Default bail under first proviso of Section 167(2) of the Code of Criminal Procedure is a fundamental right and not merely a statutory right, the Supreme Court ruled on Monday (Fakhrey Alam v. State of UP).
Since, liberty is a Constitutional right, time periods were specified in the default of which the accused will have a right to default bail which is a valuable right, the Court said.
Hence, time limit to complete investigation and file chargseheet under Section 167 cannot be extended by seeking to file the supplementary charge sheet with respect to offences under the Unlawful Activities Prevention Act (UAPA), the Court ruled.
“We do not think that the State can take advantage of the fact that in one case there is one charge sheet and supplementary charge sheets are used to extend the time period in this manner by seeking to file the supplementary charge sheet qua the offences under the UAPA Act even beyond the period specified under Section 167 of the Cr.P.C beyond which default bail will be admissible, i.e, the period of 180 days,” the Court said.
Default bail under Section 167 is a procedure established by law under Article 21 of the Constitution. Thus a fundamental right is granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2)of the CrPC are fulfilled, the Court emphasised.
The order was passed by a Bench of Justices Sanjay Kishan Kaul and R Subhas Reddy in an appeal against an order of the Allahabad High Court.
By way of background, the appellant Fakhrey Alam was arrested on March 8, 2017 and was charged for offences under Sections 420,467, 468, 471 and 120-B, IPC and 3/25/30 of the Arms Act and under Section 18 of the UAPA Act, 1967.
The Chief Judicial Magistrate, Lucknow granted a total of 180 days to the police for filing the charge sheet. The police filed charge sheet on September 4, 2017 under all provisions, except under the UAPA Act as it was mandatory to obtain prosecution sanction from the State Government which had not been forthcoming till the date of filing of the charge sheet.
Thereafter, a second charge sheet was filed after obtaining sanction of the State Government on October 5, 2017.
Meanwhile, the accused had filed an application for default bail under Section 167(2), on October 3, 2017, i.e. two days prior to the charge sheet having been filed under the UAPA Act.
The case set up by the appellant accused was that the charge sheet had been filed after 180 days and thus he was entitled to default bail.
The Court, however, opined that what was stated to be a second charge sheet was really a supplementary charge sheet and thus default bail would not be admissible. Thar view was confirmed by the High Court by its order dated November 3, 2020 which was challenged before the Supreme Court.
The apex court noted that the charge sheet under the provisions of law as originally filed on September 4, 2017 was required to be filed within 90 days but was actually filed within 180 days. This was on the premise of the charge under Section 18 of the UAPA Act.
However, no charge sheet was filed even within 180 days under the UAPA Act, but post filing of the application for default bail, it was filed after 211 days.
Thus, undoubtedly the period of 180 days to file the charge sheet qua UAPA Act had elapsed, the Court noted.
State cannot, therefore, use supplementary chargesheets with respect to UAPA offences to extend the deadline prescribed under Section 167 of CrPC.
“That period having expired and the charge sheet not having been filed qua those offences (albeit a supplementary charge sheet), we are of the view the appellant would be entitled to default bail in the aforesaid facts and circumstances,” the order said.