RITU CHHABARIA versus UNION OF INDIA & ORS.

[2023] 3 S.C.R. 826

[2023] 3 S.C.R.

RITU CHHABARIA

UNION OF INDIA & ORS.

(Writ Petition (Criminal) No. 60 of 2023)

BAPRIL 26, 2023

[KRISHNA MURARI AND C. T. RAVIKUMAR, JJ.]

Code of Criminal Procedure, 1973 – s.167(2) – Right ofdefault bail – chargesheet, if can be filed in piecemeal withoutfirst completing the investigation and whether the filing of suchCchargesheet extinguishes the right of an accused for grant of defaultbail – Held: No – Without completing the investigation of case, achargesheet or prosecution complaint cannot be filed by aninvestigating agency only to deprive an arrested accused of hisright to default bail u/s.167(2) – Such chargesheet, if filed, wouldDnot extinguish the right to default bail u/s.167(2) – In such cases,Trial Court cannot continue to remand an arrested person beyondthe maximum stipulated time without offering the arrested persondefault bail – Right of default bail u/s.167(2) is not merely statutoryright, but fundamental right flowing from Article 21 – Constitutionof India – Article 21.E

Constitution of India – Art.32 – Writ petition – Maintainabilityof – Held: Constitution entrusted the Supreme Court with the mostimportant task of protecting civil liberties of individuals, and thesociety at large – Article 32 falls within Part III of the Constitutionwhich deals with fundamental rights and thus, the right to invokeFArticle 32 is fundamental right in itself – The relief of statutorybail u/s.167(2), Cr.PC is fundamental right directly flowing fromArticle 21 of the Constitution – Thus, violation of such right directlyattracts consideration u/Article 32 – In the present case, preliminaryobjection raised by respondent regarding the maintainability of theGwrit petition is rejected – Code of Criminal Procedure, 1973 –s.167(2).

Code of Criminal Procedure, 1973 – s.167(2) – History ofthe provision of default bail – Law Commission Reports,recommendations – Discussed – Code of Criminal Procedure, 1898H– s.167.

Disposing of the writ petition, the Court

HELD: 1.1 The relief of statutory bail under Section 167(2)of the Cr.PC is fundamental right directly flowing from Article21 of the Constitution of India, and the violation of such rightdirectly attracts consideration under Article 32 of the Constitution.The preliminary objections raised by the respondent regardingthe maintainability of this petition under Article 32 of theConstitution stand rejected. [Para 14][834-B-C]

1.2 Section 167(2) of the Cr.PC was enacted to ensure thatthe investigating agency completes the investigation within theprescribed time limit, failing which no accused could be detainedif they are willing to avail bail. [Para 21][839-A-B]

Law Commission of India Report No. 14, Vol.-I (1958);Law Commission Report No. 41 (September,1969), Para.14.19 – referred to.

M. Ravindran v. The Intelligence Officer, Directorateof Revenue Intelligence (2021) 2 SCC 485; SatendarKumar Antil v. CBI & Anr. (2021) 10 SCC 773 – reliedon.

1.3 The right of statutory bail, however, is extinguished, ifthe charge sheet is filed within the stipulated period. The questionof resorting to supplementary chargesheet u/s 173(8) of theCr.PC only arises after the main chargesheet has been filed, andas such, supplementary chargesheet, wherein it is explicitlystated that the investigation is still pending, cannot under anycircumstance, be used to scuttle the right of default bail, for then,the entire purpose of default bail is defeated, and the filing of achargesheet or supplementary chargesheet becomes mereformality, and tool, to ensue that the right of default bail isscuttled. First investigation is to be completed, and only thencan chargesheet or complaint be filed within the stipulatedperiod, and failure to do so would trigger the statutory right ofdefault bail under Section 167(2) of Cr.PC. [Paras 24 and 25][840-G-H; 841-A-B]Union of India v. Thamisharasi & Ors. (1995) 4 SCC190 : [1995] 3 SCR 905; Ashok Munilal Jain & Anr.

[2023] 3 S.C.R.

