The article focuses on a unique situation faced by the trial courts. It happens sometimes that Hon’ble High Court or Supreme Court through their orders stops investigation for the time being or direct investigation authorities not to submit challan/final report until further orders or direct the investigation conclusion report to be filed by a ranked officer. Meanwhile the statutory period provided under Section 167 CrPC[i]comes to an end and accused who is in custody applies for releasing on default bail before the trial court. So the question that arises is whether accused is entitled to be released on statutory bail or not. I will try to answer the question through case laws on the point which more or less have the same fact situation.
In the case of State of West Bengal vs Dharam Paswan[ii], Hon’ble High Court through its order directed that the Special Investigation Team which was carrying on with the investigation to proceed with the investigation but shall not conclude the investigation or file final report before the criminal court until next date of hearing. Meanwhile on completion of 90 days accused filed application to be released on default bail which was accepted by the court of Chief Judicial Magistrate. So the state filed an application for cancellation of statutory bail granted to accused on the ground that there was no failure on the part of the Investigating Officer (I.O.) to file the charge-sheet since the charge-sheet was ready before the due date and the same could not be filed before the Learned Trial Court only because of the restraint order passed by the Division Bench of High Court. Moreover it was contended by the state that the statutory right of an accused in judicial custody to be enlarged on bail upon expiry of 60 days or 90 days, as the case may be, depending on the nature of the offence that the accused is charged with, arises only if there is failure or default on the part of the I.O. to file the charge-sheet within the period stipulated in Section 167 of the CrPC. That is why statutory bail is also referred to as default bail. Since there was no default on the part of the I.O and filing the charge-sheet without obtaining leave of the Division Bench would have amounted to contempt of Court; Section 167 (2) of CrPC only prescribes a procedure and nobody has a vested right in a procedure being complied with.
After hearing the arguments of both the sides Hon’ble Court held that in the case of Uday Mohanlal Acharya[iii] the question that arose for consideration by the Hon’ble Supreme Court was, when can an accused be said to have availed of his right for being released on bail under the Proviso to Section 167(2) of the CrPC, if a challan is not filed within the period stipulated thereunder. In the course of answering that question, the Hon’ble Court observed as follows in various paragraphs of the judgment:
“ The power under Section 167 is given to detain a person in custody while the police goes on with the investigation and before the Magistrate starts the enquiry. Section 167, therefore, is the provision which authorises the Magistrate permitting detention of an accused in custody and prescribing the maximum period for which such detention could be ordered. Having prescribed the maximum period, as stated above, what would be the consequences thereafter has been indicated in the proviso to sub-section (2) of Section 167. The proviso is unambiguous and clear and stipulates that the accused shall be released on bail if he is prepared to and does furnish the bail which has been termed by judicial pronouncement to be “compulsive bail” and such bail would be deemed to be a bail under Chapter 33. The right of an accused to be released on bail after expiry of the maximum period of detention provided under Section 167 can be denied only when an accused does not furnish bail, as is apparent from Explanation I to the said Section. The proviso to sub-section (2) of Section 167 is a beneficial provision for curing the mischief of indefinitely prolonging the investigation and thereby affecting the liberty of There cannot be any dispute that on expiry of the period indicated in the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure the accused has to be released on bail, if he is prepared to and does furnish the bail. Even though a Magistrate does not possess any jurisdiction to refuse the bail when no charge-sheet is filed after expiry of the period stipulated under the proviso to sub-section (2) of Section 167 and even though the accused may be prepared to furnish the bail required, but such furnishing of bail has to be in accordance with the order passed by the Magistrate.”
The Constitution Bench in Paragraph 48 of Sanjay Dutt v State through CBI[iv] stated thus:
“The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Cr.P.C. ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applied for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure.”
That apart, when an accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not.
