In a major step directed for the considerable upliftment and paramount welfare of the undertrial prisoners, the Delhi High Court on October 18, 2021 has in a learned, latest, landmark and laudable judgment titled Abhishek vs State NCT of Delhi in CRL.M.C. 2242/2020 issued slew of commendable directions to ensure that the custody of an undertrial is not extended mechanically in view of Section 167(2) of CrPC and also to ensure that the rights of undertrial prisoners to seek default bail are not defeated despite legislative mandate and the principles of law. It must be apprised here that the Bench of Hon’ble Mr Justice Manoj Kumar Ohri of Delhi High Court also observed that the order of remanding an undertrial or its extension is held to be a judicial function requiring due application of mind. It also must be mentioned here that the Court clearly directed that while extending the custody of an undertrial prisoner, the Magistrate/concerned Court shall not mechanically extend the period of custody for the maximum period of 15 days as prescribed under Section 167(2) of CrPC.
To start with, the ball is set rolling in para 1 of this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Hon’ble Mr Justice Manoj Kumar Ohri wherein it is put forth that, “The present petition has been filed under Section 482 Cr.P.C. on behalf of the petitioner assailing the order dated 29.10.2020 passed by the learned Addl. Sessions Judge-02, Central District, Tis Hazari Courts, Delhi in Criminal Revision No. 226/2020 arising out of FIR No. 37/2020 registered under Sections 304B/498A/406/34 IPC at Police Station Burari, Delhi.”
Briefly stated, the Bench then observes in para 2 that, “Vide the aforesaid order, the petitioner’s revision petition, challenging dismissal of his application seeking default bail under Section 167(2) Cr.P.C. by the learned Metropolitan Magistrate, has been dismissed.”
In short, the Bench then states in para 3 that, “Briefly stated, the facts involved in the present case are that on 16.01.2020, a case bearing FIR No. 37/2020 came to be registered against the petitioner and his family members under Sections 304B/498A/406/34 IPC at Police Station Burari, Delhi, on a complaint filed by his father-in-law i.e., father of the deceased.”
As we see, the Bench then unfolds in para 4 that, “During investigation, the petitioner was arrested on 18.01.2020 and on being produced before the concerned Metropolitan Magistrate on 19.01.2020, was sent to judicial custody. The petitioner’s judicial custody was extended from time to time, including on 15.04.2020 when his custody was extended till 29.04.2020. Admittedly, the time period of 90 days prescribed under the proviso (a) to Section 167(2) Cr.P.C. for filing the charge sheet expired on 18.04.2020.”
To put things in perspective, the Bench then envisages in para 5 that, “Before proceeding further, let me capture the fact situation existing on that date in the NCT of Delhi. The entire country was facing an unprecedented situation caused by the COVID-19 pandemic, on account of which a nationwide lockdown was announced by the Central Government on the eve of 24.03.2020. As a result of the lockdown, not only the movement of people was restricted, but even the physical functioning of Courts was hampered. Although physical filing and listing of bail application was not permitted, a mechanism for electronic filing of urgent applications including bail applications was available through a dedicated email being aojdelhicourts@gmail.com. The bail applications were to be heard via Video Conferencing mode.”
As it turned out, the Bench then enunciates in para 6 that, “During this time, the undertrials suffering judicial custody could not be produced before the concerned Courts and their custody was extended by the Jail Visiting Magistrate. In these circumstances, as per the Status Report filed by the Superintendent, Central Jail No.7, Tihar, Delhi the petitioner’s judicial custody was also extended on 15.04.2020 for 14 days i.e., upto 29.04.2020 by the Jail Visiting Duty Metropolitan Magistrate. The petitioner’s Custody Warrant is also placed on record.”
Needless to say, the Bench then lays bare in para 7 that, “As no charge sheet was filed during the prescribed time of 90 days which came to an end on 18.04.2020, an application under Section 167(2) Cr.P.C. on behalf of the petitioner was filed by his counsel on 20.04.2020 through the aforementioned dedicated email address. The email containing prayer for default bail was sent at about 1:16 PM on 20.04.2020 with the subject “Fwd: Urgent hearing of bail application u/s 167(2) CrPC on behalf of Abhisek in FIR NO 37/2020 PS BURARI U/S 304B/498A/406/34 IPC”. The email was addressed to Sh. Balbir Singh AO(J) and it read as under:-
“Respected Sir,
Kindly find enclosed scanned copy of the bail application and annexures in FIR No 37/2020, PS Burari, U/s 304B/498A/406/34 IPC in the case titled as State Vs Abhishek and ors which is presently pending in the court of Sh Pranav Joshi, Ld. MM, Central, Tis Hazari Courts, Delhi room no 286.The accused/applicant is in judicial custody for over 90 days of post-arrest. To our knowledge and information charge sheet in this case qua the accused/applicant is not yet filed and hence in terms of section 167(2) CrPC, he is entitled to be released on bail on furnishing the bail bonds which he is ready to file. The bail application may kindly be considered for listing and urgent hearing.
