Bombay High Court
Sunil Vitthal Wagh vs The State Of Maharashtra on 19 December, 2024
Author: Prithviraj K. Chavan
Bench: Revati Mohite Dere, Prithviraj K. Chavan
2024:BHC-AS:50240 BA-2472-2022.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.2472 OF 2022
a/w
INTERIM APPLICATION NO.2592 OF 2024
IN
CRIMINAL BAIL APPLICATION NO.2472 OF 2022
Sunil Vitthal Wagh ]
Age: about 33 years, Occ:- Nil ]
R/at: Sunaynanagar, Post: - Yashwantnagar ]
Akluj, Tal. Malsiras, District Solapur ]
(At present in Kolhapur Central Prison) ] Applicant
Vs.
State of Maharashtra through ]
Senior Inspector Pandharpur - City ]
Police Station. ] Respondent
.....
Mr. Aabad Ponda, Senior Advocate a/w Mr. Sumit Tiwari, Mr.
Shailesh Kharat, Mr. Jugal Kamani, Mr. Sajid Mahat i/b Mr. Ashish
Raghuwanshi, for Applicant.
Mr. H.S. Venegavkar, P.P a/w Ms. P.P. Shinde, A.P.P, for Respondent
- State.
.....
CORAM : REVATI MOHITE DERE &
PRITHVIRAJ K. CHAVAN, J.J.
RESERVED ON : 7th October, 2024.
PRONOUNCED ON : 19th December, 2024
JUDGMENT :
[Per Prithviraj K. Chavan, J.] :-
1. The Hon’ble the Chief Justice has assigned the task of
answering a referral order passed by a Single Judge of this Court
SHAILAJA Digitally signed by
SHAILAJA SHRIKANT
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SHRIKANT HALKUDE
Date: 2024.12.20
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BA-2472-2022.doc(Coram: N.J. Jamadar, J), who, having noticed two conflicting
decisions rendered by the learned Single Judges of this Court in case
of Anil Somdatta Nagpal and Lalit Somdatta Nagpal Vs. The State
of Maharashtra1 delivered by Hon’ble Mr. Justice Shri S.C.
Dharmadhikari (as he then was) and Hon’ble Mr. Justice S. B.
Shukre (as he then was) in the case of Pankaj Vs. The State of
Maharashtra and others2 invoked Rule-8 of Chapter-I of the
Bombay High Court (Appellate side) Rules, 1960.
2. Justice S.C. Dharmadhikari was of the view that once a
charge-sheet is filed under Section 173 (2) of the Code of Criminal
Procedure (for short “Code”) and the cognizance of the offence
thereof has been taken, subsequent arrest of the accused does not
entitle him to avail the benefit of default bail as provided in sub-
section (2) of Section 167 of the Code. He was of the view that a
further report tendered under section 173 (8) of the Code, post
arrest and detention of the accused is, essentially, in the nature of
further investigation and as such, investigation can be carried out
even after forwarding a report under section 173 (2) of the Code.
Such further report under section 173 (8) of the Code would not
1 2006 Cri. L.J. 1307
2 Criminal Writ Petition No.475 of 2016
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have any bearing on the so-called right of the accused under section
167 (2) of the Code. The learned Judge concluded that once a
charge-sheet has been filed, indefeasible right of default bail stands
extinguished.
3. On the other hand, Justice S. B. Shukre has taken an
altogether different view, albeit without referring to the judgment in
the case of Anil Somdatta Nagpal (supra) holding therein that for
ascertaining whether the right of default bail is accrued, the date on
which charge-sheet is filed after completion of investigation against
the accused becomes relevant. In case, further investigation
commenced against the accused arrested after filing of the charge-
sheet in which he is shown as absconding, completion of
investigation shall be declared only by the act of filing of
supplementary charge-sheet in view of Section 173 (8) of the Code
against him. If a supplementary charge-sheet against such an
accused is not tendered within the stipulated period as provided
under section 167 (2) of the Code, Mr. Shukre held that the accused
would get an indefeasible right of default bail.
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4. Mr. Ponda, learned Senior Counsel, in his usual erudition
emphatically argued that the subsequent decision in the case of
Pankaj (supra) promotes the object of the provisions contained in
Section 167 of the Code. Mr. Ponda would argue that earlier
decision in case of Anil Somdatta Nagpal (supra) has been dissented
by Madras High Court in case of Dinesh s/o Rajaram Korku and
another Vs. The State of Madhya Pradesh and another ,3. Mr. Ponda
is of the view that, in any event, tendering a final report under
section 173 of the Code, inter alia, showing an accused as
absconding in view of Section 299 of the Code would not be legally
permissible. In the case at hand, a charge-sheet came to be filed on
15th September, 2018, on which date, it cannot be construed that
the applicant was in the picture. Therefore, remand of the applicant
after his arrest on 28 th August, 2021 could not have been under the
provisions of section 309 of the Code. It is significant in light of
the fact that remand report indicates that it was filed under section
167 and not under Section 309 of the Code. If the applicant was
remanded under section 167 of the Code, then the applicant should
not and cannot be deprived of his right to default bail, emphasized
Mr. Ponda.
3 Criminal Appeal No.5380 of 2022
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5. A plethora of judgments has been pressed into service by
Mr.Ponda, learned Senior Counsel and also by Mr. Venegavkar,
learned Public Prosecutor, eventually, both of them are ad idem as
regards the ratio decidendi of most of the judgments which
accentuate and magnify the view taken by this Court in case of
Pankaj (supra). We shall, in the ensuing paragraphs, deal with those
decisions.