In Moti Singh vs State Of Rajasthan[v] an application under Section 167(2) CrPC was filed by the petitioners before the court of Additional Chief Judicial Magistrate, Nawa Shahar on 16.08.2022 seeking default bail in their favour on the ground that they have been in custody for a total period exceeding 90 days and yet investigation has not been completed and challan has not been filed within the prescribed period. The court of Additional Chief Judicial Magistrate, Nawa Shahar, vide order dated 24.08.2022, rejected the default bail application filed on behalf of the petitioners. The petitioners thereafter filed an application before the court of Additional Sessions Judge, Kuchaman City, District Nagaur under Section 439 CrPC seeking bail on various grounds. However, after hearing the parties, the court of Additional Sessions Judge, Kuchaman City, District Nagaur rejected the bail application filed on behalf of the petitioners vide order dated 25.08.2022. Here it is pertinent to note that in this case a co-ordinate Bench of the Hon’ble High Court vide order dated 01.06.2022 in S.B. Criminal Misc(Pet.) No.3399/2022 had restrained Investigating Agency from filing challan in the case without permission of the High Court. Faced with the aforesaid situation, despite completion of investigation qua 9 accused persons, the challan/charge-sheet could not be filed within the prescribed period. On 26.08.2022 after obtaining permission from the High Court, the Investigating Officer filed challan/charge-sheet before competent criminal court. It needs our attention that in this case the Hon’ble High Court specifically mentioned in the interim order dated 01.06.2022 being conscious of the fact that few co-accused persons may take benefit of the situation, thus Court clarified that accused persons cannot take advantage of the fact that challan/charge-sheet has not been filed in the legal time due to the restraint order. Due to this reason the order rejecting default bail when challenged before the Hon’ble High Court was upheld by the Hon’ble Court. So this case differs on fact from other cases because the restraint order of Hon’ble High Court itself said that the accused can’t take advantage of court’s order restraining investigation agency to file challan.
A conspectus of the aforesaid decisions of Hon’ble Court unequivocally indicates that an indefeasible right accrues to the accused on the failure of the prosecution to file the challan within the period specified under sub-section (2) of Section 167 and that right can be availed of by the accused if he is prepared to offer the bail and abide by the terms and conditions of the bail, necessarily, therefore, an order of the court has to be passed. It is also further clear that the indefeasible right does not survive or remain enforceable on the challan being filed, if already not availed of, as has been held by the Constitution Bench in Sanjay Dutt (supra) case. This right is also not available in those cases where the Superior Courts expressly state that the restraint order restraining investigation agencies to file challan will not be used for the purposes of seeking default bail.
Report not filed by the Concerned Officer
In Achpal @ Ramswaroop vs The State of Rajasthan[vi] the accused persons were in custody from 08.04.2018, the investigation, in terms of Section 167 of the Code of Criminal Procedure had to be completed by 07.07.2018. On 05.07.2018 a report under Section 173 of the Code was filed by the police before the concerned Judicial Magistrate. Since said report was filed by a police officer lower in rank than an ASP and was thus contrary to the order passed by the High Court on 03.07.2018, the Magistrate having noted the contents of said order, returned the charge sheet with certified copy of the order dated 03.07.2018 to the police for due compliance. Thus as on the expiry of 90th day i.e. on 07.07.2018 no report under Section 173 of the Code was on record with the Magistrate. Immediately after the expiry of 90 days the accused persons filed an application for bail under the provisions of Section 167(2) of the Code. The Judicial Magistrate, by his order dated 09.07.2018 rejected the prayer for benefit under Section 167(2) of the Code. It was observed that since the charge-sheet filed on 05.07.2018 was not in compliance of the order passed by the High Court, the charge-sheet was returned due to technical fault. It was further observed that the effect of the order dated 03.07.2018 passed by the High Court was extension of period within which the investigation could be completed. When challenged before the Hon’ble High Court it upheld the magistrate’s order.
The matter being carried to the Hon’ble Apex Court, two questions were formulated for consideration.
- Firstly, could it be said that the investigation was complete for the purposes of Section 167(2) of the CrPC so as to deny the benefit to the accused in terms of the said provision?
- Secondly, whether the order of the High Court could be construed as one under which the period for completing the investigation stood extended?
