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

Q.21 Final report not filed within 90 days. Bail application was filed on the 91st day. Thereafter on the 91st day itself the final report was filed. The Court dismissed the bail application. The accused approached the higher forum seeking default bail. Is the accused entitled to default bail ?

Ans. Yes. The indefeasible right of the accused to be released on default bail does not get extinguished by the subsequent filing of the charge sheet. (See Uday Mohanlal Acharya (Supra - AIR 2001 SC 1910);

Sayed Mohd. Ahmed Kazmi (Supra - AIR 2013 SC 152);

Rakesh Kumar Paul (Supra - AIR 2017 SC 3948).

Q.22 Accused is in remanded custody. The default period is 90 days. The charge sheet is filed on the 80th day of custody. On the 89th day the Court orders further investigation under Section 173(8) Cr.P.C. No final report is filed even after 10 days. Is not the accused entitled to claim default bail after 10 days of further investigation ?

Ans. No. Once charge-sheet is filed the right under the proviso to Section 167(2) Cr.P.C. ceases and does not get revived only because a further investigation ordered is pending (See Dinesh Dalmia v. CBI – (2007) 8 SCC 770 – S. B. Sinha, Harjit Singh Bedi - JJ).

Q.23 The accused in a murder case is granted bail by the Sessions Court after 42 days of judicial custody. The State approaches the High Court under Section 439 (2) read with Section 482 Cr.P.C for cancellation of the bail. In the meanwhile, in a writ petition, the High Court orders that the investigation of the case shall be taken over by the CBI. The CBI registers a fresh FIR against the accused after 35 days of his obtaining bail. The order of bail granted by the Sessions Court is set aside by the High Court (after 40 days of granting bail) for the reason that the accused was granted bail too early. The accused is re-arrested after 42 days of his obtaining bail and is remanded to judicial custody. The CBI then obtains police custody of the accused for 3 days. After further remanded custody for 48 days the accused files an application before the Sessions Court for default bail contending that no “police report” has been filed after 90 days of his remand. His application is opposed by the Public Prosecutor contending inter alia that the period has to be reckoned from the date of the custody of the accused after the CBI registered the FIR and not from the date of the first remand and that the accused is not entitled to tack on the two broken periods of custody for the purpose of default bail. Is the accused entitled to default bail?

Ans. Yes. (Vide K.V. Sabu v. CBI 2020 (2) KHC 601 – C. S. Dias - J). The accused is entitled to default bail. The period for default bail has to be reckoned from the date of the first remand. Here the order granting bail of the accused was set aside by the Supreme Court after 40 days of the accused enjoying the benefit of bail. The cancellation of his bail order was not attributable to any “post-bail conduct” of the accused so as to confer discretion in the High Court as to whether to grant default bail or not, as was done in Nishil v. Station House Officer 2007 (4) KLT 870 – R. Basant - J. The following legal principles apply to the facts of the present case:-

• Police custody can be given only during the first 15 days of remand under Section 167(2) C.r.P.C
• Chaganti Satyanaryana v. State of AP ( 1986) 3 SCC 141= AIR 1986 SC 2130 – A. P. Sen, S. Natarajan – JJ.
• CBI v. Anupam J Kulkarni ( 1992) 3 SCC 141= AIR 1992 SC 1768 – A. M. Ahmadi, K. Jayachandra Reddy – JJ.
• Kosanappu Ramreddy v. State of AP AIR 1994 SC 1447 = 1994 Cri.LJ 2121 M. N. Venkatachaliah, P. B. Sawant, N. P. Singh - JJ.
• Budh Singh v. State of Punjab (2000) 9 SCC 266 - 3 Judges –           A. S. Anand, R. C. Lahoti, S. N. Variava - JJ.
• Paras 11 and 15 of Satyajit Ballubhai Desai v. State of Gujarat (2014) 14 SCC 434 – G. S. Singhvi, Gyan Sudha Misra - JJ.

b) The object of the proviso to Section 167(2) C.r.P.C is to speed up the investigation.

1. Gurucharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 = AIR 1978 SC 179 - P. K. Goswami, V. D. Tulzapurkar - JJ.

c) Investigation is to be completed within 24 hours fixed by   Section 57 C.r.P.C, and if not, within 15 days, and if not, within 60 or 90 days.

1. Aslam Babalal Desai v. State of Maharashtra (1992) 4 SCC 272 = AIR 1993 SC 1- 3 Judges – A. M. Ahmadi, M. M. Punchhi, K. Ramaswamy - JJ.

d) The relevant date for counting 60 days or 90 days, as the case may be, under the proviso to Section 167(2) C.r.P.C is not the date of arrest, but the date of the first order of remand.

