The right to default bail under Section 167(2) of the CrPC is a fundamental right that flows from Article 21 of the Constitution of India, and filing incomplete chargesheets does not extinguish this right.

JUDGEMENT

JUDGMENT KRISHNA MURARI, J. 1. The present writ petition under Article 32 of the Constitution of India has been filed by the writ petitioner herein seeking the release of her husband on default bail. The writ petition also raises an issue of grave importance of personal liberty enshrined under Article 21 of the Constitution of India .

FACTS 2. Briefly, the facts relevant to the present writ petition are that an FIR was lodged under Section 120(B) read with Section 420 of the Indian Penal Code, 1860 (for short, ‘IPC’) along with Sections 7,12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, wherein the writ petitioner’s husband was not named.

3. Subsequently, two supplementary chargesheets were filed, wherein the writ petitioner’s husband (hereinafter referred to as “accused”) was made a prosecution witness in the supplementary chargesheet dated 26.05.2020. Multiple other supplementary chargesheets were later filed, and the accused was not named in any of the said chargesheets.

4. The investigation was then transferred to another investigating officer, and the accused was then arrested by CBI and was remanded to custody on 28.04.2022. Multiple other supplementary chargesheets were then filed, wherein the accused herein was named as a suspect, and the remand of the accused under Section 309(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.PC’) was renewed and was continued from time to time, and he was never released on default bail.

5. Subsequently, vide I.A No. 37424/2023, the petitioner sought to incorporate additional grounds and prayers for seeking bail in the writ petition, which was allowed by this Court vide order dated 20.02.2023, and interim bail was granted.

6. It is against this continuation of custody, and the scuttling of relief of default bail, the petitioner herein has filed the present writ. Every Supplementary chargesheet filed, as per the writ petitioner herein, is an attempt to ensure that her husband is not released on default bail.

ARGUMENTS ADVANCED BY THE PETITIONER 7. The learned counsel for the petitioner contended that: I. The Respondent has admitted in writing in the supplementary chargesheet that the investigation is still pending, and in light of the same the trial court ought not to have issued process and remanded the petitioner’s husband under Section 309 Cr.PC. II. The accused’s fundamental rights are in prejudice due to continued custody on grounds of investigation not being completed. It was argued that the provisions of the CrPC do not empower continued remand to custody beyond 60 days if the investigation is still in progress. For this, the learned counsel relied on the judgment in the case of M. Ravindran Vs. The Intelligence Officer, Directorate of Revenue Intelligence . ARGUMENTS ADVANCED BY THE RESPONDENT 8. The learned counsel appearing on behalf of the respondent contended that: I. The present writ is not maintainable, and for the grant of bail, the accused herein should have either approached the High Court against the order of the Magistrate refusing default bail or filed a Special Leave Petition against the said order invoking provisions of Article 136 of the Constitution of India .

II. The contention of the petitioner that the accused is not named in the FIR is not a relevant submission, as the FIR is not a complete document, and is only the first step to set the criminal procedure in motion. To support the contention, learned counsel relied on the case of State Of Bihar & Others Vs. J.A.C Saldanha & Ors. III. The supplementary chargesheet filed on 25.06.2022 is a complete document in respect to the offence committed by the persons arraigned in the said supplementary chargesheet, therefore no right to default bail has been accrued in favor of the petitioner’s husband.

1 (2021) 2 SCC 485 2 (1980) 1