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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH)
MITALI THAKURIA, J.
Nabam Anna Modi Wife of Shri Philip Modi – Appellant
Versus
The State of A.P. and Anr – Respondents
Crl.Rev.P. 3 of 2024
Decided on : 01-02-2024
Default Bail - Criminal Procedure - Code of Criminal Procedure, 1973 - Section 397, 401, 482 - 167(2) - POCSO Act, 2012 - 376 IPC, 4 POCSO Act
Fact of the Case:
The petitioner filed for default bail under Section 397 read with Sections 401 & 482 of the Code of Criminal Procedure, 1973, seeking to quash the default bail rejection order and grant statutory bail to the accused, Philip Modi, arrested in connection with a case under Section 376 of the Indian Penal Code read with Section 4 of the POCSO Act, 2012.
Finding of the Court:
The court found that the accused's right to default bail was not extinguished as the bail application was filed within the statutory period, and the accused had an indefeasible right to default bail. The court also emphasized the need for prompt release on default bail and the prosecution's responsibility to complete the investigation within the stipulated time.
Issues: The issues revolved around the timing of the bail application, the filing of the Charge-Sheet, and the accused's right to default bail under Section 167(2) of the Cr.P.C.
Ratio Decidendi: The court held that the accused's right to default bail accrues after the expiry of the stipulated time limit for investigation, and the prosecution must complete the investigation with utmost urgency. The court also emphasized that the accused's liberty cannot be interfered with lightly, and the prosecution cannot trifle with individual liberty by not completing the investigation within the time allowed by law.
Final Decision: The court set aside the default bail rejection order and granted bail to the accused, subject to specified conditions.
Key Points: - The accused's right to default bail accrues after expiry of the statutory investigation period and must be granted promptly, with the prosecution under obligation to complete investigation urgently. [14000339340011] (!) - If a charge-sheet is filed before or after the default bail application, the indefeasible right to default bail may be extinguished or preserved depending on timing and circumstances; the court must consider access to default bail promptly when the right accrues. [14000339340011] (!) - The court set aside and quashed the default bail rejection, granting statutory bail to the accused with conditions, emphasizing the importance of individual liberty under Article 21 and timely administration of justice. [14000339340019] (!) (!) - The decision discusses reliance on Supreme Court precedents regarding extension of time for investigation, prompt grant of default bail, and non-interference with liberty upon discharge of the default bail right. [14000339340013] (!) - The role of delays due to court vacation or administrative lapses in extinguishing or preserving the right to default bail is analyzed as part of ensuring speedy investigation and liberty. [14000339340015] (!)
JUDGMENT :
Heard Mr. T.T. Tara, learned counsel for the petitioner. Also heard Mr. G. Tado, learned Additional Public Prosecutor for the State respondent.
2. This is an application filed under Section 397 read with Sections 401 & 482 of the Code of Criminal Procedure, 1973 for quashing and setting aside of the impugned default bail rejection order dated 17.01.2024, passed by the learned Special Judge (POCSO), Yupia, in Bail Application No. 354/2023, and seeking grant of statutory bail under Section 167 (2) of the Cr.P.C. to the accused person, namely, Philip Modi, who has been arrested by the Itanagar Women Police on 25.09.2023 in connection with Itanagar Women P.S. Case No. 93/2023, under Section 376 of the Indian Penal Code read with Section 4 of the POCSO Act, 2012.
3. It is submitted by the learned counsel for the petitioner, Mr. T. T. Tara, that the petition under Section 439 Cr.P.C. read with Section 167 (2) (a) (i) of the Cr.P.C. seeking default bail was filed before the learned Special Judge (POCSO), Yupia on 26.12.2023 after expiry of the statutory period of 90 days on 24.12.2023. However, the petition for default bail could not be filed on 25.12.2023 because of holiday on the occasion of Christmas and immediately after the said holiday, the petition was filed on 26.12.2023 seeking default bail. But the petition was heard by the learned Court below only on 05.01.2024 and from the record, it is seen that the Charge-Sheet was filed on 03.01.2024. However, the learned Special Judge (POCSO), Yupia rejected his Bail Application No. 354/2023, vide order dated 17.01.2024, which was filed under Section 167(2) of the Cr.P.C., with the observation that the Investigating Officer of the case has already submitted the Charge-Sheet before filing of the bail application and the accused has proposed to avail his indefeasible right of default bail only after filing of the Charge-Sheet. Further, the learned Court below failed to consider the fact that the bail application was filed on 26.12.2023 after expiry of the statutory period and the application was heard only on 05.01.2024 by the learned Special Judge (POCSO), Yupia and thereby failed to consider the fact that the bail application was filed 8 (eight) days prior to the filing of the Charge-Sheet on 03.01.2024.
4. It is further submitted that there was no Court proceeding of the learned Special Judge (POCSO) from 26.12.2023 to 02.01.2024 on the occasion of Winter Vacation. However, the Filing Section of the Office of learned Special Court (POCSO) cum Sessions Court was opened on 26.12.2023 & 27.12.2023. Further, the Presiding Officer cum Judge of the Special Court (POCSO) was on leave on 03.01.2024 & 04.01.2024 and the Court resumed functioning on 05.01.2024 and thus, the application for bail, filed on behalf of the accused, was listed only on 05.01.2024, though the bail application was filed on 26.12.2023.
The accused person availed and exercised his right of default bail provided under Section 167 (2) Cr.P.C. by filing bail application immediately after completion of 90 days on 26.12.2023 as no Charge-Sheet was filed within the statutory period of 90 days. The Investigating Officer of the case filed the Charge-Sheet only on 03.01.2024 and therefore, the order passed by the learned Special Judge (POCSO), Yupia, dated 17.01.2024, rejecting the bail application of the accused under Section 167 (2) Cr.P.C., is prima facie erred and the same is liable to be set aside and quashed for the interest of justice.
5. Further it is submitted that the provision of law has been misconstrued to an extent by the learned Court below that the Investigating Officer of the case is ought to file Charge-Sheet within a period of 90 days, which they have failed to filed and as such, the accused person is entitled to release on bail being an indefeasible right of the accused under the provision of Section 167 (2) of the Cr.P.C.
6. The learned Court below also failed to appreciate the ratio laid down by the Hon’
The main legal point established is that the accused's right to default bail accrues after the expiry of the stipulated time limit for investigation, and the prosecution must complete the investigati....
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....
An accused is entitled to default bail under Section 167(2) of Cr.P.C. if charges are not filed within the statutory period, emphasizing the fundamental right to personal liberty.
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.
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.
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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