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K. M. JOSEPH, HRISHIKESH ROY, B. V. NAGARATHNA
ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA – Appellant
Versus
KAPIL WADHAWAN & ANR. ETC. – Respondent
JUDGMENT :
Hrishikesh Roy, J.
1. John Locke in his work, Two Treatises of Government (1689)-stressed on personal liberty and stated that, “The end of Law is not to abolish or restrain, but to preserve and enlarge Freedom: For in all the states of created beings capable of Laws, where there is no law, there is no Freedom.”1[John Locke, ‘The Second Treatise of Civil Government’, December 1689.]
2. In the present case, we discuss the rights of such accused, whose right to default bail, hangs in the balance by difference of a single day or even less. Ostensibly, one may presume this to be insignificant. However, the constitutional import of the matter is such, that personal liberty, which may only be taken away by a just and fair procedure established by law, needs to be analyzed and protected. The issue is simple to state but hard to answer. It is embedded in a maze of case law that this Court needs to negotiate. Simply put, the Court needs to answer whether the period of remand under the first proviso to Sec. 167 (2) of the Code of Criminal Procedure, 1973 (hereinafter ‘CrPC’) is inclusive of the day on which the Magistrate orders remand. Whatever be the outcome, this Court is conscious
The court clarified that for offences under Section 467 IPC, the maximum period for filing a chargesheet is 90 days, thus denying the applicant's claim for default bail.
The right to default bail under Section 167(2) is absolute and cannot be denied even during further investigation, aligning with the constitutional guarantee of personal liberty under Article 21.
(1) Writ of Habeas Corpus – When there is a non-compliance of mandatory provisions along with a total non-application of mind, there may be a case for entertaining a writ of Habeas Corpus and that to....
(1) Default bail – Without completing investigation of a case, a charge-sheet or prosecution complaint cannot be filed by investigating agency only to deprive arrested accused of his right to default....
(1) Default bail – Once period of detention expired, sans charge-sheet having been lodged and accused manifested intent to avail right by making application, no subterfuge to defeat indefeasible righ....
The remand day must be included in the 90-day calculation for default bail eligibility, ensuring protection of personal liberty as per statutory requirements.
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