Right to seek ‘default’ bail is a fundamental right and an indefeasible part of right to personal liberty under the Constitution which cannot be suspended even during a pandemic situation, the Delhi High Court said.
The high court said the right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and file a charge sheet.
As per law, once the maximum period, that is, 60, 90 and 180 days from arrest, provided for an investigation in a case is over and no charge sheet is filed, the accused becomes entitled to be released on bail, which is called the ‘default’ bail.
Justice Manoj Kumar Ohri said the order of remanding an undertrial to custody or its extension is held to be a judicial function requiring due application of mind.
“The right to seek default bail under Section 167(2) CrPC is a fundamental right and not merely a statutory right, which flows from Article 21 of the Constitution. It has been held to be an indefeasible part of the right to personal liberty under Article 21 of the Constitution, and such a right cannot be suspended even during a pandemic situation.
“The right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a charge sheet,” it said.
The court said the rights of an undertrial under the Constitution cannot be allowed to be defeated on technicalities of procedure, and laid down a slew of directions to ensure that their right to seek default bail is not defeated and the custody of an accused is not extended mechanically.
The judgement came on a petition by an accused challenging a trial court’s order dismissing his revision plea seeking default bail on account of failure of prosecution to file charge sheet within the statutory period of 90 days from arrest in a case of dowry death and causing harassment to a married woman.
The high court released the man on default bail on furnishing of a personal bond of Rs 25,000 and a surety of the like amount and directed him not to try to tamper with the evidence or leave Delhi without prior permission.
The man was arrested in the dowry death case on January 18, 2020 and was sent to judicial custody by a magisterial court and his custody was extended from time to time.
While the period of 90 days from arrest expired on April 18, 2020, the man applied for default bail through e-mail on April 20 last year as physical functioning of courts was restricted due to the nationwide COVID-19 lockdown, however, no response was received.
“…when the petitioner was produced before the jail visiting magistrate on April 15, 2020, the concerned magistrate without any application of mind and rather unmindful of the fact that 90 days were expiring on April 18, 2020, mechanically extended the petitioner’s judicial custody till April 29, 2020,” the high court noted.
The high court noted that owing to peculiar situation prevailing in the country on account of the lockdown due to COVID-19 when the physical filing of the bail application was not possible, an application was filed on behalf of the petitioner accused through an e-mail sent on April 20, 2020 at around 1.16 pm at the e-mail address provided to the counsel.
“Nothing more was required to be done by the petitioner. The listing of such an application was not in his hand. Sending an e-mail on behalf of the petitioner, in the opinion of this court, amounted to availing of his right to seek default bail. The contention raised on behalf of the State that the application never came to be listed or was abandoned by the petitioner, being meritless, is rejected,” the high court said.
The court was informed that the charge sheet in the case was filed physically before the duty magistrate on April 20, last year and it was not mentioned in the status report filed by the prosecution whether the charge sheet was filed prior to the filing of the application for default bail or later.
The high court directed that while extending the custody of an undertrial, the magistrate or concerned court shall not mechanically extend the period of custody for the maximum period of 15 days.
It said the custody shall be extended while keeping in mind the 60th, 90th or 180th day, depending on the nature of offence and applicability of any Special Act, of completing the investigation and submission of charge sheet.
“As a necessary corollary, the undertrial prisoner, shall be produced before the concerned court on the next day, that is, on the 61st, 91st or 181st day as the case may be, so that he can be duly informed of his fundamental right to seek default bail if no charge sheet is filed in the maximum period prescribed or the permitted extended period of investigation,” it said.
The court also directed for modification in the present format of ‘Custody Warrant’ and said it shall include a column indicating the day on which the right of ‘default bail’ will accrue to the undertrial.
“Considering the seriousness of the issue involved, this court deems it apposite to seek a response from the Registrar General of this Court as well the DG (Prisons) as to the steps being undertaken so that an undertrial is informed of his right to seek ‘default bail’ and that such right is not defeated, but rather timely exercised. The response and suggestions, if any, shall be submitted in light of the ‘Inter-operable Criminal Justice System (ICJS)’, a platform which came into existence under the aegis of the e-Committee, Supreme Court,” the high court said.
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