Default bail an indefeasible right, under trials must be informed of this right: Delhi HC

Justice Manoj Ohri, while granting bail to an accused in a dowry death case, said sending an under trial to jail or extending such remand is a judicial function that requires due application of mind

Holding that default bail — if no charge sheet is filed in the maximum period prescribed or the permitted extended period of investigation — is an “indefeasible part of the right to personal liberty”, the Delhi high court on Monday issued a slew of directions legal entities and agencies concerned to ensure that the custody of an under trial is not extended mechanically and that there is “application of mind before deciding such pleas”.

The judgment came on a plea by a man challenging an order of the trial court dismissing his revision plea seeking default bail. (Getty Images/iStockphoto)

Justice Manoj Ohri, while granting bail to an accused in a dowry death case, said sending an under trial to jail or extending such remand is a judicial function that requires 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 of India. It has been held to be an indefeasible part of the right to personal liberty under Article 21 of the Constitution of India, 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.”

“The order remanding an accused to custody is not an empty formality and at that stage, the magistrate is required to apply his mind for the necessity of remand. The 60th or 90th day of custody assumes great significance as in the event of non-filing of charge sheet, a right under Section 167(2) CrPC, which is held to be an indefeasible and fundamental right, accrues in favour of the accused. To ensure that this right does not get defeated in any manner an obligation is cast upon the magistrate to inform an under trial prisoner about accrual of such right,” justice Ohri said in his 24-page judgment.

The judgment came on a plea by a man challenging an order of the trial court dismissing his revision plea seeking default bail.

The accused and his family members were booked under Sections 304B (dowry death) 498A (husband or relative of husband of a woman subjecting her to cruelty), 406 (criminal breach of trust), 34 (common intention) of the Indian Penal Code on January 16, 2020.

The accused was arrested on January 18, 2020, and was sent to judicial custody after being produced before the magistrate the next day. His judicial custody was extended time and again, including on April 15, 2020, when his custody was extended till April 29, 2020.

However, the time period of 90 days to file a charge sheet expired on April 18, 2020. The accused contended that he should have been granted default bail as the investigating agency had failed to file the charge sheet.

Noting the lapse, the court issued directions to ensure that the rights of under trial prisoners to seek default bail are not defeated despite the legislative mandate and the principles of law enumerated by the courts time and again, and that the custody of an under trial is not extended mechanically as has been done in the present case.

It directed that the under trial prisoner be produced before the court concerned on the next day — i.e, 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.

The court also modified the present format of the custody warrant and included a a column indicating the day on which the right of “default bail” will accrue to the under trial.

It also directed the district legal services authority to ensure that the remand advocates/legal aid counsel posted in criminal courts are instructed to keep an under trial informed of his right to seek default bail and the date of accrual of such right.