Summary
The CBI kept a person in custody by filing successive supplementary chargesheets just before the 60-day limit while admitting that the investigation was incomplete, and the trial court continued remand under Section 309(2) CrPC. In a writ petition by his wife under Article 32, the Supreme Court held that default bail under Section 167(2) is a fundamental right flowing from Article 21, that a chargesheet filed without completing the investigation cannot defeat that right, and that remand cannot be continued beyond the statutory period without offering default bail; the interim bail was made absolute.
Issues
- Whether a writ petition under Article 32 is maintainable to claim default bail without first approaching the High Court or filing a special leave petition.
- Whether an investigating agency can file a chargesheet or prosecution complaint in piecemeal before completing the investigation.
- Whether a chargesheet filed without completing the investigation extinguishes the accused's right to default bail under Section 167(2) CrPC.
- Whether the trial court can continue the remand of an accused under Section 309(2) CrPC during a pending investigation beyond the period stipulated in Section 167(2).
Provisions considered
- Section 167(2), Code of Criminal Procedure, 1973Traced to the Law Commission's 14th and 41st Reports, which condemned the practice of preliminary reports used to extend remand under the 1898 Code; the provision fixes maximum remand periods of 90 or 60 days, on expiry of which the accused has an indefeasible right to bail. The right is extinguished only by a chargesheet filed on completion of investigation within that period. (¶¶ 16, 17, 18, 19, 20, 21, 22, 23, 24, 25)
- Section 173(8), Code of Criminal Procedure, 1973A supplementary chargesheet arises only after the main chargesheet is filed; one that expressly records that investigation is still pending cannot be used to scuttle default bail. (¶ 24)
- Section 309(2), Code of Criminal Procedure, 1973Remand after cognizance under this provision cannot be used to prolong custody on the strength of incomplete chargesheets beyond the maximum period under Section 167(2). (¶¶ 4, 28, 32, 33)
- Articles 21 and 32, Constitution of IndiaDefault bail is a fundamental right flowing from Article 21; the right to move the Supreme Court under Article 32 is itself a fundamental right and the existence of alternative remedies is no ground to refuse a petition alleging breach of it. (¶¶ 11, 12, 13, 14, 34)
- Section 120B read with 420 IPC; Sections 7, 12 and 13(2) read with 13(1)(d) of the 1988 Act, Indian Penal Code, 1860 and Prevention of Corruption Act, 1988The offences in the FIR, in which the petitioner's husband was first cited as a witness and later arrested; the Court expressly did not examine the merits. (¶¶ 2, 3, 15)
Held
- The Supreme Court cannot decline a petition under Article 32 on technicalities or because an alternative remedy exists where a breach of a fundamental right is prima facie shown; the statutory right to default bail under Section 167(2) is a fundamental right directly flowing from Article 21, so its violation attracts Article 32. (¶¶ 11, 13, 14)
- Section 167(2) was enacted to compel completion of investigation within a fixed time, failing which the accused acquires an indefeasible right to bail; the pre-1973 abuse of preliminary reports to extend remand has resurfaced as the filing of chargesheets without completing investigation, which would negate the provision if permitted. (¶¶ 17, 19, 21, 22, 27)
- Without completing the investigation, a chargesheet or prosecution complaint cannot be filed merely to deprive an arrested accused of default bail; such a chargesheet does not extinguish the right under Section 167(2). (¶¶ 24, 25, 32)
- The trial court cannot continue to remand an arrested person beyond the maximum stipulated period without offering default bail; mechanically accepting incomplete chargesheets filed just before the 60-day limit and continuing remand was manifestly arbitrary and violated the accused's fundamental rights. (¶¶ 32, 33, 34)
- Decisions such as Salap Service Station and Dharam Pal, concerning further investigation under Section 173(8) and transfer of investigation, do not deal with default bail and do not permit incomplete chargesheets to scuttle it. (¶¶ 28, 29, 30, 31)
Result
Writ petition disposed of; interim order of bail in favour of the petitioner's husband made absolute.