Brief Facts of the Case
|Date||Particular of Events|
|27.10.2016||First Information Report (FIR) filed against the Petitioner under provisions of Prevention of Corruption Act, 1988 (PC Act) and Indian Penal Code, 1860.|
|05.11.2016||Petitioner was taken into custody pending further investigation.|
|20.12.2016||Petitioner applied for bail before the Special Judge but the application was rejected.|
|03.01.2017||The period of 60 days of detention for the petitioner had to end. This is the maximum period for detention during the course of investigation (without a charge sheet or challan being filed) as per Section 167(2)(a)(ii) of the Criminal Procedure Code, 1973.|
|N/A||The State extended the time for detention to 90 days on the grounds that the Petitioner had committed offences which could result in imprisonment for a term not less than 10 years, and thus provisions of Section 167(2)(a)(i) would apply.|
|11.01.2017||Petitioner filed for bail before the Hon’ble Gauhati High Court, which was subsequently rejected. He had applied only for ‘regular bail’ and not for ‘default bail’. Default bail is filed when the period of detention of 60 days expires and within this time, the prosecution fails to file a charge sheet.|
|24.01.2017||Charge sheet filed against the Petitioner after expiry of 60 days but before the expiry of 90 days.|
Whether the Petitioner was entitled to ‘default bail’ with effect from 03 or 04 January 2017 onwards and also in any case on 11 January 2017 when his application for ‘regular bail’ was rejected by the Gauhati High Court.
Contentions raised by the Counsels for Parties
Petitioner (Rakesh Paul)
- It was contended that “not less than” 10 years imprisonment must mean a minimum of 10 years imprisonment [Rajeev Chaudhary v. State (NCT) of Delhi) (2001) 5 SCC 34].
- Since the maximum punishment under Section 13(2) of the PC Act 1988 was seven years, the charge sheet was to be filed within 60 days, i.e. upto 04 January 2017, but since the chargesheet was not filed, the Accused was entitled to bail Under Section 167(2) of the Code.
- Assuming the Prevention of Corruption Act was amended by the Lokpal and Lokayuktas Act, 2013 the punishment Under Section 13(2) as amended will extend to 10 years and in that case also the chargesheet had to be filed within 60 days.
- The default of the Investigating Agency in not filing the chargesheet within 60 days entitles the Accused to be released as per the provision of Section 167(2) of the Code. It was contended that the maximum punishment for the offences for which the chargesheet has been filed against the Accused is seven years.
- It was contended that by the State that “what is the adequate punishment in a given case would be decided by the court on the basis of the facts and circumstances before it” [Bhupinder Singh v. Jarnail Singh (2006) 6 SCC 277].
- “The indefeasible right is enforceable only up to the filing of a charge sheet or challan and does not survive after the charge sheet or challan is filed in the court against him” [Sanjay Dutt v. State (1994) 5 SCC 410].
- Petitioner did not apply for ‘default bail’ on or after 04January 2017 till 24 January 2017 ad on this date his indefeasible right got extinguished on the filing of the charge sheet.
- “Where a minimum and maximum sentence is prescribed, both are imposable depending upon the facts of the case. Therefore, if an offence is punishable with imprisonment that may extend up to or beyond or including 10 years, then the period available for completing investigations would be 90 days before the provision for ‘default bail’ kicks in.” (Verbatim)
- The period of investigation should be relatable to the gravity of the offense-understandably so.
- “There is an urgent need for police reforms and that there is a convergence of views on the need to separate investigation work from law and order to ensure expeditious conclusion of investigations so that an Accused person is not unnecessarily deprived of his or her personal liberty by remaining in prolonged custody for an offence that he or she might not even have committed.” (Verbatim)
- Default bail is an indefeasible right, that is, it is a subject which cannot be lost, annnulled, or overturned.
- If the charge sheet is not filed and the right for ‘default bail’ has ripened into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext. The Accused can avail his liberty by filing an application stating that the statutory period for filing the charge sheet or challan has expired and the same was not filed at that time and therefore the indefeasible right had accrued in his or her favour.
- The contention that the because the charge sheet was filed against the Petitioner, he was not entitled to ‘default bail’ but must apply for regular bail – the ‘default bail’ chapter being now closed was denied by the Court due to the simple reason that they were concerned with the interregnum between 4 January, 2017 and 24 January, 2017 when no charge sheet had been filed.
- A case in which punishment with imprisonment extending 10 years shall for the purpose of “default bail” fall within section 167 (a) (ii) of the code and in such case, if charge-sheet is not filed within 60 days, the accused shall be entitled to be released on bail.