REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE TO APPEAL (CRL.) NO. 2009 OF 2017

Rakesh Kumar Paul                .…Petitioner

versus

State of Assam                              …Respondent

WITH  

SPECIAL LEAVE TO APPEAL (CRL.) NO. 2176 OF 2017

Rakesh Kumar Paul                .…Petitioner

versus

State of Assam                              …Respondent

J U D G M E N T

Madan B. Lokur, J.

1. In  Measure for  Measure the  Duke complains  (in  the given situation):

“And liberty  plucks  justice  by the  nose”.1 The  truth is  that  personal  liberty

cannot be compromised at the altar of what the State might perceive as justice –

justice for one might be perceived as injustice for another. We are therefore

unable  to  agree  with learned counsel  for  the  State  that  the  petitioner  is  not

entitled to his liberty through what is commonly referred to as ‘default bail’ or

that the justice of the case should persuade us to decide otherwise. 1

Act 1 Scene III line 20-32

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2. The facts in these petitions are not in dispute and we need not go into

them in any great detail since we are really concerned with the interpretation of

the words “imprisonment for a term not less than ten years” appearing in clause

(i) of proviso (a) to Section 167(2) of the Code of Criminal Procedure, 1973 as

amended in 1978.

A few facts

3. A First Information Report No. 936 of 2016 was lodged on 27th October,

2016 in respect of allegations made under the provisions of the Prevention of

Corruption  Act,  1988  (PC  Act)  and  the  Indian  Penal  Code,  1860  (IPC).

Although  the  petitioner  was  not  named  in  the  First  Information  Report,

investigations  seemed  to  implicate  him  in  a  very  large  and  structured

conspiracy.   Accordingly, on 5th November, 2016 the petitioner was taken into

custody pending further investigation.

4. Ordinarily,  the  maximum  period  of  detention  during  the  course  of

investigation (without a charge sheet or challan being filed) would be 60 days in

terms of clause (ii) of proviso (a) to Section 167(2) of the Code of Criminal

Procedure, 1973 (for short ‘the Cr.P.C.’).  In the petitioner’s case, this period

would come to an end on 3rd January, 2017.  However according to the State,

since  the  petitioner  had  committed  offences  which  could  result  in

“imprisonment for a term not less than ten years” he could be kept in custody

for a period of 90 days in terms of clause (i) of proviso (a) to Section 167(2) of

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the Cr.P.C.  Therefore, the question before us is whether, pending investigation,

the petitioner could be kept in custody for a maximum period of 60 days in

terms of clause (ii) of proviso (a) to Section 167(2) of the Cr.P.C. or for 90 days

in terms of clause (i) of proviso (a) to Section 167(2) of the Cr.P.C. without a

charge sheet being filed.

5. On 20th December, 2016 (before the expiry of 60 days),  the petitioner

applied for bail before the Special Judge dealing with cases relating to offences

under the PC Act.  His application was rejected.

6. Subsequently, on or about 11th January, 2017 (after the expiry of 60 days

of  detention  but  before  the  expiry  of  90  days  of  detention),  the  petitioner

applied for bail before the Gauhati High Court, but that application was rejected

on 11th January, 2017. The prayer made in the application for bail was for grant

of “regular bail” under Section 439 of the Cr.P.C.   This is of some importance

because,  according to  learned counsel  for  the State,  assuming the petitioner

could be detained only for a maximum period of 60 days during investigations,

he had not applied for ‘default bail’, that is bail in default of the prosecution

filing a charge sheet against him soon after that 60 day period of detention, but

had only applied for “regular bail”.

7. At this stage, it may be mentioned that even though the petitioner had not

applied for  ‘default  bail’ he did contend before the High Court  that  he was

entitled to ‘default bail’ since no charge sheet had been filed against him within

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60 days of his arrest during investigations. This submission was considered by

the  High  Court  but  rejected,  not  on  the  ground  that  the  petitioner  had  not

applied for ‘default bail’ but on the ground that he could be detained for 90 days

without a charge sheet being filed and that period of 90 days had not yet come

to  an  end.  (The  period  of  90  days  would  come  to  an  end  on  or  about  2nd

February, 2017).

8. To complete the narration of essential facts, it may be mentioned that a

charge sheet was filed against the petitioner on 24th January, 2017 that is after

60 days of his detention but before completion of 90 days of detention.

9. In  view of  the  charge  sheet  having  been  filed,  the  modified  question

before us is whether the petitioner was entitled to ‘default bail’ with effect from

3rd or 4th January, 2017 onwards and, in any case on 11th January, 2017 when his

application for “regular bail” was rejected by the Gauhati High Court.

History behind the enactment of Section 167 of the Cr.P.C.

10. The Code of Criminal Procedure enacted in 1898 contained Section 167

which laid down the procedure to be followed in the event the investigation into

an offence is not completed within twenty-four hours. What is significant is that

the  legislative  expectation  was  that  the  investigation  would  ordinarily  be

completed within twenty-four  hours.  Incidentally, this  legislative expectation

continues till today. Whatever be the anxiety of the Legislature in 1898, there

can  be  no  gainsaying  that  investigation  into  an  offence  deserves  an  early

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closure, one way or the other. Therefore, when Section 167 was enacted in the

Code  of  Criminal  Procedure,  1898  it  was  premised  on  the  conclusion  of

investigations  within  twenty-four  hours  or  within  15  days  on  the  outside,

regardless of the nature of the offence or the punishment.  Section 167 of the

Code of Criminal Procedure, 1898 reads as follows:

167. [Marginal Note: Procedure when investigation cannot be completed in twenty-four  hours]  (1)  Whenever  any  person  is  arrested  and  detained  in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 61, and there are grounds for believing that the accusation or information is  well-founded,  the officer  in charge of the police-station or the police-officer making the investigation if he is not below the rank of sub-inspector shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of  the  accused in  such custody as  such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has not jurisdiction  to  try  the  case  or commit  it  for  trial,  and  considers  further detention  unnecessary,  he  may  order  the  accused  to  be  forwarded  to  a Magistrate having such jurisdiction:

       Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the State Government shall authorise detention in the custody of the police.

(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.  

(4) If such order is given by a Magistrate other than the District Magistrate or Sub-divisional  Magistrate,  he  shall  forward  a  copy  of  his  order,  with  his reasons  for  making  it,  to  the  Magistrate  to  whom  he  is  immediately subordinate.

11. Unfortunately, all laws tend to be misused whenever opportunity knocks,

and  Section 167 of the Code of Criminal Procedure, 1898 was no exception.

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Since there was a practical difficulty in completing investigations within the 15

day time limit, the prosecution often took recourse to the provisions of Section

344  of  the  Code  of  Criminal  Procedure,  1898  and  filed  a  preliminary  or

incomplete report before the Magistrate to keep the accused in custody. The

Law Commission of India noted this in its 41st Report (after carefully studying

several earlier Reports) and proposed to increase the time limit for completion

of investigations to 60 days, acknowledging that “such an extension may result

in the maximum period becoming the rule in every case as a matter of routine:

but  we trust that proper supervision by the superior courts will  prevent

that.” (Emphasis supplied by us). The view expressed by the Law Commission

of India and its proposal is as follows:

14.19. Section  167  provides  for  remands.   The  total  period  for  which  an arrested person may be remanded to custody – police or judicial – is 15 days. The assumption is that the investigation must be completed within 15 days, and the final report under section 173 sent to court by then.  In actual practice, however,  this  has  frequently  been  found  unworkable.   Quite  often,  a complicated  investigation  cannot  be  completed  within  15  days,  and  if  the offence  is  serious,  the  police  naturally  insist  that  the  accused  be  kept  in custody.  A practice of doubtful legal validity has therefore grown up.  The police file before a magistrate a preliminary or “incomplete” report, and the magistrate, purporting to act under section 344, adjourns the proceedings and remands  the  accused  to  custody.   In  the  Fourteenth  Report,  the  Law Commission doubted if such an order could be made under section 344, as that section is intended to operate only after a magistrate has taken cognizance of  an  offence,  which can  be properly done only after  a  final  report  under section  173  has  been  received,  and  not  while  the  investigation  is  still proceeding.  We are of the same view, and to us also it appears proper that the law should be clarified in this respect.  The use of section 344 for a remand beyond the statutory period fixed under section 167 can lead to serious abuse, as an arrested person can in this manner be kept in custody indefinitely while the investigation can go on in a leisurely manner.  It is, therefore, desirable, as was observed in the Fourteenth Report, that some time limit should be placed on the power of the police to obtain a remand, while the investigation is still going on: and if the present time limit of 15 days is too short, it would be better to fix a longer period rather than countenance a practice which violates the spirit of the legal safeguard. Like the earlier Law Commission, we feel

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that  15 days  is  perhaps  too  short,  and we propose  therefore  to  follow the recommendation  in  the  Fourteenth  Report  that  the  maximum period  under section 167 should be fixed at 60 days. We are aware of the danger that such an extension may result in the maximum period becoming the rule in every case as a matter of routine: but we trust that proper supervision by the superior courts will prevent that. We propose accordingly to revise sub-sections (2) and (4) of section 167 as follows:-

“(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from  time  to  time  authorise  the  detention  of  the  accused  in  such custody as such Magistrate thinks fit, for a term not exceeding fifteen days at a time and sixty days in the whole. If he has no jurisdiction to try  the  case  or commit  it  for  trial,  and  considers  further  detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

       Provided that –

(a) no Magistrate shall authorize detention in any custody under  this  section  unless  the  accused  is  produced before him;

(b) no  Magistrate  of  the  second  class  not  specially empowered  in  this  behalf  by  the  High  Court  shall authorise detention in the custody of the police.

(4) Any Magistrate other than the Chief Judicial Magistrate making such  order  shall  forward  a  copy of  his  order,  with  his  reasons  for making it, to the Chief Judicial Magistrate.”

12. The recommendations of the Law Commission of India were carefully

examined  and  then  accepted.  The  basic  considerations  for  acceptance,  as

mentioned in the Statement of Objects and Reasons dated 7th November, 1970

for introducing the (new) Code of Criminal Procedure, 1973 were:  

3. The recommendations of the Commission were examined carefully by the  Government,  keeping  in  view  among  others,  the  following  basic considerations:-

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(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.

The occasion has been availed of to consider and adopt where appropriate suggestions  received from other  quarters,  based  on practical  experience  of investigation and the working of criminal Courts.

13. Accordingly, Section 167 of the Code of Criminal Procedure, 1973 (the

Cr.P.C.) was enacted as follows, with the recommended time limit and again

regardless of the nature of the offence or the punishment:

167. [Marginal Note: Procedure when investigation cannot be completed in twenty-four  hours]  (1)  Whenever  any  person  is  arrested  and  detained  in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is  well-founded,  the officer  in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of  the  accused in  such custody as  such Magistrate thinks fit, for a term not exceeding fifteen days in the whole: and if he has no jurisdiction  to  try  the  case  or commit  it  for  trial,  and  considers  further detention  unnecessary,  he  may  order  the  accused  to  be  forwarded  to  a Magistrate having such jurisdiction:

       Provided that

(a) the Magistrate may authorise detention of the accused person,  otherwise  than  in  custody of  the  police,  beyond the period of fifteen days if he is satisfied that adequate grounds exists  for  doing  so,  but  no  Magistrate  shall  authorise  the detention of the accused person in custody under this section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, the accused person shall be released on bail if he is prepared to and does furnish bail; and every

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person released on bail under this section shall be deemed to be so released under  the  provisions  of  Chapter  XXXIII  for  the purposes of that Chapter;

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;

(c) no  Magistrate  of  the  second  class,  not  specially empowered in this behalf  by the High Court,  shall  authorise detention in the custody of the police.

Explanation.-  If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.

(3) to (6) Not relevant for the present purposes.  

14. A few years later in 1978, a need was felt to amend Section 167 of the

Cr.P.C. by not only extending the period for completing investigation but also

relating that period to the offence. Therefore, a shift was proposed to grant an

aggregate period of 90 days for completing the investigation in cases relating to

offences punishable with death, imprisonment for life or “imprisonment for not

less than ten years or more” and up to 60 days in any other case, as stated in the

Notes on Clauses accompanying the Statement of Objects and Reasons dated 9th

May, 1978 for amending the statute. What is of significance (for our purposes)

is the use of the words “imprisonment for not less than ten years or more”. In

our opinion, the use of the words “or more” gives a clear indication that the

period  of  90  days  was  relatable  to  an  offence  punishable  with  a  minimum

imprisonment for a period of not less than ten years, if not more. The Notes on

Clauses reads as follows:   

Clause  13.- Section  167  is  being  amended  to  empower  the  Magistrate  to authorise detention, pending investigation, for an aggregate period of 90 days

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in  cases  where  the investigation relates  to  offences  punishable  with death, imprisonment for life or imprisonment for not less than ten years or more and up to 60 days in any other case.  These amendments are intended to remove difficulties which have been actually experienced in relation to the investigation of offences of a serious nature.  

