It is really very good to learn that none other than the Delhi High Court itself has in an extremely laudable, landmark, learned and latest judgment titled Suleman v. The State (NCT of Delhi) in Crl.Rev.351/2022 that was reserved on July 29, 2022 and then finally pronounced on August 3, 2022 has explicitly observed that the object of default bail is inherently linked to Article 21 of the Constitution of India while laying paramount importance on safeguarding the life and personal liberty of the accused against arbitrary detention. The Single Judge Bench of Hon’ble Ms. Justice Swarna Kanta Sharma made the observation while dismissing a revision petition filed by an accused in relation to a case registered under Narcotic Drugs and Psychotropic Substances Act, 1985, challenging the order of the Trial Court wherein his plea for default bail was dismissed. The petitioner was in custody in the FIR registered under Section 21 and 29 of the NDPS Act.
At the outset, this brief, brilliant, bold and balanced judgment authored by a Single Judge Bench of Hon’ble Ms Justice Swarna Kanta Sharma sets the ball rolling by first and foremost putting forth in para 1 that, “The present Revision Petition has been filed, to set aside the order dated 05.05.2022, passed by the Learned Trial Court, North District, Rohini Courts, Delhi, wherein Default Bail of the Petitioner, under Section 167(2) Cr.P.C. was dismissed by the learned Trial Court.”
Facts of the Case
To put things in perspective, the Bench then envisages in para 2 that, “The brief facts leading to the present petition are as under:
a) The Petitioner is in custody in case FIR no. 96/2021 under Sections 21 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter “NDPS Act”) registered at P.S. Narela Industrial Area. On completion of the investigation, the charge sheet was filed on 03.03.2021 without the Forensic Science Laboratory (FSL) report. The charge sheet already filed mentioned that the supplementary charge sheet would be filed on the receipt of the report from forensic laboratory. The Petitioner was arrested on 04.03.2021, wherein he was found in possession of 300 gms of Heroine and 06 gms of heroine was recovered from the co-accused.
b) The Petitioner filed an application for bail in default under Section 167(2) of the Cr.P.C. before the learned Trial Court, claiming that the complete charge sheet was not filed within the stipulated time frame under Section 36A (4) of the NDPS Act. The learned Trial Court observed that the accused would not be entitled to Default Bail as the charge sheet has been filed even though the FSL Report is not filed. In furtherance, it was observed by the learned Trial Court that the quantity recovered from the Petition would fall under the bar of commercial quantity. Thus, the onus would be upon the Petitioner to satisfy the learned Trial Court. The observations made read as under:-
“…The plea of default bail as the charge-sheet has been admittedly filed within a period of 180 days of the remand, but the same is without FSL result of the seized contraband. The said issue is already settled by Hon’ble Delhi High Court in case titled Krishan Lal V. State, 39(1989) DLT 392 and Mohd Arbaz vs State Cr Rev no. 1219/2019 dated 03.11.2020. The said issue though is now pending qua NDPS Act cases before the Hon’ble Supreme Court and therefore, till that time, the proposition of law as laid by Hon’ble Delhi High Court in Krishan Lal (supra) case holds field. The amount of quantity recovered from the accused/applicant falls under the category of commercial quantity and bar under 37 of the NDPS Act is also applicable. Therefore, the onus is upon the applicant to satisfy the twin conditions imposed as mandated in judgment viz; Union of India through NCB Lucknow V. Nawaz Khan, Crl. Appeal No. 1043/2021.