AVs. Assistant Director, Directorate of Enforcement (2018)16 SCC 158 – relied on.

1.4 Without completing the investigation of case, achargesheet or prosecution complaint cannot be filed by aninvestigating agency only to deprive an arrested accused of hisBright to default bail under Section 167(2) of the CrPC. Such achargesheet, if filed by an investigating authority without firstcompleting the investigation, would not extinguish the right todefault bail under Section 167(2) CrPC. The trial court, in suchcases, cannot continue to remand an arrested person beyond themaximum stipulated time without offering the arrested personCdefault bail. [Para 32][842-E-G]

1.5 In the instant case, during the pendency of theinvestigation, supplementary chargesheets were filed by theInvestigation Agency just before the expiry of 60 days, with thepurpose of scuttling the right to default bail accrued in favour theDaccused. This factual position was missed by the trial court, andinstead of offering default bail to the accused, the trial courtmechanically accepted the incomplete chargesheets filed by theInvestigating Agency, and further continued the remand of theaccused beyond the maximum period specified. The InvestigatingEAgency and the trial court, thus, failed to observe the mandate oflaw, and acted in manner which was manifestly arbitrary andviolative of the fundamental rights guaranteed to the accused.The interim order of bail passed in favor of the accused is madeabsolute. [Paras 33 and 35][843-A-C; 843-F]

FK. S. Puttaswamy & Anr. v. Union Of India & Ors. (2017)10 SCC 1 : [2017] 10 SCR 569; K. K Kochunni, MoopilNayar v. State of Madras & Ors. [1959] 2 Suppl. SCR316 – followed.

State of West Bengal v. Salap Service Station & Ors.G(1994) 3 Supp SCC 318; Dharam Pal v. State ofHaryana & Ors. (2016) 4 SCC 160 : [2016] 1 SCR194; Ram Narain Popli v. CBI (2003) 3 SCC 641 :[2003] 1 SCR 119; Rajesh Ranjan Yadav v. CBI (2007)1 SCC 70 : [2006] 9 Suppl. SCR 40 – distinguished.

State Of Bihar & Others v. J.A.C Saldanha & Ors. (1980)1 SCC 554 : [1980] 2 SCR 16 – referred to.

CRIMINAL ORIGINAL JURISDICTION: Writ Petition(Criminal) No. 60 of 2023.

Under Article 32 of The Constitution of India

Dr. Sujay Kantawala, Santosh Sachin, Advs. for the Petitioner.

K M Nataraj, ASG, Ms. Indira Bhakar, Vatsal Joshi, VinayakSharma, K Satija, Pratyush Shrivastava, Arvind Kumar Sharma, Advs.for the Respondents.

The Judgment of the Court was delivered by

KRISHNA MURARI, J.

1. The present writ petition under Article 32 of the Constitution ofIndia has been filed by the writ petitioner herein seeking the release ofher husband on default bail. The writ petition also raises an issue ofgrave importance of personal liberty enshrined under Article 21 of theConstitution of India.

FACTS

2. Briefly, the facts relevant to the present writ petition are thatan FIR was lodged under Section 120(B) read with Section 420 of theIndian Penal Code, 1860 (for short, ‘IPC’) along with Sections 7,12 and13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,1988, wherein the writ petitioner’s husband was not named.

A3. Subsequently, two supplementary chargesheets were filed,wherein the writ petitioner’s husband (hereinafter referred to as“accused”) was made prosecution witness in the supplementarychargesheet dated 26.05.2020. Multiple other supplementarychargesheets were later filed, and the accused was not named in any ofthe said chargesheets.B

4. The investigation was then transferred to another investigatingofficer, and the accused was then arrested by CBI and was remandedto custody on 28.04.2022. Multiple other supplementary chargesheetswere then filed, wherein the accused herein was named as suspect,and the remand of the accused under Section 309(2) of the Code ofCCriminal Procedure, 1973 (for short, ‘Cr.PC’) was renewed and wascontinued from time to time, and he was never released on default bail.