1. Pragyana Singh Thakur v. State of Maharashtra (2011) 10 SCC 445 – J. M. Panchal, H. L. Gokhale – JJ; Paras 49, 54 to 56 = AIR 2011 SC Supp 755= 2011 (4) KLT 321 - J. M. Panchal, H. L. Gokhale – JJ ; Harish Babu Maddineni v. State of Kerala – 2012 (1) KLT 235 – K. T. Sankaran - J).

e) Before remanding the accused to further detention the Magistrate has to inform him regarding his right to default bail due to the efflux of the statutory period under the proviso to Section 167(2) C.r.P.C and the State is bound to provide free legal aid to the accused so as to enable him to exercise his right to default bail and the Magistrate must ensure that he is so provided

1. Hussainara Khatoon (V) v. State of Bihar (1980) 1 SCC 108 = AIR 1979 SC 1377 - 3 Judges – P. N. Bhagwati, O. Chinnappa Reddy, A. P. Sen – JJ.

f) Where the accused was arrested for offences under the IPC and was remanded to custody but later approval was accorded under Section 23 of the Maharashtra Control of Organized Crime Act (MCOCA) for conducting investigation into offences under the said Act also but arising out of the same transaction, it was held that the period of 90 days does not commence from the date of grant of approval for investigation under the MCOCA, but the period of 90 days has to be reckoned from the date of his remand at the first instance. (Vide paras 11 and 12 of State of Maharashtra v. Bharati Chandmal Varma (2002) 2 SCC 121 = AIR 2002 SC 285 – K. T. Thomas, S. N. Phukan – JJ.

g) There is nothing in the proviso to Section 167 (2) Cr.P.C which suggests that the remanded period should be a continuous one to become eligible for default bail. If the broken periods of custody cannot be tacked on for the purpose of reckoning the default period, it will amount to a long arm being given to the investigating agency to remain inert and take a lackadaisical attitude in the completion of investigation. Moreover, if the broken period cannot be taken into account, it could also be argued that the broken period cannot be availed of by the accused for the purpose of set off under Section 428 Cr.P.C. In a recent order dated 05-05-2020 in B.A (TMP) No. 122 of 2020 K. A. Sabu v. CBI 2020 (2) KHC 601 – C. S. Dias - J, a learned Single Judge of the High Court of Kerala in a similar case has held that such broken periods can be taken into account for computation of the default period for the purpose of compulsive bail.

Q.24 Consequent on the expiry of 90 days of remanded custody as on 20-05-2020 in a POCSO case,   the accused files an application for default bail as no final report has been filed by the Investigating Officer. The Public Prosecutor submits that as per the order dated 23-03-2020 passed by the Supreme Court of India in Suo Motu Writ Petition Civil No. 3/2020 the period of limitation under the general law of limitation and under Special Laws (both Central and all States) has been extended with effect from 15-03-2020.   On that premise the Public Prosecutor argues that the accused cannot claim default bail especially when the allegation against him is that he impregnated his own daughter. Can the Court overlooking the general direction issued by the Supreme Court of India, grant bail to the accused ?

Ans. Yes. The default period prescribed under the proviso to Section 167 (2) Cr.P.C. is not a period of limitation. If the Investigating Agency is unable to file the final report within the time stipulated under Section 167 (2) Cr.P.C., the penalty which the prosecution will have to suffer is the default bail which the accused can claim as of right. An identical situation arose before the High Court of Kerala in Mohammed Ali v State of Kerala (Bail Application No. 2856/2020) – Raja Vijayaraghavan – J, disposed of on 20-05-2020. Relying on Achpal @ Ramaswaroop and Another v. State of Rajasthan (2019) 14 SCC 599 – A. M. Sapre, Uday U. Lalit – J, and earlier decisions it has been held that the order of the Supreme Court does not extend the period mentioned under Section 167 (2) Cr.P.C. and that the accused is entitled to default bail.

Q.25 The default period for a particular offence is 90 days. On the 90^th day, for the reason that no charge-sheet has been filed by the investigating agency, the accused files an application for default bail at 2.00 pm. Pending consideration of the application for default bail, on the same day at 4.00 pm the charge-sheet is filed. Can the indefeasible right accused to default bail, be defeated ?

Ans. The accused cannot claim any right to default bail on the 90^th day which is liable to be included while computing the remand period. The prosecution had time till the close of the working hours of the Court on the 90^th day. Hence, there is no question of any indefeasible right of the accused being defeated.