The judgments relied upon by Ld. Counsel for the accused/applicant are not applicable to the present case being distinguishable on facts. In view of the above facts and circumstances of the case, I am of the considered view that no ground is made out for grant of bail to accused/applicant. Therefore, the application moved on behalf of the accused/applicant stands dismissed…””
Default Bail under Section 167
(i) Objective
Be it noted, the Bench then elaborates in para 5 stating that, “The procedure for application of Default bail finds its roots in Section 167(2) of the Cr.P.C. It is imperative to understand the objective and relevance of the provision of Section 167 for adjudication of the issue in hand. It is trite law that Default Bail under Section 167 can only be availed before the filing of the charge sheet. The period for the calculation of the number of days of detention would commence from the date of remand of the accused and not from the date of arrest. (reference from Ravi Prakash Singh vs State of Bihar, (2015) 8 SCC 340). The period could be perused from the table below:-
| Custody | Maximum Number of Days |
| Police Custody | 15 days |
| Judicial Custody(Where an offence is punishable less than 10 years) | 60 days |
| Judicial Custody(Where an offence is punishable more than 10 years) | 90 days |
| Section 36A (4) of NDPS | 180 days” |
Briefly stated, we see in para 6, Section 167 is elaborated upon about procedure when investigation cannot be completed in twenty-four hours and in addition, it is stated that, “It has been repeatedly emphasized by various courts that the right to seek default bail is an indefeasible right provided to the accused. The object of the Default Bail is inherently linked to Article 21 of the Constitution of India, laying emphasis on safeguarding the life and personal liberty of the accused against arbitrary detention.”
(ii) Law
To be sure, the Bench then mentions in para 7 that, “In Sanjay Dutt vs State through CBI, Bombay (II), (1994) 5 SCC 410, the Constitution Bench of the Hon’ble Supreme Court held that the indefeasible right of the accused to be released on bail for not filing the charge sheet within the statutory period is enforceable by the accused only till the filing of the challan. Further, if an accused does not avail Default Bail, they can always seek Regular Bail under Cr.P.C.. The observation reads as under :-
“48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 CrPC ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. State of Punjab [1952 SCR 395 : AIR 1952 SC 106 : 1952 Cri LJ 656] ; Ram Narayan Singh v. State of Delhi [1953 SCR 652 : AIR 1953 SC 277 : 1953 Cri LJ 1113] and A.K. Gopalan v. Government of India [(1966) 2 SCR 427 : AIR 1966 SC 816 : 1966 Cri LJ 602] .)””
Most significantly, the Bench then notes in para 8 that, “In a recent judgement of the Hon’ble Supreme Court, M. Ravindran vs The Intelligence Officer, Directorate of Revenue Intelligence (2021) 2 SCC 485, the Three-Judge Bench looked into the trajectory of Section 167(2) and the relation of the provision within the Constitutional parlance. The Hon’ble Supreme Court made the following observations: –
“… II. Section 167(2) and the Fundamental Right to Life and Personal Liberty
17. Before we proceed to expand upon the parameters of the right to default bail under Section 167(2) as interpreted by various decisions of this Court, we find it pertinent to note the observations made by this Court in Uday Mohanlal Acharya [Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760] on the fundamental right to personal liberty of the person and the effect of deprivation of the same as follows: (SCC p. 472, para 13)
“13. … Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the accused in custody up to a maximum period as indicated in the proviso to sub-section (2) of Section 167, any further detention beyond the period without filing of a challan by the investigating agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Article 21 of the Constitution.”
17.1. Article 21 of the Constitution of India provides that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. It has been settled by a Constitution Bench of this Court in Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , that such a procedure cannot be arbitrary, unfair or unreasonable. The history of the enactment of Section 167(2) CrPC and the safeguard of “default bail” contained in the proviso thereto is intrinsically linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law.
17.2. Under Section 167 of the Code of Criminal Procedure, 1898 (“the 1898 Code”) which was in force prior to the enactment of the CrPC, the maximum period for which an accused could be remanded to custody, either police or judicial, was 15 days. However, since it was often unworkable to conclude complicated investigations within 15 days, a practice arose wherein investigating officers would file “preliminary charge-sheets” after the expiry of the remand period. The State would then request the Magistrate to postpone commencement of the trial and authorise further remand of the accused under Section 344 of the 1898 Code till the time the investigation was completed and the final charge-sheet was filed. The Law Commission of India in Report No. 14 on Reforms of the Judicial Administration (Vol. II, 1948, pp. 758-760) pointed out that in many cases the accused were languishing for several months in custody without any final report being filed before the courts. It was also pointed out that there was conflict in judicial opinion as to whether the Magistrate was bound to release the accused if the police report was not filed within 15 days.
