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Dissenting opinion of Bench in Rakesh Kumar Paul VS. State of Assam

Rakesh Kumar Paul Vs. State of Assam

The hon’ble Supreme Court in this case by a majority of 2:1 held that case in which punishment with imprisonment extending 10 years shall for the purpose of “default bail” fall within section-167 (a) (ii) of the code and in such case, if charge-sheet is not filled within 60 days, the accused shall be entitled to be released on bail.

Madan B. Lokur Deepak Gupta Prafull C. Pant J.
The Bail is the indefeasible right of a person and petitioner shall be released within period of 60 days in case the charge sheet is not filled. The indefeasible right could not be defeated by filling the charge-sheet after the accused has offered to furnish bail. For an offence wherein the punishment may extend to 10 years imprisonment, the accused is only entitled to bail on default after the period of 90 days.
The petitioner had satisfied all the requirements of obtaining ‘default bail’. Even, though the period had expired, the Accused would be deemed to be in legal custody till he does not furnish the bail.
The requirement was to furnish the bail.
The allegation did not disclose merely and economic offence but it shows a transgression of the constitutional rights of the victim of the crime. It was not fit case of grant of bail at this stage even on merits.
If the minimum period is laid down, the sentencing judge has no option but to give a sentence “not less than” that provided for. Therefore, the words “not less than” occurring   in Clause (i) to proviso (a) of Section 167(2) of the Cr.P.C. (and in other provisions) must be given their natural and obvious meaning which is to say, not below a minimum threshold and in the case of Section 167 of the Cr.P.C. these words must relate to an offence punishable with a minimum of 10 years imprisonment. In all cases where the minimum is less than 10 years but the maximum the sentence is not death or life imprisonment, the section:167 (2) (a) (ii) will apply. The intention of the legislature was that if an offence was punishable with imprisonment upto 10 years, then it falls within the provision of Section-167 (2) (a) (i).
In the matter of personal liability, the court should not be too technical and must lean in favor of personal liberty. In the matters of personal liberty and Article 21 of the Constitution, it is not advisable to be formalistic and technical. The Accused does not have to make out any ground for grant of bail. He does not have to fill a detailed application. All he has to aver in the application is that since 60 days have expired and charge-sheet has not be filled, he is entitled to bail. The requirement for application claiming the statutory right under section 167(2) of the code is a prerequisite for the bail on default. Such application has to be made before the magistrate for enforcement of statutory right.
The default bail shall be granted. The Bail shall be granted, if bail is furnished. It is the matter related to Constitutional fraud and not only related to economy fraud. The Accused shall remain in custody till 90 days.

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