The Bench articulated that the right of default bail under Section 167(2) of the CrPC is not merely a statutory right, but a fundamental right that flows from Article 21 of the Constitution.
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IN a significant judgment, the Supreme Court has held that an investigation agency cannot file a chargesheet or a prosecution complaint without completing the investigation, only to deprive an accused of their right to get default bail under Section 167(2) of the Code of Criminal Procedure (CrPC).
The court further held that such a chargesheet, if filed by an investigating agency without first completing the investigation, would not extinguish the right to default bail.
A division Bench comprising Justice Krishna Murari and C.T. Ravikumar passed the judgment to this effect while ruling on a petition filed by one Ritu Chhabaria under Article 32 of the Constitution against the continued detention of her husband.
The Bench reiterated that the right of default bail under Section 167(2) of the CrPC is not merely a statutory right, but a fundamental right that flows from Article 21 of the Constitution.
"The reason for such importance being given to a seemingly insignificant procedural formality is to ensure that no accused person is subject to unfettered and arbitrary power of the state. The process of remand and custody, in their practical manifestations, create a huge disparity of power between the investigating authority and the accused.
"While there is no doubt in our minds that arrest and remand are extremely crucial for the smooth functioning of the investigation authority for the purpose of attaining justice, however, it is also extremely important to be cognisant of a power imbalance. Therefore, it becomes essential to place certain checks and balances upon the Investigation Agency in order to prevent the harassment of accused persons at their hands," the Bench held.
A first information report had been lodged under Section 120B (punishment of criminal conspiracy) read with Section 420 (cheating and dishonestly inducing delivery of property) of the Indian Penal Code, along with Sections 7 (offence relating to public servant being bribed), 12 (punishment for abetment of offences) and 13(2) (punishment for criminal misconduct by public servant) read with Section 13(1)(d) (this provision has subsequently, through amendment of the parent legislation, been omitted, and does not survive today) of the Prevention of Corruption Act, 1988. The petitioner's husband was not named in the FIR.
Subsequently, two supplementary chargesheets were filed, wherein the petitioner's husband was made a prosecution witness in the supplementary chargesheet filed on May 26, 2020. Multiple other supplementary chargesheets were filed later on, and the petitioner's husband was not named in any of the said chargesheets.
The investigation was then transferred to another investigating officer, and the petitioner's husband was then arrested by the Central Bureau of Investigation (CBI) and was remanded to custody on April 28, 2022. Multiple other supplementary chargesheets were then filed in which the petitioner's husband was named as a suspect. His remand under Section 309(2) of the CrPC was renewed and was continued from time to time, and he was never released on default bail.
It was against this continuation of custody of her husband, and the scuttling of the relief of default bail, for which the petitioner approached the Supreme Court.
The Bench, at the outset, rejected the preliminary objection by the CBI that the writ petition was not maintainable. It noted that the Constitution has entrusted the Supreme Court with the most important task of protecting civil liberties of individuals, and the society at large.
"These civil liberties, which manifest themselves in the form of fundamental rights, are what allow the people of this country to effectively negotiate with the State and maintain the parity in power in the social contract between the people and the State.
"If this court refuses to exercise its jurisdiction on technicalities in cases of violations of fundamental rights, it will lead to a ripple effect that will result in a dysfunctional social contract, wherein the people of this country would become subject to an arbitrary and unfettered tyranny of the State," the Bench held while overruling the argument against the maintainability of the petition.
It traced the history of Section 167(2) of the CrPC, which deals with default bail. It highlighted that on the recommendation made by the Law Commission of India in 1969 to curtail the abuse of power to keep in custody an accused indefinitely while the investigation can go on in a leisurely manner, the existing Section 167(2) was incorporated that provides for a longer period of maximum remand, but also guarantees default bail, to ensure that accused persons are not subject to arbitrary detention.
The Bench pointed out that there is a statutory time frame prescribed for the remand of the accused for the purposes of investigation; however, the same cannot extend beyond 90 days, as provided under Section 167(2)(a)(i) in cases where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, and beyond 60 days, as provided under Section 167(2)(a)(ii), where the investigation relates to any other offence.
The relevant Section further provides that on expiry of the period of 90 days or 60 days, as the case may be, the accused has the right to be released on default bail in case they are prepared to furnish bail.
Turning to the facts of the case, the Bench held that a supplementary chargesheet, which explicitly states the investigation is still pending, cannot under any circumstance be used to scuttle the right of default bail; for then, the entire purpose of default bail is defeated, and the filing of a chargesheet or a supplementary chargesheet becomes "a mere formality and a tool" to ensure that the right of default bail is scuttled.
"It is thus axiomatic that first investigation is to be completed, and only then can a chargesheet or a complaint be filed within the stipulated period, and failure to do so would trigger the statutory right of default bail under Section 167(2) of CrPC," the Bench added.
It pointed out that the practice of filing preliminary reports before the enactment of the current CrPC has now taken the form of filing chargesheets without actually completing the investigation, only to scuttle the right of default bail.
"If we were to hold that chargesheets can be filed without completing the investigation, and the same can be used for prolonging remand, it would in effect negate the purpose of introducing Section 167(2) of the CrPC and ensure that the fundamental rights guaranteed to accused persons is violated," the Bench noted.
On the facts of the case, the Bench held that it was clear that during the pendency of the investigation, supplementary chargesheets were filed by the investigation agency just before the expiry of 60 days, with the purpose of scuttling the right to default bail accrued in favour the accused.
"This factual position was missed by the trial court, and instead of offering default bail to the accused, the trial court mechanically accepted the incomplete chargesheets filed by the Investigating Agency, and further continued the remand of the accused beyond the maximum period specified.
"The Investigating Agency and the trial court, thus, failed to observe the mandate of law, and acted in a manner which was manifestly arbitrary and violative of the fundamental rights guaranteed to the accused," the Bench held.
Resultantly, it made the interim bail granted to the petitioner's husband on February 20 absolute.
Click here to view the Supreme Court's full judgment in Ritu Chhabaria versus Union of India & Ors.