5. Subsequently, vide I.A No. 37424/2023, the petitioner sought toincorporate additional grounds and prayers for seeking bail in the writpetition, which was allowed by this Court vide order dated 20.02.2023,Dand interim bail was granted.

6. It is against this continuation of custody, and the scuttling ofrelief of default bail, the petitioner herein has filed the present writ. EverySupplementary chargesheet filed, as per the writ petitioner herein, is anattempt to ensure that her husband is not released on default bail.

EARGUMENTS ADVANCED BY THE PETITIONER

7. The learned counsel for the petitioner contended that:

I.The Respondent has admitted in writing in the supplementarychargesheet that the investigation is still pending, and in lightFof the same the trial court ought not to have issued processand remanded the petitioner’s husband under Section 309Cr.PC.

II. The accused’s fundamental rights are in prejudice due tocontinued custody on grounds of investigation not beingGcompleted. It was argued that the provisions of the CrPC donot empower continued remand to custody beyond 60 days ifthe investigation is still in progress. For this, the learned counselrelied on the judgment in the case of M. Ravindran Vs. TheIntelligence Officer, Directorate of Revenue Intelligence.1

H1 (2021) 2 SCC 485

ARGUMENTS ADVANCED BY THE RESPONDENT

8. The learned counsel appearing on behalf of the respondentcontended that:

I.The present writ is not maintainable, and for the grant ofbail, the accused herein should have either approached theHigh Court against the order of the Magistrate refusingdefault bail or filed Special Leave Petition against thesaid order invoking provisions of Article 136 of theConstitution of India.

II.The contention of the petitioner that the accused is notnamed in the FIR is not relevant submission, as the FIR isnot complete document, and is only the first step to setthe criminal procedure in motion. To support the contention,learned counsel relied on the case of State Of Bihar &Others Vs. J.A.C Saldanha & Ors.2

III.The supplementary chargesheet filed on 25.06.2022 is acomplete document in respect to the offence committed bythe persons arraigned in the said supplementary chargesheet,therefore no right to default bail has been accrued in favorof the petitioner’s husband.

ISSUES

9. In light of the abovementioned arguments raised by the learnedcounsel for the parties, the following three issues arise for ourconsideration:-

I.Can chargesheet or prosecution complaint be filed inFpiecemeal without first completing the investigation of thecase?

II.Whether the filing of such chargesheet without completingthe investigation will extinguish the right of an accused forgrant of default bail?

III.Whether the remand of an accused can be continued bythe trial court during the pendency of investigation beyondthe stipulated time as prescribed by the CrPC?

APRELIMINARY OBJECTION

10. preliminary objection has been raised by the learned counselappearing on behalf of the respondent stating that the present writ is notmaintainable before this court on grounds that no relief at such an earlystage of the investigation can be granted.B

11. We have considered the preliminary objection, however, weare not inclined to concur with the same. It must be remembered thatour Constitution has entrusted the Supreme Court with the most importanttask of protecting civil liberties of individuals, and the society at large.These civil liberties, which manifest themselves in the form of fundamentalCrights, are what allow the people of this country to effectively negotiatewith the state and maintain the parity in power in the social contractbetween the people and the state. If this Court refuses to exercise itsjurisdiction on technicalities in cases of violations of fundamental rights,it will lead to ripple effect that will result in dysfunctional socialcontract, wherein the people of this country would become subject to anDarbitrary and unfettered tyranny of the state.

12. Article 32 of the Constitution of India provides remedies forenforcement of rights conferred by this Part. The said Article reads asunder:-

E“32. Remedies for enforcement of rights conferred by thisPart-(1) The right to move the Supreme Court by appropriateproceedings for the enforcement of the rights conferred bythis Part is guaranteed.

(2) The Supreme Court shall have power to issue directionsFor orders or writs, including writs in the nature of habeascorpus, mandamus, prohibition, quo warranto and certiorari,whichever may be appropriate, for the enforcement of any ofthe rights conferred by this Part.