6. Mr. Ponda would argue that Article 21 of the Constitution of
India is intrinsically linked to the history of the enactment of section
167 (2) of the Code and the safeguard of default bail contained in
the proviso is nothing but a legislative exposition of the
constitutional safeguard that no person shall be denied of his liberty
except in accordance with the rule of law. We have, no doubt, in our
mind that section 167 (2) of the Code is integrally linked to the
constitutional commitment under Article 21 promising the
protection of life and personal liberty against an unlawful and
arbitrary detention, the section must be interpreted in a manner
which serves this purpose.
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7. Before we deal with the issue involved, we find it pertinent to
mention that in the present case, this Court is not dealing with the
merits of the case and as such is not inclined to make any
observation regarding the same. Every court, when invoked to
exercise it’s powers, must be mindful of the relief sought, and must
act as a forum confined to such relief. In the case at hand, we are
not sitting in appeal, but a court of writ, and, therefore, is inclined
to limit its jurisdiction only to the personal liberty of the applicant
and the impugned points of law.
8. Mr. Ponda would further argue that it is now well settled in
law that a person falling in the category of “wanted accused” may
not be aware that he is “wanted” because he may have changed his
address voluntarily but unknowingly left the State or the country
for better prospects and he would be apprehended as an
“absconder”. It would be a travesty of justice if he is not provided
with the protection of a right under section 167 (2) of the Code as
this category of persons includes not only the persons who have
absconded but also the persons who are charge-sheeted without
knowing that they are “wanted” and in the eyes of agency are
termed as “absconders”.
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9. As such, Mr. Ponda, learned Senior Counsel as well as Mr.
Venegavkar, learned Public Prosecutor are on the same page in so
far as right under section 167 (2) of the Code being an absolute,
indefeasible right which is unconditional. Both are of the firm view
that any interpretation which deviates from the principle of the
existence of this right as being applicable to only one set of the
accused and not to another set of accused, would fall foul of the
Constitutional guarantee enshrined in Article 14 of the Constitution
of India. As such, learned Senior Counsel as well as learned Public
Prosecutor resounded with echoes, inter alia, requesting us to re-
affirm the view demystified in the various authoritative
pronouncements in consonance with the view in the case of Pankaj
(supra).
10. While putting forth his dexterous argument, Mr. Venegavkar,
learned Public Prosecutor has raised following two pertinent points
viz: whether investigation carried out post arrest of the petitioner
can be said to be further investigation in view of section 173 (8) of
the Code or fresh investigation? Secondly, whether the custody of
the petitioner who came to be arrested after filing of the charge-
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sheet will be governed by section 309 (2) or section 167 (2) of the
Code? Answer to these questions, according to Mr. Venegavkar,
could be found in the judgment in case of Pradeep Ram Vs. State of
Jharkhand and another4 as well as in case of State through CBI Vs.
Dawood Ibrahim Kaskar and others, 5. He would further submit that
in view of the ratios laid down by the Supreme Court in the said
decisions as well as another several decisions, it has been enunciated
that section 309 (2) of the Code empowers granting remand or
continuing remand to accused who is in custody after taking
cognizance of the offence, but does not refer to granting remand to
an accused who was unavailable during investigation and filing of
charge-sheet, but having been arrested during further investigation
of the same case.
11. In the case of State through CBI Vs. Dawood Ibrahim Kaskar
and others (supra), the Supreme Court has further clarified that the
Police who have been empowered to carry out further investigation
into the case cannot be deprived of an opportunity to interrogate a
person arrested during further investigation merely because section
309 (2) of the Code has become operative. Mr. Venegavkar would
4 (2019) 17 Supreme Court Cases 326
5 (2000) 10 Supreme Court Cases 438
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invite our attention to the words in section 309 (2) “accused, if in
custody”, refer only to an accused who was before the Court when
cognizance was taken or when inquiry or trial was held and will
definitely not apply to an accused who was subsequently arrested in
the course of further investigation. As such, Mr. Venegavkar would
further contend that in the event any accused is subsequently or
later arrested by the Police during the course of such investigation,
then such accused can be taken into Police custody under section
167 (2) of the Code for the purpose of interrogation and
investigation. He would place reliance on a decision of the
Supreme Court in cases of Central Bureau of Investigation, Special
Investigation Cell -I, New Delhi Vs. Anupam J Kulkarni 6 and
Dinesh Dalmia Vs. Central Bureau of Investigation 7. Thus, Mr.
Venegavkar would conclude by contending that the reference may
be answered by holding that the view expressed by this Court in
case of Pankaj Vs. State of Maharashtra and others (supra) is the
view which is in consonance with the decisions rendered by the
Supreme Court in cases of Pradeep Ram Vs. State of Jharkhand and
another (supra), State through CBI Vs. Dawood Ibrahim Kaskar and
others (supra) Central Bureau of Investigation Vs. Anupam J.
6 AIR 1992 Supreme Court 1768
7 (2007) 8 Supreme Court Cases 770
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Kulkarni (supra).
12. A few facts germane for answering the reference are
encapsulated as follows.