A new sub-section  is  being  inserted  empowering  an  Executive  Magistrate ………….. (Emphasis supplied by us).

15. When Section 167 of the Cr.P.C. was enacted, it was perhaps felt that the

words “or more” were superfluous (as indeed we believe that they are in the

context of the use of the words “not less than”) and Section 167 came to read:

167. Procedure when investigation cannot be completed in twenty-four hours - (1) Whenever any person is arrested and detained in custody, and it appears  that  the  investigation  cannot  be  completed  within  the  period  of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the  rank  of  sub-inspector,  shall  forthwith  transmit  to  the  nearest  Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of  the  accused in  such custody as  such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction  to  try  the  case  or  commit  it  for  trial,  and  considers  further detention  unnecessary,  he  may  order  the  accused  to  be  forwarded  to  a Magistrate having such jurisdiction:

Provided that, —

(a) the  Magistrate  may  authorise  the  detention  of  the  accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist  for  doing  so,  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;

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(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;

(b)  no  Magistrate  shall  authorise  detention  of  the  accused  in custody  of  the  police  under  this  section  unless  the  accused  is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;

(c) no Magistrate of the second class, not specially empowered in this  behalf  by  the  High  Court,  shall  authorise  detention  in  the custody of the police.

Explanation I.-  For the avoidance of doubts,  it  is  hereby declared that, notwithstanding  the  expiry  of  the  period  specified  in  paragraph  (a),  the accused shall be detained in custody so long as he does not furnish bail.

Explanation  II.-  If  any question  arises  whether  an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be:

Provided further that in case of a woman under eighteen years of age, the detention  shall  be  authorised  to  be  in  the  custody  of  a  remand  home  or recognised social institution.

(2A) to (6) Not relevant for the present purposes.

16. Generally speaking therefore, it could be said that the legislative intent is

and  always  has  been  to  complete  the  investigation  into  an  offence  within

twenty-four hours, failing which within 15 days (Cr.P.C. of 1898). The period of

15 days was later extended to 60 days (Cr.P.C. of 1973) and eventually it was

extended to 90 days if the investigation was relatable to an offence punishable

with death, imprisonment for life or imprisonment for a term of not less than ten

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years.  In  respect  of  all  other  offences,  the  period  of  60  days  remained

unchanged.  

17. The significance of the period of 60 days or 90 days, as the case may be,

is that if the investigation is not completed within that period then the accused

(assuming he or she is in custody) is entitled to ‘default bail’ if no charge sheet

or challan is filed on the 60th or 90th day, the accused applies for ‘default bail’

and is prepared to and does furnish bail for release. As can be seen from the

narration of facts, no charge sheet or challan was filed against the petitioner on

the 60th day but was filed before the conclusion of 90 days. Consequently, was

the petitioner entitled to ‘default bail’ after 60 days? According to the petitioner

the  answer  is  in  the  affirmative  since  he  had  not  committed  an  offence

punishable with imprisonment for not less than ten years, but according to the

State he had committed an offence punishable with imprisonment for ten years.

18. So  what  was  the  offence  allegedly  committed  by  the  petitioner?

According to the State he was liable for punishment for an offence, inter alia,

under  Section  13(1)  of  the  PC  Act,  the  offence  being  “punishable  with

imprisonment for a term which shall be not less than four years but which may

extend to ten years” and fine. Therefore, the view of the State is that since the

petitioner could face imprisonment that could extend to 10 years, the date for

applying for ‘default bail’ would commence on the expiry of 90 days. However,

according to the petitioner the date for obtaining ‘default bail’ would commence

on the expiry of 60 days that is on or about 3rd January, 2017. (On the facts of

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this case, we need not quibble on the exact date).  To this extent there is no

dispute between the petitioner and the State.  

Discussion on interpretation

19. To answer the primary question before us, we need to first  decide the

meaning of the expression “punishable with imprisonment for not less than ten

years” occurring in Clause (i) to proviso (a) of Section 167(2) of the Cr.P.C. Its

interpretation stirred considerable debate and discussion before us.  

20. Learned  counsel  for  the  petitioner  relied  upon  Rajeev  Chaudhary  v.

State (NCT) of Delhi)2 to contend that “not less than” 10 years imprisonment

must mean a minimum of 10 years imprisonment. In that decision, the offence

was punishable under Section 386 of the IPC which provides that an accused, if

found  guilty, shall  be  punished  with  imprisonment  for  a  term “which  may

extend to 10 years”.3  This Court contrasted that expression with the words “not

less than” occurring in Clause (i) to proviso (a) of Section 167(2) of the Cr.P.C.

Juxtaposing the two expressions, this Court concluded that the words “not less

than” in Clause (i) would mean that the imprisonment should be 10 years or

more  and  would  cover  only  those  offences  for  which  punishment  of

imprisonment could be for a clear period of 10 years or more.  It was held in

paragraph 6 of the Report:

2  (2001) 5 SCC 34 3 386. Extortion by putting a person in fear of death or grievous hurt.—Whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

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“From the  relevant  part  of  the  aforesaid  sections,  it  is  apparent  that pending  investigation  relating  to  an  offence  punishable  with imprisonment  for  a  term “not  less  than  10 years”,  the  Magistrate  is empowered to authorize the detention of the accused in custody for not more than 90 days.  For rest of the offences, the period prescribed is 60 days.  Hence in cases where offence is punishable with imprisonment for 10 years or more, the accused could be detained up to a period of 90 days.   In  this  context,  the  expression  “not  less  than”  would  mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of  10  years  or  more.   Under  Section  386  punishment  provided  is imprisonment of either description for a term which may extend to 10 years and also fine.  That means, imprisonment can be for a clear period of 10 years or less.  Hence, it could not be said that minimum sentence would be 10 years or  more.   Further, in  context  also if  we consider clause (i) of proviso (a) to Section 167(2), it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years.  It would not cover the offence for which punishment could be imprisonment  for  less  than  10  years.   Under  Section  386  IPC, imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years.”

This decision certainly supports the contention of learned counsel and there is

also a feeling of déjà vu in the use of the words “or more” in the decision, those

words having been used in the Notes on Clauses when the Cr.P.C. was sought to

be amended in 1978.    

21. In  contrast,  learned  counsel  for  the  State  referred  to  and  relied  upon

Bhupinder  Singh v.  Jarnail  Singh.4 That  case  concerned  an  offence  under

Section 304-B of the IPC where the punishment provided is not less than 7

years  but  which  may  extend  to  imprisonment  for  life.5 In  other  words,  the

4 (2006) 6 SCC 277 5 304-B. Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation.—For the purpose of this sub-section, “dowry” shall have the same meaning as in Section  

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‘punishment range’ or ‘punishable range’ available to a sentencing judge varied

from not less than 7 years extending to life imprisonment.   Keeping this in

mind, it was noted that what is the adequate punishment in a given case would

be decided by the court on the basis of the facts and circumstances before it.  

22. The decision in  Rajeev Chaudhary  was distinguished by recording that

the case

“related  to  an  offence  punishable  under  Section  386  IPC  and  the sentence in respect of the said offence is not less than 10 years. This Court  held  that  the  expression  “not  less  than”  means  that  the imprisonment should be 10 years or more to attract 90 days’ period. In that context it was said that for the purpose of clause (i) of proviso (a) of Section 167(2) CrPC the imprisonment should be for a clear period of 10 years or more.”  

This is factually incorrect, inasmuch as Section 386 of the IPC provides for a

punishment  “which may  extend to  ten years”.  It  is  Clause  (i)  that  uses  the

expression  “imprisonment  for  a  term  not  less  than  ten  years”.  This  Court

unfortunately overlooked the juxtaposition and distinction referred to above.

23. It was further held in paragraph 11 of the Report:

“The position is  different  in  respect  of  the  offence punishable  under Section  304-B  IPC.  In  the  case  of  Section  304-B  the  range  varies between 7 years and imprisonment for life. What should be the adequate punishment in a given case has to be decided by the court on the basis of the facts and circumstances involved in the particular case.  The stage of imposing a sentence comes only after recording the order of conviction of  the  accused  person.   The  significant  word  in  the  proviso  is “punishable”. The word “punishable” as used in statutes which declare that certain offences are punishable in a certain way means liable to be

2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be  

less than seven years but which may extend to imprisonment for life.

15

punished in the way designated.  It is ordinarily defined as deserving of or capable or liable to punishment, capable of being punished by law or right,  may  be  punished  or  liable  to  be  punished,  and  not  must  be punished.”

24. In the context of the word “punishable” occurring in Clause (i) and the

meaning attached to this word taken from several dictionaries, this Court held in

Bhupinder Singh that where a minimum and maximum sentence is prescribed,

both  are  imposable  depending  upon  the  facts  of  the  case.  Therefore,  if  an

offence is punishable with imprisonment that may extend upto or beyond or

including  10  years,  then  the  period  available  for  completing  investigations

would be 90 days before the provision for ‘default bail’ kicks in. It was said in

paragraph 15 of the Report:

“Where minimum and maximum sentences are prescribed, both are imposable depending  on  the  facts  of  the  cases.  It  is  for  the  court,  after  recording conviction, to impose appropriate sentence. It cannot, therefore, be accepted that only the minimum sentence is imposable and not the maximum sentence. Merely because minimum sentence is provided that does not mean that the sentence imposable is only the minimum sentence.”

25. While it is true that merely because a minimum sentence is provided for

in the statute it does not mean that only the minimum sentence is imposable.

Equally, there is also nothing to suggest that only the maximum sentence is

imposable. Either punishment can be imposed and even something in between.

Where does one strike a balance? It was held that it is eventually for the court to

decide  what  sentence  should  be  imposed  given  the  range  available.

Undoubtedly, the Legislature can bind the sentencing court by laying down the

16

minimum sentence  (not  less  than)  and  it  can  also  lay  down  the  maximum

sentence. If the minimum is laid down, the sentencing judge has no option but

to give a sentence “not less than” that sentence provided for.  Therefore, the

words “not less than” occurring in Clause (i) to proviso (a) of Section 167(2) of

the Cr.P.C. (and in other provisions) must be given their natural and obvious

meaning which is to say, not below a minimum threshold and in the case of

Section 167 of the Cr.P.C. these words must relate to an offence punishable with

a minimum of 10 years imprisonment.  

26. Of the two views expressed by this Court, we accept the view in Rajeev

Chaudhary.  

27. It  is  true  that  an  offence  punishable  with  a  sentence  of  death  or

imprisonment for life or imprisonment for a term that may extend to 10 years is

a  serious  offence  entailing  intensive  and  perhaps  extensive  investigation.  It

would therefore appear that given the seriousness of the offence, the extended

period of 90 days should be available to the investigating officer in such cases.

In other words, the period of investigation should be relatable to the gravity of

the offence – understandably so. This could be contrasted with an offence where

the maximum punishment under the IPC or any other penal statute is (say) 7

years, the offence being not serious or grave enough to warrant an extended

period of 90 days of investigation. This is certainly a possible view and indeed

the Cr.P.C. makes a distinction in the period of investigation for the purposes of

‘default bail’ depending on the gravity of the offence. Nevertheless, to avoid

17

any uncertainty or ambiguity in interpretation, the law was enacted with two

compartments.  Offences  punishable  with  imprisonment  of  not  less  than  ten

years  have  been  kept  in  one  compartment  equating  them  with  offences

punishable  with  death  or  imprisonment  for  life.  This  category  of  offences

undoubtedly calls for deeper investigation since the minimum punishment is

pretty stiff.   All other offences have been placed in a separate compartment,

since they provide for a lesser minimum sentence, even though the maximum

punishment could be more than ten years imprisonment. While such offences

might also require deeper investigation (since the maximum is quite high) they

have  been  kept  in  a  different  compartment  because  of  the  lower  minimum

imposable  by  the  sentencing  court,  and  thereby  reducing  the  period  of

incarceration during investigations which must be concluded expeditiously. The

cut-off, whether one likes it or not, is based on the wisdom of the Legislature

and must be respected.