In case any additional information is required please do let us know so that the same came to be provided at the earliest.
regards.
Rajesh Anand
counsel for the accused/applicant Abhishek
9899402429/9810146988”.”
It would be vital to note that the Bench then brings out in para 8 that, “Along with the aforesaid email, a copy of the bail application was also attached. In response to the email, a reply was received at 03:42 p.m. on the same day wherein it was asked as to whether the application was to be listed before the duty Metropolitan Magistrate or the Sessions Court. Another email was sent by the learned counsel for the petitioner at 07:21 p.m. thereby clarifying that the bail being a default bail and charge sheet having not been filed, the application was to be listed before the duty Metropolitan Magistrate. It is averred that thereafter no response was received by the petitioner’s counsel from the concerned AO(J). It is further averred that the Investigating Officer misled the petitioner by informing that he had filed the charge sheet within time, because of which the application was not further pursued believing the same to have become infructuous.”
Simply put, the Bench then states in para 9 that, “The nationwide lockdown continued and no copy of charge sheet was served on the petitioner. Thereafter, the petitioner filed an application for regular bail on 05.05.2020 which came to be dismissed vide order dated 30.05.2020.”
On the face of it, the Bench then mentions in para 10 that, “It is averred that subsequently on resumption of physical hearing in Courts, the applicant became aware that the charge sheet was in fact filed on 20.04.2020 i.e., the same day on which the petitioner had preferred his default bail application under Section 167(2) Cr.P.C. by way of an email. On gaining this knowledge, the petitioner preferred a second application under Section 167(2) Cr.P.C. on 15.09.2020 which came to be dismissed by the learned Metropolitan Magistrate on 16.09.2020. A revision petition challenging the said order came to be dismissed by the order impugned herein.”
Of course, the Bench then holds in para 12 that, “I have heard learned counsels for the parties and have also gone through the material placed on record as well as the digitized copy of the Trial Court Record which was summoned. During the course of hearing, it was informed that the petitioner has been released on interim bail vide order dated 17.05.2021 passed by learned ASJ/Vacation Judge/Special Judge, Electricity Court No.-02, Central, Tis Hazari Courts, Delhi which order has been extended and is subsisting till date.”
Be it noted, the Bench then underscores in para 15 that, “A plain reading of the provision would show that once the maximum period provided for an investigation prescribed under the first proviso (a) to Section 167(2) Cr.P.C. is over and no charge sheet is filed, the accused becomes entitled to be released on bail, more appropriately called the ‘default bail’. The right to seek default bail under Section 167(2) Cr.P.C. is a fundamental right and not merely a statutory right, which flows from Article 21 of the Constitution of India. It has been held to be an indefeasible part of the right to personal liberty under Article 21 of the Constitution of India, and such a right cannot be suspended even during a pandemic situation. The right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a charge sheet [Refer: S. Kasi v. State through the Inspector of Police Samaynallur Police Station Madurai District reported as 2020 SCC OnLine SC 529].”
It is worth noting that the Bench then makes it clear in para 26 that, “In the present case, it is noted that the petitioner after being arrested on 18.01.2020 was first produced before the Magistrate on 19.01.2020 when he was remanded to custody. The offence that the petitioner is charged with being one falling under Section 304B IPC, which is punishable with imprisonment for a period exceeding 10 years or with imprisonment for life or death, the maximum period for which the petitioner could have been put under judicial custody was 90 days. The said period admittedly came to an end on 18.04.2020. However, in between, when the petitioner was produced before the Jail Visiting Magistrate on 15.04.2020, the concerned Magistrate without any application of mind and rather unmindful of the fact that 90 days were expiring on 18.04.2020, mechanically extended the petitioner’s judicial custody till 29.04.2020.”