13. The petitioner has been arraigned in C.R. No.244 of 2018
registered with Pandharpur Police station for the offences
punishable under sections 120B, 302, 303, 201, 143, 147, 148 and
149 of the Indian Penal Code (for short “I.P.C”), sections 3,4,5, 25
and 27 of the Arms Act, 1959, section 135 of the Maharashtra
Police Act, 1951 and sections 3 (1) (i) (ii), 3 (2) and 3(4) of the
Maharashtra Control of Organized Crime Act, 1999 (for short
“MCOC Act, 1999”). The petitioner has been shown as accused
No.25 and his status was that of an absconder. One Gopal Bajirao
Ankushrao – accused No.18 is the henchman of an organized
syndicate known as “Sirji’ Gang. A criminal conspiracy was hatched
on 18th March, 2018 wherein 26 accused including a child-in-
conflict with law, who were members of an organized crime
syndicate of Gopal Bajirao Ankushrao committed murder of one
Sandeep Pawar who was then a municipal councilor by shooting and
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assaulting him by means of deadly weapons at Shriram Bhojanalay,
Station Road, Pandharpur. An F.I.R was registered on 19 th March,
2018. A charge-sheet was filed on 15 th September, 2018 against the
co-accused wherein the petitioner has been arraigned as accused
No.25 and was shown absconding.
14. The petitioner was arrested on 28 th August, 2021, however,
charge-sheet purportedly lodged qua him by invoking section 299
of the Code. He was produced before the Special Court constituted
under MCOC on 29th August, 2021 and was remanded to Police
custody till 6th September, 2021. The remand further extended till
9th September, 2021. The petitioner moved an application under
Section 167 (2) of the Code on 28 th February, 2022 which came to
be rejected by the concerned Court by an order dated 11 th March,
2022. A supplementary charge-sheet came to be filed against the
petitioner under section 173 (8) of the Code subsequently on 28 th
February, 2022 itself.
15. The learned Special Judge, MCOC, Pandharpur rejected the
application precisely on the premise that charge-sheet has already
been submitted against the petitioner and other co-accused on 15 th
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September, 2018 and, the subsequent arrest of the petitioner was
only on the basis of the additional evidence collected by the
Investigating Agency in the form of supplementary charge-sheet
under section 173 (8) of the Code. He, therefore, was of the
opinion that the petitioner was not entitled to default bail. The
learned Judge, inter alia, observed that investigation for the offence
under the Special Statute was not new investigation but further
investigation in respect of the offences which came to be registered
at the beginning. Since charge-sheet has already been filed on 15 th
September, 2018 and cognizance of the offence had already been
taken by the Special Court, MCOC, no indefeasible right accrued to
the petitioner under section 167 (2) of the Code though statutory
period of 180 days elapsed since the date of remand of the applicant
post his arrest on 28th August, 2021.
16. The law of liberty is often the battle of principles of
procedural protection; but great principles seldom escape working
injustice in particular things. Article 21 of the Constitution of India
is intrinsically linked to the history of the enactment of section 167
(2) of the Code and the safeguard of default bail contained in the
proviso is nothing but a legislative exposition of the constitutional
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safeguard that no person shall be denied his liberty except in
accordance with the rule of law.
17. The statement and Objects in the 41 st Report of the Law
Commission with respect to section 167 (2) of the Code is an
important aid of construction. Section 167 (2) has to be interpreted
keeping in mind threefold objectives which are subsets of the
overarching fundamental right guaranteed under Article 21, namely,
expeditious investigation and trial, fair trial and setting down a
rationalized procedure to protect the interests of indigent sections
of society. The three Judge Bench of the Supreme Court in it’s well-
known decision in case of M. Ravindran Vs. Intelligence Officer,
Directorate of Revenue Intelligence,8 delved deep, extensively on
the aspect of interplay between “right to default bail” and
“fundamental right to life and personal liberty” with regard to the
question of applicability of the provisions contained in Section
167(2) of the Code. It would be apposite to extract the
observations in paragraphs 17.1, 17.2, 17.7, 17.10 and 17.11,
which read as under;
“17.1. Article 21 of the Constitution of
India provides that “no person shall be deprived
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to procedure established by law”. It has been
settled by a Constitution Bench of this Court in
Maneka Gandhi v. Union of India, (1978) 1
SCC 248, that such a procedure cannot be
arbitrary, unfair or unreasonable. The history of
the enactment of Section 167(2), CrPC and the
safeguard of “default bail” contained in the
Proviso thereto is intrinsically linked to Article
21 and is nothing but a legislative exposition of
the constitutional safeguard that no person shall
be detained except in accordance with rule of
law.
17.2. Under Section 167 of the Code of
Criminal Procedure, 1898 (‘1898 Code’) which
was in force prior to the enactment of the
Cr.P.C, the maximum period for which an
accused could be remanded to custody, either
police or judicial, was 15 days. However, since
it was often unworkable to conclude
complicated investigations within 15 days, a
practice arose wherein investigating officers
would file “preliminary chargesheets” after the
expiry of the remand period. The State would
then request the Magistrate to postpone
commencement of the trial and authorize
further remand of the accused under Section
344 of the 1898 Code till the time the
investigation was completed and the final
chargesheet was filed. The Law Commission of
India in Report No. 14 on Reforms of the
Judicial Administration (Vol. II, 1948, pages
758-760) pointed out that in many cases the
accused were languishing for several months in
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there was conflict in judicial opinion as to
whether the Magistrate was bound to release
the accused if the police report was not filed
within 15 days.
