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IN THE HIGH COURT OF DELHI AT NEW DELHI
Manoj Kumar Ohri, J.
Abhishek - Appellant
Versus
State NCT Of Delhi - Respondent
Crl.M.C. 2242 of 2020
Decided On : 18-10-2021
DEFAULT BAIL - THE INDEFEASIBLE RIGHT OF THE ACCUSED - Section 167(2) Cr.P.C. - [304B/498A/406/34 IPC] - The right to seek default bail under Section 167(2) Cr.P.C. is a fundamental right and not merely a statutory right, which flows from Article 21 of the Constitution of India. The Courts have emphasized on the need to secure the personal liberty of an individual as guaranteed under Article 21 of the Constitution of India. The right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a charge sheet. The duty of the concerned Court towards apprising an accused of the accrual of a right to claim default bail after expiry of the statutory period for filing charge sheet has been recognized. The Supreme Court has held that even an oral application for grant of default bail would suffice, and so long as such application is made before the charge sheet is filed by the police, default bail must be granted.
Fact of the Case:
The petitioner was arrested and his judicial custody was extended beyond the prescribed period for filing the charge sheet. The petitioner filed an application for default bail, but the charge sheet was allegedly filed on the same day. The petitioner was subsequently released on interim bail. The petitioner sought default bail again, which was dismissed, leading to the present petition.
Finding of the Court:
The Court found that the petitioner was entitled to default bail as the charge sheet was not filed within the prescribed period. The Court also emphasized the duty of the concerned Court to inform an undertrial prisoner about the accrual of such right. The Court directed the release of the petitioner on default bail, subject to certain conditions.
Issues: The primary issue was whether the petitioner was entitled to default bail, and the ancillary issues included the obligation of the Court to inform the accused of the right accrued in his favor and the mode and manner of filing an application seeking default bail.
Ratio Decidendi: The Court held that the right to seek default bail under Section 167(2) Cr.P.C. is a fundamental right and not merely a statutory right, which flows from Article 21 of the Constitution of India. The Court also emphasized the duty of the concerned Court towards apprising an accused of the accrual of a right to claim default bail after expiry of the statutory period for filing charge sheet. The Court directed the release of the petitioner on default bail, subject to certain conditions.
Final Decision: The Court released the petitioner on default bail, subject to his furnishing a personal bond and other conditions. The Court also issued directions to ensure that the rights of undertrial prisoners to seek default bail are not defeated and that the custody of an undertrial is not extended mechanically.
JUDGMENT
Manoj Kumar Ohri, J. - The present petition has been filed under Section 482 Cr.P.C. on behalf of the petitioner assailing the order dated 29.10.2020 passed by the learned Addl. Sessions Judge-02, Central District, Tis Hazari Courts, Delhi in Criminal Revision No. 226/2020 arising out of FIR No. 37/2020 registered under Sections 304B/498A/406/34 IPC at Police Station Burari, Delhi.
2. Vide the aforesaid order, the petitioner's revision petition, challenging dismissal of his application seeking default bail under Section 167(2) Cr.P.C. by the learned Metropolitan Magistrate, has been dismissed.
3. Briefly stated, the facts involved in the present case are that on 16.01.2020, a case bearing FIR No. 37/2020 came to be registered against the petitioner and his family members under Sections 304B/498A/406/34 IPC at Police Station Burari, Delhi, on a complaint filed by his father-in-law i.e., father of the deceased.
4. During investigation, the petitioner was arrested on 18.01.2020 and on being produced before the concerned Metropolitan Magistrate on 19.01.2020, was sent to judicial custody. The petitioner's judicial custody was extended from time to time, including on 15.04.2020 when his custody was extended till 29.04.2020. Admittedly, the time period of 90 days prescribed under the proviso (a) to Section 167(2) Cr.P.C. for filing the charge sheet expired on 18.04.2020.
5. Before proceeding further, let me capture the fact situation existing on that date in the NCT of Delhi. The entire country was facing an unprecedented situation caused by the COVID-19 pandemic, on account of which a nationwide lockdown was announced by the Central Government on the eve of 24.03.2020. As a result of the lockdown, not only the movement of people was restricted, but even the physical functioning of Courts was hampered. Although physical filing and listing of bail application was not permitted, a mechanism for electronic filing of urgent applications including bail applications was available through a dedicated email being aoidelhicourts@gmail.com. The bail applications were to be heard via Video Conferencing mode.
6. During this time, the undertrials suffering judicial custody could not be produced before the concerned Courts and their custody was extended by the Jail Visiting Magistrate. In these circumstances, as per the Status Report filed by the Superintendent, Central Jail No.7, Tihar, Delhi the petitioner's judicial custody was also extended on 15.04.2020 for 14 days i.e., upto 29.04.2020 by the Jail Visiting Duty Metropolitan Magistrate. The petitioner's Custody Warrant is also placed on record.
7. As no charge sheet was filed during the prescribed time of 90 days which came to an end on 18.04.2020, an application under Section 167(2) Cr.P.C. on behalf of the petitioner was filed by his counsel on 20.04.2020 through the aforementioned dedicated email address. The email containing prayer for default bail was sent at about 1:16 PM on 20.04.2020 with the subject "Fwd: Urgent hearing of bail application u/s 167(2) CrPC on behalf of Abhisek in FIR NO 37/2020 PS BURARI U/S 304B/498A/406/34 IPC". The email was addressed to Sh. Balbir Singh AO(J) and it read as under:-
"Respected Sir,
kindly find enclosed scanned copy of the bail application and annexures in FIR No 37/2020, PS Burari, U/s 304B/498A/406/34 IPC in the case titled as State Vs Abhishek and ors which is presently pending in the court of Sh Pranav Joshi, Ld. MM, Central, Tis Hazari Courts, Delhi room no 286.
The accused/applicant is in judicial custody for over 90 days of post-arrest, to our knowledge and information charge sheet in this case qua the accused/applicant is not yet filed and hence in terms of section 167(2) crpc, he is entitled to be released on bail on furnishing the bail bonds which he is ready to file, the bail application may kindly be considered for listing and urgent hearing.
in case any additional information is required please do let us know so that the same came to be
Point of law : The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filin....
The right to default bail under Section 167(2) Cr.P.C. is an indefeasible right that cannot be extinguished by the mere filing of an incomplete chargesheet.
(1) Default bail – Period of 90 days is stated to be counted when investigation for fresh offence(s) is started and not from date of lodging of FIR.(2) Default bail – Right to seek default/statutory ....
Application u/s 167(2) Cr.P.C. must be disposed of promptly and such application should not be treated as a regular bail application.
Point of Law : Applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the cour....
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