What’s more, the Bench then explicitly states in para 27 that, “In the entire petition as well as the submissions made on behalf of the petitioner, the entire thrust is on the non-filing of charge sheet by the prosecution till 18.04.2020 and accrual of right in favour of the petitioner. As noted earlier, in view of the peculiar situation existing in the country on account of the national lockdown imposed where physical filing of the bail application was not possible, an application came to be filed on behalf of the petitioner through an email sent on 20.04.2020 at 01:16 p.m. at the email address provided to the counsels. The email not only contained a prayer for release on default bail but also communicated the acceptability of condition requiring filing of bail bonds. It did mention the provision of Section 167(2) Cr.P.C. under which the default bail was sought as well as the details of the case. Nothing more was required to be done by the petitioner. The listing of such an application was not in his hand. The sending of an email on behalf of the petitioner, in the opinion of this Court, amounted to availing of his right to seek default bail. The contention raised on behalf of the State that the application never came to be listed or was abandoned by the petitioner, being meritless, is rejected. Similarly, the other contentions that the subsequent filing of a regular bail application and a second application under Section 167(2) Cr.P.C. amounted to wiping out of the first application filed on behalf of the petitioner seeking ‘default bail’ deserve an outright rejection in view of the law laid down in Rakesh Kumar Paul (Supra) and Bikramjit Singh (Supra).”
Furthermore, the Bench then points out in para 28 that, “In the present case, it appears that the charge sheet was filed physically before the duty Magistrate. The same is apparent from the order dated 20.04.2020 available in the Trial Court Record. It is pertinent to note that the charge sheet having been filed before a duty Magistrate, no cognizance was taken on that date.”
As a corollary, the Bench then discloses in para 29 that, “In response to the present petition, a Status Report dated 09.12.2020 under the signatures of Inspector Suresh Kumar, SHO, Police Station Burari has been placed on the record. The relevant portion of the Status Report reads as under:
“Charge sheet of the case has been filed before the Hon’ble Court on 20/04/2020. Further investigation is continue and after completion of remaining investigation, supplementary charge sheet of the case will be filed before the Hon’ble Court.
It is pertinent to be mentioned here that draft charge sheet of the above said case had been prepared and on 20/03/2020, case file had been deposited in prosecution branch, THC, Delhi for scrutiny but on 21/03/2020 Govt. declared lockdown and almost prosecution branch was closed, so file could not be received back. In this regard same facts were already mentioned in the Case Diary No. 41, Dt. 28/03/20, CD No. 42, Dt. 07/04/2020, CD No. 43, Dt. 15/04/2020, CD No. 44, Dt. 16/04/2020. On 18/04/2020 file was received after scrutiny and same day Final Charge sheet was prepared and on 19/04/2020, ACP/Timarpur forwarded the Charge Sheet. Accused set and other sets were prepared and on 20/04/2020, file was put in court before the Ld. Duty MM, THC, Delhi. So, above view of facts and circumstances regarding filling the delay of charge sheet was not upon the part of investigation officer.””
Quite ostensibly, the Bench then hastens to add in para 30 that, “A perusal of the above Status Report would show that it was incumbent on the State to positively state as to at what time the charge sheet came to be filed before the Court on 20.04.2020, i.e. whether it was prior to filing of the application for default bail by the petitioner or later. The answer to the said question is of paramount importance in view of the exposition of law discussed hereinabove. However, the same remained unanswered in the Status Report as well as in the submissions.”
Quite forthrightly, the Bench then deems it fit to state in para 31 that, “It is well settled that the rights of an undertrial prisoner guaranteed under Article 21 of the Constitution of India cannot be allowed to be defeated on technicalities of procedure. At this point, I may profitably refer to the following observations of the Supreme Court in M. Ravindran (Supra):-
“17.9. Additionally, it is well-settled that in case of any ambiguity in the construction of a penal statute, the courts must favour the interpretation which leans towards protecting the rights of the accused, given the ubiquitous power disparity between the individual accused and the State machinery. This is applicable not only in the case of substantive penal statutes but also in the case of procedures providing for the curtailment of the liberty of the accused.
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18.6. However, the Constitution Bench decision in Sanjay Dutt cannot be interpreted so as to mean that even where the accused has promptly exercised his right under Section 167(2) and indicated his willingness to furnish bail, he can be denied bail on account of delay in deciding his application or erroneous rejection of the same. Nor can he be kept detained in custody on account of subterfuge of the prosecution in filing a police report or additional complaint on the same day that the bail application is filed.””
Adding more in continuity, the Bench then affirms in para 32 that, “In conformity with the above, the Supreme Court in Nagesh Kumar Singh v. The State of Uttar Pradesh and Anr., SLP (Crl.) No(s). 6975/2019 directed release of the petitioner on bail under Section 167(2) Cr.P.C. vide order dated 15.10.2019. Briefly stated, the facts of the case, as noted in the impugned order, were that the statutory period of filing the charge sheet expired on 23.05.2019. The petitioner filed an application seeking default bail on 27.05.2019 and on the same day, though at a later point of time, the charge sheet also came to be filed. Thus, to prevent the defeat of the right of the accused, the Supreme Court decided in his favour.”
