Case Note & Summary
The Bombay High Court, in a referral order, resolved a conflict between two Single Judge decisions regarding the applicability of default bail under Section 167(2) of the Code of Criminal Procedure, 1973 (CrPC) to an accused arrested after the filing of a charge-sheet. The applicant, Sunil Vitthal Wagh, was arrested on 28 August 2021 in connection with an offence where a charge-sheet had been filed on 15 September 2018 showing him as absconding. He sought default bail on the ground that the investigation against him was not completed within the stipulated period under Section 167(2) CrPC. The Single Judge (N.J. Jamadar, J.) noticed conflicting views: in Anil Somdatta Nagpal v. State of Maharashtra, it was held that once a charge-sheet is filed, the right to default bail is extinguished; whereas in Pankaj v. State of Maharashtra, it was held that for an accused arrested after charge-sheet, the period for investigation runs from the date of arrest, and default bail accrues if supplementary charge-sheet is not filed within the prescribed time. The Division Bench, after hearing both sides, held that the view in Pankaj is correct. The court reasoned that Section 167(2) CrPC is an indefeasible right linked to Article 21 of the Constitution, and its benefit cannot be denied to an accused arrested during further investigation under Section 173(8) CrPC. The court also clarified that remand of such an accused is governed by Section 167(2) CrPC, not Section 309(2) CrPC, as the latter applies only to accused already in custody at the time of cognizance. The court overruled the decision in Anil Somdatta Nagpal and affirmed the principle that default bail is available to all accused irrespective of when they are arrested, as long as investigation is not completed within the statutory period. The court directed that the applicant be released on bail on certain conditions.
Headnote
A) Criminal Procedure - Default Bail - Section 167(2) CrPC - Indefeasible Right - The right to default bail under Section 167(2) CrPC is an absolute, indefeasible right that accrues when investigation is not completed within the prescribed period. This right applies equally to accused arrested after filing of initial charge-sheet, during further investigation under Section 173(8) CrPC, if supplementary charge-sheet is not filed within the stipulated period. The court held that the view in Pankaj v. State of Maharashtra is correct, and the contrary view in Anil Somdatta Nagpal v. State of Maharashtra is overruled. (Paras 1-3, 9, 12-14) B) Criminal Procedure - Remand - Section 309(2) CrPC vs Section 167(2) CrPC - Applicability - Section 309(2) CrPC applies only to accused who are in custody at the time of taking cognizance or during trial. For accused arrested after charge-sheet filing during further investigation, remand is governed by Section 167(2) CrPC, not Section 309(2) CrPC. The court relied on State through CBI v. Dawood Ibrahim Kaskar and Pradeep Ram v. State of Jharkhand. (Paras 10-11) C) Constitutional Law - Right to Liberty - Article 21 and Article 14 - Section 167(2) CrPC is a legislative exposition of Article 21, ensuring no person is detained arbitrarily. Denying default bail to one class of accused while granting it to another violates Article 14. The court emphasized that the right must be interpreted to serve constitutional commitment to life and personal liberty. (Paras 6, 9)
Issue of Consideration
Whether an accused arrested after filing of charge-sheet under Section 173(2) CrPC, during further investigation under Section 173(8) CrPC, is entitled to default bail under Section 167(2) CrPC if supplementary charge-sheet is not filed within the stipulated period.
Final Decision
The court overruled the decision in Anil Somdatta Nagpal v. State of Maharashtra and affirmed the view in Pankaj v. State of Maharashtra. The court held that the applicant is entitled to default bail under Section 167(2) CrPC. The court directed that the applicant be released on bail on such terms and conditions as may be imposed by the trial court.
Law Points
- Default bail under Section 167(2) CrPC is an indefeasible right
- applicable to accused arrested after charge-sheet filing if further investigation is pending
- Section 309(2) CrPC does not govern remand of such accused
- Article 21 and Article 14 of Constitution mandate equal application of default bail right.
