IMPORTANT POINTS
A person being outside the Lokpal and Lokayuktas Act, 2013 does not mean that he is outside the purview of the Prevention of Corruption Act, 1988 also.
In matters of personal liberty Courts cannot and should not be too technical and must lean in favour of personal liberty.
Court is duty bound to apprise the accused of the indefeasible right u/s 167(2).
Provisions of section 57 and 167, CrPC 1898 are procedure established by law under Article 21.
Phrase “not less than ten years” in section 167(2) means that the punishment should be 10 years or more. It cannot include offences where the maximum punishment is 10 years and it means that the minimum punishment is 10 years whatever be the maximum punishment.
Section 167(2)(a)(ii) will apply in all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment.
A statute curtailing liberty of a person must be construed strictly.
Once High Court permitted petitioner to argue on ground of grant of ‘default bail’ and no objection was raised by the counsel for the State, it cannot be urged that the petitioner never applied for ‘default bail’ and is not entitled to ‘default bail’.
Under section 167(2) the accused is not required to make out any grounds for grant of default bail. He is not required to file a detailed application. Mere averment that 60/90 days have elapsed and charge sheet has not be filed is enough. Only, he has to show his willingness to furnish bail.

Headnote:Per majority (Madan B. Lokur, J.)
       (a) Code of Criminal Procedure, 1973 – Section 167(2), Proviso (a), clause (i) – Expression “punishable with imprisonment for not less than ten years” – Would mean imprisonment for 10 years and more – Would cover only those offences for which punishment of imprisonment could be for a clear period of 10 years or more – Therefore the period of incarceration pending investigation after which the accused can apply for default bail would be 90 days in case offences for period of punishment would be not less than 10 years, or clear 10 years – In all other cases the period would be 60 days. (Para 20, 26)
       (2001) 5 SCC 34 – Relied upon
       (2006) 6 SCC 277 – Referred
       (b) Code of Criminal Procedure, 1973 – Section 167 – Legislative intent – Putting premium on personal liberty – It would be unfair to an accused to remain in custody for a prolonged or indefinite period – Expeditious conclusion of investigation – Personal liberty angle emphasized. (Para 29, 30, 32)
       (2006) 8 SCC 1 – Relied upon
       (c) Code of Criminal Procedure, 1973 – Section 167 – Indefeasible right for ‘default bail’ accruing to the petitioner when the period of 60 days came to an end on 3rd or 4th January, 2017 and charge sheet was not filed – Charge sheet filed on 24th January, 2017 – Petitioner’s indefeasible right continued till 24th January, 2017 – Held, petitioner was entitled to default bail in the interregnum. (Para 34, 39)
       (1994) 5 SCC 410; (1994) 4 SCC 602; (2014) 9 SCC 457; (2001) 5 SCC 453; (1996) 1 SCC 722 – Relied upon
       (d) Code of Criminal Procedure, 1973 – Section 167 – Default bail – In matters of personal liberty Courts cannot and should not be too technical and must lean in favour of personal liberty – Whether the accused makes a written application for ‘default bail’ or an oral application for ‘default bail’ is of no consequence – Concerned court must deal with such an application by considering the statutory requirements – Article 21, Constitution of India. (Para 40)
       (1980) 3 SCC 488; (1980) 1 SCC 98; (2007) 4 SCC 318; (1981) 1 SCC 503; (1996) 7 SCC 20; (1984) 3 SCC 161; AIR 1982 SC 1473; (1983) 2 SCC 308; (1983) 2 SCC 96 – Relied upon
       (e) Code of Criminal Procedure, 1973 – Section 167 and Article 21, Constitution of India – Court coming to know that the accused person before it is entitled to ‘default bail’ – Duty bound to at least apprise him or her of the indefeasible right. (Para 44)
       (1981) 1 SCC 627; (1986) 2 SCC 401; (2012) 8 SCC 553; (2012) 9 SCC 1; (2014) 9 SCC 457 – Relied upon
       (f) Code of Criminal Procedure, 1973 – Section 167 – Petitioner charged with offence not punishable with imprisonment for a minimum period of 10 years – Petitioner applying for regular bail on 11th January, 2017 after 60 days of custody – Mentioning non-filing of charge sheet – Held, it was a petition for default bail – Rejected by High Court being not a petition for default bail – High Court ought to grant default bail. (Para 46, 47)
       (g) Administration of justice – A person being outside the Lokpal and Lokayuktas Act, 2013 – Does not mean that he is outside the purview of the Prevention of Corruption Act, 1988 also – There is no reason to exclude petitioner from the rigours of the PC Act as amended by the Lokpal and Lokayuktas Act, 2013. (Para 48)
       Per Prafulla C. Pant, J. (Disenting)
       (h) Code of Criminal Procedure, 1973 – Section 167(2)(a)(i) – Expression ‘not less than ten years’ – In 1978 when section 167(2) was amended, there was no such category of offences in IPC requiring minimum sentence of ten years imprisonment without alternative prescribed sentence of imprisonment for life – Argument of ninety days period not covering offences with maximum imposable sentence of ten years rejected – Held, an offence punishable with imprisonment upto ten years falls within the provision of section 167(2)(a)(i) – Permissible period for investigation would be ninety days. (Para 67, 72)
