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Right of Accused To Be Released on Bail If Investigation Not Completed Within Prescribed Period - Su

An indefeasible right accrues in favour of the accused for being released on bail if the police fails to complete the probe and no charge-sheet is filed within the period of 90 days or 60 days as the case may be, under Section 167 (2) of Code of Criminal Procedure, 1973.

Supreme Court in Criminal Appeal No. 1218 of 2018 @ Special Leave Petition (Criminal) No. 6453 of 2018 titled Achpal @ Ramswaroop & Another Vs State of Rajasthan, AIR 2018 SC 4647 held as under;
16. The letter of and spirit behind enactment of Section 167 of the Code as it stands thus mandates that the investigation ought to be completed within the period prescribed. Ideally, the investigation, going by the provisions of the Code, ought to be completed within first 24 hours itself. Further in terms of sub-section (1) of Section 167, if  it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57  the concerned officer ought to transmit the entries in the diary relating to the case and at the same time forward the accused to such Magistrate.

Thereafter, it is for the Magistrate to consider whether the accused be remanded to custody or not. Sub-Section (2) then prescribes certain limitations on the exercise of the power of the Magistrate and the proviso stipulates that the Magistrate cannot authorize detention of the accused in custody for total period exceeding 90 or 60 days, as the case may be. It is further stipulated that on the expiry of such period of 90 and 60 days, as the case may be, the accused person shall be released on bail, if he is prepared to and does furnish bail.

The liberty of an individual is a matter of great constitutional importance in our system of governance. Moreover, the liberty of the citizen is priceless freedom sedulously secured by the Constitution of India. Personal liberty is one of the cherished object of the Indian Constitution and deprivation of the same can be only in accordance with the law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution of India.

When the law provides that the Magistrate could authorize the detention of the accused in custody into a maximum period of In matters as indicated in the proviso to sub-section (2) of Section 167 of Code of Criminal Procedure, 1973 any further detention beyond the period without filing of charge-sheet by the Investigating Agency would be subterfuge and would not be in accordance with law and in conformity with the provisions of the Code of Criminal Procedure, 1973, and such, could be violative of Article 21 of the Constitution of India.

One cannot overlook that the object and scope of production of the persons arrested before a Magistrate with the least possible delay is not only for the application of judicial mind relating to the custody to be ordered, but also to enable such persons to make any representation in the matter. At this stage contemplated under Section 167 of Code of Criminal Procedure, 1973, a Magistrate does not take cognizance of a case when the object appears to be to prevent abuses by the Investigating Agency.

In matters of personal liberty, Courts cannot and should not be too technical and must lean in favour of personal liberty. The generic principle of criminal law is, a person is innocent until proven guilty. From the date of filing of First Information Report till completion of trial and decision of a case, the law contains various provisions for releasing an accused on different types of bails. In innumerable cases, the Supreme Court of India has held that bail is a right and liberty of a person is an important until he/she is proven guilty. Most often, we hear about anticipatory or regular bail. However, there is another less heard form of bail, which is called as Default Bail or Statutory Bail.

Bail must be only on consideration of merits, except default bail which is under Section 167 (2) of the Criminal Procedure Code, 1973 wherein trial Judges grant bail upon failure to file charge-sheet by the police within the statutorily stipulated time period after taking an accused in custody. There are two sub-parts of Section 167 (2) of the Criminal Procedure Code, 1973 providing for entitlement of an accused for obtaining default bail.

Section 167 in The Code Of Criminal Procedure, 1973 reads as under;

[167. Procedure when investigation cannot be completed in twenty four hours.

  1. Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
  2. The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that:
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, -
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]

(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

Explanation I. - For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;].

Explanation II. - If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.]

[Provided further that in case of a woman under eighteen years of age, the detention shall be authorized to be in the custody of a remand home or recognized social institution].

Sub-section (a)(i) of Section 167 (2) of the Code of Criminal Procedure, 1973 provides that 90 days would be the maximum permissible custody where the investigation relates to  an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years .

While subsection (a)(ii) of Section 167 (2) of the Code of Criminal Procedure, 1973 provides that the maximum period of custody would be sixty days for any other offences not being punishable with death, imprisonment for life or imprisonment for a term of not less than ten years.

On the question, ‘whether in a case regarding offence for which the punishment imposable may extend upto ten years, the accused is entitled to bail under Section 167 (2) of the Code of Criminal Procedure, 1973 due to default on the part of the investigating agency is not filing the charge-sheet within sixty days? , the Supreme Court has held that the crucial test is whether the offence is one for which the punishment of imprisonment for ten years or more can be awarded.