Discussion from personal liberty perspective

28. We  may  also  look  at  the  entire  issue  not  only  from  the  narrow

interpretational perspective but from the perspective of personal liberty.  Ever

since 1898,  the legislative  intent  has been to  conclude investigations  within

twenty-four hours. This intention has not changed for more than a century, as

the  marginal  notes  to  Section  167  of  the  Cr.P.C.  suggest.  However,  the

Legislature  has  been  pragmatic  enough  to  appreciate  that  it  is  not  always

possible to complete investigations into an offence within twenty-four hours.

18

Therefore initially, in the Cr.P.C. of 1898, a maximum period of 15 days was

provided for completing the investigations.  Unfortunately, this limit was being

violated  through  the  subterfuge  of  taking  advantage  of  Section  344  of  the

Cr.P.C.  of  1898.  The misuse  was  recognized in  the  41st Report  of  the  Law

Commission of  India  and consequently  the  Law Commission recommended

fixing a maximum period of  60 days for  completing investigations and that

recommendation  came  to  be  enacted  as  the  law  in  the  Cr.P.C.  of  1973.

Subsequently,  this  period  was  also  found  to  be  insufficient  for  completing

investigations into more serious offences and, as mentioned above, the period

for completing investigations was bifurcated into 90 days for some offences and

60 days for the remaining offences.

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. There is a legislative appreciation of

the fact that certain offences require more extensive and intensive investigations

and, therefore, for those offences punishable with death or with imprisonment

19

for life or a minimum sentence of imprisonment for a term not less than 10

years, a longer period is provided for completing investigations.

30. The  need  to  expeditiously  conclude  investigations  has  been  discussed

from time to time over the years and the view has been that as far as practicable,

the investigating agency should be distinct from the police staff assigned to the

enforcement of law and order. This was the view expressed (in 1958) in the 14 th

Report  of  the Law Commission of  India  as  reflected in  its  154th Report  (in

1996).6    

31. In  the  154th Report,  the  Law  Commission  noted  that  the  unanimous

opinion of members of the Bench and the Bar, prosecuting agencies and senior

police  officers  during  legal  workshops  held  at  various  places  was  that  the

investigation of serious offences punishable with a sentence of 7 years or more

should  invariably  be  undertaken  by  senior  officers.  The  Law  Commission

concluded, as a result of these extensive discussions, that it was desirable to

separate the investigating police from the law and order police and as many as

seven reasons were given for arriving at this conclusion in Chapter II of the

Report.

32. Even  this  Court  had  occasion  to  consider  this  issue  and  looked  into

several reports including those of the National Police Commission in Prakash

Singh v. Union of India.7 In paragraphs 20 and 21 of the decision, this Court

6  Chapter II paragraph 4 7  (2006) 8 SCC 1

20

noted  that  the  Home  Minister,  all  the  commissions  and  committees  have

concluded  that  there  is  an  urgent  need  for  police  reforms and  that  there  is

convergence of views on the need,  inter alia,  to separate investigation work

from law and order. 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 learned

counsel for the State.

Default bail as an indefeasible right

33. It was submitted by learned counsel for the State that the charge sheet

having been filed against the petitioner on 24th January, 2017 the indefeasible

right of the petitioner to be now released on ‘default bail’ gets extinguished and

the petitioner must apply for regular bail.

34. What is forgotten is that the indefeasible right for ‘default bail’ accrued to

the petitioner when the period of 60 days for completing the investigation and

filing a charge sheet came to an end on 3rd or 4th January, 2017 and that the

21

indefeasible right continued till  24th January, 2017.  The question is whether

during  this  interregnum the  petitioner  was  entitled  to  ‘default  bail’  or  not?

Ordinarily, the answer would be “yes” but in the present case, the petitioner was

not granted bail and a charge sheet was filed against him on 24th January, 2017.

Was his indefeasible right completely taken away?

35. Our attention was drawn to the decision of  the Constitution Bench in

Sanjay Dutt v. State.8  In paragraph 46 of the Report it was conceded by learned

counsel appearing for the accused that the indefeasible right is enforceable only

up to the filing of a charge sheet or challan and does not survive after the charge

sheet  or  challan is filed in the court  against  him.  This submission was not

refuted by but agreed to by the learned Additional Solicitor General appearing

for the State.  The submission made by both the learned counsels was based on

an interpretation of the decision of this Court in  Hitendra Vishnu Thakur v.

State of  Maharashtra9 which was a case under the Terrorist  and Disruptive

Activities (Prevention) Act, 1987.   

36. While  dealing  with  this  common  stance,  the  Constitution  Bench  in

Sanjay Dutt  made it clear in paragraph 48 of the Report that the indefeasible

right accruing to the accused is enforceable only prior to the filing of the charge

sheet and it does not survive or remain enforceable thereafter, if already not

availed  of.  In  other  words,  the  Constitution  Bench  took  the  view  that  the

indefeasible right of ‘default bail’ continues till the charge sheet or challan is

8  (1994) 5 SCC 410 9  (1994) 4 SCC 602

22

filed and it gets extinguished thereafter.  This is clear from the conclusion stated

by the Constitution Bench in paragraph 53(2)(b) of the Report.  This reads as

follows:

“(2)(b) The “indefeasible right”  of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in  Hitendra Vishnu  Thakur is  a  right   which enures  to,  and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being  filed.   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.   The right  of  the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage.”    

37. This Court had occasion to review the entire case law on the subject in

Union of  India v. Nirala Yadav.10 In  that  decision,  reference was made to

Uday  Mohanlal  Acharya  v.  State  of  Maharashtra11 and  the  conclusions

arrived at in that decision.  We are concerned with conclusion No. 3 which

reads as follows:

“(3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion  of  the  investigation  within  the  period  prescribed and the accused  is  entitled  to  be  released  on  bail,  if  he  is  prepared  to  and furnishes the bail as directed by the Magistrate.”

10  (2014) 9 SCC 457 11  (2001) 5 SCC 453

23

38. This Court also dealt with the decision rendered in Sanjay Dutt and noted

that the principle laid down by the Constitution Bench is to the effect that if  the

charge sheet is not filed and the right for  ‘default  bail’ has ripened into the

status  of  indefeasibility,  it  cannot  be  frustrated  by  the  prosecution  on  any

pretext.  The accused can avail his liberty by filing an application stating that

the statutory period for filing the charge sheet or challan has expired and the

same has not yet been filed and therefore the indefeasible right has accrued in

his or her favour and further the accused is prepared to furnish the bail bond.

39. This Court also noted that apart from the possibility of the prosecution

frustrating  the  indefeasible  right,  there  are  occasions  when  even  the  court

frustrates  the  indefeasible  right.   Reference  was  made  to  Mohamed  Iqbal

Madar Sheikh v. State of Maharashtra12 wherein it was observed that some

courts keep the application for ‘default bail’ pending for some days so that in

the meantime a charge sheet is submitted.  While such a practice both on the

part  of  prosecution  as  well  as  some  courts  must  be  very  strongly  and

vehemently discouraged, we reiterate that no subterfuge should be resorted to,

to  defeat  the  indefeasible  right  of  the  accused  for  ‘default  bail’ during  the

interregnum when the statutory period for  filing the charge sheet  or  challan

expires and the submission of the charge sheet or challan in court.

Procedure for obtaining default bail

40. In the present case, it was also argued by learned counsel for the State

12  (1996) 1 SCC 722

24

that the petitioner did not apply for ‘default bail’ on or after 4th January, 2017 till

24th January, 2017 on which date his indefeasible right got extinguished on the

filing of the charge sheet. Strictly speaking this is correct since the petitioner

applied for regular bail on 11th January, 2017 in the Gauhati High Court – he

made  no  specific  application  for  grant  of  ‘default  bail’.  However,  the

application for regular bail filed by the accused on 11th January, 2017 did advert

to the statutory period for filing a charge sheet having expired and that perhaps

no charge sheet had in fact being filed.  In any event, this issue was argued by

learned counsel for the petitioner in the High Court and it was considered but

not accepted by the High Court. The High Court did not reject the submission

on the ground of maintainability but on merits.  Therefore it is not as if the

petitioner did not make any application for default bail – such an application

was definitely  made (if  not  in  writing)  then at  least  orally  before  the  High

Court. In our opinion, in matters of personal liberty, we cannot and should not

be  too  technical  and must  lean  in  favour  of  personal  liberty. Consequently,

whether the accused makes a written application for ‘default bail’ or an oral

application for ‘default bail’ is of no consequence.  The concerned court must

deal with such an application by considering the statutory requirements namely,

whether the statutory period for filing a charge sheet or challan has expired,

whether the charge sheet or challan has been filed and whether the accused is

prepared to and does furnish bail.

25

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.  

42. In Sunil Batra II v. Home Secretary, Delhi Administration13 this Court

accepted a letter, which was treated as petition, written by a prisoner in Tihar

Jail, Delhi complaining of inhuman torture inflicted on another prisoner by the

Jail  Warder.  In  Hussainara  Khatoon  v.  State  of  Bihar14 a  number  of  writ

petitions, some by way of a letter, were grouped together and treated as habeas

corpus petitions.  In Rubabbuddin Sheikh v. State of Gujarat15 the brother of

the deceased wrote a letter to the Chief Justice of India complaining of a fake

encounter and subsequent disappearance of his sister-in-law.  This was treated

as  a  habeas corpus petition.    In  Kishore  Singh Ravinder  Dev v. State  of

Rajasthan16 the petitioners  sent  a  telegram to a  learned judge of  this  Court

complaining of solitary confinement of prisoners.  The telegram was treated as

a habeas corpus petition and the concerned persons were directed to be released

from solitary confinement.   In  Paramjit  Kaur (Mrs.)  v. State of  Punjab17 a

telegram received  at  the  residential  office  of  a  learned  judge  of  this  Court

13  (1980) 3 SCC 488 14  (1980) 1 SCC 98 15  (2007) 4 SCC 318 16  (1981) 1 SCC 503 17  (1996) 7 SCC 20

26

alleging an incident of kidnapping by the police was treated as a habeas corpus

petition. In Bandhua Mukti Morcha v. Union of India18 a petition addressed to

a learned judge of this Court relating to the inhumane and intolerable conditions

of stone quarry workers in many States and how many of them were bonded

labour was treated as a writ petition on the view that the “Constitution-makers

deliberately did not lay down any particular form of proceeding for enforcement

of  a  fundamental  right  nor  did  they  stipulate  that  such  proceeding  should

conform to any rigid pattern or straight-jacket formula”.   In People’s Union for

Democratic Rights v. Union of India19 a letter addressed to a learned Judge of

this  Court  concerning  violation  of  various  labour  laws  in  the  construction

projects connected to the Asian Games was treated as a writ petition. In  Dr.

Upendra  Baxi  (I)  v.  State  of  Uttar  Pradesh20 a  letter  relating  to  inhuman

conditions  in  the  Agra  Protective  Home  for  Women  was  treated  as  a  writ

petition and in Sheela Barse v. State of Maharashtra21 a letter addressed by a

journalist  complaining  of  custodial  violence  against  woman  prisoners  in

Bombay was treated as a writ petition. These cases are merely illustrative of the

personal liberty jurisprudence of this Court and in matters pertaining to Article

21 of the Constitution of India this Court has consistently taken the view that it

is not advisable to be ritualistic and formal. However, we must make it clear

that we should not be understood to suggest that procedures must always be

given a go-by – that is certainly not our intention.

18  (1984) 3 SCC 161 19  AIR 1982 SC 1473 20  (1983) 2 SCC 308 21  (1983) 2 SCC 96

27

Duty of the Courts

43. This Court and other constitutional courts have also taken the view that in

the matters concerning personal liberty and penal statutes, it is the obligation of

the court to inform the accused that he or she is entitled to free legal assistance

as a matter of right. In Khatri v. State of Bihar22 the Judicial Magistrate did not

provide legal representation to the accused since they did not ask for it.  It was

held by this Court that this was unacceptable and that the Magistrate or the

Sessions  Judge  before  whom  an  accused  appears  must  be  held  under  an

obligation to inform the accused of his or her entitlement to obtain free legal

assistance at the cost of the State. In Suk Das v. Union Territory of Arunachal

Pradesh23 the accused was tried and convicted without legal representation, due

to his poverty. He had not applied for legal representation but notwithstanding

this, this Court held that the trial was vitiated and the sentence awarded was set

aside, particularly since the accused was not informed of his entitlement to free

legal assistance, nor was an inquiry made from him whether he wanted a lawyer

to be provided at State expense.  In  Rajoo @ Ramakant v. State of Madhya

Pradesh24 the High Court dismissed the appeal of the accused without enquiring

whether he required legal assistance at the expense of the State even though he

was unrepresented.  Relying on  Khatri and  Suk Das this Court remanded his

appeal  to  the  High  Court  for  re-hearing  after  giving  an  opportunity  to  the

accused to take legal assistance.  Finally, in  Mohammed Ajmal Mohammad 22  (1981) 1 SCC 627 23  (1986) 2 SCC 401 24  (2012) 8 SCC 553

28

Amir Kasab v. State of Maharashtra25 this Court relied on Khatri and held that

in paragraph 474 of the Report as follows:

“… it is the duty and obligation of the Magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and,  in  case he has no means to engage a lawyer of  his choice, that one would be provided to him from legal aid at the expense of  the  State.   The  right  flows  from  Articles  21  and  22(1)  of  the Constitution and needs to be strictly enforced. We, accordingly, direct all the Magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the Magistrate concerned liable to departmental proceedings.”