(3) Without prejudice to the powers conferred on the SupremeCourt by clauses (1) and (2), Parliament may by law empowerGany other court to exercise within the local limits of itsjurisdiction all or any of the powers exercisable by theSupreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspendedexcept as otherwise provided for by this Constitution.”

Article 32 falls within Part III of the Constitution which dealswith fundamental rights and thus the right to invoke Article 32 is afundamental right in itself, that exists to protect and safeguard the otherfundamental rights guaranteed by Part III of the Constitution. We mayusefully refer to the following observations of Constitution Bench ofthis Court made in the case of K.S. Puttaswamy & Anr. vs. Union OfIndia & Ors.3:-

“A constitutional democracy can survive when citizens havean undiluted assurance that the Rule of Law will protect theirrights and liberties against any invasion by the State and thatjudicial remedies would be available to ask searchingquestions and expect answers when citizen has beendeprived of these, most precious rights.”

13. Further, another Constitution Bench of this Court in the caseof K.K Kochunni, Moopil Nayar vs. State of Madras & Ors.4 as earlyas 1959, has observed that the Court must exercise its jurisdiction inmatters where there is an abuse of fundamental rights. The relevantparagraphs of the said judgment are being extracted hereunder:

“Further, even if the existence of other adequate legal remedymay be taken into consideration by the High Court in decidingwhether It should issue any of the prerogative writs on anapplication under Article 226 of the Constitution, as to whichwe say nothing now - this Court cannot, on similarground,decline to entertain petition under Article 32, for the rightto move this Court by appropriate proceedings for theenforcement of the rights conferred by Part I of the Constitutionis itself guaranteed right. It has accordingly been held bythis Court in Romesh Thappar v. State of Madras [1950 SCC436 1950 SCR 594] that under the Constitution this Court isconstituted the protector and guarantor of fundamental rightsand it cannot, consistently with the responsibility so laid uponit, refuse to entertain applications seeking the protection ofthis Court against infringement of such rights, although suchapplications are made to this Court in the first instance withoutresort to High Court having concurrent jurisdiction in thematter. The mere existence of an adequate alternative legal

3 (2017) 10 SCC 1

4 1959 Supp (2) SCR 316

Aremedy cannot per se be good and sufficient ground forthrowing out petition under Article 32, if the existence of afundamental right and breach, actual or threatened, of suchright is alleged and is prima facie established on the petition.”

14. It is also pertinent to note that the relief of statutory bail underBSection 167(2) of the Cr.PC, in our opinion, is fundamental right directlyflowing from Article 21 of the Constitution of India, and the violation ofsuch right, as mentioned above, directly attracts consideration underArticle 32 of the Constitution. In such circumstance, we are not inclinedto agree with the preliminary objections raised by the learned counselfor the respondent regarding the maintainability of this petition underCArticle 32 of the Constitution and the said objection, therefore, standsrejected.

ANALYSIS

15. Before we deal with the issues framed, we find it pertinent toDmention that in the present case, this Court is not dealing with the meritsof the case and as such is not inclined to make any observations regardingthe same. Every court, when invoked to exercise its powers, must bemindful of the relief sought, and must act as forum confined to suchrelief. In the present case at hand, this Court is not court of appeal, buta court of writ, and therefore is inclined to limit its jurisdiction only to theEpersonal liberty of the writ petitioner’s husband and the impugned pointsof law.

16. For the purpose of deciding the issues framed by us, we deemit appropriate to trace the history of the provision of default bail, and thereasons which led the legislature to incorporate the existing provisions inFthe new statute. Under Section 167 of the Code of Criminal Procedure,1898, which was the Act that governed criminal procedure before theenactment of CrPC presently in force, an accused, either under judicialor police custody, could be remanded only for maximum period of 15days. For ready reference Section 167 of the 1898 Code is beingGreproduced herein:-

“Procedure when investigation cannot be completed in twenty-four hours. - (1) Whenever any person is arrested and detainedin custody, and it appears that the investigation cannot becompleted within the period of twenty-four hours fixed by