It is immaterial that the Court may have also the discretion to award the punishment of imprisonment for a term of less than ten years. In a case of an offence punishable with imprisonment  for a term which may extend to 10 years  the maximum custody would be 60 days.

In Aslam Babalal Desai v/s State Of Maharashtra, (1992) 4 SCC 272, Supreme Court held that  The provisions of the Code, in particular Sections 57 (person arrested not to be detained more than 24 hours) and 167 (detention, remand & default bail), manifest the legislative anxiety that once a person’s liberty has been interfered with by the police arresting him without a court’s order or a warrant, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by the proviso (a) to Section 167 (2) of the Code.

It must be realised that the said proviso was introduced in the Code by way of enlargement of time for which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a charge-sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed to that effect under Section 167 (2) would be an order under Section 437 (1) or (2) {when bail may be taken in case of non-bailable offence} or Section 439 (1) {Special powers of High Court or Court of Session regarding bail} of the Code.

Since Section 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to Section 437 (5) or Section 439 (2) of the Code. The bail can then be cancelled on considerations which are valid for cancellation of bail granted under Section 437 (1) or (2) or Section 439 (1) of the Code.

A Constitution Bench of Supreme Court in the case of Sanjay Dutt v/s State through CBI, Bombay (II), (1994) 5 SCC 410 while considering correctness of Division Bench decision of Supreme Court in the case of Hitendra Vishnu Thakur & Ors. v/s. State of Maharashtra & Ors., (1994) 4 SCC 602, laid down the law in Paragraphs 48 & 49 of the Judgment which read thus:
48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20 (4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of.

Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan.

The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Cr. P. C ceases to apply.

Again the Supreme Court in Uday Mohanlal Acharya v/s State of Maharashtra, (2001) 5 SCC 453 while elaborating on the rights of an accused, who is in custody, pending investigation and where the investigation is not completed within the period prescribed under Section 167 (2) of Code of Criminal Procedure, 1973 held that on the expiry of said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the Investigating Agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnish the bail, as directed by the Magistrate.

Reference was also made to Law Commission’s recommendation, whereby, it was observed that such remand beyond the statutory period fixed under Section 167 would lead to serious abuse and therefore some time limit was required to be placed on the power of the police to obtain remand and as such the maximum period for completion of investigation was suggested.

The principles laid down in Uday Mohanlal Acharya (supra) have been consistently followed by this Court namely in State of West Bengal v/s Dinesh Dalmia, (2007) 5 SCC 773; Sanjay Kumar Kedia v/s Intelligence Officer, Narcotics Officer & Anr., (2009) 17 SCC 631; Union of India v/s Nirala Yadav, (214) 9 SCC 457 and Rambeer Shoken v/s State (NCT Of Delhi).

In Rakesh Kumar Paul v/s State of Assam, 2018 (1) SCC (Cri) 401, where accused was charged with offence under Section 13 (1) of the Prevention of Corruption Act being  punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years , the State argued since the petitioner could face imprisonment that could extend up to 10 years; the date for applying for ‘default bail’ would commence on the expiry of 90 days.

However, Justice Madan Bhimarao Lokur of Supreme Court held that the petitioner had satisfied all the requirements of obtaining  Default Bail  he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge sheet has been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail. Justice Deepak Gupta of Supreme Court further held that Section 167 (2)(a)(i) of the Cr. P. C is applicable only in cases where the accused is charged with:

  1. offences punishable with death and any lower sentence;
  2. offences punishable with life imprisonment and any lower sentence and
  3. offences punishable with minimum sentence of 10 years

in all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment, then Section 167 (2)(a)(ii) will apply and the accused will be entitled to grant of ‘default bail’ after 60 days, in case charge-sheet is not filed. It was also held,  in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty .

To conclude, the principles regarding  default bail  and  remand  are:

  1. Detention beyond 60 days or 90 days, as the case may be, when no charge-sheet has been filed, is unwarranted and illegal under Section 167 (2) of the Code No case for grant of bail will be made out under Section 167 (2) of Code of Criminal Procedure, 1973;
  2. No application for  default bail  is necessary. It is duty of the Court to ascertain the desire of the accused and release him on  default bail  if he furnishes security;
  3. Section 167 (2) of Code of Criminal Procedure, 1973 does not cease to apply if charge-sheet submitted after the prescribed period;
  4. There is no distinction between bail granted under Section 167 (2) of Code of Criminal Procedure, 1973 and bail granted on merits under Chapter XXXIII and can be cancelled on grounds well established in law and not on the mere filing of a charge-sheet.


Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature, J&K, Jammu.
Email: [email protected], [email protected]

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