QUITE recently on October 18, 2021, through the judgment of the case – Abhishek v. State NCT of Delhi, Justice Manoj Kumar Ohri of the Delhi High Court has declared that the right to seek default bail under section 167(2) CrPC is a fundamental right and not merely a statutory right, which flows from Article 21 of the Constitution of India. The HC has further emphasised that it has been held to be an indefeasible part of the right to personal liberty under Article 21 of the Constitution of India, and such a right cannot be suspended even during a pandemic situation. The right of the accused to be set at liberty takes precedence over the State to carry on the investigation and submit a chargesheet (2020 SCC Online SC 529). The Courts have been repeatedly seized with various nuances of the provision time and again, and each time have emphasised on the need to secure the personal liberty of an individual as guaranteed under Article 21 of the Constitution of India.

 

The guiding principles have been laid down by the Supreme Court in its several decisions and one such case has been Rakesh Kumar Paul v. State of Assam-(2017) 15 SCC 67, wherein the Court noted the 41 st Report of the Law Commission of India, which in view of an anomaly created by the then prescribed limit of 15 days to complete investigation, recommended fixing maximum period of 60/90 days for completing the investigation depending upon the seriousness of the offence. In the present case, the petitioner after being arrested on January 18, 2020 was first produced before the Magistrate on January 19, 2020 when he was remanded to custody. The offence that the petitioner is charged with one being falling under Section 304B IPC, which is punishable with imprisonment for a period exceeding ten years or with imprisonment for life or death, the maximum period for which the petitioner could have been put under judicial custody was 90 days.

 

The 90 days’ period admittedly came to an end on April 18, 2020. However, in between, when the petitioner was produced before the Jail Visiting Magistrate without any application of mind and rather unmindful of the fact that 90 days were expiring on April 18, 2020. The concerned Magistrate without application of mind mechanically extended the petitioner’s judicial custody till April 29, 2020. In the entire petition, as well as in the submissions made on behalf of the petitioner, the entire thrust is on the non-filing of chargesheet by the prosecution till April 18, 2020 and accrual of right in favour of the petitioner. During pandemic, when there was lockdown throughout the country, an application came to be filed through an email sent on April 20, 2020 at 1.16 pm at the email address provided to the lawyers. The said application contained all the required details. Nothing more was required to be done by the petitioner. The listing of such application was not in his hand. According to the HC, the sending of an email on behalf of the petitioner, amounted to availing of his right to seek default bail. The contention raised on behalf of the State that the application never came to be listed or was abandoned by the petitioner, being meritless, was liable to be rejected. Similarly, the other contention that the subsequent filing of a regular bail application and a second application under section 167(2) CrPC amounted to wiping out of the first application filed for ‘default bail’ deserve an outright rejection in view of the law laid down in the SC judgement in the case of Rakesh Kumar. In this case, it appears that the chargesheet was filed physically before the duty Magistrate.

 

The same is apparent from the order of April 20, 2020 available on the trial court record. It is well settled that the rights of an under trial prisoner guaranteed under Article 21 of the Constitution cannot be allowed to be defeated on technicalities of procedure. In the case-Nagesh Kumar Singh v. The State of Uttar Pradesh and another –SLP (Cr.) No. 6975/2019 decided on October 15, 2019, the Supreme Court directed the release of the petitioner on bail. The statutory period of filing the chargesheet expired on May 23, 2019. The petitioner had filed an application seeking default bail on May 27, 2019 and on the same day, though at a later point of time, the chargesheet also came to be filed. Thus, to prevent defeat of the right of the accused, the SC had decided in his favour. As such, in absence of any averment or submission as to the time of filing of the chargesheet and peculiar facts of this case, it cannot be concluded that at the time of the petitioner availing his right to seek default bail, the chargesheet was already filed. Keeping in view, this legal position, the HC has said that it is inclined to release the petitioner on default bail, subject to his furnishing a personal bond in the sum of Rs 25,000/- with one surety like amount to the satisfaction of the concerned Court/Duty M.M. subject to the conditions stipulated in the order.

 

The order of remanding an under trial or its extension is held to be a judicial function requiring due application of mind. To ensure that the rights of under trial prisoners to seek default bail are not defeated despite the legislative mandate and the principles of law enumerated by the Courts time and again, and that the custody of an under trial is not extended mechanically as has been done in this case, the HC deemed it necessary to direct that: (i) while extending the custody of an under trial prisoner, the Magistrate/concerned Court shall not mechanically extend the period of custody for the maximum period of 15 days as prescribed under Section 167(2) CrPC; (ii) The custody shall be extended, keeping in mind 60th, 90th or 180th day (depending on the nature of offence and applicability of any Special Act) of completing the investigation and submission of chargesheet. If such day falls before the maximum extension period of 15 days, then the custody shall be extended only up to 60th, 90th or 180th day, as may be applicable. As a necessary corollary, the under trial prisoner shall be produced before the concerned Court on the next day, that is on 61st, 91st or 181st day, as the case may be, so that he can be duly informed of his fundamental right to seek default bail, if no chargesheet has been filed within the prescribed period for that purpose/ or for extending the period of custody. The format of Custody warrant should also have a column indicating the date on which right of default bail will accrue to the concerned under trial prisoner.