Section 61, and there are grounds for believing that theaccusation or information is well-founded, the officer incharge of the police station or the police officer in charge ofthe police station or the police officer making the investigationif he is not below the rank of sub-inspector shall forthwithtransmit to the nearest Magistrate copy of the entries in thediary hereinafter prescribed relating to the case, and shall atthe same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwardedunder this section may, whether he has or has not jurisdictionto try the case, from time to time authorise the detention of theaccused in such custody as such Magistrate thinks fit, for aterm not exceeding fifteen days in the whole. If he has notjurisdiction to try the case or commit it for trial, and considersfurther detention unnecessary, he may order the accused tobe forwarded to Magistrate having such jurisdiction :

Provided that no Magistrate of the third class, and noMagistrate of the second class not specially empowered inthis behalf by the State Government shall authorise detentionin the custody of the police.

(3) Magistrate authorising under this section detention inthe custody of the police shall record his reasons for so doing.

(4) If such order is given by Magistrate other than theDistrict Magistrate or Sub-Divisional Magistrate, he shallforward copy of his order, with his reasons for making it, tothe Magistrate to whom he is immediately subordinate.”

17. This period of 15 days, however, more often than not, wasinadequate to conclude investigations, especially in complicated caseswhich required longer and deeper investigation. This lack of time,because of the abovementioned provision of the 1898 Act, led to awidespread practice wherein investigating officers would file preliminarychargesheets after the expiry of the remand period, and subsequentlyrequest the magistrate to postpone the commencement of trial and remandthe accused under Section 344 of the 1898 Act for further time, till thefinal chargesheet was filed.

A18. This practice of filing preliminary chargesheets was first pointedout by the Law Commission of India in its Report No. 14[5] on Reforms ofthe Judicial Administration, wherein it was stated that in many cases, theaccused persons, without the filing of any detailed reports before thecourts by the investigating authority, were languishing in jail for prolongedperiod of time. It thus recommended that there existed an urgent needBfor provision that provided for an appropriate time frame for thecompletion of an investigation while also safeguarding the personal libertyof the accused.

19. These recommendations made by the abovementioned lawcommission report were again emphasized by the Law Commission inCits Report No. 41[6], wherein it was explicitly stated that there was anurgent need to protect the civil liberties of accused persons against themisuse of Section 344 of the 1898 Act, wherein the accused persons, ongrounds of preliminary report and pending investigation, were remandedto custody indefinitely. The relevant paragraphs from the said report areDbeing reproduced hereunder:-

“Section 167 provides for remands. The total period for whichan arrested person may be remanded to custody-police orjudicial-is 15 days. The assumption is that the investigationmust be completed within 15 days and the final report underEsection 173 sent to court by then. In actual practice, however,this has frequently been found unworkable. Quite often, acomplicated investigation cannot be completed within 15 days,and if the offence is serious, the police naturally insist thatthe accused be kept in custody. practice of doubtful legalvalidity has therefore grown up. The police file before aFmagistrate preliminary or “incomplete” report, and themagistrate, purporting to act under section 344, adjournsthe proceedings and remands the accused to custody. In theFourteenth Report, the Law Commission doubted if such anorder could be made under section 344, as that section isGintended to operate only after magistrate has takencognizance of an offence, which can be properly done onlyafter final report under section 173 has been received, andnot while the investigation is still proceeding. We are of the

5 Law Commission of India in Report No. 14, Vol.-I (1958).H6 Law Commission in its Report No. 41 (September,1969), Para. 14.19.

same view, and to us also it appears proper that the law shouldbe clarified in this respect. The use of section 344 for remandbeyond the statutory period fixed under section 167 can leadto serious abuse, as an arrested person can in this manner bekept in custody indefinitely while the investigation can go onin leisurely manner. It is, therefore, desirable, as wasobserved in the Fourteenth Report that some time limit shouldbe placed on the power of the police to obtain remand,while the investigation is still going on: and if the presenttime limit of 15 days is too short, it would be better to fix alonger period rather than countenance practice whichviolates the spirit of the legal safe-guard. Like the earlierLaw Commission, we feel that 15 days is perhaps too shortand we propose therefore to follow the recommendation inthe Fourteenth Report that the maximum period under section167 should be fixed at 60 days. We are aware of the dangerthat such an extension may result in the maximum periodbecoming the rule in every case as matter of routine: but wetrust that proper supervision by the superior courts willprevent that. We propose accordingly to revise sub-sections(2) and (4) of section 167 as follows :-