44. Strong  words  indeed.  That  being  so  we  are  of  the  clear  opinion  that

adapting this principle, it would equally be the duty and responsibility of a court

on coming to know that the accused person before it is entitled to ‘default bail’,

to at least apprise him or her of the indefeasible right.  A contrary view would

diminish the respect for personal liberty, on which so much emphasis has been

laid by this Court as is evidenced by the decisions mentioned above, and also

adverted to in Nirala Yadav.

Application of the law to the petitioner

45. On 11th January, 2017 when the High Court dismissed the application for

bail filed by the petitioner, he had an indefeasible right to the grant of ‘default

bail’ since the statutory period of 60 days for filing a charge sheet had expired,

no charge sheet or challan had been filed against him (it was filed only on 24th

January, 2017) and the petitioner had orally applied for ‘default bail’.  Under

25  (2012) 9 SCC 1

29

these circumstances, the only course open to the High Court on 11th January,

2017 was to enquire from the petitioner whether he was prepared to furnish bail

and  if  so  then  to  grant  him  ‘default  bail’  on  reasonable  conditions.

Unfortunately, this was completely overlooked by the High Court.

46. It was submitted that as of today, a charge sheet having been filed against

the petitioner, he is not entitled to ‘default bail’ but must apply for regular bail –

the ‘default bail’ chapter being now closed.  We cannot agree for the simple

reason that we are concerned with the interregnum between 4th January, 2017

and 24th January, 2017 when no charge  sheet  had been filed,  during which

period he had availed of his indefeasible right of ‘default bail’.  It would have

been another matter altogether if the petitioner had not applied for ‘default bail’

for  whatever  reason  during  this  interregnum.  There  could  be  a  situation

(however rare) where an accused is not prepared to be bailed out perhaps for his

personal  security  since  he  or  she  might  be  facing  some  threat  outside  the

correction home or for any other reason.  But then in such an event, the accused

voluntarily gives up the indefeasible right for default bail and having forfeited

that right the accused cannot, after the charge sheet or challan has been filed,

claim a resuscitation of the indefeasible right. But that is not the case insofar as

the petitioner is concerned, since he did not give up his indefeasible right for

‘default bail’ during the interregnum between 4th January, 2017 and 24th January,

2017 as is evident from the decision of the High Court rendered on 11th January,

2017. On the contrary, he had availed of his right to ‘default bail’ which could

30

not have been defeated on 11th January, 2017 and which we are today compelled

to acknowledge and enforce.

47. Consequently, we are of opinion that the petitioner had satisfied all the

requirements of obtaining ‘default bail’ which is that on 11th January, 2017 he

had put in more than 60 days in custody pending investigations into an alleged

offence not punishable with imprisonment for a minimum period of 10 years,

no charge sheet had been filed against him and he was prepared to furnish bail

for his release, as such, he ought to have been released by the High Court on

reasonable terms and conditions of bail.   

48. It may be mentioned that learned counsel for the petitioner had contended

that the extended period of 90 days for filing a charge sheet would not apply to

the  petitioner  since  he  is  not  covered  by  the  provisions  of  the  Lokpal  and

Lokayuktas  Act,  2013  and  therefore  the  maximum  sentence  that  could  be

awarded to him would be 7 years under the Prevention of Corruption Act, 1988.

This argument of desperation is recorded only to be summarily rejected.  Even

if the petitioner is not within the purview of the Lokpal and Lokayuktas Act,

2013  he  is  certainly  not  outside  the  purview  of  the  PC  Act  and  can  be

prosecuted  and  punished  for  a  violation  of  Section  13(1)  thereof.  There  is

absolutely no cogent reason for excluding the petitioner from the rigours of the

PC Act as amended by the Lokpal and Lokayuktas Act, 2013.

31

Conclusion

49. The petitioner is held entitled to the grant of ‘default bail’ on the facts and

in the circumstances of this case. The Trial Judge should release the petitioner

on ‘default bail’ on such terms and conditions as may be reasonable. However,

we make it clear that this does not prohibit or otherwise prevent the arrest or

re-arrest of the petitioner on cogent grounds in respect of the subject charge and

upon arrest or re-arrest, the petitioner is entitled to petition for grant of regular

bail which application should be considered on its own merit. We also make it

clear that this will not impact on the arrest of the petitioner in any other case.  

50. We allow the petition and set aside the judgment and order of the High

Court.  

51. The companion petition, being S.L.P. (Crl.) No. 2176 of 2017 is rendered

infructuous and is dismissed as such.

52. By way of a footnote, we may add that it is time that the reports of the

Law Commission of  India and the decision of this Court in Prakash Singh are

given very serious thought and in addition a greater degree of professionalism is

introduced in investigations  into offences  along with scientific  methods and

techniques of investigation and the use of technology.

New Delhi;                                                              ………………………J August 16, 2017            (Madan B. Lokur)  

32

REPORTABLE  

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE TO APPEAL (CRL.) NO. 2009 of 2017)

Rakesh Kumar Paul      …Appellant

Versus

The State of Assam       ....Respondent

WITH

SPECIAL LEAVE TO APPEAL (CRL.) NO. 2176 of 2017

J U D G M E N T

Prafulla C. Pant, J.

I  have  the  benefit  of  going  through  the  draft  judgment

authored by My Lord Hon’ble Justice Madan B. Lokur. Agreeing

with the importance of right of personal liberty, with great regard

to His Lordship, I beg to differ on the interpretation of Section

167(2)(a)(i) of the Code of Criminal Procedure 1973, and in the

facts and circumstances of the case at hand, in my opinion, both

the appeals are liable to be dismissed.  I express my opinion in

the matter as under:-  

33

2. These  appeals  are  directed  against  the  order  dated

11.01.2017,  passed  by  the  High  Court  of  Guwahati  in  Bail

Application No.23/2017 and the order dated 13.2.2017 in Bail

Application No.136/2017, wherein the bail applications filed by

the  appellant  under  Section  439  of  the  Code  of  Criminal

Procedure 1973, have been rejected.

3. Prosecution story in short is  that the appellant  -  Rakesh

Kumar Paul was working as the Chairman of the Assam Public

Service Commission (APSC) from 11.12.2013. On 27.10.2016 an

FIR No. 936 of 2016 was lodged by one Dr. Angshumita Gogoi for

offences  under  Sections  7,  13(1)(b)(2)  of  the  Prevention  of

Corruption  Act  1988  (For  short  “PC  Act”)  at   Police  Station

Dibrugarh,  Assam  stating  that  one  Mr.  Nabakanta  Patir

contacted her and asked her to pay Rs.10,00,000/- (Rupees ten

lacs  only)  to  him for  recruiting  her  as  Dental  Surgeon in the

selection conducted by APSC.  Upon her intimation to the police,

a trap was laid up, wherein Nabakanta Patir was apprehended in

his residential premises located at Circuit House Road while he

was receiving the amount from the informant.  He was arrested

and  it  was  found  that  there  was  a  network  of  such  illegal

activities to recruit persons for government service in connivance

and conspiracy of other persons. Investigation revealed that the

34

appellant  being  the  Chairman  of  the  APSC  was  involved  in

running a network to recruit people to government services in the

state in connivance and conspiracy with others. He was found

having  direct  access  to  the  said  Nabakanta  Patir.  During  the

search  at  the  residence  of  the  appellant,  cash  amounting  to

Rs.10,00,000/- (Rupees ten lacs only) answer scripts of the APSC

Examination  were  recovered  which  contained  extra  marks

bearing  the  signature  of  the  invigilator  including  the  APSC

tabulation sheet, master paper of answer scripts, draft copy of

APSC  answer  booklets  including  instructions  part  from  a

particular  printing  press  of  the  brother  of  the  appellant.  The

Papers were supposed to be printed at the Government Printing

Press  as  per  the  APSC provisions,  but  they  were  made  to  be

printed at  the  private  press without any authority.  Telephonic

conversation  records  revealed  that  Nabakanta  Patir  was  in

contact with a candidate regarding appointment for the post of

BDO also for  the  year  2016.  Some other  recoveries  were  also

made from his office and the printing press. The appellant was

arrested  on  4.11.2016  and  was  produced  before  the  Judge,

Special  Court,  Guwahati  on  5.11.2016,  wherein  he  was

remanded to custody.  

4.  The  present  appellant  first  preferred  a  regular  bail

35

application  before  the  Special  Judge  which  was  dismissed  on

20.12.2016.  Thereafter,  in  January  2017,  he  filed  Bail

Application No. 23 of 2017 before the High Court of Guwahati

under Section 439 of the Code of Criminal Procedure 1973 (for

short “the Code”).  It is significant to note that this application

was for regular bail on merits as is evident from a perusal of the

same.  As such,  there  was no ground taken in the  petition to

enlarge the appellant on default bail for non filing of chargesheet

within a period of sixty days. This issue will be addressed later in

the  judgment.  The  bail  application  came  to  be  disposed  on

11.1.2017. It is to be noted that the arguments made before the

High Court  were predominantly based on the ground that  the

accused was entitled to bail  under  Section 167(2)  of  the  code

since the chargesheet was not filed within a period of sixty days.

The  counsel  for  the  accused  argued that  since  the  maximum

punishment u/s 13(2) of the PC Act 1988 was seven years, the

charge  sheet  was  to  be  filed  within  sixty  days,  i.e.  upto

04.01.2017, but since chargesheet was not filed, the accused is

entitled  to  bail  under  Section 167(2)  of  the  Code.  It  was also

argued that assuming the PC Act was amended by the Lokpal

and Lokayuktas Act, 2013 the punishment under Section 13(2)

as amended will  extend to 10 years and in that case also the

36

chargesheet had to be filed within 60 days. He placed reliance on

the judgment of the decision of this court in the case of  Rajeev

Chaudhary vs. State (NCT) of Delhi26.    

5. Counsel for the State contested the bail application before

the High Court by stating that upon the amendment of Section

13(2) of the PC Act 1988 by the Lokpal and Lokayuktas Act, 2013

which  came  into  effect  from  16.1.2014,  the  maximum

punishment imposable is ten years imprisonment and thus the

time period for  filing charge  sheet  is  ninety  days.  It  was also

contested on merits. The High Court vide impugned order dated

11.1.2017 rejected the  bail  application by  holding  that  in  the

present case, since the offence under Section 13(2) of the PC Act

(as  amended  by  the  Lokpal  and  Lokayuktas  Act,  2013)   is

punishable  with  imprisonment  which may extend to  10  years

imprisonment, the provisions of Section 167(2)(a)(i) of the Code

would be applicable and the accused is not entitled to his bail

due to the default of the prosecution in not filing the chargesheet

within a period of  sixty  days under Section 167(2)(a)(ii)  of  the

Code. The High Court did not consider it a fit case to grant bail

on the merits either.

6. Thereafter, on 24.01.2017, the police filed charge sheet in

26

(2001) 5 SCC 34

37

FIR No. 936 of 2017 for the offences under Sections 7, 13(1)(a)(b)

(d) and 13(2) of the PC Act and Sections 120B, 420, 462, 468,

471,  477(A),  201  of  the  Indian  Penal  Code  (IPC)  against  the

appellant and other co-accused. After filing the chargesheet, the

appellant moved bail application No.136 of  2017 before the High

Court of Guwahati seeking bail on merits. This bail application

also came to be rejected on 13.2.2017. These two orders of the

High Court dated 11.1.2017 and 13.2.2017 are challenged before

this Court in these present appeals.  

7. Heard Shri Abhishek Manu Singhvi, senior counsel for the

appellant and Shri Mukul Rohtagi, senior counsel for the State of

Assam.  