       (2001) 5 SCC 34; (2016) 1 SCC 578; (2006) 6 SCC 277 – Referred
       (i) Code of Criminal Procedure, 1973 – Section 167(2) – Statutory default bail – Application claiming statutory right u/s 167(2) – Prerequisite for grant of default bail – application to be made before Magistrate or Special court, as the case may be – Instantly, petitioner filing application u/s 439 CrPC and not u/s 167(2) – Right u/s 167(2) not pleaded – Pressed only orally before High Court for the first time – Held, petitioner not entitled to default bail. (Para 78)
       (1994) 5 SCC 410; (2001) 5 SCC 453; (1996) 1 SCC 718; (1996) 1 SCC 722; (1994) 4 SCC 602 – Relied upon
       (j) Code of Criminal Procedure, 1973 – Section 439 – Allegations disclosing not only an economic offence but a transgression of the constitutional rights of the victims of the crime – Article 14 and 16, Constitution of India – Not fit for grant of bail at this stage. (Para 81, 82)
       (2013) 7 SCC 466 – Relied upon
       Per Deepak Gupta, J. (Concurring)
       (k) Constitution of India – Article 21 – No deprivation of life and personal liberty except in accordance with the procedure established by law – Provisions of section 57 and 167, CrPC 1898 – Such procedure established by law – Incarceration pending investigation only up to 24 hours (section 57) and not beyond 15 days (section 167) – Practice of filing incomplete police reports to keep accused in custody – Period u/s 167 enhanced to 60 days – Code, 1973 further enhancing the period from 60 days to 90 days for offences punishable with death, imprisonment for life and imprisonment for not less than 10 years or more. (Para 88, 89, 90)
       (l) Code of Criminal Procedure, 1973 – Section 167(2)(a)(i) – Phrase “not less than ten years” – Means that the punishment should be 10 years or more – Cannot include offences where the maximum punishment is 10 years – Means that the minimum punishment is 10 years whatever be the maximum punishment – Textual interpretation – When the natural meaning of the words is clear and unambiguous, no external aids should be used. (Para 95, 98)
       AIR 1952 SC 369; AIR 1955 SC 376; AIR 1957 SC 907 – Relied upon
       (m) Code of Criminal Procedure, 1973 – Section 167(2)(a)(i) – Will apply if the offence is punishable with death or life imprisonment or with a minimum sentence of 10 years – Accused can apply for default bail if charge sheet is not filed within 90 days – On the other hand, Section 167(2)(a)(ii) will apply in all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment. (Para 99)
       (2001) 5 SCC 34; (2006) 8 SCC 1 – Relied upon
       (2006) 6 SCC 277 – Distinguished
       (n) Code of Criminal Procedure, 1973 – Section 167(2) r/w article 21, Constitution of India – A statute curtailing liberty of a person – Must be construed strictly – If, however, two meanings could be attributed to the provision then the courts must lean towards liberty and accept that interpretation of the statute which upholds the liberty of the citizen. (Para 100)
       (o) Code of Criminal Procedure, 1973 – Section 167(2) – No pleading of default bail in bail application – But this was main argument at hearing – Once High Court permitted petitioner to argue on ground of grant of ‘default bail’ and no objection was raised by the counsel for the State, it cannot be urged that the petitioner never applied for ‘default bail’ and is not entitled to ‘default bail’. (Para 105)
       (p) Code of Criminal Procedure, 1973 – Section 167(2) – Accused not required to make out any grounds for grant of default bail – Not required to file a detailed application – Mere averment that 60/90 days have elapsed and charge sheet has not be filed is enough – Only, he has to show his willingness to furnish bail – Filing of charge sheet thereafter immaterial. (Para 109, 110)
       (1994) 5 SCC 410; (2001) 5 SCC 453; (2014) 9 SCC 457; (1996) 1 SCC 722 – Referred
       (q) Administration of justice – Duty of court – Magistrate must inform accused of his statutory right – If accused is willing to furnish bail, he should be enlarged on bail. (Para 111)
       Facts of the case:
       A First Information Report No. 936 of 2016 was lodged on 27th October, 2016 in respect of allegations made under the provisions of the Prevention of Corruption Act, 1988 and the Indian Penal Code, 1860. Although the petitioner was not named in the First Information Report, investigations seemed to implicate him in a very large and structured conspiracy. Accordingly, on 5th November, 2016 the petitioner was taken into custody pending further investigation.
       On 20th December, 2016 (before the expiry of 60 days), the petitioner applied for bail before the Special Judge dealing with cases relating to offences under the PC Act. His application was rejected.
       Subsequently, on or about 11th January, 2017 (after the expiry of 60 days of detention but before the expiry of 90 days of detention), the petitioner applied for bail before the Gauhati High Court, but that application was rejected on 11th January, 2017.
       Finding of the Court:
       The appellant is held entitled to the grant of ‘default bail’.
       Result: SLPs allowed.