“(2) The Magistrate to whom an accused person is forwardedunder this section may, whether he has or has not jurisdictionto try the case, from time to time authorise the detention of theaccused in such custody as such Magistrate thinks fit, for aterm not exceeding fifteen days at time and sixty days in thewhole. If he has no jurisdiction to try the case or commit itfor trial, and considers further detention unnecessary, he mayorder the accused to be forwarded to Magistrate havingsuch jurisdiction

Provided that-

(a) no Magistrate shall authorise detention in any custodyunder this section unless the accused is produced before him;

(b) no Magistrate of the second class not specially empoweredin this behalf by the High Court shall authorise detention inthe custody of the police.

A(4) Any Magistrate other than the Chief Judicial Magistratemaking such order shall forward copy of his order, with hisreasons for making it, to the Chief Judicial Magistrate.”

20. On the recommendation made by the Law Commission throughthe aforesaid reports recommending to curtail the abuse of such power,BSection 167(2) as it exists today in the statute was incorporated in theCr.PC, 1973, which provides for longer period of maximum remand,but also guarantees default bail, to ensure that accused persons are bereftof arbitrary detention.[7] The Statement of Objects and Reasons ofCrPC,1973 also refer to the 41[st] law Commission Report and inter aliareads as follows:-C

“(2).....A comprehensive report for the revision of the Code,namely, the Forty-first Report, was presented by the LawCommission in September, 1969. This report took intoconsideration the recommendations made in the earlier lReports of the Commission dealing with specific mattersDnamely, the Fourteenth, Twenty-fifth, Thirty-second, Thirty-third, Thirty-sixth, Thirty-seventh and Fortieth Reports.

(3) The recommendation of the Commission were examinedcarefully by the Government, keeping in view, among others,the following basic considerations-E(i) an accused person should get fair trial in accordancewith the accepted principles of natural justice;

(ii)every effort should be made to avoid delay in investigationand trial which is harmful not onlv to individuals involvedFbut also to society; and(iii) the procedure should not be complicated and should, tothe utmost extent possible, ensure fair deal to the poorersections of the community.

The occasion has been availed of to consider and adopt whereGappropriate suggestions received from other quarters, basedon practical experience of investigation and the working ofcriminal courts”

H7 Law Commission in its Report No. 41 (September, 1969), Para. 14.19.

21. bare perusal of the abovementioned statement of objectsstrongly indicates that Section 167(2) of the Cr.PC was enacted to ensurethat the investigating agency completes the investigation within theprescribed time limit, failing which no accused could be detained if theyare willing to avail bail. This position was also laid emphasis on by athree-judge bench of this Court in the case of M. Ravindran Vs.Directorate Of Revenue Intelligence (Supra), the relevant paragraphsof the same are being reproduced hereunder:

“The suggestion made in Report No. 14 was reiterated by theLaw Commission in Report No. 41 on The Code of CriminalProcedure, 1898 (Vol. I, 1969, pp. 76-77). The LawCommission re-emphasised the need to guard against themisuse of Section 344 of the 1898 Code by filing “preliminaryreports” for remanding the accused beyond the statutoryperiod prescribed under Section 167. It was pointed out thatthis could lead to serious abuse wherein “the arrested personcan in this manner be kept in custody indefinitely while theinvestigation can go on in leisurely manner”. Hence theCommission recommended fixing of maximum time-limit of60 days for remand.

It was in this backdrop that Section 167(2) was enacted withinthe present day CrPC, providing for time-limits on the periodof remand of the accused, proportionate to the seriousnessof the offence committed, failing which the accused acquiresthe indefeasible right to bail.”