8. The primary argument advanced by the learned counsel for

the appellant is that the default of the Investigating Agency in not

filing the chargesheet within sixty days entitles the accused to be

released as per the provision of Section 167(2) of the Code. It is

contended that  the  maximum punishment for  the offences for

which  the  chargesheet  has  been  filed  against  the  accused  is

seven  years.  The  PC  Act  was  amended  by  the  Lokpal  and

Lokayuktas Act, 2013 primarily by enhancing the punishments

for certain offences, to be investigated and prosecuted by Lok Pal

or Lokayukta.  Learned Counsel submits that such amendment

38

of the PC Act 1988 by the Lokpal and Lokayuktas Act 2013 was

not permissible in respect of offences tried by ordinary Special

Courts. Further it was argued that, assuming that the Act stood

amended and the punishment for the offence under Section 13(2)

of the PC Act was amended and the maximum punishment stood

extended to ten years, the Investigating agency was still required

to file the charge sheet within sixty days and in default of which

the accused would be entitled to bail under Section 167(2) of the

Code.  He placed reliance on a decision of this Court in the case

of Rajeev Chaudhary vs. State (NCT) of Delhi (supra) wherein

the court held that for the offence under Section 386 IPC which

is punishable with imprisonment upto ten years, the chargesheet

was required to be  filed within sixty days.  

9. Mr. Mukul Rohatgi argued that power of the parliament to

amend the PC Act 1988 by way of the Lokpal and Lokayuktas

Act, 2013 cannot be questioned. He further submitted that the

Amendment  came  into  force  with  effect  from  16.1.2014  as

recognised by this court in the case of Kiran Chander Asri vs.

State  of  Haryana27.  Reference  is  also  made  to  the  case  of

Bhupinder Singh and ors. vs. Jarnail Singh and Another28

27

(2016) 1 SCC 578 28

(2006) 6 SCC 277

39

to contend that, when minimum as well as maximum sentences

are imposable, it cannot be said that only minimum sentences

are imposable and not the maximum sentence. While reiterating

the reasoning given by the High Court, he further conteded that,

in the instant case, the accused had only approached the High

Court for regular bail under Section 439 of the Code wherein no

ground of  default  bail  on the ground of  not filing chargesheet

within sixty days, was taken in the application. It is only during

the arguments, the ground for non compliance of Section 167(2)

was taken by the counsel before the High Court. He argued that

this  cannot  be  said  to  be  in  conformity  with  the  procedure

provided under Section 167(2) of the Code for availing the bail on

the default of the investigation to file the charge sheet. Further,

since the charge sheet came to be filed on 24.01.2017, he is no

longer entitled to such relief. On merits it was argued that it is

not a fit case for bail.

10. At the outset, it may be stated that the argument taken by

the counsel for the accused that the Amendment made to the

Prevention of Corruption Act 1988 by the Lokpal and Lokayukta

Act, 2013 has not been enforced, has no legs to stand on. The

Amendment  has  been  enforced  with  effect  from  16.01.2014

which has been accepted by  this  Court  in  the  case  of  Kiran

40

Chander Asri vs. State of Haryana  (supra). The challenge to

the  power  of  the  parliament  to  amend  the  provisions  of  the

Prevention  of  Corruption  Act  1988 by  way  of  the  Lokpal  and

Lokayuktas  Act,  2013  is  neither  substantiated  nor  further

pressed and is thus liable to be rejected.  

11. The three main questions that arise in these appeals for our

consideration are as under:

I. Whether  in  a  case  regarding  offence  for  which  the

punishment  imposable  may  extend  upto  ten  years,  the

accused is entitled to bail under Section 167(2) of the Code

of Criminal Procedure 1973 due to default on the part of

investigating agency in  not  filing the  charge sheet  within

sixty days?

II. Whether  the  appellant  is  entitled  to  default  bail  under

Section 167(2)  of  the Code though he has not  made any

application (oral or written) under section 167(2) of the Code

before the  Magistrate  (or  Special  Judge),  but  has instead

argued orally without pleadings in a pending regular bail

application filed under Section 439 of the Code before the

High Court?

III. Whether the appellant is entitled to bail on merits?

41

Answer to question I:  

12. To answer this question, I shall briefly trace out the history

of  the  provision  under  Section  167(2)(a)  of  the  Code.  The

erstwhile Code of Criminal Procedure 1898 did not contain any

such provision for  grant of  bail  on default  of  the investigating

agency in not filing the charge sheet within a specific period of

time.  When the Code of Criminal Procedure 1973 was enacted to

replace the Criminal Procedure Code of 1898, it was felt that the

investigation  into  offences  ought  to  be  carried  out  in  a  time

bound manner so as to provide speedy justice and to protect the

life  and  liberty  of  the  accused  persons  who  are  remanded  to

custody during the pendency of investigation. Thus the provision

of  Section  167(2)(a)  was  introduced  in  the  Code  of  Criminal

Procedure 1973, wherein the accused was entitled to get bail on

default of the investigating agency in not filing the charge sheet

within sixty days of  remand. Thereafter, in the year 1978, the

Code of  Criminal  Procedure  (Amendment)  Act  1978 (Act  45 of

1978) was passed, making several amendments to the Code of

Criminal  Procedure,  1973.  One  such  amendment  was  a

classification  within  the  proviso  to  section  167(2)(a)  by

authorising  the  detention  of  upto  ninety  days  in  cases

punishable with death, imprisonment for life or imprisonment for

42

a term not less than ten years; and authorising detention upto

sixty days where the investigation relates to other offences.  

13. The text of Section 167 (2) of the Code as amended and as it

stands today is reproduced below:  

“167-  Procedure  when  investigation  cannot  be completed in twenty-four hours. (1)   xxxxxxxxxx (2)  xxxxxxxxxx Provided that- (a) The Magistrate may authorize the detention of the

accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so,  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.”

14. The question that arises in the instant case is whether

for the offence which is punishable with imprisonment for a

term  which  may  extend  to  ten  years,  the  accused  will  be

entitled to be released on bail for default in not filing charge

sheet within sixty days from the date of remand. The learned

counsel  of  the  accused  has  relied  on  the  case  of  Rajeev

Chaudhary (supra)  wherein a Division Bench of this Court

was  dealing  with  the  permissible  period  of  custody  for  an

43

offence  under  Section  386  IPC,  which  is  punishable  with

imprisonment which may extend to ten years.

15. In Rajeev Chaudhary (supra) it has been observed that

only  if  the  minimum  prescribed  punishment  is  ten  years

imprisonment  or  more,  then  the  requirement  of  completing

investigation may extend to ninety days.  But in my opinion

when  S.167(2)  of  Code  was  amended,  there  was  no  such

category of offences  in the Indian Penal Code where minimum

sentence  of  ten  years  imprisonment  was  required  to  be

imposed in 1978 without  alternative  prescribed sentence  of

imprisonment for life. For example: offences punishable under

Sections 121A,  122,  128,  131,  194,  304 (part  I),  313,  314,

326, 329, 371, 394, 395, 409, 412, 413, 436, 449, 450, 459,

460 of the IPC provide for a punishment of life imprisonment,

also and as such the expression – ‘or imprisonment for a term

not less that ten years”, does not help any determine for the

purposes of Section 167(2) of the Code in the above category of

cases as the alternative punishment of imprisonment for life

already covered in the said clause. Similarly, offences under

Sections 132, 305 and 396 are punishable with death, or life

imprisonment also. In my view if the legislature intended to

exclude  the  offences  for  which  the  minimum imprisonment

44

was ten years, it could have used the words “or imprisonment

for  a  term  more  than  ten  years”.  Thus  the  argument  that

ninety days period does not cover the cases where maximum

imposable sentence is ten years can not be accepted.  It is also

relevant  to  mention  here  that  there  seems  to  be  some

contusion in the disposition of the  Rajeev Chaudhary  case

(supra) wherein the appellant in that Case, Rajeev Chaudhary,

was  an  accused,  and  had  in  fact  approached  this  Court

challenging the decision of the High Court of Delhi passed in

Cr.M.(M.) No.2532 of 1999 (reported in 2001 Cri. L. J. 2023)

wherein the High Court had held that the accused was not

entitled to bail at the expiry of sixty days in custody for the

offence  under  Section  386  IPC  which  was  punishable  with

imprisonment which may extend to ten years. If this Court in

the said case intended that  Section 386 IPC is not  covered

under Section 167(2)(a)(i),  then the appeal would have been

allowed, but, in fact, the appeal of the accused was dismissed

by this court.

16. In  the  case  of  Bhupinder  Singh  vs.  Jarnail  Singh

(supra),  this  Court  was  faced  with  the  question  regarding

period when the accused would be entitled to bail on default

in filing charge sheet in a case for offence under Section 304B

45

IPC.  The  offence  under  Section  304B  is  punishable  with

imprisonment of not less than seven years but may extend to

imprisonment  for  life.  While  holding  that  the  permissible

period in filing challan is  ninety days in a case for  offence

under  Section  304B  IPC,  the  court  observed  that  the

significant word used in the proviso is “punishable”. And since

life imprisonment was a punishable sentence, the permissible

period  for  filing  challan  was  for  the  offence  under  Section

304B IPC was held to be ninety days. While holding so, the

Court observed as under:

“Where  minimum  and  maximum  sentences  are prescribed  both  are  imposable  depending  on  the facts of the cases. It is for the Court, after recording conviction,  to  impose  appropriate  sentence.  It cannot,  therefore,  be  accepted  that  only  the minimum  sentence  is  imposable  and  not  the maximum  sentence.  Merely  because  minimum sentence is provided that does not mean that the sentence  imposable  is  only  the  minimum sentence………”  

(emphasis supplied)

17. The main ambiguity in the interpretation of the provision

arises in the use of  the words “not  less than ten years” in

Section 167(2)(a)(i) of the Code. The legislative drafts on the

amendment of this provision do not throw much light on the

expression “not  less  than ten years”  used in the  provision.

But while answering the criticism to the amendment at the

46

Rajya  Sabha,  the  then Minister  of  State  in  the  Ministry  of

Home Affairs - Shri S.D.Patil, who had moved the bill in both

the houses, made the following statement which may help us

to know the kinds of cases that were intended to be included

in the ninety days category. The statement is as under:

“Then, Sir, a lot of criticism has been levelled against section  167  as  to  why  the  investigation  is  not completed  within  60  days.  There  is  a  provision  for releasing a person on bail. Why do we want to extend it by thirty days? We have made two categories. Ninety days are applicable where the investigation relates to an  offence  punishable  with  death,-  there  are  eight offences  punishable  with  death---  Imprisonment  for life-we  have  48  offences  punishable  with imprisonment for life--- or imprisonment for a term of not  less  than  ten  years  and  we  have  36  offences punishable  with  this  sentence.  Only  in  such  cases which are complicated in nature investigation takes a longer time. To complete this kind of investigation, one has to go through other states as well. This has been our experience...”29  

18. If we look at the figures of 8, 48 and 36, referred to in the

aforementioned  statement,  we  may  be  able  to  cull  out  the

intention of  the legislature in classifying the offences.  From

the first schedule of the Code of Criminal Procedure 1973 (as

it existed in 1978) read with whole of I.P.C, it can be gathered

that, the “eight” cases punishable with death were – Sections

121, 132, 194(part II), 302, 303 (struck down), 305, 307 (part

29

Rajya Sabha Debates Vol CVII Nos.13-25, 6 to 25 December 1978, (6th December), pg  203.

47

III),  396  IPC;  the  forty  eight  offences  punishable  with  life

imprisonment  were  –  Sections  121A,  122,  124A,  125,  128,

130, 131, 194 (part I), 222, 225 (part V), 232, 238, 255, 304

(part I), 307 (part II), 311, 313, 314 (part II), 326, 329, 363A

(part II), 364, 371, 376, 377, 388 (part II), 389 (part II), 394,

395, 400, 409, 412, 413, 436, 437, 438, 449, 459, 460, 467,

472, 474 (part II), 475, 477, 489A, 489B, 489D and 511 (part

I) IPC; and the thirty six offences refer to Sections 119 (part II),

123, 235 (part II), 240, 251, 304 (part II), 306, 307 (part I),

314, 315, 316, 327, 328, 331, 333, 363A (part I), 366, 366A,

366B, 367, 372, 373, 382, 386, 388 (part I), 389 (part I), 392

(part I), 399, 437, 439, 450, 454 (part II), 455, 493 and 495

IPC.

