Later filing of indictment cannot nullify unassailable right of accused who requested ‘bail by default’: Allahabad High Court

The Allahabad High Court observed that a defendant has an irrevocable right to “bail by default” if he applies for it after the maximum period for investigating an offense has expired and before the filing of a indictment.

This assertion came from the bench of Judge Syed Aftab Husain Rizvi which ruled that a defendant has an irrevocable right to “default bail” under s. 167(2) Cr.PC if the indictment is not filed within the stipulated time.

Essentially, a murder defendant had requested default bail under s. 167(2) Cr.PC on November 25, 2021, after the completion of 90 days on November 24, 2021, from the first date of remand, the investigator having failed to file a police report under s. 173(2) 2 Cr.PC against him.

Now, the Chief Judicial Magistrate has issued an order and called for a Supplemental Attorney General’s Report on November 25, 2021. Until then, the indictment had not been filed.

In accordance with the Court’s order, the Public Prosecutor presented his report. Subsequently, a second report was submitted and in the meantime an indictment was filed as well, the Court rejected his default bail plea.

Disputing the same, the accused went to the High Court claiming that he exercised his right to bail before the indictment was filed and regardless that an order was rendered on the aforementioned request or not.

Court’s observations

Initially, the bench referred to a three-judge Supreme Court judgment in Bikramjit Singh Vs. State of Punjab, 2020 (10) SCC 616, in which it was held that the right of the accused under Section 167(2) arises if the indictment has not been filed by the prosecution within the stipulated time so indicated under Section 167(1).

In other words, in the Bikramjit Singh case (Supra)the Supreme Court had observed that the accused has an irrevocable right to “release on bail by default” if he applies for it after the expiry of the maximum period for the investigation of an offense and before the deposit of an indictment.

The right to lack of surety, Judge RF Nariman said the bench directed, is a fundamental right afforded to a defendant to be released on bail once the conditions of the first proviso of section 167(2) are met.

Also in The case of Bikramjit Singhit has also been observed that even if the application for review of a bail order is posted in court after some time, or even if the Magistrate refuses the application by mistake and the accused address to the higher court for a formal order to be released on bail in application of his imprescriptible right, the filing of a challan at this stage will not take away the right of the accused.

Now, in the context of Bikramjit Singh Stopthe High Court held that as long as an application for default bail is made on the expiry of the 90 day period (which application need not even be in writing) before an act of charge is laid, the right to default bail becomes complete.

“It matters little that the correctional court either does not rule on this request before the indictment is filed, or wrongly rules on this request before the indictment is filed. As long as a default bail application has been filed at the expiration of the stated period before the time period is extended to the maximum period of 180 days, the default bail being an imprescriptible right of the accused under the first conditional clause of Article 167(2) , comes into play and must be granted“, judged the Court.

From the above discussion, the Court affirmed that it was clear that the indictment in this case was submitted after the statutory 90-day time limit and that before the filing of the indictment , the accused had applied for bail.

The subsequent filing of the indictment will not cancel the imprescriptible right acquired by the accused plaintiff. The learned magistrate did not appreciate the facts and the law on the point and the order passed by the learned magistrate is contrary to the law.

In view of the foregoing, the request was successful and was therefore granted. As a result, the contested order of 25.11.2021 passed by the Chief Judicial Magistrate, Prayagraj was thus quashed and his default bail application was granted.

Case title – Anwar Ali c. State of UP and another [APPLICATION U/s 482 No. – 29733 of 2021]

Quote: 2022 LiveLaw (AB) 307

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