Supreme Court Emphasizes on Need To Inform Accused of His Right u/s 167(2) of CrPC

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The Supreme in M Ravindran v IO clarified the position of law on default bail under Section 167(2) of Code of Criminal Procedure, 1973 (CrPC). The Court emphasized the legislative intent behind this provision. This was to reconcile the need to timely investigate the case and the civil liberties of the accused.

Brief Facts of the Case 

The Appellant was arrested for alleged offenses under the NDPS Act. After completing 180 days in custody of the police for the remand date, he tendered an application for default bail under Section 167(2) of CrPC on 01.02.2019 at 10:30 am. 

As the Appellant’s application was being heard, the Respondent filed an additional complaint against the Appellant at 4:25 pm on the same day. He further sought for dismissal of the bail petition.

The Trial Court granted the bail saying it has no power to intervene with the indefeasible right to bail under the provision. The High Court set aside the Trial Court order on the ground that since the application was not disposed of by the time the additional complaint was filed, the Appellant could not take advantage of the fact that the application was filed prior.

Arguments

The Appellant relied on the case of Uday Mohanlal Acharya v State of Maharashtra. He argued that the High Court has misconstrued the mandate of Section 167(2), CrPC, and had gravely erred in entering into the merits of the matter. Further, the Appellant had rightly invoked the provision after completion of the mandatory period of 180 days before the filing of the additional complaint by the Respondent. The Counsel stated that the next filing of the additional complaint by the investigating authority cannot defeat the indefeasible right of the Appellant.

The Respondent argued that the additional complaint was lodged while the Appellant was still in custody and before the disposal of the bail application. Hence, there was no question of the Appellant furnishing the bail. Thus, he was liable to continued detention in custody.

Court’s Observation 

The Court discussed the case Uday Mohanlal Acharya v State of Maharashtra. As per the opinion in the case, the Accused is deemed to have exercised his right to default bail under Section 167(2), CrPC the moment the bail application is filed by him and he offered to abide by the terms and conditions of bail. The Prosecution could not frustrate the object of the provision by subsequently filing a charge-sheet or additional complaint while the bail application was pending consideration or final disposal.

The Court observed that this provision was linked to Article 21. It was nothing but “a legislative exposition of the constitutional safeguard that no person will be detained except per rule of law.” It was enacted to balance the need for enough time limits to complete the investigation with the need to protect the civil liberties of the accused.

As per Rakesh Kumar Paul v. State of Assam, the Counsel for the Accused as well as the magistrate ought to inform the Accused of his right under Section 167(2) once it accrued to him, especially where the accused was from an underprivileged section of society and unlikely to have access to such information. 

Also, the Prosecutors could not be permitted to drag on proceedings and filing the next applications/reports for ‘buying extra time’ and facilitating filling up of lacunae in the investigation by the investigating agency. It would render the right nugatory as the investigating officers could drag their heels till the time the accused exercised his right and conveniently filed an additional complaint as soon as the bail application was taken up for disposal. 

Irrespective of the seriousness of the offense and the reliability of the evidence available, filing additional complaints merely to circumvent the application for default bail was improper, observed the Court. But, where the Accused failed to apply for default bail when the right accrued to him, and subsequently a charge sheet/additional complaint/report is preferred before the Magistrate, the right to default bail would be extinguished. 

Despite the order of default bail passed by the Court, under Explanation, I to Section 167(2), the actual release of the accused from custody was contingent on the directions passed by the Court granting bail. If the accused failed to furnish bail and/or follow the terms and conditions of the bail order within the time stipulated by the Court, his continued detention in custody is valid.

Court’s Order

The Court set aside the impugned judgment and allowed the bail application. The Bench directed the Appellant to surrender his passport and undertake not to leave Chennai city without leave of the Trial Court and to report to the Respondent when required. This was additional to the furnishing of sureties as ordered by the Lower Court. 

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