17.3. Hence the Law Commission in Report No. 14 recommended the need for an appropriate provision specifically providing for continued remand after the expiry of 15 days, in a manner that “while meeting the needs of a full and proper investigation in cases of serious crime, will still safeguard the liberty of the person of the individual”. Further, that the legislature should prescribe a maximum time period beyond which no accused could be detained without filing of the police report before the Magistrate. It was pointed out that in England, even a person accused of grave offences such as treason could not be indefinitely detained in prison till commencement of the trial.
17.4. The suggestion made in Report No. 14 was reiterated by the Law Commission in Report No. 41 on The Code of Criminal Procedure, 1898 (Vol. I, 1969, pp. 76-77). The Law Commission re-emphasised the need to guard against the misuse of Section 344 of the 1898 Code by filing “preliminary reports” for remanding the accused beyond the statutory period prescribed under Section 167. It was pointed out that this could lead to serious abuse wherein “the arrested person can in this manner be kept in custody indefinitely while the investigation can go on in a leisurely manner”. Hence the Commission recommended fixing of a maximum time-limit of 60 days for remand. The Commission considered the reservation expressed earlier in Report No. 37 that such an extension may result in the 60-day period becoming a matter of routine. However, faith was expressed that proper supervision by the superior courts would help circumvent the same.
17.5. The suggestions made in Report No. 41 were taken note of and incorporated by the Central Government while drafting the Code of Criminal Procedure Bill in 1970. Ultimately, the 1898 Code was replaced by the present CrPC. The Statement of Objects and Reasons of the CrPC provides that the Government took the following important considerations into account while evaluating the recommendations of the Law Commission:
“3. The recommendations of the Commission were examined carefully by the Government, keeping in view, among others, the following basic considerations:
(i) an accused person should get a fair trial in accordance with the accepted principles of natural justice;
(ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society; and
(iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community.”
17.6. It was in this backdrop that Section 167(2) was enacted within the present day CrPC, providing for time-limits on the period of remand of the accused, proportionate to the seriousness of the offence committed, failing which the accused acquires the indefeasible right to bail. As is evident from the recommendations of the Law Commission mentioned supra, the intent of the legislature was to balance the need for sufficient time-limits to complete the investigation with the need to protect the civil liberties of the accused. Section 167(2) provides for a clear mandate that the investigative agency must collect the required evidence within the prescribed time period, failing which the accused can no longer be detained. This ensures that the investigating officers are compelled to act swiftly and efficiently without misusing the prospect of further remand. This also ensures that the court takes cognizance of the case without any undue delay from the date of giving information of the offence, so that society at large does not lose faith and develop cynicism towards the criminal justice system.