22. Further, this legal position was again reiterated in SatendarKumar Antil vs CBI & Anr.8, wherein it was held that Section 167(2)of the Cr.PC is limb of Article 21 of the Constitution of India, and assuch, the investigating authority is under constitutional duty to expediatethe process of investigation within the stipulated time, failing which, theaccused is entitled to be released on default bail. The relevantobservations made in the said judgment are as under:-

“Section 167(2) was introduced in the year 1978, givingemphasis to the maximum period of time to complete theinvestigation. This provision has got laudable object behindit, which is to ensure an expeditious investigation and fair

Atrial, and to set down rationalised procedure that protectsthe interests of the indigent sections of society. This is alsoanother limb of Article 21. Presumption of Innocence is alsoinbuilt in this provision. An investigating agency has toexpedite the process of investigation as suspect islanquishing under incarceration. Thus, duty is enjoinedBupon the agency to complete the investigation within the timeprescribed and failure would enable the release of theaccused. The right enshrined is an absolute and indefeasibleone, ensuring to the benefit of suspect.

As consequence of the right flowing from the said provision,Ccourts will have to give due effect to it, and thus any detentionbeyond this period would certainly be illegal, being an affrontto the liberty of the person concerned. Therefore, it is notonly the duty of the investigating agency but also the courtsto see to it that an accused gets the benefit of Section 167(2).”

D23. It is also to be noted that as per the scheme of Cr.PC, aninvestigation of cognizable case commences with the recording of anFIR under Section 154 Cr.PC. If person is arrested and the investigationof the case cannot be completed within 24 hours, he has to be producedbefore the magistrate to seek his remand under Section 167(2) of theECr.PC during continued investigation. There is statutory time framethen prescribed for remand of the accused for the purposes ofinvestigation, however, the same cannot extend beyond 90 days, asprovided under Section 167(2)(a)(i) in cases where the investigationrelates to an offence punishable with death, imprisonment for life orimprisonment for term of not less than 10 years and 60 days, as providedFunder Section 167(2)(a)(ii), where the investigation relates to any otheroffence. The relevant section further provides that on expiry of the periodof 90 days or 60 days, as the case may be, the accused has right to bereleased on default bail in case he is prepared to and furnishes bail.

24. This right of statutory bail, however, is extinguished, if theGcharge sheet is filed within the stipulated period. The question of resortingto supplementary chargesheet u/s 173(8) of the Cr.PC only arisesafter the main chargesheet has been filed, and as such, supplementarychargesheet, wherein it is explicitly stated that the investigation is stillpending, cannot under any circumstance, be used to scuttle the right ofHdefault bail, for then, the entire purpose of default bail is defeated, and

the filing of chargesheet or supplementary chargesheet becomes amere formality, and tool, to ensue that the right of default bail is scuttled.

25. It is thus axiomatic that first investigation is to be completed,and only then can chargesheet or complaint be filed within thestipulated period, and failure to do so would trigger the statutory right ofdefault bail under Section 167(2) of Cr.PC. In the case of Union OfIndia vs Thamisharasi & Ors.9, which was case under the NarcoticDrugs and Psychotropic Substances Act, 1985, on finding that theinvestigation was not complete and chargesheet was not filed withinthe prescribed period, denial of default bail was held to be in violation ofArticle 21 of the Constitution of India, and it was further held that eventhe twin limitation on grant of bail would not apply.

26. Further, in the case ofAshok Munilal Jain & Anr. Vs. AssistantDirector, Directorate of Enforcement10, it was held that the right ofdefault bail under section 167(2) CrPC was held to be an indefeasibleright of the accused even in matters under PMLA.

27. Therefore, in light of the abovementioned discussions, it canbe seen that the practice of filing preliminary reports before theenactment of the present CrPC has now taken the form of filingchargesheets without actually completing the investigation, only to scuttlethe right of default bail. If we were to hold that chargesheets can befiled without completing the investigation, and the same can be used forprolonging remand, it would in effect negate the purpose of introducingsection 167(2) of the CrPC and ensure that the fundamental rightsguaranteed to accused persons is violated.