19. A perusal of the figure of eight, forty eight, and thirty six

mentioned in his speech by the then Hon’ble Minister of State

in the Ministry  of  Home Affairs,  Shri  S.D.Patil,  in the  light

what  I  have  mentioned  in  preceding  para  shows  that  the

Hon’ble Minister classified cases which are “punishable” with

a particular sentence as a separate class. His statistics shows

that  he  had  classified  the  cases  punishable  with  death

sentence  in  one  group,  cases  punishable  with  life

imprisonment  were  classified  in  another  group  and  cases

48

punishable  with  imprisonment  of  upto  ten  years  were

classified in the third group. The reference he was making to

the 36 cases that fall in the category of “imprisonment of not

less than ten years” in section 167(2)(a)(i) of the Code, were in

fact  the  offences  for  which  the  punishment  was  of

imprisonment for a period which may extend to ten years. It

can  further  be  inferred  that,  when  he  stated  “...or

imprisonment for a term of not less than ten years and we have

36  offences  punishable  with  this  sentence...”, he  referred  to

offences  wherein  ten  years  imprisonment  was  also  an

imposable punishment.

20.  From the above analogy, I  am of the opinion that the

intention  of  the  legislature  was  that  if  an  offence  was

punishable  with  imprisonment  upto  ten  years,  then it  falls

within the provision of Section 167(2)(a)(i) of the Code, and the

permissible  period  for  investigation  is  ninety  days.  The

intention of the Legislature in extending the permissible time

period from sixty days to ninety days for investigation is to

include the offences in which sentence awardable is at least

ten years or more. Therefore,  as discussed above, though the

expression “not less than ten years” used in Section 167(2)(a)

(i) of the Code has created some ambiguity, the real intention

49

of the legislature seems to include all such offences wherein

an  imprisonment  which  may  extend  to  ten  years  is  an

awardable sentence. In other words, for offences wherein the

punishment  may  extend  to  ten  years  imprisonment,  the

permissible period for filing charge sheet shall be ninety days,

and only after the period of ninety days, the accused shall be

entitled to bail            on default for non filing of the charge

sheet.   (In the present case, admittedly the charge sheet is

filed within ninety days).  I may further add that, since the

expression “not less than ten years” has caused ambiguity in

interpretation, the best course for the legislature would be to

clear its intention by using the appropriate words.

Answer to question II:  

21. The  second  issue  which  requires  to  be  addressed  is

whether  the  appellant  is  entitled  to  statutory  bail  under

Section  167(2)  of  the  Code  though  he  has  not  made  any

application  under  Section  167(2)  of  the  Code  before  the

Magistrate (or Special Judge) prior to the filing of the charge

sheet. The record of the case reveals that the appellant was

arrested on 4.11.2016 and produced before the Magistrate on

5.11.2016 and he was remanded to custody for the first time.

The  period  of  sixty  days  for  filing  charge  sheet  expired  on

50

04.01.2017. The charge sheet came to be filed on 24.1.2017.

Initially the appellant had applied for regular bail before the

Sessions  Court  which  came  to  be  rejected  on  20.12.2016.

Thereafter  he  moved  bail  application  No.  23/2017  for  bail

under  Section  439  of  the  Code  before  the  High  Court  of

Guwahati. This bail application was disposed on 11.01.2017

which  was  after  sixty  days  of  arrest,  but  prior  to  filing  of

charge sheet. A perusal of this bail application shows that this

bail application was moved under Section 439 of the Code for

regular bail on merits and not as a bail claiming the statutory

right under Section 167 of the Code. In none of the grounds

taken in the bail  application,  the appellant  has pleaded for

default bail as a result of non filing of the charge sheet. All the

grounds urged are on merits. The prayer is also for regular

bail. It appears that, prior to the time of hearing, the counsel

for the appellant has realised that the accused was entitled for

default bail under Section 167(2) and has taken the plea in

the oral arguments in the High Court that since sixty days for

filing charge sheet has expired, he is entitled to bail as matter

of right under Section 167(2) of the Code. The question thus

arises, whether such application on merits can be equated to

be an application seeking enforcement of statutory right under

51

Section  167(2)  of  the  Code  and  whether  such  practice  of

taking such oral arguments directly before the High Court in a

pending regular  bail  application without  having  taken such

grounds  in  the  application  or  having  approached  the

Magistrate (or Special Court) should be entertained.  

22. The legal position regarding bail under Section 167(2) of

the Code was cemented by a Constitution Bench of this Court

which has inter alia held in the case of Sanjay Dutt vs. State

through C.B.I., Bombay30 that:

“...The  “'indefeasible  right”  of  the  accused  to  be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the CrPC in default of completion of the investigation and filing of  the  challan  within  the  time  allowed,  as  held  in Hitendra  Vishnu  Thakur  vs.  State  of  Maharashtra [(1994) 4 SCC 602], is a right which enures to, and is enforceable  by  the  accused  only  from  the  time  of default  till  the  filing  of  the  challan and it  does  not survive  or  remain  enforceable  on  the  challan  being filed.  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 CrPC. The right of the accused to be released on bail  after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage...”

23. In the  case  of  Uday Mohanlal  Acharya vs.  State of

30

 (1994) 5 SCC 410  

52

Maharashtra31 three  Judge  Bench  of  this  Court  had  the

occasion to determine when an accused can be said to have

availed  of  his  indefeasible  right  for  being  released  on  bail

under the proviso to Section 167(2) of the Code of Criminal

Procedure, if a challan is not filed within the period stipulated

thereunder.  The  Court  held  in  a  majority  of  2:1  that  the

indefeasible right is said to be availed at the time when an

application is made for enforcement of the right under Section

167(2)  of  the  Code  and the  accused offers  to  abide  by  the

terms and conditions of bail. While holding so, the court, in

para  11,  interpreted  the  decision  in  Dr.  Bipin  Shantilal

Panchal  vs.  State  of  Gujarat32,  a  three  Judge  Bench

decision of this Court, as under:

“In  this  case  (Dr.  Bipin  Shantilal  Panchal),  the accused had not made application for enforcement of his right accruing under proviso to Section 167(2) of the  Code.  But  raised  the  contention  only  in  the Supreme Court. This Court, therefore, formulated the question thus - Whether the accused who was entitled to be released on bail under proviso to sub-section (2) of  Section  167  of  the  Code,  not  having  made  an application when such right had accrued, can exercise that  right  at  a  later  stage  of  the  proceeding,  and answered in the negative.”

24. The requirement for making the application for seeking

31

(2001) 5 SCC 453 32

(1996) 1 SCC 718

53

enforcement  of  the  right  under  Section  167(2)  has  been

recognised in several cases. In the case of  Mohamed Iqbal

Madar  Sheikh  vs  State  of  Maharashtra33,  this  court

rejected the claim for statutory bail under Section 167(2) of

the Code on the ground that no application was made on that

ground. In para 11 of the Judgment the Court held as under:

“So far the facts of the present case are concerned, the appellant  Nos.  1  to  6  were  taken  into  custody  on 16.1.1993.  The  charge-sheet  was  submitted  on 30.8.1993;  obviously  beyond  the  statutory  period under Section 20(4)(b). There is nothing on record to show that provisions of Section 20(4)(bb) were applied in respect of appellants. They had become entitled to be released on bail under proviso (a) to Section 167(2) of  the Code read with Section 20(4)(b)  of  the TADA. But it is an admitted position that no application for bail  on the  said ground was made on behalf  of  the appellants.  Unless  applications  had  been  made  on behalf of the appellants, there was no question of their being released on ground of default in completion of the investigation within the statutory period. It is now settled  that  this  right  cannot  be  exercised after  the charge-sheet has been submitted and cognizance has been taken, because in that event the remand of the accused  concerned  including  one  who  is  alleged  to have committed an offence under TADA, is not under Section  167(2)  but  under  other  provisions  of  the Code.”

[Emphasis supplied] 25.    In the case of  Hitendra Vishnu Thakur and Others

etc. etc. vs. State of Maharashtra and Others34, it was held

in para 30 that: 33

(1996) 1 SCC 722 34

(1994) 4 SCC 602

54

“In conclusion, we may (even at the cost of repetition) say that an accused person seeking bail under Section 20(4) has to make an application to the court for grant of bail on grounds of the 'default' of the prosecution and the court shall release the accused on bail after notice  to  the  public  prosecutor  uninfluenced by  the gravity of the offence or the merits of the prosecution case since Section 20(8) does not control the grant of bail  under  Section  20(4)  of  TADA  and  both  the provisions operate in separate and independent fields. It is, however, permissible for the public prosecutor to resist the grant of bail by seeking an extension under Clause (bb) by filing a report for the purpose before the court. However, no extension shall be granted by the court  without  notice  to  an accused to  have  his  say regarding  the  prayer  for  grant  of  extension  under Clause (bb). In this view of the matter, it is immaterial whether the application for bail on ground of 'default' under  Section  20(4)  is  filed  first  or  the  report  as envisaged  by  Clause  (bb)  is  filed  by  the  public prosecutor first so long as both are considered while granting or refusing bail....”

[Emphasis supplied] 26. The law laid down as above shows that the requirement

of an application claiming the statutory right under Section

167(2) of the Code is a prerequisite for the grant of bail on

default. In my opinion, such application has to be made before

the Magistrate for enforcement of the statutory right. In the

cases under the Prevention of  Corruption Act  or  other Acts

where  Special  Courts  are  constituted  by  excluding  the

jurisdiction of the Magistrate, it has to be made before such

Special Court.  In the present case, for the reasons discussed,

since the appellant never sought default bail before the court

55

concerned, as such not entitled to the same.

Answer to question III:  

27. Now, it is to be seen whether the appellant is entitled to

bail on merits at this stage. Admittedly, the appellant was the

Chairman  of  the  APSC  from  11.12.2013.  The  allegations

against  him  are  serious  in  nature  and  several  recoveries

appear  to  have  been  made  from  his  residence  and  other

places. The provisions of the APSC with regard to handling of

the answer sheets and other procedural illegalities in dealing

with the examination are alleged. A network of illegal activities

is  said  to  have  been operating  for  huge  amounts  of  illegal

gratification. It is submitted by the state that the Investigating

Officer  has filed an application under Section 173(8)  of  the

Code seeking permission to carry out further investigation as

materials have been unearthed which indicates involvement of

some other accused persons. It is further submitted that at

least fourteen witnesses have deposed under Section 164 of

the Code indicating that the appellant has demanded illegal

gratification in lieu of one post or the other and also received

the same.  

28. In the case of Nimmagadda Prasad vs. Central Bureau

56

of Investigation,35 this Court, while rejecting bail in a case

related to economic offences, has observed that:

“While granting bail, the court has to keep in mind the nature  of  accusations,  the  nature  of  evidence  in support thereof, the severity of the punishment which conviction  will  entail,  the  character  of  the  accused, circumstances  which  are  peculiar  to  the  accused, reasonable possibility of securing the presence of the accused at the trial,  reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting  bail,  the  Legislature  has  used  the  words "reasonable  grounds  for  believing"  instead  of  "the evidence"  which  means  the  Court  dealing  with  the grant of bail can only satisfy itself as to whether there is a genuine case against  the accused and that  the prosecution  will  be  able  to  produce  prima  facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.

Economic  offences  constitute  a  class  apart  and need  to  be  visited  with  a  different  approach  in  the matter  of  bail.  The  economic  offence  having  deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a  whole  and  thereby  posing  serious  threat  to  the financial health of the country.”

29. I  may  hasten  to  add  that  in  the  present  case,  the

allegations do not disclose merely an economic offence but it

shows  a  transgression  of  the  constitutional  rights  of  the

victims  of  the  crime.  The  Chairman  of  the  APSC  has  the

responsibility  on behalf  of  the  State  for  enforcement  of  the

35

2013 (7) SCC 466

57

Fundamental  Rights  of  equality  in  matters  of  public

employment  enshrined  under  Articles  14  and  16  of  the

Constitution of India. If the allegations are found to be true,

then the offence cannot merely be considered as an economic

offence, but a fraud on the Constitution itself by the persons

appointed to enforce it.   

30. In  the  above  circumstances,  without  expressing  any

views on the merits of the case pending before the trial court,

looking into the nature of allegations, the role attributed to the

appellant,  the  fact  that  further  investigation  regarding  the

offence  is  underway,  possibility  of  tampering  evidence  and

influencing witnesses, I am of the opinion that it is not a fit

case for grant of bail at this stage even on merits.   

31. Therefore both these appeals are liable to be dismissed,

and are accordingly dismissed.  