The Hon’ble Apex Court noted the earlier decisions of that Court including the one in the case of Uday Mohanlal Acharya and also noted the recommendations of the Law Commission of India pursuant to which the new CrPC, 1973 was introduced. Having done so, the Hon’ble Court in reference to first question held that in the present case as on the 90th day, there were no papers or the charge-sheet in terms of Section 173 of the Code for the concerned Magistrate to assess the situation whether on merits the accused was required to be remanded to further custody. Though the charge-sheet in terms of Section 173 came to be filed on 05.07.2018, such filing not being in terms of the order passed by the High Court on 03.07.2018, the papers were returned to the Investigating Officer. Perhaps it would have been better if the Public Prosecutor had informed the High Court on 03.07.2018 itself that the period for completing the investigation was coming to a close. He could also have submitted that the papers relating to investigation be filed within the time prescribed and a call could thereafter be taken by the Superior Gazetted Officer whether the matter required further investigation in terms of Section 173(8) of the Code or not. That would have been an ideal situation. But we have to consider the actual effect of the circumstances that got unfolded. The fact of the matter is that as on completion of 90 days of prescribed period under Section 167 of the Code there were no papers of investigation before the concerned Magistrate. The accused were thus denied of protection established by law. The issue of their custody had to be considered on merits by the concerned Magistrate and they could not be simply remanded to custody dehors such consideration.
In reference to second question it was held that the provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality. There are enactments such as the Terrorist and Disruptive Activities (Prevention) Act, 1985 and Maharashtra Control of Organized Crime Act, 1999 which clearly contemplate extension of period and to that extent those enactments have modified the provisions of the Code including Section 167. In the absence of any such similar provision empowering the Court to extend the period, no Court could either directly or indirectly extend such period.
In Rambeer Shokeen v State (NCT of Delhi)[vii], the accused had filed an application for statutory bail prior to expiry of the statutory period. Such application was not pressed. A second application was filed after expiry of the statutory period. However, by then and prior to expiry of the statutory period, the I.O. had filed an application before the Special Court for extension of the period for completion of investigation. The Hon’ble Supreme Court held that since the report of the Additional Public Prosecutor seeking extension of time had been filed prior to expiry of the statutory period and also prior to the second application of the accused person for statutory bail, the application for extension of time ought to have been heard first by the Special Court as the application for statutory bail could succeed only if the extension application was rejected.
Conclusion
When the law provides that the Magistrate could authorise the detention of the accused in custody up to a maximum period as indicated in the provisions to sub-section (2) of Section 167, any further detention beyond the period without filing of a challan by the investigating agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Article 21 of the Constitution. There is no provision in the Criminal Procedure Code authorising detention of an accused in custody after the expiry of the period indicated in proviso to sub-section (2) of Section 167 excepting the contingency indicated in Explanation I, namely, if the accused does not furnish the bail.
No court can directly or indirectly extend the statutorily prescribed period within which investigation must be completed and the provisions of CrPC do not admit of any such eventuality. It would be a different thing altogether if the Court is dealing with a special statute like the Terrorist and Disruptive Activities (Prevention) Act, 1985 (since repealed) or the Maharashtra Control of Organized Crime Act, 1999 or Narcotic Drugs and Psychotropic Substances Act, 1985 which clearly empower the Court to extend the period of investigation and correspondingly, custodial detention of the accused provided application for extending time period is filed by prosecution before accused submits his statutory bail application. To that extent, those special enactments have modified the relevant provisions of CrPC including Section 167 thereof. In the absence of such special provision, no Court can extend the period of investigation and has to release the accused on Default/Statutory bail if he does furnish bail.
[i] https://indiankanoon.org/doc/1687975/
[ii] CRM 1105 of 2019
[iii] (2001) 5 SCC 453
[iv] (1994) 5 SCC 410)
[v] [2023/RJJD/005868], S.B. Criminal Miscellaneous Bail Application No. 12246/2022
[vi] CRIMINAL APPEAL NO. 1218 OF 2018, @ SPECIAL LEAVE PETITION (CRIMINAL) NO.6453 OF 2018
[vii] (2018) 4 SCC 405