When Will Right To Default Bail Arise In Cases With No Minimum Term And Maximum Term Beyond 10 Years?SC To Examine

The Supreme Court has decided to examine the legal position regarding the period required to file chargesheet, for the purposes of default bail under Section 167(2) of the Code of Criminal Procedure, when the offence does not prescribe a minimum sentence and the maximum term of imprisonment prescribed is more then ten years.

A bench headed by Justice Ashok Bhushan issued notice on this question of law in the case State (NCT of Delhi) v Rajeev Sharma.

This was a special leave petition challenging an order of the Delhi High Court granting default bail to the accused on the ground that chargesheet was not filed within the period of 60 days.

The accused was booked under Section 3 of the Official Secrets Act 1923, for allegedly leaking intelligence information to Chinese agents. The offence alleged against him attracted a maximum punishment of 14 years imprisonment; but it did not prescribe a minimum punishment.

The Delhi High Court held that this was not a case covered under Section 167(2)(a)(i) of the CrPC, where 90 days period has been granted for filing chargesheet. As per Section 167(2)(a)(i), the period of 90 days for filing chargesheet is available, where the offence is punishable with death, imprisonment for life or imprisonment for a term of not less than ten years.

The High Court relied on the interpretation given by the Supreme Court in Rakesh Kumar Paul v  State of Assam that Section 167(2)(a)(i) covers cases with a minimum sentence of 10 years. In Rakesh Kumar Paul, the Supreme Court by 2:1 majority held that accused will be entitled to default bail on failure of investigating agency to submit charge sheet within 60 days when the offence is punishable up to 10 years imprisonment(Justices Madan B Lokur and Deepak Gupta in majority, Justice Prafulla C Pant in dissent).

Referring to Supreme Court precedents, the Delhi High Court in the instant case held :

"...under the Official Secret Acts for which the petitioner is being tried, though entail punishment which may extend to 14 years but the Section does not talk of minimum period of sentence and thus does not pass the test of clear period of 10 years or more, per Rajeev Choudhary (supra) and Rakesh Paul (supra) and as such the period of challan in this case would be 60 days and thus the impugned order passed by the learned MM being illegal is set aside and the petition is allowed. The petitioner is thus entitled to default bail; the challan having not been filed within 60 days".

Hearing in the SLP in SC

Challenging the High Court order, the Delhi police filed special leave petition in the Supreme Court.

Appearing for the petitioner, Additional Solicitor General Aman Lekhi submitted that the the decision in "Rakesh Kumar Paul" required reconsideration. The ASG submitted that the dissenting view of Justice Pant was more legally tenable.

"The expression "not less than 10 years" is fully attracted in the present case, and chargehsteet was filed in due time. The view taken by HC needs reconsideration", the ASG submitted.

The bench, also comprising Justices R Subhash Reddy and M R Shah, agreed to examine the legal question whether the present case is covered under the expressing "not less than 10 years" under Section 167(2)(a)(i).

"Mr. Aman Lekhi, learned ASG appearing for the petitioner submits that as per provision of Section 167 (2)(a)(ii), Cr.P.C.,the expression "for a term not less than 10 years" is fully attracted in the facts of the present case and charge sheet was required to be filed within 90 days and the punishment for the offence which is alleged against the respondent has maximum punishment of 14 years, therefore the view taken by the High Court is not correct", the bench noted in the order issuing notice.

Since the bench is only hearing the legal question, it said that the matter will be heard on the next hearing date, which is after two weeks.

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Click here to read the Delhi HC order