.............................J. [Prafulla C. Pant]

New Delhi August 16, 2017.

58

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

PETITION(S) FOR SPECIAL LEAVE TO APPEAL (CRIMINAL) NO(S). 2009 OF 2017  

RAKESH KUMAR PAUL        .... PETITIONER (S)

Versus

STATE OF ASSAM      ... RESPONDENT (S)

WITH

PETITION(S) FOR SPECIAL LEAVE TO APPEAL (CRIMINAL) NO(S). 2176 OF 2017

RAKESH KUMAR PAUL        .... PETITIONER (S)

Versus

STATE OF ASSAM      ... RESPONDENT (S)

J U D G M E N T

Deepak Gupta, J.

1. I have had the privilege of going through the judgments authored

by my learned brothers Madan B. Lokur and Prafulla C. Pant, JJ.   

2. Since the facts of the case and the legislative history of Section

167 of the Code of Criminal Procedure (for short ‘the Code’) have been

59

set out in detail in the two judgments of my learned brothers, I do not

want to burden the file with unnecessary facts.  The main issue is

whether  the  petitioner,  who  is  charged  with  an  offence,  which  is

punishable with imprisonment for a period ranging from 4 to 10 years

is entitled to ‘default bail’ or ‘statutory bail’ in terms of Section 167(2)

of the Code on completion of 60 days or not.  The petitioner is a former

Chairman of the Assam Public Service Commission.  The allegation

against him is that he used to take bribe from some candidates for

recruiting them to the  posts advertised and filled in by the  Assam

Public Service Commission (for short ‘APSC’).  A trap was laid and he

was allegedly caught red-handed.  Amongst other offences he is also

charged of having committed an offence under Section 13(1)(d)(ii) of

the Prevention of Corruption Act (for short ‘PC Act’).   

3. The  first  submission  of  Mr.  Abhishek  Manu  Singhvi,  learned

senior counsel, was that the amendments made to the PC Act whereby

the  sentence  for  committing  offence  under  Section  13  has  been

increased from a minimum of one year to maximum of 7 years to a

minimum of 4 years and maximum of 10 years is applicable only in

those cases where the prosecution is launched under the provisions of

Lokpal and Lokayuktas Act, 2013 (for short ‘the Lokpal Act’).   This

argument is without any merit whatsoever.  Section 58 of the Lokpal

60

Act incorporates amendments in other statutes as mentioned in the

Schedule.   Amendments  have  been  made  to  the  Commission  of

Enquiry  Act,  1952,  The  Delhi  Special  Police  Act,  the  Prevention of

Corruption Act, 1988, The Code of Criminal Procedure, 1973 and the

Central  Vigilance  Commission  Act,  2003.   In  my  view,  the

amendments  made  to  these  five  Acts  by  the  Lokpal  Act  will  apply

regardless  of  the  fact  whether  the  prosecution  has  been  launched

under the Lokpal Act or under the provisions of any other law.  I fully

agree with my learned brothers that this submission has no force.

4.  The petitioner was arrested on 04.11.2016 and was remanded to

judicial custody on 05.11.2016.  The period of 60 days of arrest would

expire  either  on  03.01.2017  or  04.01.2017,  which  will  make  no

difference, as far as this case is concerned.  Period of 90 days will

expire  on 02.02.2017.   It  is  also not  disputed that  the  police  filed

charge-sheet on 24.01.2017.

The petitioner had filed a regular bail application before the trial

court, which was rejected on 20.12.2016.  He moved an application in

the High Court for grant of bail.  In this bail application no specific

prayer was made for grant of ‘default bail’.  However, the perusal of the

impugned order dated 11.01.2017 whereby this bail application was

rejected,  clearly shows that  main contention of  the counsel  for  the

61

petitioner was that the petitioner was entitled to grant of ‘default bail’

because 60 days had expired but this prayer did not find favour with

the  High Court,  which was  of  the  view that  since  the  offence  was

punishable by imprisonment up to 10 years, the investigating agency

was entitled to get 90 days to complete investigation and the accused

could apply for grant of ‘default bail’ thereafter.   

Two issues arise for consideration in this case:

(d) When an accused is charged with an offence in which

the punishment imposable is  up to 10 years,  whether

the  accused  is  entitled  to  grant  of  bail  in  terms  of

Section 167(2)  of  the  Code  if  the  investigating  agency

does not file the charge-sheet within a period of 60 days.

(e) Whether  an  accused  can  be  enlarged  on  bail  under

Section 167(2) even though he may not have made an

application in writing under Section 167(2) of the Code

but  has  orally  argued  that  he  is  entitled  to  grant  of

‘default bail’.

5.  Before dealing with Section 167 of the Code, I would like to refer

to Section 57, which provides that any person arrested by the police

should not be detained for more than 24 hours unless an order is

obtained from the magistrate under Section 167 of the Code.  The

62

Code was originally enacted in the year 1898.  We must remember

that at that time, the means of communication were very primitive;

the means of telecommunications barely existed.  Despite that, in

the Code as originally enacted, the police was expected to complete

investigation within 15 days and the magistrate did not have any

jurisdiction  to  pass  an  order  detaining  him  beyond  15  days  if

investigation was not completed.  This system worked well enough

for  more  than  seven  decades.   After  the  country  attained

independence, we enacted and gave to ourselves the Constitution of

India,  which  came  into  force  on  26.01.1950.   Article  21  of  the

Constitution provides that “no man shall be deprived of his life and

personal  liberty  except  in  accordance  with  the  procedure

established by law”.  Right of personal liberty is not only a legal

right but it is a human right, which is inherent in every citizen of

any civilised society.  Article 21 only recognises this right.  We can

read Section 57 and 167 to be the procedure established by law

which curtails this right.  

6.   The investigating agencies,  for  reasons best known to them,

found that it was not possible to complete investigation within 15

days and, therefore, a very unhealthy practice of filing preliminary

or incomplete police reports before the magistrate was started to

63

ensure that the accused is kept in custody and not released.  This

amounted to virtually nullifying the legal provisions.  Therefore, the

Law Commission of India, in its 41st Report, recommended that the

time limit for completion of investigation should be enhanced to 60

days.   Even  though  the  Law  Commission  was  recommending

enhancement from 15 days to 60 days, it  expressed a hope and

reposed a trust that the superior courts would prevent misuse of

the enhancement of this period.   

7.   Pursuant to the suggestion of the Law Commission, the new

Code of Criminal Procedure, 1973 was enacted, which provided a

maximum period of  60 days to complete the investigation failing

which  the accused would be entitled to be released on bail.  A few

years  later,  it  was  felt  that  the  period  of  60  days  was  also  not

sufficient  and a proposal  was made that  where the  investigation

relates to offences punishable with death, imprisonment for life and

imprisonment for  not  less  than 10 years or  more,  the  aggregate

period for which an accused could be detained without giving any

right of bail would be 90 days and in all other cases, it would be 60

days.  The words “or more” in the Bill are obviously superfluous.

The  other  phrase  “imprisonment  for  not  less  than  ten  years”

obviously means 10 years or more.  Section 167 of the Code was

64

amended and relevant portion of it reads as follows:

“167.  Procedure  when  investigation  cannot  be completed in twenty four hours.- (1) Whenever any person  is  arrested  and  detained  in  custody,  and  it appears  that  the  investigation  cannot  be  completed within  the  period  of  twenty-  four  hours  fixed  by section 57, and there are grounds for  believing that the  accusation  or  information  is  well-founded,  the officer  in  charge  of  the  police  station  or  the  police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall  at the same time forward the accused to such Magistrate. (2) The Magistrate  to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise  the  detention  of  the  accused  in  such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers  further  detention  unnecessary,  he  may order  the  accused  to  be  forwarded  to  a  Magistrate having such jurisdiction:  Provided that- (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police,  beyond  the  period  of  fifteen  days,  if  he  is satisfied that adequate grounds exist for doing so, 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;]

(b)  no  Magistrate  shall  authorise  detention  of  the

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accused in  custody  of  the  police  under  this  section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate  may  extend  further  detention  in  judicial custody on production of the accused either in person or through the medium of electronic video linkage;  

(c)  no  Magistrate  of  the  second  class,  not  specially empowered  in  this  behalf  by  the High  Court,  shall authorise detention in the custody of the police.   Explanation  I.-  For  the  avoidance of  doubts,  it  is hereby  declared  that,  notwithstanding  the  expiry  of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail].   Explanation  II.-  If  any  question  arises  whether  an accused person was produced before the Magistrate as required  under  clause  (b),  the  production  of  the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.] Provided  further  that  in  case  of  a  woman  under eighteen  years  of  age,  the  detention  shall  be authorised to be in the custody of a remand home or recognised social institution.”  

8.   We are only concerned with interpretation of the phrase “for a

term of not less than ten years” occurring in Section 167(2)(a)(i),

which provides a period of 90 days where the investigation relates

to  an  offence  punishable  with  death,  imprisonment  for  life  or

imprisonment  for a term not less than 10 years.

9.   In  my  considered  view,  without  indulging  in  any  semantic

gymnastics,  the meaning of  this provision is absolutely clear.   It

envisages three types of offences:  

(b) Offences which are punishable with death;

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(c) Offences which are punishable with imprisonment for

life; (d) Offences which are punishable  with a term not  less

than 10 years.

10.   In  my  view  the  language  of  the  statute  is  clear  and

unambiguous.  Out of the three categories of offences, we need to

deal  only  with  that  category  of  offences  where  the  punishment

prescribed is not less than 10 years.  If an offence is punishable

with death then whatever be the minimum punishment, the period

of  investigation  permissible  would  be  90  days.   Similarly,  if  the

offence is punishable with life imprisonment, even if the minimum

sentence  provided is  less  than 10 years,  the  period of  detention

before ‘default bail’ is available would be 90 days.

11.   Keeping in view the legislative history of Section 167, it is clear

that the legislature was carving out the more serious offences and

giving  the  investigating  agency  another  30 days  to  complete  the

investigation before the accused became entitled to grant of ‘default

bail’.  It categorises these offences in the three classes:

I First category comprises of  those offences where the

maximum punishment was death;

II Second category comprises of those offences where the

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maximum punishment is life imprisonment.

III The third category comprises of those offences which

are punishable with a term not less than 10 years.

12. In the first  two categories,  the  legislature made reference

only to the maximum punishment imposable, regardless of the

minimum punishment, which may be imposed.  Therefore, if a

person  is  charged  with  an  offence,  which  is  punishable  with

death or life imprisonment, but the minimum imprisonment is

less than 10 years, then also the period of 90 days will apply.

However, when we look at the third category, the words used by

the  legislature  are  “not  less  than  ten  years”.   This  obviously

means that the punishment should be 10 years or more.  This

cannot include offences where the maximum punishment is 10

years.  It obviously means that the minimum punishment is 10

years whatever be the maximum punishment.   

13. While  interpreting  any  statutory  provision,  it  has  always

been accepted as a golden rule of interpretation that the words

used by the legislature should be given their natural meaning.

Normally, the courts should be hesitant to add words or subtract

words from the statutory provision.  An effort should always be

made to read the legislative provision in such a way that there is

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no wastage of words and any construction which makes some

words of the statute redundant should be avoided.  No doubt, if

the  natural  meaning  of  the  words  leads  to  an  interpretation

which is contrary to the objects of the Act or makes the provision

unworkable  or  highly  unreasonable  and  arbitrary,  then  the

Courts  either  add  words  or  subtract  words or  read down the

statute, but this should only be done when there is an ambiguity

in the language used.  In my view, there is no ambiguity in the

wording of  Section 167(2) of  the Code and, therefore, the wise

course would be to follow the principle laid down by Patanjali

Shastry, CJI in Aswini Kumar Ghose v. Arabinda Bose, AIR 1952

SC 369, where he very eloquently held as follows:

“It is not a sound principle of construction to brush aside  words  in  a  statute  as  being  inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute”.

In Jugalkishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376,

S.R. Das, J., speaking for this Court, held as follows:  

“The cardinal rule of construction of statutes is to read the statutes literally, that is,  by giving to the words their ordinary, natural and grammatical meaning”.

14.  External aids of interpretation are to be used only when the

language of the legislation is ambiguous and admits of two or more

meanings.   When the language is  clear  or  the ambiguity  can be

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resolved under the more common rules of statutory interpretation,

the court would be reluctant to look at external aids of statutory

interpretation.

15.    Gajendragadkar J.,  speaking for  this  Court  in  the  case  of

Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907 held :

“6.........the first  and primary rule  of  construction is that the intention of the Legislature must be found in the words used by the Legislature itself.”