17.7. Therefore, as mentioned supra,
Section 167(2) is integrally linked to the
constitutional commitment under Article 21
promising protection of life and personal liberty
against unlawful and arbitrary detention, and
must be interpreted in a manner which serves
this purpose. In this regard we find it useful to
refer to the decision of the three – Judge Bench
of this Court in Rakesh Kumar Paul v. State of
Assam, (2017) 15 SCC 67, which laid down
certain seminal principles as to the
interpretation of Section 167(2) CrPC though
the questions of law involved were somewhat
different from the present case. The questions
before the three – Judge Bench in Rakesh Kumar
Paul were whether, firstly, the 90 day remand
extension under Section 167(2)(a)(i) would be
applicable in respect of offences where the
maximum period of imprisonment was 10 years,
though the minimum period was less than 10
years. Secondly, whether the application for bail
filed by the accused could be construed as an
application for default bail, even though the
expiry of the statutory period under Section
167(2) had not been specifically pleaded as a
ground for bail. The majority opinion held that
the 90 day limit is only available in respect of
offences where a minimum ten year’s
imprisonment period is stipulated, and that the15 of 37
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counsel for the accused before the High Court
would suffice in lieu of a written application.
This was based on the reasoning that the Court
should not be too technical in matters of
personal liberty. Madan B. Lokur, J. in his
majority opinion, pertinently observed as
follows: (SCC pp.95-96&99, paras 29,32 & 41)
“29. Notwithstanding this, the basic
legislative intent of completing
investigations within twenty four
hours and also within an otherwise
time – bound period remains
unchanged, even though that period
has been extended over the years.
This is an indication that in
addition to giving adequate time to
complete investigations, the
legislature has also and always put a
premium on personal liberty and
has always felt that it would be
unfair to an accused to remain in
custody for a prolonged or
indefinite period. It is for this
reason and also to hold the
investigating agency accountable
that time-limits have been laid
down by the legislature….
* * *
32…Such views and opinions over
a prolonged period have prompted
the legislature for more than a
century to ensure expeditious
conclusion of investigations so that
an accused person is not16 of 37
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personal liberty by remaining in
prolonged custody for an offence
that he or she might not even have
committed. In our opinion, the
entire debate before us must also be
looked at from the point of view of
expeditious conclusion of
investigations and from the angle
of personal liberty and not from a
purely dictionary or textual
perspective as canvassed by the
learned counsel for the State.
* * *
41. We take this view keeping in
mind that in matters of personal
liberty and Article 21 of the
Constitution, it is not always
advisable to be formalistic or
technical. The history of the
personal liberty jurisprudence of
this Court and other constitutional
courts includes petitions for a writ
of habeas corpus and for other
writs being entertained even on the
basis of a letter addressed to the
Chief Justice or the Court.”
(emphasis supplied)
Therefore, the Courts cannot adopt a rigid or
formalistic approach whilst considering any issue
that touches upon the rights contained in Article
21.17 of 37
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BA-2472-2022.doc17.10. With respect to the CrPC particularly, the
Statement of Objects and Reasons (supra) is an
important aid of construction. Section 167(2) has
to be interpreted keeping in mind the three fold
objectives expressed by the legislature, namely,
ensuring a fair trial, expeditious investigation and
trial, and setting down a rationalized procedure
that protects the interests of indigent sections of
society. These objects are nothing but subsets of the
overarching fundamental right guaranteed under
Article 21.
17.11. Hence, it is from the perspective of
upholding the fundamental right to life and
personal liberty under Article 21 that we shall
clarify and reconcile the various judicial
interpretations of Section 167(2) for the purpose of
resolving the dilemma that has arisen in the present
case?.”
The Supreme Court in the aforesaid decision elucidated the
right to default bail as an important facet of the constitutional
guarantee under Article 21, inter alia, observing that section 167(2)
of the Code is nothing but a legislative exposition of the
constitutional safeguard that no person shall be detained except in
accordance with the rule of law.
18. Mr. Ponda, has thereafter invited our attention to a decision
in the case of State through CBI Vs. Dawood Ibrahim Kaskar and
others (supra). A series of bomb explosions took pace in and
around the city of Mumbai on the fateful day of 12 th March, 1993
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which resulted in the death of 257 persons, injuries to 713 persons
as well as causing damage to properties worth Rs.27 crores
approximately. Over the explosions, 27 criminal cases were
registered and on completion of investigation a composite charge-
sheet was forwarded to the Designated Court, Greater Bombay on
4th November, 1993 against 198 accused persons, showing 45 of
them as absconders, for commission of various offences punishable
under the Indian Penal Code, the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (“TADA” for short), Arms Act, 1959,
Explosive Substances Act, 1908 and other Acts. On that charge-
sheet, the Designated Court took cognizance and the case registered
thereon was numbered as BBC (Bombay Blast Case) No.1 of 1993.
Without adverting to the other details, observations of three Judge
Bench of the Supreme Court can be deciphered in paragraphs 10
and 11 in respect of the provisions of Sections 173 (8) and 309 (2)
of the Code. Paras 10 and 11 are extracted below for ready
reference;
“10. In keeping with the provisions of
Section 173(8) and the above quoted
observations, it has now to be seen whether
Section 309(2) of the Code stands in the way
of a Court, which has taken cognizance on an
offence, to authorise the detention of a
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person, who is subsequently brought before it
by the police under arrest during further
investigation, in police custody in exercise of
its power under Section 167 of the Code.
