The Supreme Court has delivered a landmark judgment on Default Bail

The Supreme Court, by a 2:1 majority, has held that personal liberty plays a role when it comes to interpreting the law related to default bail under Section 167 of the Code of Criminal Procedure (Cr.PC)..The Bench of Justices Madan Lokur, Prafulla C Pant and Deepak Gupta was hearing an SLP filed by former Chairman of the Assam Public Service Commission (APSC) Rakesh Kumar Paul, who was charged under Section 13(1) of the Prevention of Corruption Act, 1988. While Justices Lokur and Gupta were of the opinion that Paul was entitled to default bail, Justice Pant dissented..The facts of the case are that Paul allegedly contacted the complainant and asked her to pay Rs. 10 lakh to him in exchange for recruiting her as a Dental Surgeon in the selection conducted by APSC. An investigation revealed that Paul was involved a conspiracy to recruit people to government services in the state in connivance with others..Paul was eventually arrested and taken into custody on November 5, 2016. On December 20, a Special Judge dismissed his bail application. Subsequently, on January 11 of this year – more than sixty days after his arrest – Paul’s application for regular bail was dismissed by the Gauhati High Court. Though the application did not contain a plea for granting default bail, Paul’s counsel pleaded to the High Court for the same orally..It is pertinent to note that the police only filed their charge sheet on January 24, more than sixty days after taking Paul into custody..Two pivotal issues arose before the three-judge Bench of the Supreme Court: firstly, whether Paul was entitled to default bail after spending sixty days in custody, and secondly, whether he was entitled to default bail in the absence of an application to that effect..The judgment hinged on the interpretation of Section 167(2)(a) of the Cr.PC, which reads thus,.“(a) The Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-.(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;. (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail…”.To make matters more daunting for the present Bench, the apex court had in the past, delivered conflicting judgments on the issue. In Rajeev Chaudhary v. State (NCT) of Delhi, it was held that the expression “not less than ten years” obviously means 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more..However, Bhupinder Singh & Ors. v. Jarnail Singh & Anr contradicted the above, stating that if the offence is punishable with imprisonment for 10 years, whether that be the maximum punishment or minimum punishment, the accused was not entitled to ‘default bail’ prior to 90 days..Appearing for the state of Assam, Senior Advocate Mukul Rohatgi contended that Paul, being charged under Section 13(1) of the PC Act, was liable to face imprisonment of up to ten years, thus allowing the police to keep him in custody for up to ninety days..However, Justice Lokur held,.“While it is true that merely because a minimum sentence is provided for in the statute it does not mean that only the minimum sentence is imposable. Equally, there is also nothing to suggest that only the maximum sentence is imposable.”.Opining that the legislative intent has always been to ensure that investigation is completed in a time-bound manner, Justice Lokur went on to say,.“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…”.On the question of whether written applications were a prerequisite for availing default bail, Justice Lokur listed a number of cases wherein technicalities were done away with in the interest of justice..“…In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for ‘default bail’ or an oral application for ‘default bail’ is of no consequence.”.Justice Pant, however, did not agree with his brother judge..At the outset, Justice Pant shot down petitioner’s counsel Senior Advocate Abhishek Manu Singhvi’s contention that the maximum punishment for the offences for which the chargesheet has been filed against the accused is seven years. He pointed out that the PC Act had been amended by the Lokpal and Lokayuktas Act, 2013 primarily by enhancing the punishments under Section 13(1), among others..His interpretation of Section 167(2)(a) was,.“In my view if the legislature intended to exclude the offences for which the minimum imprisonment was ten years, it could have used the words ‘or imprisonment for a term more than ten years’. Thus the argument that ninety days period does not cover the cases where maximum imposable sentence is ten years cannot be accepted.”.On the second issue, he was of the opinion that the requirement of an application claiming the statutory right under Section 167(2) of the Cr.PC was s a prerequisite for the grant of bail on default..Pant J went one step further and decided that bail could not be granted on merits of the case..“…the fact that further investigation regarding the offence is underway, possibility of tampering evidence and influencing witnesses, I am of the opinion that it is not a fit case for grant of bail at this stage even on merits.”.Justice Deepak Gupta, however, broke the deadlock, siding with Lokur J. He ruled,.“Even if I were to assume that two views are possible and third category envisaged in Section 167(2)(a)(ii) is ambiguous, as suggested by learned brother Pant J., then also I have no doubt in my mind that a statute which curtails the liberty of a person must be read strictly….…If two meanings could be attributed to such a provision then the courts must lean towards liberty and accept that interpretation of the statute, which upholds the liberty of the citizen and which keeps the eternal flame of liberty alive.”.He also differed with Pant J on the second issue..“…once the High Court permitted the counsel for the petitioner to argue the petition on the ground of grant of ‘default bail’ and no objection was raised by the counsel for the State then at this stage it cannot be urged that the petitioner never applied for ‘default bail’ and is not entitled to ‘default bail’…”.Further, he held that lawyers have the duty of informing their clients that they are entitled to default bail..“…it is the duty of the counsel representing the accused whether they are paid counsel or legal aid counsel to inform the accused that on the expiry of the statutory period of 60/90 days, they are entitled to ‘default bail’. In my view, the magistrate should also not encourage wrongful detention and must inform the accused of his right.”.The Court thus held that the petitioner was entitled to be released on default bail and set aside the High Court judgment..Read the judgment: