The right to default bail is indefeasible right and it cannot be diluted by filing of subsequent complaint

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M. Ravindran v. The Intelligence Officer, Directorate of Revenue Intelligence

Criminal Appeal No. 699 OF 2020 (arising out of S.L.P. (Criminal) No. 2333 of 2020) decided on 26.10.2020

Bench: Uday Umesh Lalit, Mohan M. Shantanagoudar, Vineet Saran, JJ.

Facts: The Appellant was arrested and remanded to judicial custody on 04.08.2018 for the alleged offence punishable under Section 8(c) read with Sections 22(c), 23(c), 25A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’). After completion of 180 days from the remand date, that is, on 31.01.2019, the Appellant filed application for bail (‘default bail’) under Section 167(2) of the Code of Criminal Procedure, 1973 (‘CrPC’) on 01.02.2019 before the Special Court for Exclusive Trial of Cases under the NDPS Act, Chennai (‘Trial Court’) on the ground that the investigation was not complete and chargesheet had not yet been filed. During the course of hearing of the bail application and after completion of the arguments of the counsel for the Appellant, the Respondent/complainant filed an additional complaint against the Appellant at 4:25 p.m. on 01.02.2019 and sought for dismissal of the bail petition on the said basis. However, on 05.02.2019, the Trial Court granted the order of bail on the ground that the Court has no power to intervene with the indefeasible right of the Appellant conferred on him by the legislative mandate of Section 167(2).

The Respondent/complainant before the High Court of Judicature at Madras praying to cancel the bail of the Appellant. The High Court, by the impugned judgment, allowed the said appeal and consequently cancelled the order of bail granted by the Trial Court on the ground that the additional complaint was filed on 01.02.2019 itself and since the application for bail under Section 167(2) of CrPC was not disposed of by the time the additional complaint was filed, the Appellant could not take advantage of the fact that he had filed his bail petition prior in time. The High Court further reasoned that the Court of Session conducts work from the time it sits till the time it rises and hence the Appellant could not avail of any specific benefit for having filed the application at 10:30 a.m. inasmuch as the additional complaint was lodged during the course of hearing of the bail application, before the Court rose for the day. Being aggrieved, the Appellant approached this Supreme Court.



Whether the indefeasible right accruing to the appellant under Section 167(2), CrPC gets extinguished by subsequent filing of an additional complaint by the investigating agency;


The Supreme Court questioned the judgment of the High Court and granted bail to appellant. The Hon’ble Court emphasized on the aspect of the legislative intent and observed that the paramount consideration of the legislature while enacting Section 167(2) and the Proviso thereto was that the investigation must be completed expeditiously, and that the accused should not be detained for an unreasonably long period as was the situation prevailing under the 1898,Code. This would be in consonance with the obligation cast upon the State under Article 21 to follow a fair, just and reasonable procedure prior to depriving any person of his personal liberty.

The Court applying the aforementioned principles, said that the Appellant-accused was deemed to have availed of his indefeasible right to bail, the moment he filed an application for being released on bail and offered to abide by the terms and conditions of the bail order, i.e. at 10:30 a.m. on 01.02.2019. He was entitled to be released on bail notwithstanding the subsequent filing of an additional complaint.

The Supreme Court said that the State/the investigating agency has, in order to defeat the indefeasible right of the accused to be released on bail, filed an additional complaint before the concerned court subsequent to the conclusion of the arguments of the Appellant on the bail application. If such a practice is allowed, the right under Section 167(2) would be rendered nugatory as the investigating officers could drag their heels till the time the accused exercises his right and conveniently files an additional complaint including the name of the accused as soon as the application for bail is taken up for disposal. Such complaint may be on flimsy grounds or motivated merely to keep the accused detained in custody, though we refrain from commenting on the merits of the additional complaint in the present case. Irrespective of the seriousness of the offence and the reliability of the evidence available, filing additional complaints merely to circumvent the application for default bail is, in our view, an improper strategy.

Hence, Supreme Court said that the High Court was not justified in setting aside the judgment and order of the Trial Court.

View of Supreme Court on Default Bail

The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.

 However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC.

Notwithstanding the order of default bail passed by the Court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the Court, his continued detention in custody is valid.

Hence the impugned judgment of the High Court stands set aside and the Trial Court judgment stands confirmed.


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