IMPORTANT POINT
Custody undergone by the accused under Section 167 of the Code of Criminal Procedure counts towards default bail, regardless of any illegality in the order.

ORDER

[Physical Hearing/Hybrid Hearing (as per request)]

Rajiv Shakdher, J. (Oral)

1. This writ petition seeks to assail the correctness of the answer provided by the respondent to Question No.176 (Booklet `A') incorporated in the question paper framed for the Delhi Judicial Service (Preliminary) Examination, 2023.

2. It is the petitioner's case that the answer provided in the revised and final answer key was not the most appropriate option; a test prescribed by the respondent.

3. For convenience, the question in issue, i.e., Question No.176 is set forth hereafter:

"176. An Individual is facing charges under section 376 IPC and section 302 IPC. He avoided police arrest. Later, he surrendered to a Magistrate before whom neither report under Section 157 (1) Cr.P.C., nor copies of entries in the police diary were filed, who remanded him to judicial custody. Can such person claim default bail after 90 days if no police report is filed?

1. Yes

2. No

3. Yes but after 60 days if no police report is filed.

4. None of the above."

4. Concededly, the petitioner entered option No.2 in the answer sheet. However, according to the respondent the correct answer was the one provided in its revised and final answer key i.e., option No.1.

4.1. In sum, as per the respondent, given the facts alluded to in Question No.176, the accused who had been remanded to judicial custody by the Magistrate could obtain default bail after 90 days.

5. Mr Nishant Nain, learned counsel, who appears on behalf of the petitioner, contends to the contrary. To buttress his submission, he relies upon the judgment dated 25.04.2007 passed in SLP(Crl.)No.5124/2006 by the Supreme Court in State of West Bengal v. Dinesh Dalmia, (2007)5 SCC 773.

5.1. In a nutshell, Mr Nain argues that since the accused had been remanded to judicial custody after he had surrendered before the Magistrate, the period of 90 days would not commence from the date of remand as he had not made himself available for investigation by the police.

5.2. Furthermore, Mr Nain argued that a perusal of the facts adverted to in Question no. 176 would show that at the time of surrender, neither a report under Section 157(1) of the Code of Criminal Procedure, 1973 [in short, "Code"] nor the copies of the entries made in the police diary were filed before the Magistrate.

5.3. It is, thus, Mr Nain's contention that because neither the occurrence report under Section 157(1) nor the case diary were filed as required under Section 167 of the Code, quite obviously, the police had no opportunity to carry out an investigation, which is the purpose of arresting and detaining an accused.

5.4. Mr Nain submitted that instead, the accused was placed in judicial custody and since he was not made available for investigation, the 90 days period had not commenced for enabling grant of default bail.

5.5. In other words, the answer given by the petitioner that the accused, who had been remanded to judicial custody, could not apply for default bail was the correct answer.

6. On the other hand, Dr Amit George, learned counsel, who appears on behalf of the respondent, has argued to the contrary. Dr George submitted that irrespective of whether or not the conditions contained in Section 167 of the Code are fulfilled, as long as the person was in judicial custody, i.e., he remained in detention, his right to apply for default bail after 90 days of custody would get triggered.

6.1. It is, therefore, Dr George's contention that the answer provided by the respondent via its revised (final) answer key was correct or at least, was the most appropriate answer given the facts set forth in Question No.176.

7. We may note that Dr George has also taken a preliminary objection qua the maintainability of the writ petition. It is Dr George's contention that, although the revised (final) answer key was released on 02.02.2024, the petitioner chose to move the court only on 27.03.2024.

7.1. Dr George, thus, contends that interference, at this stage, would disrupt the timeta