NOTE : In the SLP (Criminal) no. 5724/2023, the Supreme Court has rendered this judgement as non-binding precedent.
Brief Facts
- The writ petition under Article 32 of the Constitution of India was filed by the petitioner seeking the release of her husband on default bail.
- Briefly, the facts relevant to the present writ petition are that an FIR was lodged under Section 120(B) read with Section 420 of the IPC along with Sections 7, 12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, wherein the writ petitioner’s husband was not named.
- Subsequently, two supplementary chargesheets were filed, wherein the writ petitioner’s husband (“accused”) was made a prosecution witness in the supplementary chargesheet dated 26.05.2020. Multiple other supplementary chargesheets were later filed, and the accused was not named in any of the said chargesheets.
- The investigation was then transferred to another investigating officer, and the accused was then arrested by CBI and was remanded to custody on 28.04.2022. Multiple other supplementary chargesheets were then filed, wherein the accused herein was named as a suspect, and the remand of the accused under Section 309(2) of the Cr.P.C. was renewed and was continued from time to time, and he was never released on default bail.
Issues
- Whether the Writ Petition filed by the Petitioner is maintainable before the Apex Court under Article 32 of the Constitution seeking the release of her husband on default bail, when the accused have not approached the High Court against the order of the Magistrate refusing default bail or filed a Special Leave Petition under Article 136 of the Constitution?
- Can a chargesheet or a prosecution complaint be filed in piecemeal without first completing the investigation of the case?
- Whether the filing of such a chargesheet without completing the investigation will extinguish the right of an accused for grant of default bail?
- Whether the remand of an accused can be continued by the trial court during the pendency of investigation beyond the stipulated time as prescribed by the CrPC?
Held
- Writ Petition was allowed and the accused was release on bail.
- In the instant case, it is clear from the facts that during the pendency of the investigation, supplementary chargesheets were filed by the Investigation Agency just before the expiry of 60 days, with the purpose of scuttling the right to default bail accrued in favour the accused. This factual position was missed by the trial court, and instead of offering default bail to the accused, the trial court mechanically accepted the incomplete chargesheets filed by the Investigating Agency, and further continued the remand of the accused beyond the maximum period specified. The Investigating Agency and the trial court, thus, failed to observe the mandate of law, and acted in a manner which was manifestly arbitrary and violative of the fundamental rights guaranteed to the accused.
Writ Petition maintainable as denial of statutory bail breaches fundamental right
- It must be remembered that our Constitution has entrusted the Supreme Court with the most important task of protecting civil liberties of individuals, and the society at large. These civil liberties, which manifest themselves in the form of fundamental rights, are what allow the people of this country to effectively negotiate with the state and maintain the parity in power in the social contract between the people and the state. If this Court refuses to exercise its jurisdiction on technicalities in cases of violations of fundamental rights, it will lead to a ripple effect that will result in a dysfunctional social contract, wherein the people of this country would become subject to an arbitrary and unfettered tyranny of the state.
- It is also pertinent to note that the relief of statutory bail under Section 167(2) of the Cr.PC, in our opinion, is a fundamental right directly flowing from Article 21 of the Constitution of India, and the violation of such a right, as mentioned above, directly attracts consideration under Article 32 of the Constitution. In such circumstance, we are not inclined to agree with the preliminary objections raised by the learned counsel for the respondent regarding the maintainability of this petition under Article 32 of the Constitution and the said objection, therefore, stands rejected.
Incomplete charge sheet cannot extinguish the right of default bail
- Without completing the investigation of a case, a chargesheet or prosecution complaint cannot be filed by an investigating agency only to deprive an arrested accused of his right to default bail under Section 167(2) of the CrPC.
- Such a chargesheet, if filed by an investigating authority without first completing the investigation, would not extinguish the right to default bail under Section 167(2) CrPC.
- The trial court, in such cases, cannot continue to remand an arrested person beyond the maximum stipulated time without offering the arrested person default bail.
Default bail is not just statutory but a fundamental right
It pertinent to mention that the right of default bail under Section 167(2) of the CrPC is not merely a statutory right, but a fundamental right that flows from Article 21 of the Constitution of India. The reason for such importance being given to a seemingly insignificant procedural formality is to ensure that no accused person is subject to unfettered and arbitrary power of the state. The process of remand and custody, in their practical manifestations, create a huge disparity of power between the investigating authority and the accused. While there is no doubt in our minds that arrest and remand are extremely crucial for the smooth functioning of the investigation authority for the purpose of attaining justice, however, it is also extremely important to be cognizant of a power imbalance. Therefore, it becomes essential to place certain checks and balances upon the Investigation Agency in order to prevent the harassment of accused persons at their hands.
Relevant Para No.
- 11, 14, 32, 33, 34