Mr. M. Karunanidhi, Advocate, Madurai High Court
The liberty of an individual as enshrined in Article 21 of the Constitution of India has been reflected in Section 167(2) of Code of Criminal Procedure. For easy reference Section 167(2) Cr.P.C. is extracted hereunder.
Section 167Cr.P.C. – Procedure when investigation cannot be completed in 24 hours.
167(2) (a) ……… but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, -
(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years.
(ii) Sixty days, where the investigation relates to any other offence and on the expiry of the said period of ninety days, or sixty days as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.
Thus, if an accused is taken into judicial custody in relation to any offence and investigation of such offence is not completed and no final report is filed till 60/90 as the case may be, the learned Magistrate shall not extent the custody of such person beyond 60/90 days as the case may be.
Hence, personnel liberty of an individual as guaranteed by our Constitution has been safeguarded by insertion of Section 167(2) in the Code of Criminal Procedure.
a) Whether Right of an accused u/s. 167(2) Cr.P.C., is absolute ?
The right of an accused to get bail in default of filing of Challan by the prosecution agency is absolute, and the same is indefeasible right and so it can not be denied on any ground such as heinous crime / huge money involved.
How to calculate 60/90 days to avail relief u/s. 167(2) Cr.P.C.?
It is the date of first remand and not the date arrest. This view has been approved in the following cases.
(1) (1992) 3 SCC 141 : 1992 SCC Crl. 554 CBI Vs. Anupam Kulkarni
(2) 1996 SCC (Crl.) 117 State Vs. Md. Ashraft Bhal
(3) (2002) SCC Crl. 299
(4) 1995 SCC Crl. 830
The Hon’ble Apex Court held that “date is to be calculated from the date of remand and not from the date of arrest. Before invoking 167(2) Cr.P. C., charge sheet was filed. So, bail can be considered only on merits and not on default bail.
b) When the indefeasible right accrues and Limitation if any to avail such right?
The full bench of Allahabad High Court answering the reference was pleased to observe and held that
The right to apply for bail under this provision expires as soon as the charge sheet is filed.
c) Whether notice to Public Prosecutor is necessary?
In Section 167(2) Cr.P.C., there is no provision for giving any notice to the Public Prosecutor.
d) Petition u/s. 167(2) Cr.P.C., to be decided on the same day
If an application for bail u/s. 167(2) Cr.P.C. is filed, if not decided on the same day then the accused will be deprived of his valuable right and it would violate Article 21 of the Constitution of India. Thus, it is well settled by catena of decisions that plea for default bail u/s. 167(2) Cr.P.C., has to be decided on the same day without adjourning the matter.
1997(1) MWN (Crl.) SC – Mohamed Iqbal Madar Sheikh and others Vs. State of Maharashtra
“Any such act on the part of any Court cannot be approved”.
Para 12, “If an accused charged for any kind of offence becomes entitled to be released on bail under proviso (a) to Section 167(2) Cr.P.C., that statutory right should not be defeated by keeping the application pending till the charge sheets are submitted so that the right which had accrued is extinguished and defeated”
The Constitutional Bench of the Hon’ble Apex Court in 1995 Crl.L.J. 477 SC - Sanjay Dutt Vs. The State thro’ CBI., Bombay.
The indefeasible right of an accused to be released on bail in accordance with Section 20(4) (bb) of TADA Act r/w. Section 167(2) Cr.P.C., in default of completion of investigation and filing of challan within the time allowed as held in Hitendra Vishnu Thakur (1994 SCC (Crl.) 1087) case is a right which answers to and is enforceable by the accused only from the time of default till the filing of challan and it does not survive or remain enforceable on challan being filed.
It is now made clear that an accused can avail this valuable right as soon as the right accrues on him, and this right would be made available in between, “Right arose till challan filed. If bail is ordered and charge sheet is filed before the surety is accepted by competent Court, still the right can be enforced. Mere filing of final report after the bail order u/s. 167(2) Cr.P.C., will not take away the right of an accused.
When the petition for availing the right u/s. 167(2) Cr.P.C. is pending disposal if charge sheet is filed, it can not be considered as strict compliance of law and bail can be ordered since accused availed the right u/s. 167(2) Cr.P.C. is first and then challan is filed
2000 (2) MWN (Crl.) 158 – Adbul Rahman Vs. State through the Inspector of Police, Madurai and another
Defective Final report
If defective final report is filed in order to defeat the right of an accused and final report is returned for compliance, the same can not be considered as strict compliance and so right of an accused u/s. 167(2) Cr.P.C., exists and default bail can not be denied.
e) Whether bail granted u/s. 167(2) Cr.P.C., can be cancelled on filing of final report?
“Once the indefeasible right has been accured by the accused, subsequent remand u/s. 309(2) held would be of no consequences”. 2000(2) MWN (Crl.) 158.
Bail if once granted u/s. 167(2) Cr.P.C. can not be cancelled merely on the ground that final report is filed.
Bail once granted u/s. 167(2) Cr.P.C., can be cancelled only by invoking powers u/s. 437(5), 439(2) Cr.P.C., certainly not on the ground of charge sheet subsequently filed.
2004 (2) LW (Crl.) Nagarajan and others Vs. State of Tamil Nadu – filing of defective charge sheet in order to defeat the rights of an accused to be enlarged on bail is no ground to reject bail.
f) Whether Judicial Magistrate can extend the time to file final report?
Section 36(A) (4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act 61 of 1985)
Section 36(A) offences triable by Special Court:
(Substituted by NDPS (Amendment) Act, 2001 w.e.f. 2.10.2001 vide SO 957(E) dt. 27.9.2007.
(4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (2) of 1974) thereof to ‘ninety days’, where they occur, shall be construed as reference to ‘one hundred and eighty days’.
Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period upto one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the contention of the accused beyond the said period of one hundred and eighty days.
Section 43(D), (2) (b) of the Unlawful Activities (Prevention) Act, 1967 (Act 37 of 1967)
2. Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub section (2) –
(a) the references to “fifteen days”, ‘ninety days’ and sixty days wherever they occur, shall re-construed as references to “thirty days”, “ninety days” and “ninety days” respectively and (b) after the proviso, the following provisos shall be inserted, namely –
“Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period upto one hundred and eighty days.
The amendment effected in the above two Special Acts is Pari materia and to apply the same the following are mandatory.
(a) a report of the Public Prosecutor
(b) Compelling reasons for seeking the detention of the accused beyond the period
(c) Which indicates the progress of the investigation
(d) Notice to the accused.
In the following cases, the scope of amendments and powers of learned Judicial Magistrate have been decided:
(1) (2011) 1 SCC (Crl.) 1099 Sanjay Kumar Kedia @ Sanjay Kedia Vs. Intelligence Officer, Narcotics Control Bureau and another
(2) CDJ 2013 MHC - Jith @ Indrajith and others Vs. Inspector ‘Q’ Branch, Pudukkottai – Madras High Court, Madurai Bench.
Thus, the prolonged incarceration of accused has been curtailed by Section 167(2) Cr.P.C. and thereby the liberty of an individual has been protected.