Section 309 relates to the power of the Court
to postpone the commencement of or
adjournment of any inquiry of trial and sub-
section (2) thereof reads as follows:
“309 (2) If the Court, after taking
cognizance of an offence, or
commencement of trial, finds it
necessary or advisable to postpone the
commencement of, or adjourn, any
inquiry or trial, it may, from time to
time, for reasons to be recorded,
postpone or adjourn the same on such
terms as it thinks fit, for such time as it
considers reasonable, and may by a
warrant remand the accused if in
custody:
Provided that no Magistrate shall
remand an accused person to custody
under this Section for a term exceeding
fifteen days at a time:”
11. There cannot be any manner of doubt
that the remand and the custody referred to
in the first proviso to the above sub-section
are different from detention in custody under
Section 167. While remand under the former
relates to a stage after cognizance and can
only be to judicial custody, detention under
the latter relates to the stage of investigation
and can initially be either in police custody or
judicial custody. Since, however, even after
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cognizance is taken of an offence the police
has a power to investigate into it further,
which can be exercised only in accordance
with Chapter XII, we see no reason
whatsoever why the provisions of Section 167
thereof would not apply to a person who
comes to be later arrested by the police in
course of such investigation. If section 309(2)
is to be interpreted – as has been interpreted
by the Bombay High Court in Mansuri 1994,
Cr.LJ 1854 Bom. to mean that after the
Court takes cognizance of an offence it
cannot exercises its power of detention in
police custody under Section 167 of the
Code, the Investigating Agency would be
deprived of an opportunity to interrogate a
person arrested during further investigation,
even if it can on production of sufficient
materials, convince the Court that his
detention in its (police) custody was essential
for that purpose. We are, therefore of the
opinion that the words “accused if in custody”
appearing in Section 309(2) refer and relate
to an accused who was before the Court
when cognizance was taken or when enquiry
or trial was being held in respect of him and
not to an accused who is subsequently
arrested in course of further investigation. So
far as the accused in the first category is
concerned he can be remanded to judicial
custody only in view of Section 309(2), but he
who comes under the second category will be
governed by Section 167 so long as further
investigation continues. That necessarily
means that in respect of the latter the Court
which has taken cognizance of the offence
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may exercise its power to detain him in police
custody, subject to the fulfillment of the
requirements and the limitation of Section
167.”
19. The Supreme Court has authoritatively propounded the scope
and interplay between sections 167, 309 (2) and 173 (8) of the
Code by observing that even after taking cognizance of an offence,
the Court can authorize detention of an accused in police custody
arrested during further investigation. The emphasis was on the
words “accused if in custody” in section 309 (2) which, according
to the Supreme Court, does not refer to a person who is arrested in
course of further investigation. Remand and custody referred in the
first proviso to section 309 relates to post cognizance stage and can
only be to judicial custody.
20. In order to reinforce his argument, Mr. Ponda has pressed
into service a recent decision of the Supreme Court in case of
Satender Kumar Antil Vs. Central Bureau of Investigation and
another,9. Paragraph 39 is reproduced below;
39. Section 167 (2) was introduced in the year
1978 giving emphasis to the maximum period of
time to complete the investigation. This provision
9 (2022) 10 Supreme Court Cases 51
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has got laudable object behind it, which is to ensure
an expeditious investigation and a fair trial, and to
set down a rationalised procedure that protects the
interests of the indigent sections of society. This is
also another limb of Article 21. Presumption of
innocence is also inbuilt in this provision. An
investigating agency has to expedite the process of
investigation as a suspect is languishing under
incarceration. Thus, a duty is enjoined upon the
investigating agency to complete the investigation
within the time prescribed and a failure would
enable the release of the accused. The right
enshrined is an absolute and indefeasible one,
inuring to the benefit of suspect”.
21. The Supreme Court, while elucidating the scope of section
167 (2) has succinctly made following observations in paragraph 40
and 41 which read as under;
“40. Such a right cannot be taken away even during any
unforeseen circumstances, such as the recent pandemic, as
held by this court in M. Ravindran v. Directorate of Revenue
Intelligence, (2021) 2 SCC 485: (SCC pp.502-06, para 17)“II. Section 167(2) and the Fundamental Right to Life and
Personal Liberty
17. Before we proceed to expand upon the parameters of
the right to default bail under Section 167(2) as
interpreted by various decisions of this Court, we find it
pertinent to note the observations made by this Court in
Uday Mohanlal Acharya [Uday Mohanlal Acharya v. State
of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760]
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p. 472, para 13)“13. … Personal liberty is one of the cherished objects
of the Indian Constitution and deprivation of the
same can only be in accordance with law and in
conformity with the provisions thereof, as stipulated
under Article 21 of the Constitution. When the law
provides that the Magistrate could authorise the
detention of the accused in custody up to a maximum
period as indicated in the proviso to sub-section (2)
of Section 167, any further detention beyond the
period without filing of a challan by the investigating
agency would be a subterfuge and would not be in
accordance with law and in conformity with the
provisions of the Criminal Procedure Code, and as
such, could be violative of Article 21 of the
Constitution.”
“17.1. Article 21 of the Constitution of India provides
that “no person shall be deprived of his life or personal
liberty except according to procedure established by law”.
It has been settled by a Constitution Bench of this Court
in Maneka Gandhi v. Union of India, (1978) 1 SCC 248,
that such a procedure cannot be arbitrary, unfair or
unreasonable. The history of the enactment of Section
167(2), Cr.P.C. and the safeguard of “default bail”
contained in the Proviso thereto is intrinsically linked to
Article 21 and is nothing but a legislative exposition of
the constitutional safeguard that no person shall be
detained except in accordance with rule of law.
