NEW DELHI: Holding that it is an accused‘s fundamental right to get bail if investigating agency failed to complete the probe and file charge sheet within the stipulated time period, the Supreme Court court on Wednesday ruled that the trial court should not extend remand and should grant him/her default bail if incomplete charge sheet is filed and investigation is not over.
Underscoring the need to place certain checks and balances on the investigation agency to prevent the harassment of the accused persons, a bench of Justices Krishna Murari and CT Ravikumar said that the right of an accused should not be allowed to be frustrated by the agency which files incomplete charge sheet without completing the probe just to deny default bail to the accused.
As per Section 167(2) of the CrPC, a magistrate can authorise the detention of the accused for 90 days in cases where the offence is punishable with death, life imprisonment or for a term of not less than 10 years and 60 days in other cases.
“Without completing the investigation of a case, a charge sheet or prosecution complaint cannot be filed by an investigating agency only to deprive an arrested accused of his right to default bail under Section 167(2) of the CrPC. Such a charge sheet, if filed by an investigating authority without first completing the investigation, would not extinguish the right to default bail under Section 167(2) of the CrPC,” the bench said.
It added the trial court, in such cases, cannot continue to remand an arrested person beyond the maximum stipulated time without offering the arrested person a default bail.
“…a supplementary charge sheet, wherein it is explicitly stated that the investigation is still pending, cannot under any circumstance, be used to scuttle the right of default bail, for then, the entire purpose of default bail is defeated, and the filing of a charge sheet or a supplementary charge sheet becomes a mere formality, and a tool, to ensue that the right of default bail is scuttled,” the bench said.
The court passed the order on a petition filed by the wife of an accused who was not granted default bail despite the probe was not completed by CBI within stipulated 60-day time. Though the CBI opposed her plea and said that she should first approach the trial court and high court and not directly the SC, the apex court said that it could reject the plea pertaining to violation of fundamental right on technical ground.
“It must be remembered that our Constitution has entrusted the SC with the most important task of protecting civil liberties of individuals, and the society at large. These civil liberties, which manifest themselves in the form of fundamental rights, are what allow the people of this country to effectively negotiate with the state and maintain the parity in power in the social contract between the people and the state. If this court refuses to exercise its jurisdiction on technicalities in cases of violations of fundamental rights, it will lead to a ripple effect that will result in a dysfunctional social contract, wherein the people of this country would become subject to an arbitrary and unfettered tyranny of the state,” the court said.
It further said the process of remand and custody creates a huge disparity of power between the investigating authority and the accused. “While there is no doubt in our minds that arrest and remand are extremely crucial for the smooth functioning of the investigating authority for the purpose of attaining justice, however, it is also extremely important to be cognizant of a power imbalance,” it said.
“It is also pertinent to note that the relief of statutory bail under Section 167(2) of the CrPC, in our opinion, is a fundamental right directly flowing from Article 21 of the Constitution of India, and the violation of such a right, as mentioned above, directly attracts consideration under Article 32 of the Constitution,” the bench said while rejecting CBI’s plea.
Underscoring the need to place certain checks and balances on the investigation agency to prevent the harassment of the accused persons, a bench of Justices Krishna Murari and CT Ravikumar said that the right of an accused should not be allowed to be frustrated by the agency which files incomplete charge sheet without completing the probe just to deny default bail to the accused.
As per Section 167(2) of the CrPC, a magistrate can authorise the detention of the accused for 90 days in cases where the offence is punishable with death, life imprisonment or for a term of not less than 10 years and 60 days in other cases.
“Without completing the investigation of a case, a charge sheet or prosecution complaint cannot be filed by an investigating agency only to deprive an arrested accused of his right to default bail under Section 167(2) of the CrPC. Such a charge sheet, if filed by an investigating authority without first completing the investigation, would not extinguish the right to default bail under Section 167(2) of the CrPC,” the bench said.
It added the trial court, in such cases, cannot continue to remand an arrested person beyond the maximum stipulated time without offering the arrested person a default bail.
“…a supplementary charge sheet, wherein it is explicitly stated that the investigation is still pending, cannot under any circumstance, be used to scuttle the right of default bail, for then, the entire purpose of default bail is defeated, and the filing of a charge sheet or a supplementary charge sheet becomes a mere formality, and a tool, to ensue that the right of default bail is scuttled,” the bench said.
The court passed the order on a petition filed by the wife of an accused who was not granted default bail despite the probe was not completed by CBI within stipulated 60-day time. Though the CBI opposed her plea and said that she should first approach the trial court and high court and not directly the SC, the apex court said that it could reject the plea pertaining to violation of fundamental right on technical ground.
“It must be remembered that our Constitution has entrusted the SC with the most important task of protecting civil liberties of individuals, and the society at large. These civil liberties, which manifest themselves in the form of fundamental rights, are what allow the people of this country to effectively negotiate with the state and maintain the parity in power in the social contract between the people and the state. If this court refuses to exercise its jurisdiction on technicalities in cases of violations of fundamental rights, it will lead to a ripple effect that will result in a dysfunctional social contract, wherein the people of this country would become subject to an arbitrary and unfettered tyranny of the state,” the court said.
It further said the process of remand and custody creates a huge disparity of power between the investigating authority and the accused. “While there is no doubt in our minds that arrest and remand are extremely crucial for the smooth functioning of the investigating authority for the purpose of attaining justice, however, it is also extremely important to be cognizant of a power imbalance,” it said.
“It is also pertinent to note that the relief of statutory bail under Section 167(2) of the CrPC, in our opinion, is a fundamental right directly flowing from Article 21 of the Constitution of India, and the violation of such a right, as mentioned above, directly attracts consideration under Article 32 of the Constitution,” the bench said while rejecting CBI’s plea.