No doubt, the Bench then is of view in para 33 that, “As such, in absence of any averment or submission as to the time of filing of the charge sheet and the peculiar facts of the present case, it cannot be concluded that at the time of petitioner availing his right to seek default bail, the charge sheet was already filed.”
Quite significantly, the Bench then holds in para 34 that, “Keeping in view the aforesaid, this Court is inclined to release the petitioner on default bail, subject to his furnishing a personal bond in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of the concerned Court/Duty M.M. and also subject to the following further conditions:-
i) The petitioner shall remain available on mobile no. i.e. 9999984794, which he undertakes to keep operational at all times during the pendency of the trial.
ii) The petitioner shall not directly/indirectly try to get in touch with the complainant or any other prosecution witnesses or tamper with the evidence.
iii) The petitioner shall regularly appear before the concerned Court during the pendency of the trial.
iv) The petitioner shall not leave the NCT of Delhi without prior permission of the concerned Court.”
For the sake of clarity, the Bench then makes it clear in para 35 that, “Needless to state that nothing observed hereinabove shall amount to an expression on the merits of the case and shall not have a bearing on the trial of the case.”
Finally and far most significantly, the Bench then holds in para 36 that, “The order of remanding an undertrial or its extension is held to be a judicial function requiring due application of mind. To ensure that the rights of undertrial prisoners to seek default bail are not defeated despite the legislative mandate and the principles of law enumerated by the Courts time and again, and that the custody of an undertrial is not extended mechanically as has been done in this case, this Court deems it necessary to direct that:
i) While extending the custody of an undertrial prisoner, the Magistrate/concerned Court shall not mechanically extend the period of custody for the maximum period of 15 days as prescribed under Section 167(2) Cr.P.C.;
ii) The custody shall be extended while keeping in mind the 60th, 90th or 180th day (depending on the nature of offence and applicability of any Special Act) of completing the investigation and submission of charge sheet. If such 60th, 90th or 180th day falls before the maximum extension period of 15 days, then the custody shall be extended only upto the 60th , 90th or 180th, as may be applicable;
iii) As a necessary corollary, the undertrial prisoner, shall be produced before the concerned Court on the next day i.e., on the 61st, 91st or 181st day as the case may be, so that he can be duly informed of his fundamental right to seek default bail if no charge sheet is filed in the maximum period prescribed or the permitted extended period of investigation, as the case may be.
iv) The present format of the ‘Custody Warrant’ be modified. The existing format already ensures mention of certain details with respect to an undertrial including the date of arrest, period of police custody, date of first judicial custody etc.
It shall now also include a column indicating the day on which the right of ‘default bail’ will accrue to the undertrial under proviso (a) to Section 167(2) Cr.P.C.
v) The concerned District Legal Services Authority shall also ensure that the remand Advocates/legal aid counsels posted in criminal courts are instructed to keep an undertrial informed of his right to seek default bail and the date of accrual of such right.
vi) The jail authorities shall also have a corresponding obligation to inform the undertrial of the date when the right to seek default bail accrues.”
No less significant is what is then stated in para 37 that, “Considering the seriousness of the issue involved, this Court deems it apposite to seek a response from the Registrar General of this Court as well the DG (Prisons) as to the steps being undertaken so that an undertrial is informed of his right to seek ‘default bail’ and that such right is not defeated but rather timely exercised. The response and suggestions, if any, shall be submitted in light of the ‘Inter-operable Criminal Justice System (ICJS)’, a platform which came into existence under the aegis of the e-Committee, Supreme Court. Let the response be filed within four weeks from today.”
Going ahead, the Bench then directs in para 38 that, “List the matter for the aforesaid purpose on 18.11.2021.”
Finally, the Bench then holds in para 39 that, “A copy of this judgment be forwarded to all District and Sessions Judges forthwith to ensure strict compliance with the directions passed. The Registry shall also bring the judgment to the notice of the Registrar General and transmit a copy of the same to the DG (Prisons) as well as to the Member Secretary, Delhi State Legal Services Authority.”
All said and done, what Delhi High Court has said and held in this leading case must be followed and implemented in letter and spirit. It merits no reiteration that the commendable, cogent and convincing directions that have been issued by the Delhi High Court in this notable case to ensure that the custody of an undertrial prisoner is not just extended mechanically as we see in so many cases. It also definitely goes without saying that these landmark directions must be implemented in totality as it is the undertrial prisoners who will stand to gain the most of it and only when this is done will this historic judgment serve its true purpose for which it is actually meant also!
Sanjeev Sirohi