17.2. Under Section 167 of the Code of Criminal
Procedure, 1898 (‘1898 Code’) which was in force prior
to the enactment of the Cr.P.C, the maximum period for
which an accused could be remanded to custody, either
police or judicial, was 15 days. However, since it was24 of 37
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within 15 days, a practice arose wherein investigating
officers would file “preliminary chargesheets” after the
expiry of the remand period. The State would then
request the Magistrate to postpone commencement of the
trial and authorize further remand of the accused under
Section 344 of the 1898 Code till the time the
investigation was completed and the final chargesheet was
filed. The Law Commission of India in Report No. 14 on
Reforms of the Judicial Administration (Vol. II, 1948,
pages 758-760) pointed out that in many cases the
accused were languishing for several months in custody
without any final report being filed before the Courts. It
was also pointed out that there was conflict in judicial
opinion as to whether the Magistrate was bound to
release the accused if the police report was not filed
within 15 days.
17.3. Hence the Law Commission in Report No. 14
recommended the need for an appropriate provision
specifically providing for continued remand after the
expiry of 15 days, in a manner that ‘while meeting the
needs of a full and proper investigation in cases of serious
crime, will still safeguard the liberty of the person of the
individual’. Further, that the legislature should prescribe
a maximum time period beyond which no accused could
be detained without filing of the police report before the
Magistrate. It was pointed out that in England, even a
person accused of grave offences such as treason could
not be indefinitely detained in prison till commencement
of the trial.
17.4. The suggestion made in Report No. 14 was
reiterated by the Law Commission in Report No. 41 on
The Code of Criminal Procedure, 1898 (Vol. I, 1969, pp.
76-77). The Law Commission re-emphasised the need to25 of 37
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by filing “preliminary reports” for remanding the accused
beyond the statutory period prescribed under Section
167. It was pointed out that this could lead to serious
abuse wherein ‘the arrested person can in this manner be
kept in custody indefinitely while the investigation can go
on in a leisurely manner’. Hence the Commission
recommended fixing of a maximum time- limit of 60 days
for remand. The Commission considered the reservation
expressed earlier in Report No. 37 that such an extension
may result in the 60-day period becoming a matter of
routine. However, faith was expressed that proper
supervision by the superior courts would help circumvent
the same.
17.5. The suggestions made in Report No. 41 were taken
note of and incorporated by the Central Government
while drafting the Code of Criminal Procedure Bill in
1970. Ultimately, the 1898 Code was replaced by the
present Cr.PC. The Statement of Objects and Reasons of
the Cr PC provides that the Government took the
following important considerations into account while
evaluating the recommendations of the Law Commission:
‘3. The recommendations of the
Commission were examined carefully by
the Government, keeping in view, among
others, the following basic considerations:
(i) an accused person should get a fair trial
in accordance with the accepted principles
of natural justice;
(ii) every effort should be made to avoid
delay in investigation and trial which is
harmful not only to the individuals involved
but also to society; and26 of 37
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(iii) the procedure should not be
complicated and should, to the utmost
extent possible, ensure fair deal to the
poorer sections of the community.’17.6. It was in this backdrop that Section 167(2) was
enacted within the present day Cr PC providing for time-
limits on the period of remand of the accused,
proportionate to the seriousness of the offence
committed, failing which the accused acquires the
indefeasible right to bail. As is evident from the
recommendations of the Law Commission mentioned
supra, the intent of the legislature was to balance the need
for sufficient time-limits to complete the investigation
with the need to protect the civil liberties of the accused.
Section 167(2) provides for a clear mandate that the
investigative agency must collect the required evidence
within the prescribed time period, failing which the
accused can no longer be detained. This ensures that the
investigating officers are compelled to act swiftly and
efficiently without misusing the prospect of further
remand. This also ensures that the court takes cognizance
of the case without any undue delay from the date of
giving information of the offence, so that society at large
does not lose faith and develop cynicism towards the
criminal justice system.
17.7. Therefore, as mentioned supra, Section 167(2) is
integrally linked to the constitutional commitment under
Article 21 promising protection of life and personal
liberty against unlawful and arbitrary detention, and must
be interpreted in a manner which serves this purpose. In
this regard we find it useful to refer to the decision of the
three – Judge Bench of this Court in Rakesh Kumar Paul v.
State of Assam, (2017) 15 SCC 67, which laid down
certain seminal principles as to the interpretation of
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Section 167(2) CrPC though the questions of law
involved were somewhat different from the present case.
The questions before the three – Judge Bench in Rakesh
Kumar Paul were whether, firstly, the 90 day remand
extension under Section 167(2)(a)(i) would be applicable
in respect of offences where the maximum period of
imprisonment was 10 years, though the minimum period
was less than 10 years. Secondly, whether the application
for bail filed by the accused could be construed as an
application for default bail, even though the expiry of the
statutory period under Section 167(2) had not been
specifically pleaded as a ground for bail. The majority
opinion held that the 90 day limit is only available in
respect of offences where a minimum ten year’s
imprisonment period is stipulated, and that the oral
arguments for default bail made by the counsel for the
accused before the High Court would suffice in lieu of a
written application. This was based on the reasoning that
the Court should not be too technical in matters of
personal liberty. Madan B. Lokur, J. in his majority
opinion, pertinently observed as follows: (SCC pp.95-
96&99, paras 29,32 & 41)
“29. Notwithstanding this, the basic legislative
intent of completing investigations within twenty
four hours and also within an otherwise time –
bound period remains unchanged, even though
that period has been extended over the years.