17.7. Therefore, as mentioned supra, Section 167(2) is integrally linked to the constitutional commitment under Article 21 promising protection of life and personal liberty against unlawful and arbitrary detention, and must be interpreted in a manner which serves this purpose. In this regard we find it useful to refer to the decision of the three Judge Bench of this Court in Rakesh Kumar Paul v. State of Assam [Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 : (2018) 1 SCC (Cri) 401] , which laid down certain seminal principles as to the interpretation of Section 167(2) CrPC though the questions of law involved were somewhat different from the present case. The questions before the three-Judge Bench in Rakesh Kumar Paul [Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 : (2018) 1 SCC (Cri) 401] were whether, firstly, the 90-day remand extension under Section 167(2)(a)(i) would be applicable in respect of offences where the maximum period of imprisonment was 10 years, though the minimum period was less than 10 years. Secondly, whether the application for bail filed by the accused could be construed as an application for default bail, even though the expiry of the statutory period under Section 167(2) had not been specifically pleaded as a ground for bail. The majority opinion held that the 90-day limit is only available in respect of offences where a minimum ten year’ imprisonment period is stipulated, and that the oral arguments for default bail made by the counsel for the accused before the High Court would suffice in lieu of a written application. This was based on the reasoning that the court should not be too technical in matters of personal liberty. Madan B. Lokur, J. in his majority opinion, pertinently observed as follows: (SCC pp. 95-96 & 99, paras 29, 32 & 41)
“29. Notwithstanding this, the basic legislative intent of completing investigations within twenty-four hours and also within an otherwise time-bound period remains unchanged, even though that period has been extended over the years. This is an indication that in addition to giving adequate time to complete investigations, the legislature has also and always put a premium on personal liberty and has always felt that it would be unfair to an accused to remain in custody for a prolonged or indefinite period. It is for this reason and also to hold the investigating agency accountable that time-limits have been laid down by the legislature. …
***
32. … Such views and opinions over a prolonged period have prompted the legislature for more than a century to ensure expeditious conclusion of investigations so that an accused person is not unnecessarily deprived of his or her personal liberty by remaining in prolonged custody for an offence that he or she might not even have committed. In our opinion, the entire debate before us must also be looked at from the point of view of expeditious conclusion of investigations and from the angle of personal liberty and not from a purely dictionary or textual perspective as canvassed by the learned counsel for the State.
***
41. We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court.” (emphasis supplied)
Therefore, the courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Article 21.
17.8. We may also refer with benefit to the recent judgment of this Court in S. Kasi v. State [S. Kasi v. State, (2021) 12 SCC 1 : 2020 SCC OnLine SC 529] , wherein it was observed that the indefeasible right to default bail under Section 167(2) is an integral part of the right to personal liberty under Article 21, and the said right to bail cannot be suspended even during a pandemic situation as is prevailing currently. It was emphasised that 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.
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.
17.10. With respect to the CrPC particularly, the Statement of Objects and Reasons (supra) is an important aid of construction. Section 167(2) has to be interpreted keeping in mind the threefold objectives expressed by the legislature, namely, ensuring a fair trial, expeditious investigation and trial, and setting down a rationalised procedure that protects the interests of indigent sections of society. These objects are nothing but subsets of the overarching fundamental right guaranteed under Article 21.
17.11. Hence, it is from the perspective of upholding the fundamental right to life and personal liberty under Article 21 that we shall clarify and reconcile the various judicial interpretations of Section 167(2) for the purpose of resolving the dilemma that has arisen in the present case.””
It is worth noting that the Bench then mandates in para 13 that, “At present, the settled law persists in the view that non filing of FSL Report with the charge sheet does not fall within the realms of Section 173(2) of the Cr.P.C so as to consider it as “incomplete report”. In the present case although FSL Report has not been filed, however, the charge sheet was already filed on 03.03.2021 within the time period as per law. Further, the amount of quantity recovered from the accused is of commercial nature baring the accused from bail under Section 37 of the NDPS Act.”
Conclusion
Finally, the Bench then concludes aptly in para 14 by holding that, “In view of the above, the court finds no infirmity in the impugned order dated 05.05.2022. The application moved by the petitioners seeking bail in default under the provisions of Section 167(2) of the Cr.P.C. is dismissed.”
In sum, we thus see that the single Judge Bench of Delhi High Court comprising of Hon’ble Ms Justice Swarana Kanta Sharma has made it indubitably clear that the object of default bail is inherently linked with Article 21 and safeguards accused’s life and personal liberty against arbitrary detention. We should have just no confusion on this now. If the conditions are not satisfied, then the default bail has to be dismissed as we see in this leading case also!
Sanjeev Sirohi