Judgement Key Points

The ratio decidendi of the judgment is that the interpretation of the phrase "imprisonment for not less than ten years" in the context of Section 167(2)(a)(i) of the Criminal Procedure Code, 1973, is that it refers to offences for which the minimum punishment prescribed is ten years or more of imprisonment. This interpretation means that for offences punishable with a minimum of ten years imprisonment, the period for completing investigation without filing a charge sheet is extended to 90 days, and the accused is entitled to default bail if the charge sheet is not filed within this period. The Court emphasizes that the legislative intent was to classify more serious offences requiring extended investigation time, and the words "not less than ten years" should be given their natural and unambiguous meaning, indicating that the minimum sentence must be ten years or more, rather than offences where the maximum sentence is ten years. Furthermore, the Court underscores that the right to default bail is an indefeasible right that accrues when the statutory period (60 or 90 days, depending on the offence) expires without the filing of a charge sheet, and this right must be exercised by the accused by offering to furnish bail. This interpretation aligns with the legislative history and the fundamental importance of personal liberty, which must be given precedence over technical or procedural formalities.

JUDGMENT

Madan B. Lokur, J.

1. In Measure for Measure the Duke complains (in the given situation): “And liberty plucks justice by the nose [Act 1 Scene III line 20-32]”. The truth is that personal liberty cannot be compromised at the altar of what the State might perceive as justice – justice for one might be perceived as injustice for another. We are therefore unable to agree with learned counsel for the State that the petitioner is not entitled to his liberty through what is commonly referred to as ‘default bail’ or that the justice of the case should persuade us to decide otherwise.

2. The facts in these petitions are not in dispute and we need not go into them in any great detail since we are really concerned with the interpretation of the words “imprisonment for a term not less than ten years” appearing in clause (i) of proviso (a) to Section 167(2) of the Code of Criminal Procedure, 1973 as amended in 1978.

A few facts

3. A First Information Report No. 936 of 2016 was lodged on 27th October, 2016 in respect of allegations made under the provisions of the Prevention of Corruption Act, 1988 (PC Act) and the Indian Penal Code, 1860 (IPC). Although the petitioner was not named in the First Information Report, investigations seemed to implicate him in a very large and structured conspiracy. Accordingly, on 5th November, 2016 the petitioner was taken into custody pending further investigation.

4. Ordinarily, the maximum period of detention during the course of investigation (without a charge sheet or challan being filed) would be 60 days in terms of clause (ii) of proviso (a) to Section 167(2) of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’). In the petitioner’s case, this period would come to an end on 3rd January, 2017. However according to the State, since the petitioner had committed offences which could result in “imprisonment for a term not less than ten years” he could be kept in custody for a period of 90 days in terms of clause (i) of proviso (a) to Section 167(2) of the Cr.P.C. Therefore, the question before us is whether, pending investigation, the petitioner could be kept in custody for a maximum period of 60 days in terms of clause (ii) of proviso (a) to Section 167(2) of the Cr.P.C. or for 90 days in terms of clause (i) of proviso (a) to Section 167(2) of the Cr.P.C. without a charge sheet being filed.

5. On 20th December, 2016 (before the expiry of 60 days), the petitioner applied for bail before the Special Judge dealing with cases relating to offences under the PC Act. His application was rejected.

6. Subsequently, on or about 11th January, 2017 (after the expiry of 60 days of detention but before the expiry of 90 days of detention), the petitioner applied for bail before the Gauhati High Court, but that application was rejected on 11th January, 2017. The prayer made in the application for bail was for grant of “regular bail” under Section 439 of the Cr.P.C. This is of some importance because, according to learned counsel for the State, assuming the petitioner could be detained only for a maximum period of 60 days during investigations, he had not applied for ‘default bail’, that is bail in default of the prosecution filing a charge sheet against him soon after that 60 day period of detention, but had only applied for “regular bail”.

7. At this stage, it may be mentioned that even though the petitioner had not applied for ‘default bail’ he did contend before the High Court that he was entitled to ‘default bail’ since no charge sheet had been filed against him within 60 days of his arrest during investigations. This submission was considered by the High Court but rejected, not on the ground that the petitioner had not applied for ‘default bail’ but on the ground that he could be detained for 90 days without a charge sheet being filed and that period of 90 days had not yet come to an end. (The period of 90 days would come to an end on or about 2nd February, 2017).

8. To complete the narr

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2017 Supreme(SC) 749

Cases Referred (27)