This is an indication that in addition to giving
adequate time to complete investigations, the
legislature has also and always put a premium on
personal liberty and has always felt that it would
be unfair to an accused to remain in custody for a
prolonged or indefinite period. It is for this
reason and also to hold the investigating agency
accountable that time-limits have been laid down
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by the legislature….
* * *
32…Such views and opinions over a prolonged
period have prompted the legislature for more
than a century to ensure expeditious conclusion
of investigations so that an accused person is not
unnecessarily deprived of his or her personal
liberty by remaining in prolonged custody for an
offence that he or she might not even have
committed. In our opinion, the entire debate
before us must also be looked at from the point of
view of expeditious conclusion of investigations
and from the angle of personal liberty and not
from a purely dictionary or textual perspective as
canvassed by the learned counsel for the State.
* * *
41. We take this view keeping in mind that in
matters of personal liberty and Article 21 of the
Constitution, it is not always advisable to be
formalistic or technical. The history of the
personal liberty jurisprudence of this Court and
other constitutional courts includes petitions for a
writ of habeas corpus and for other writs being
entertained even on the basis of a letter addressed
to the Chief Justice or the Court.”
(emphasis supplied)
Therefore, the Courts cannot adopt a rigid or
formalistic approach whilst considering any issue
that touches upon the rights contained in Article 21.
17.8. We may also refer with benefit to the recent
judgment of this Court in S. Kasi v. State (2021) 12
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SCC 1, wherein it was observed that the indefeasible
right to default bail under Section 167 (2) is an
integral part of the right to personal liberty under
Article 21, and the said right to bail cannot be
suspended even during a pandemic situation as is
prevailing currently. It was emphasised that 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.
17.9. Additionally, it is well-settled that in case of
any ambiguity in the construction of a penal statute,
the courts must favour the interpretation which
leans towards protecting the rights of the accused,
given the ubiquitous power disparity between the
individual accused and the State machinery. This is
applicable not only in the case of substantive penal
statutes but also in the case of procedures providing
for the curtailment of the liberty of the accused.
17.10. With respect to the Cr.P.C. particularly, the
Statement of Objects and Reasons (supra) is an
important aid of construction. Section 167(2) has to
be interpreted keeping in mind the three fold
objectives expressed by the legislature, namely,
ensuring a fair trial, expeditious investigation and
trial, and setting down a rationalized procedure that
protects the interests of indigent sections of society.
These objects are nothing but subsets of the
overarching fundamental right guaranteed under
Article 21.
17.11. Hence, it is from the perspective of upholding
the fundamental right to life and personal liberty
under Article 21 that we shall clarify and reconcile
the various judicial interpretations of Section 167(2)
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for the purpose of resolving the dilemma that has
arisen in the present case.
(emphasis in original and supplied)
41. As a consequence of the right flowing from the said
provision, courts will have to give due effect to it, and thus any
detention beyond this period would certainly be illegal, being an
affront to the liberty of the person concerned. Therefore, it is
not only the duty of the investigating agency but also the courts
to see to it that an accused gets the benefit of Section 167 (2).”
22. In the case of Pradeep Ram Vs. State of Jharkhand (supra),
the Supreme Court reiterated that even after taking cognizance
when an accused is subsequently arrested during further
investigation, he can be remanded under section 167 (2) of the
Code. On the contrary, when cognizance has been taken and the
accused was in custody at the time of taking cognizance or when
inquiry or trial was being held in respect of him, he can be
remanded to judicial custody only under section 309 (2) of the
Code. The relevant paragraphs of the said decision are reproduced
herein below;
“64. After having noticed, the relevant provisions of Section
167(2) and Section 309 Cr.P.C and law laid down by this
Court, we arrive at the following conclusions:
64.1. The accused can be remanded under Section 167(2)
Cr.P.C during investigation till cognizance has not been taken
by the Court.
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subsequently arrested during further investigation, the accused
can be remanded under Section 167(2) Cr.P.C.
64.3. When cognizance has been taken and the accused was in
custody at the time of taking cognizance or when inquiry or
trial was being held in respect of him, he can be remanded to
judicial custody only under Section 309(2) Cr.P.C.”
23. The Supreme Court in case of Pradeep Ram Vs. State of
Jharkhand (supra) has referred a three Judge bench judgment in the
case of State through CBI Vs. Dawood Ibrahim Kaskar and others
(supra). It is thus clear that section 309 (2) of the Code does not
refer to an accused who is subsequently arrested in course of further
investigation. It has been clearly held that even after cognizance is
taken of an offence, the police has a power to investigate into it
further and there is no reason whatsoever why the provisions of
Section 167 thereof would not apply to a person who comes to be
later arrested by the police in course of such investigation.
24. Last but not the least is the decision in the case of Dinesh
Dalmia Vs. CBI (supra), wherein the Supreme Court having
meticulously surveyed the earlier decisions in case of State through
CBI Vs. Dawood Ibrahim Kaskar and others (supra) and C.B.I Vs.
Anupam Kulkarni (supra) enunciated the scope and applicability of
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section 167 (2) and 309 (2) of the Code as well as preconditions for
availability and effect of filing of charge-sheet while the accused was
absconding and yet to be arrested. It would be advantageous to refer
the relevant paragraphs which read as under:
“19. A charge sheet is a final report within the
meaning of sub-section (2) of Section 173 of the
Code. It is filed so as to enable the court concerned
to apply its mind as to whether cognizance of the
offence thereupon should be taken or not. The
report is ordinarily filed in the form prescribed
therefor. One of the requirements for submission of
a police report is whether any offence appears to
have been committed and, if so, by whom. In some
cases, the accused having not been arrested, the
investigation against him may not be complete.