28. We have carefully perused the judgments relied upon by thelearned counsel for the respondent, however, none of the judgmentsrelied upon permit the abuse of remand under Section 309(2) of theCrPC by permitting the filing of incomplete chargesheets only to scuttlethe right of statutory bail.

29. The judgment in State of West Bengal vs. Salap ServiceStation & Ors.11relied upon by the respondent was rendered, not in thecontext of default bail, but only in the context of entitlement u/s. 173(8)

9 (1995) 4 SCC 190

10 (2018) 16 SCC 158

11 1994 Supp (3) SCC 318

Aof the CrPC to place on record further evidence in support of thechargesheet already filed.

30. Further, the judgment of Dharam Pal vs. State Of Haryana& Ors.12, relied upon by the respondent, refers to the power ofConstitutional Courts to transfer investigation. In Para 21 of the saidBjudgment, it has been stated that Section 173 empowers the police officerto conduct an investigation to file report on the completion of theinvestigation and section 173(8) CrPC allows the conduct of furtherinvestigation. However, this judgment also does not talk about defaultbail and the misuse of the filing of supplementary chargesheets. It is alsoimportant to note that the judgment of Ram Narain Popli vs. CBI13CandRajesh Ranjan Yadav vs. CBI14have also not dealt with the issuesbeing considered by us in the present matter.

31. In light of the abovementioned discussion, the judgments reliedupon by the learned counsel for the respondent are clearly distinguishableas issues being considered herein were not considered therein and relianceDplaced by the learned counsel for the respondents on the saidpronouncements is totally misfounded.

32. In view of the above mentioned discussions, the issues framedby us stand answered as under:-

EI.Without completing the investigation of case, achargesheet or prosecution complaint cannot be filed by aninvestigating agency only to deprive an arrested accusedof his right to default bail under Section 167(2) of the CrPC.

II.Such chargesheet, if filed by an investigating authorityFwithout first completing the investigation, would notextinguish the right to default bail under Section 167(2)CrPC.

III.The trial court, in such cases, cannot continue to remandan arrested person beyond the maximum stipulated timewithout offering the arrested person default bail.G

12 2016 (4) SCC 16013 (2003) 3 SCC 641H14 (2007) 1 SCC 70

CONCLUSION

33. In the instant case, it is clear from the facts that during thependency of the investigation, supplementary chargesheets were filedby the Investigation Agency just before the expiry of 60 days, with thepurpose of scuttling the right to default bail accrued in favour the accused.This factual position was missed by the trial court, and instead of offeringdefault bail to the accused, the trial court mechanically accepted theincomplete chargesheets filed by the Investigating Agency, and furthercontinued the remand of the accused beyond the maximum periodspecified. The Investigating Agency and the trial court, thus, failed toobserve the mandate of law, and acted in manner which was manifestlyarbitrary and violative of the fundamental rights guaranteed to theaccused.

34. Even at the cost of repetition, we find it pertinent to mentionthat the right of default bail under Section 167(2) of the CrPC is notmerely statutory right, but fundamental right that flows from Article21 of the Constitution of India. The reason for such importance beinggiven to seemingly insignificant procedural formality is to ensure thatno accused person is subject to unfettered and arbitrary power of thestate. The process of remand and custody, in their practical manifestations,create huge disparity of power between the investigating authority andthe accused. While there is no doubt in our minds that arrest and remandare extremely crucial for the smooth functioning of the investigationauthority for the purpose of attaining justice, however, it is also extremelyimportant to be cognizant of power imbalance. Therefore, it becomesessential to place certain checks and balances upon the InvestigationAgency in order to prevent the harassment of accused persons at theirhands.

35. With the above findings and conclusions, the interim order ofbail passed in favor of the accused is made absolute, and the presentwrit petition is, accordingly, disposed of.

Divya Pandey(Assisted by : Shevali Monga, LCRA)

Writ Petition disposed of.