Subsequent Filing Of Chargesheet Does Not Extinguish Indefeasible Right Of Accused Who Applied For 'Default Bail': SC [Read Judgment]

The Supreme Court has observed that the accused gets an indefeasible right to 'default bail' if he makes an application after the maximum period for investigation of an offence is over, and before a charge sheet is filed.

The right to default bail, Justice RF Nariman led bench said, is 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 Accused, Bikramjit Singh, was remanded to custody by a Sub-Divisional Magistrate. After expiry of 90 days in custody, he filed an application for default bail before Sub-Divisional Judicial Magistrate. This bail application was dismissed on the ground that the Sub-Divisional Judicial Magistrate had already extended time from 90 days to 180 days under Section 167 of the Code of Criminal Procedure, 1973 as amended by UAPA. This Order was later set aside by the Special Court holding that under the UAPA read with the NIA Act, the Special Court alone had jurisdiction to extend time to 180 days under the first proviso in Section 43-D(2)(b). However, the default bail plea was refused. Later, the Punjab and Haryana High Court set aside this order of the Special Court, holding that in case the investigation is being carried out by the State police, the Magistrate will have power under Section 167 (2) Cr.P.C. read with Section 43 (a) of UAP Act to extend the period of investigation upto 180 days and then, commit the case to the Court of Sessions as per provisions of Section 209 Cr.P.C., whereas in case the investigation is conducted by the agency under the NIA Act, the power shall be exercised by the Special Court and challan will be presented by the agency before the Special Court.

The contention of the accused-appellant was that the right to default bail was not extinguished by the filing of the charge sheet.  The court noted that, in this case, the application that was made for default bail was made on or before 25.02.2019 and not 26.03.2019. The charge sheet was filed on 26.03.2019 and not 25.03.2019. Referring to many earlier judgments on the subject, the court said:

"A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted."

While granting default bail, to the accused, the bench further remarked:

We must not forget that we are dealing with the personal liberty of an accused under a statute which imposes drastic punishments. 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.

Case name: BIKRAMJIT SINGH vs. STATE OF PUNJAB
Case no.: CRIMINAL APPEAL NO. 667 OF 2020 
Coram: Justices RF Nariman, Navin Sinha and KM Joseph
Counsel: Sr. Adv Colin Gonsalves for appellant, Adv Jaspreet Gogia for the State

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