There may not be sufficient material for arriving at
a decision that the absconding accused is also a
person by whom the offence appears to have been
committed. If the investigating officer finds
sufficient evidence even against such an accused
who had been absconding, in our opinion, law does
not require that filing of the charge-sheet must
await the arrest of the accused.
20. Indisputably, the power of the investigating
officer to make a prayer for making further
investigation in terms of Sub-section (8) of Section
173 is not taken away only because a charge sheet
under Sub-section (2) thereof has been filed. A
further investigation is permissible even if order of
cognizance of offence has been taken by the
Magistrate.
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24. Concededly, the investigating agency is
required to complete investigation within a
reasonable time. The ideal period therefor would
be 24 hours, but, in some cases, it may not be
practically possible to do so. Parliament, therefore,
thought it fit that remand of the accused can be
sought for in the event investigation is not
completed within 60 or 90 days, as the case may
be. But, if the same is not done with the stipulated
period, the same would not be detrimental to the
accused and, thus, he, on the expiry thereof would
be entitled to apply for bail, subject to fulfilling the
conditions prescribed therefor.
25. Such a right of bail although is a valuable
right but the same is a conditional one; the
condition precedent being pendency of the
investigation. Whether an investigation in fact has
remained pending and the investigating officer has
submitted the charge-sheet only with a view to
curtail the right of the accused would essentially
be a question of fact. Such a question strictly does
not arise in this case inasmuch as, according to the
CBI, sufficient materials are already available for
prosecution of the appellant. According to it,
further investigation would be inter alia necessary
on certain vital points including end use of the
funds.
38. It is a well-settled principle of interpretation of
statute that it is to be read in its entirety.
Construction of a statute should be made in a
manner so as to give effect to all the provisions
thereof. Remand of an accused is contemplated by
the Parliament at two stages; pre-cognizance and
post-cognizance. Even in the same case, depending
upon the nature of charge-sheet filed by the
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investigating officer in terms of Section 173 of the
Code, a cognizance may be taken as against the
person against whom an offence is said to have
been made out and against whom no such offence
has been made out even when investigation is
pending. So long a charge sheet is not filed within
the meaning of Sub-section (2) of Section 173 of
the Code, investigation remains pending. It,
however, does not preclude an investigating officer,
as noticed hereinbefore, to carry on further
investigation despite filing of a police report, in
terms of Sub-section (8) of Section 173 of the
Code.
39. The statutory scheme does not lead to a
conclusion in regard to an investigation leading to
filing of final form under Sub-section (2) of Section
173 and further investigation contemplated under
Sub-section (8) thereof. Whereas only when a
charge-sheet is not filed and investigation is kept
pending, benefit of proviso appended to Sub-
section (2) of Section 167 of the Code would be
available to an offender; once, however, a charge-
sheet is filed, the said right ceases. Such a right
does not revive only because a further investigation
remains pending within the meaning of Sub-section
(8) of Section 173 of the Code”.
25. Turning back to the facts of the case at hand, when the
charge-sheet was filed on 15th September, 2018, the petitioner was
neither in custody nor any inquiry or trial had commenced, albeit
he was shown as an absconder, till the time he came to be arrested
on 28th August, 2021. In light of the aforesaid facts, indefeasible
right of the petitioner will have to be viewed in context of the spirit
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and the legislative mandate upholding fundamental right to life and
personal liberty enshrined in Article 21 as has been authoritatively
assimilated by various decisions of the Supreme Court discussed
hereinbefore, more particularly, in cases of M. Ravindran (supra),
State through C.B.I Vs. Dawood Ibrahim Kaskar (supra), Dinesh
Dalmia Vs. CBI (supra) and Satender Kumar Antil Vs. Central
Bureau of Investigation and another (supra).
26. Having juxtaposed the decisions of two learned Single Judges
of this Court in cases of Pankaj (supra) and Anil Nagpal (supra), we,
in light of the discussion made hereinabove hold that the decision in
case of Pankaj (supra) is appropriate and felicitous with the object of
Section 167 (2) of the Code. The decision in the case of Anil
Nagpal (supra) rendered by another Single Judge of this Court is
incongruous, which is neither in consonance with the object of
section 167 (2) of the Code nor in conformity with the views of the
Supreme Court as enunciated hereinabove.
27. Last but not the least, it cannot be said that there is cleavage
of judicial opinion in the aforesaid two decisions, in the sense, there
was no occasion to notice, consider and explain the view taken by
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another Single Judge in case of Anil Nagpal (supra), albeit, these
two decisions, though antipodal, yet the decision in the case of
Pankaj (supra), in our humble opinion, is in consonance with the
decisions and the law propounded by the Supreme Court in the
aforesaid decisions.
28. Corollary of the aforesaid deliberation made hereinabove is
that the decision in case of Pankaj (supra) would prevail. As such,
the reference is answered accordingly.
29. Before parting with the judgment, we record our candour
appreciation for the able assistance rendered by Mr. Ponda, the
learned Senior Counsel and Mr. Venegavkar, the learned Special
Public Prosecutor.
30. In view of the answer to the reference, Registry is directed to
now place the matter before the appropriate Bench dealing with the
said assignment.
[PRITHVIRAJ K. CHAVAN, J.] [REVATI MOHITE DERE, J.]
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