to the report submitted under S.173(2) Cr.P.C. (See --

State of Maharashtra v. S. V. Dongre, 1995 (1) SCC 42 = AIR 1995 SC 231 – 3 Judges – R. M. Sahai, Dr. A. S. Anand, N. P. Singh - JJ;

Kamalaksha v. S.I. of Police 2007 (1) KLT 299 = 2007 (1) KHC 122 – V. Ramkumar - J).

Part 3: [BAIL] Questions & Answers By Justice V. Ramkumar-Default Bail-PART-III

Part 2: [BAIL] Questions & Answers By Justice V. Ramkumar-Default Bail-PART-II

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