The right to default bail under Section 167(2) is absolute and cannot be denied even during further investigation, aligning with the constitutional guarantee of personal liberty under Article 21.

JUDGMENT :

[Prithviraj K. Chavan, J.] :

1. The Hon’ble the Chief Justice has assigned the task of answering a referral order passed by a Single Judge of this Court (Coram: N.J. Jamadar, J), who, having noticed two conflicting decisions rendered by the learned Single Judges of this Court in case of Anil Somdatta Nagpal and Lalit Somdatta Nagpal Vs. The State of Maharashtra, 2006 Cri. L.J. 1307 delivered by Hon’ble Mr. Justice Shri S.C. Dharmadhikari (as he then was) and Hon’ble Mr. Justice S. B. Shukre (as he then was) in the case of Pankaj Vs. The State of Maharashtra and others, Criminal Writ Petition No.475 of 2016 invoked Rule-8 of Chapter-I of the Bombay High Court (Appellate side) Rules, 1960.

2. Justice S.C. Dharmadhikari was of the view that once a charge-sheet is filed under Section 173 (2) of the Code of Criminal Procedure (for short “Code”) and the cognizance of the offence thereof has been taken, subsequent arrest of the accused does not entitle him to avail the benefit of default bail as provided in sub- section (2) of Section 167 of the Code. He was of the view that a further report tendered under section 173 (8) of the Code, post arrest and detention of the accused is, essentially, in the nature of further investigation and as such, investigation can be carried out even after forwarding a report under section 173 (2) of the Code. Such further report under section 173 (8) of the Code would not have any bearing on the so-called right of the accused under section 167 (2) of the Code. The learned Judge concluded that once a charge-sheet has been filed, indefeasible right of default bail stands extinguished.

3. On the other hand, Justice S. B. Shukre has taken an altogether different view, albeit without referring to the judgment in the case of Anil Somdatta Nagpal (supra) holding therein that for ascertaining whether the right of default bail is accrued, the date on which charge-sheet is filed after completion of investigation against the accused becomes relevant. In case, further investigation commenced against the accused arrested after filing of the charge- sheet in which he is shown as absconding, completion of investigation shall be declared only by the act of filing of supplementary charge-sheet in view of Section 173 (8) of the Code against him. If a supplementary charge-sheet against such an accused is not tendered within the stipulated period as provided under section 167 (2) of the Code, Mr. Shukre held that the accused would get an indefeasible right of default bail.

4. Mr. Ponda, learned Senior Counsel, in his usual erudition emphatically argued that the subsequent decision in the case of Pankaj (supra) promotes the object of the provisions contained in Section 167 of the Code. Mr. Ponda would argue that earlier decision in case of Anil Somdatta Nagpal (supra) has been dissented by Madras High Court in case of Dinesh s/o Rajaram Korku and another Vs. The State of Madhya Pradesh and another, Criminal Appeal No.5380 of 2022. Mr. Ponda is of the view that, in any event, tendering a final report under section 173 of the Code, inter alia , showing an accused as absconding in view of Section 299 of the Code would not be legally permissible. In the case at hand, a charge-sheet came to be filed on 15 th September, 2018, on which date, it cannot be construed that the applicant was in the picture. Therefore, remand of the applicant after his arrest on 28 th August, 2021 could not have been under the provisions of section 309 of the Code. It is significant in light of the fact that remand report indicates that it was filed under section 167 and not under Section 309 of the Code. If the applicant was remanded under section 167 of the Code, then the applicant should not and cannot be deprived of his right to default bail, emphasized Mr. Ponda.

5. A plethora of judgments has been pressed into service by Mr.Ponda, learned Senior Counsel and also by Mr. Venegavkar, learned Public Prosecutor, eventually, both of them are ad id