16. These sound principles of  statutory construction continue

to hold the field.  When the natural meaning of the words is clear

and unambiguous, no external aids should be used.  

17. A bare reading of Section 167 of the Code clearly indicates

that if the offence is punishable with death or life imprisonment

or with a minimum sentence of 10 years, then Section 167(2)(a)(i)

will apply and the accused can apply for ‘default bail’ only if the

investigating agency does not file charge-sheet within 90 days.

However, in all cases where the minimum sentence is less than

10  years  but  the  maximum  sentence  is  not  death  or  life

imprisonment  then  Section  167(2)(a)(ii)  will  apply  and  the

accused will be entitled to grant of ‘default bail’ after 60 days in

case charge-sheet is not filed.

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18. Even if I were to assume that two views are possible and

third category envisaged in Section 167(2)(a)(ii) is ambiguous, as

suggested by learned brother Pant J., then also I have no doubt

in my mind that a statute which curtails the liberty of a person

must be read strictly.  When any human right; a Constitutional

fundamental  right  of  a  person  is  curtailed,  then  the  statute

which curtails such right must be read strictly.  Section 167 of

the Code lays down the procedure established by law by which a

person can be deprived of his personal liberty, guaranteed to him

under Article 21 of the Constitution of India.  If two meanings

could be attributed to such a provision then the courts must lean

towards  liberty  and  accept  that  interpretation  of  the  statute,

which upholds  the  liberty  of  the  citizen and which keeps  the

eternal flame of liberty alive.  If words are ambiguous then also

the court should be reluctant to accept that interpretation which

curtails the right of a human being of being free.   

19. It  has  been urged that  the  accused is  charged with very

serious  offences  and,  therefore,  he  should  not  be  released on

bail.  We are dealing with ‘default bail’.  There is no discretion in

such matters.  At times like this, it would be prudent to remind

ourselves of what was said by Benjamin Franklin more than two

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centuries ago:

“Any society that would give up a little liberty to gain a little security will deserve neither and lose both”.    

20. Two judgments have been cited before us which dealt with

the interpretation of the words “not less than ten years”.  In Rajeev

Chaudhary v. State (NCT) of Delhi, (2001) 5 SCC 34, the accused

was  charged  with  having  committed  offence  punishable  under

Section 386 of the Indian Penal Code.  The punishment whereof is a

term of imprisonment which may extend to 10 years.  This Court

held  that  in  a  case  where  an  offence  is  punishable  with

imprisonment for 10 years or more, the accused could be detained

up to 90 days.  The Court further held that the expression “not less

than ten years” obviously means 10 years or more and would cover

only those offences for which punishment could be imprisonment

for a clear period of 10 years or more.  

21. On the other hand, in Bhupinder Singh & Ors. v. Jarnail

Singh  &  Anr.,  (2006)  6  SCC  277,  the  Court  had  distinguished

Rajeev  Chaudhary’s  case  (supra)  and  held  that  the  word

“punishable”  is  significant  and  if  the  offence  is  punishable  with

imprisonment  for  10  years,  whether  that  be  the  maximum

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punishment or minimum punishment, the accused was not entitled

to ‘default bail’ prior to 90 days.  With due respect, I am unable to

agree with the view expressed in this case.  Strictly speaking, this

question did not arise in Bhupinder Singh’s case (supra).  In that

case, the accused was charged for an offence under Section 304B of

the  Indian  Penal  Code  and  this  offence  is  punishable  with

imprisonment for a term which shall not be less than 7 years but

which may extend to imprisonment for life.   Since the offence is

punishable  with  imprisonment  for  life,  then  the  fact  that  the

minimum sentence provided is 7 years would make no difference,

as explained by me above.  It is only when the maximum sentence

is less than life imprisonment that the minimum sentence must be

10 years to fall in the third category of cases.  Certain examples of

such cases are offences punishable under Section 21(c) and 22(c) of

the Narcotic Drugs and Psychotropic Substances Act, 1985, which

provide a minimum sentence of 10 years and a maximum sentence

of   20 years.   

22. The Code was initially enacted in the year 1898.  We are

now in the year 2017.  119 years have elapsed.  There have been

huge technological advancements.  We have moved from horse-carts

to  the  space  age.   From  telegraph  we  have  moved  to  the  fast

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changing  vistas  in  the  field  of  telecommunications  including

internet, wi fi etc..  Scientific investigation is the need of the hour.

The investigating agencies must investigate quickly and efficiently.

They must use the latest technology.  Scientific investigation should

be done in each and every case.  If the investigation agencies adopt

scientific  methods of  investigation,  the  same will  be  much more

efficient  and  faster.   This  can  be  done  if  there  is  a  special

investigative branch in the police, which is trained in investigation.

Therefore, there is a need to ensure that the judgment of this Court

in the case of Prakash Singh v. Union of India, (2006) 8 SCC 1, does

not  lie  in  the  dusty  library  racks  and  is  actually  enforced.   If

investigation  is  done  scientifically  and  efficiently  by  the  police

officials, who are earmarked and trained to do investigation work,

then  I  see  no  reason  why  investigation  cannot  normally  be

completed even within a period of 15 days, as envisaged in the year

1898.   

23. The second issue which arises is whether the petitioner had

applied for ‘default bail’ or not.  Admittedly, there is no such plea in

the bail application, but it is also not disputed that this was the

main  argument  at  the  time  of  hearing  and  this  issue  was

specifically dealt with in the impugned order.  In my opinion, once

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the High Court permitted the counsel for the petitioner to argue the

petition on the ground of grant of ‘default bail’ and no objection was

raised by the counsel for the State then at this stage it cannot be

urged that the petitioner never applied for ‘default bail’ and is not

entitled to ‘default bail’.  If this objection had been raised at that

stage, either by the Court or by the State, the accused could have

either filed a fresh application for grant of  ‘default  bail’  or  could

have prayed for ‘default bail’ by adding an additional ground in the

existing application much before 24.01.2017 when the charge-sheet

was filed.   

24. It has also been urged on behalf of the State that since the

charge-sheet has now been filed,  the petitioner is  not entitled to

grant of ‘default bail’.  Both my learned brothers have referred to

the case of Sanjay Dutt v. State through C.B.I., Bombay (II), (1994)

5  SCC  410.   Reference  has  also  been  made  to  Uday  Mohanlal

Acharya v. State of Maharashtra, (2001) 5 SCC 453.

 25. It is not necessary to multiply citations because in Union of

India v. Nirala Yadav, (2014) 9 SCC 457, this Court has considered

the entire  law on the subject and followed the law laid down in

Uday Mohanlal Acharya’s case (supra) as well as in Mohamed Iqbal

Madar Sheikh & Ors. v. State of Maharashtra,  (1996) 1 SCC 722,

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wherein this Court deprecated the practice followed by some courts

of  adjourning  applications  for  grant  of  ‘default  bail’  till  the

prosecution filed the charge-sheet and held that the statutory right

should not be defeated by keeping the applications pending till the

charge-sheet is filed.   

26. In Uday Mohanlal Acharya’s case (supra) the Court culled

out six guidelines, which are as follows:

“1. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is  investigating  into  the  offence  can  authorise detention  of  the  accused  in  such  custody  as  the Magistrate thinks fit for a term not exceeding 15 days on the whole.

2. Under the proviso to the aforesaid sub-section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than in the custody of police for  a  total  period  not  exceeding  90  days  where  the investigation relates to offence punishable with death, imprisonment for  life  or  imprisonment for  a term of not  less  than  10  years,  and  60  days  where  the investigation relates to any other offence.

3. On the expiry of the said period of 90 days or 60 days,  as  the  case  may  be,  an  indefeasible  right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.

4. When an application for bail is filed by an accused for  enforcement  of  his  indefeasible  right  alleged  to have been accrued in his favour on account of default on the part of the investigating agency in completion of the  investigation  within  the  specified  period,  the

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Magistrate/court  must  dispose  of  it  forthwith,  on being satisfied that in fact the accused has been in custody  for  the  period  of  90  days  or  60  days,  as specified and no charge-sheet  has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate  the object  of  the Act  and the legislative mandate  of  an  accused  being  released  on  bail  on account of the default on the part of the investigating agency  in  completing  the  investigation  within  the period stipulated.

5.  If  the  accused  is  unable  to  furnish  the  bail  as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to sub-section (2) of Section  167,  the  continued  custody  of  the  accused even beyond the specified period in para (a) will not be unauthorised, and therefore, if during that period the investigation is complete and the charge-sheet is filed then  the  so-called  indefeasible  right  of  the  accused would stand extinguished.

6. The expression “if not already availed of” used by this Court in Sanjay Dutt v. State through CBI, (1994) 5 SCC 410, must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period  specified  in  para  (a)  of  the  proviso  to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on  being  directed,  then  it  has  to  be  held  that  the accused  has  availed  of  his  indefeasible  right  even though  the  court  has  not  considered  the  said application  and  has  not  indicated  the  terms  and conditions of bail, and the accused has not furnished the same.”

27. A reading of the aforesaid judgments leaves no manner of

doubt that if an accused files an application for grant of default bail

and is willing to furnish bail then he is deemed to have exercised

his right to avail of bail and this right cannot be defeated by filing

the charge-sheet thereafter.   

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28.  The right to get ‘default bail’ is a very important right.  Ours is

a country where millions of our countrymen are totally illiterate and

not aware of their rights.  A Constitution Bench of this Court in the

case of Sanjay Dutt (supra) has held that the accused must apply

for grant of ‘default bail’.    As far as Section 167 of the Code is

concerned,  Explanation  I  to  Section  167  provides  that

notwithstanding the expiry of the period specified (i.e. 60 days or 90

days, as the case may be), the accused can be detained in custody

so long as he does not furnish bail.  Explanation I to Section 167 of

the Code reads as follows:  

“Explanation  I.-  For  the  avoidance  of  doubts,  it  is hereby  declared  that,  notwithstanding  the  expiry  of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.”  

This would, in my opinion, mean that even though the period

had expired, the accused would be deemed to be in legal custody till

he does not furnish bail.  The requirement is of furnishing of bail.

The accused does not have to make out any grounds for grant of

bail.  He does not have to file a detailed application.  All he has to

aver in the application is that since 60/90 days have expired and

charge-sheet has not been filed, he is entitled to bail and is willing

to furnish bail.  This indefeasible right cannot be defeated by filing

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the charge-sheet after the accused has offered to furnish bail.    

29. This Court in a large number of judgments has held that the

right to legal aid is also a fundamental right.  Legal aid has to be

competent  legal  aid and,  therefore,  it  is  the  duty of  the  counsel

representing the accused whether they are paid counsel or legal aid

counsel to inform the accused that on the expiry of the statutory

period of 60/90 days, they are entitled to ‘default bail’.  In my view,

the magistrate should also not encourage wrongful detention and

must inform the accused of his right.  In case the accused still does

not want to exercise his right then he shall remain in custody but if

he chooses to exercise his right and is willing to furnish bail  he

must be enlarged on bail.   

30.   In view of the above discussion, my findings are as follows:

1. I  agree  with  both  my  learned  brothers  that  the

amendment made to the Prevention of Corruption Act,1988 by

the Lokpal and Lokayuktas Act, 2013 applies to all accused

charged with offences under this Act irrespective of the fact

whether  the  action  is  initiated  under  the  Lokpal  and

Lokayuktas Act, 2013, or any other law;

2. Section 167(2)(a)(i)  of  the  Code  is  applicable  only  in

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cases  where  the  accused  is  charged  with  (i)  offences

punishable  with death and any lower  sentence;  (ii)  offences

punishable with life imprisonment and any lower sentence and

(iii) offences punishable with minimum sentence of 10 years;

3. In all cases where the minimum sentence is less than

10  years  but  the  maximum  sentence  is  not  death  or  life

imprisonment  then  Section  167(2)(a)(ii)  will  apply  and  the

accused will be entitled to grant of ‘default bail’ after 60 days

in case charge-sheet is not filed.

4. The right to get this bail is an indefeasible right and

this  right  must  be  exercised  by  the  accused  by  offering  to

furnish bail.

On issues 2 to 4, I agree and concur with my learned brother

Lokur J. and with due respect I am unable to agree with learned

brother Pant J.

I agree and concur with the conclusions drawn and directions

given by learned brother Lokur J. in Paras 49 to 51 of his judgment.

....................................J. (DEEPAK GUPTA)

New Delhi August 16, 2017   

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