Default bail a fundamental right, can’t be scuttled: SC

This “seemingly insignificant procedural formality” ensures that no accused person is subject to “unfettered and arbitrary” power of the state, it added

The Supreme Court on Wednesday held that the fundamental right of an accused to get default bail cannot be scuttled by probe agencies by filing supplementary charge sheets in cases where a probe is yet to be completed.

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The court was dealing with a petition filed by Ritu Chhabaria, who brought a case against the Central Bureau of Investigation (CBI) for keeping her husband in custody despite the investigation in the case not being completed within the stipulated period of 60 days since his arrest. In such cases, the Code of Criminal Procedure (CrPC) Section 167(2) allows the magistrate to release an accused on default bail. However, she argued, the trial court ordered his custody to continue as CBI kept filing supplementary charge sheets with a view to scuttle his chances of release under the provision.

Taking a strong view of the matter, a bench of justices Krishna Murari and CT Ravikumar said, “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.”

The bench added: “The trial court, in such cases, cannot continue to remand an arrested person beyond the maximum stipulated time (of 90 days for offences punishable with death, life imprisonment or offences punishable with over 10 years and 60 days for other offences) without offering the arrested person default bail.”

Such a charge sheet, if filed by an investigating authority without first completing the investigation, would not extinguish the right to default bail, the court ruled.

While the right under Section 167(2) CrPC is a procedural safeguard to ensure that accused are not made to pay with their liberty if an investigation is not completed within the prescribed time, the court said, “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, directly attracts consideration under Article 32 of the Constitution.”

This “seemingly insignificant procedural formality” ensures that no accused person is subject to “unfettered and arbitrary” power of the state, it added.

Though CBI said that a writ petition cannot be filed to seek release at an early stage of investigation, the court rejected that contention. “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 bench said.

To be sure, the court agreed that arrest and remand were extremely crucial for smooth functioning of any investigation authority for attaining justice. However, the bench added, “it is also extremely important to be cognisant of a power imbalance. Therefore, it becomes essential to place certain checks and balances upon the Investigation Agency to prevent the harassment of accused persons at their hands.”

Tracing the history behind Section 167(2), which became part of CrPC in 1973, the bench said that the purpose of its enactment was to ensure the timely completion of probe, failing which no accused is to be detained. In such a scenario, the bench saw filing of supplementary charge sheets before the completion of probe as a “tool” to scuttle the right of default bail.

“If we were to hold that charge sheets can be filed without completing the investigation, and the same can be used for prolonging remand, it would in effect negate the purpose of introducing section 167(2) and ensure that the fundamental rights guaranteed to accused persons is violated,” said Justice Murari, writing the judgment for the bench.

The petitioner’s husband, Sanjay Chhabaria, has been booked in a case under the Prevention of Corruption Act in which he was not initially named. The investigation was subsequently transferred to CBI, which arrested him in April last year. In all the supplementary charge sheets filed since then, CBI named him as suspect even as the final charge sheet has not yet been filed.

Granting him default bail, the bench held that the investigating agency and the trial court failed to observe the mandate of law and acted in a manner which was “manifestly arbitrary” and violative of the fundamental rights guaranteed to the accused.