'Right to Default Bail Is a Fundamental Right,' Says Supreme Court

A division bench of the apex court slammed the CBI for filing supplementary charge sheets with the purpose of scuttling the right to default bail accrued in favour of the accused.

New Delhi: A Supreme Court bench of Justices Krishna Murari and C.T. Ravikumar, on Wednesday, April 26, held that the relief of statutory bail under Section 167(2) of the Criminal Procedure Code, is a fundamental right.

Such a right, it said, directly flows from Article 21 of the constitution, and the violation of such a right attracts consideration under Article 32 of the constitution. 

In Ritu Chhabaria vs Union of India, the petitioner sought the release of her husband, lodged under Section 120(B) read with Section 420 of the Indian Penal Code along with Sections 7, 12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The initial FIR did not name him – the Central Bureau of Investigation had filed multiple other supplementary charge sheets without naming him as an accused.   

The investigation was then transferred to another investigating officer, and the accused was then arrested by CBI and was remanded to custody on April 28 last year. More supplementary chargesheets naming the accused as a suspect were filed. The remand of the accused under Section 309(2) of the CrPC was renewed and was continued from time to time, and he was never released on default bail. 

The Supreme Court granted him interim bail on February 20, on the basis of additional grounds and prayers in the writ petition. 

The petitioner alleged that the accused’s fundamental rights were in prejudice due to continued custody on grounds of investigation not being completed. 

It was argued that CrPC does not empower continued remand to custody beyond 60 days if the investigation is still in progress. 

The CBI, on the contrary, contended that the accused should have either approached the high court against the order of the Magistrate refusing default bail or filed a Special Leave Petition against the said order under Article 136 of the constitution. The CBI claimed that no right to default bail had been accrued in favour of the petitioner’s husband. 

The Supreme Court bench held that our constitution has entrusted the 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,” the bench observed. 

The bench added that if the apex 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. 

As the bench was not dealing with the merits of the case, it refrained from making any observations regarding the same. 

“Every court, when invoked to exercise its powers, must be mindful of the relief sought, and must act as a forum confined to such relief.  In the present case at hand, this court is not a court of appeal, but a court of writ, and therefore, is inclined to limit its jurisdiction only to the personal liberty of the writ petitioner’s husband and the impugned points of law,” the bench reasoned. 

Tracing the history of the default bail, the bench recalled that under Section 167 of the CrPC, 1898, an accused either under judicial or police custody, could be remanded only for a maximum period of 15 days. As this period was found to be inadequate to conclude investigations, especially in complicated cases, the investigating officers would file preliminary chargesheets after the expiry of the remand period, and subsequently request the magistrate to postpone the commencement of trial and remand the accused for a further time, till the final chargesheet was filed. 

On the recommendation of the Law Commission, the CrPC, 1973, provided for a longer period of maximum remand, but also guarantees default bail, to ensure that accused persons are bereft of arbitrary detention. 

The bench relied on a recent judgment of the court in Satendar Kumar Antil vs CBI wherein it was held that Section 167(2) of the CrPC is a limb of Article 21 of the constitution, and as such, the investigating authority is under a constitutional duty to expedite the process of investigation within the stipulated time, failing which, the accused is entitled to be released on default bail. 

If a person is arrested and the investigation of the case cannot be completed within the mandatory 24 hours, he has to be produced before the magistrate to seek his remand under Section 167(2) of the CrPC during continued 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 10 years and 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 a right to be released on default bail in case he is prepared to and furnishes bail. 

The bench made it clear that a supplementary chargesheet, wherein it is explicitly stated that the investigation is still pending, cannot under any circumstance, be used to scuttle the right of default bail. Without completing the investigation of a case, a chargesheet or prosecution complaint cannot be filed by an investigating agency only to deprive an arrested accused of his right to default bail under Section 167(2) of CrPC, the bench held. 

Such a chargesheet would not extinguish the right to default bail, the bench categorically held.