5. The learned counsel for the petitioners submitted that the right under Section 167(2) Cr.P.C is an indefeasible right and once accrued and availed it will not get extinguished for the failure of the accused by not furnishing surety.
6. Per contra, the Learned Government Advocate appearing for the State submitted that, the right which get accrued by default of the investigation cannot sustain endlessly. Once the challan filed and the stage is set for trial, the accused by his own default lost the advantage of Section 167(2) Cr.P.C. The decision of the Division Bench of the High Court is binding on the trial Court and same cannot be ignored. The Learned Single Judge had distinguished the facts of the Punekkar Seetharaman Dikule case, he decided from the facts of the case decided by the Division Bench in Kannan case.
7. Section 167(2) Cr.P.C had been under the judicial scanner on different occasions and on different context. One can easily find enough decisions and literatures about this provision. The broad understanding of this Section and uncontraverted basic feature are:-
(a)The right under this Section is interrelated to the completion of the investigation.
(b)The right is independent to the nature of the crime or the merit of the case under investigation.
(c)The right to seek default bail commences on the expiry of the period prescribed for completion of investigation. ( 60 days/90 days or 180 days as the case may be).
8. Instance like the present, there are cases where the accused after availing the default bail provision and get bail order but for some reason could not furnish surety. Before he could arrange for surety, the investigation may get completed and challan filed and taken on file. The Hon’ble Supreme Court had occasions to deal with such circumstances and had laid down how the right accrued under Section 167(2) CrPC construed to be availed and when such right gets extinguished.
9. To begin with, it is first necessary to understand what bail means and how default bail under Section 167 (2) Cr.P.C. differs from a regular bail granted under Sections 437 or 439 of Cr.P.C.
10. In the Criminal Procedure Code, Chapter XXXIII deals with Bails and Bail bonds. In the Code, offences are broadly classified as Bailable offences and Non-bailable offences. Whether bailable offence or non bailable offences, any person arrested or detained, the Court may release him on bail, with or without surety obtaining bail bond and imposing condition. The process of seeking bail commence on filing petition for bail and gets completed and reach the logical end on acceptance of surety by the Court.
11. Apart from the provisions under Chapter XXXIII of the Code, yet another provision which gives right to an arrested person to get release is Section 167(2). It is a right which blossom into a fundamental right, if the investigation agency, which arrest a person and detains him in prison, not able to complete the investigation within the time limit prescribed under the Criminal Code or the time limit fixed in the respective Special Act. The accused arrest gets a special reason to seek bail under Section 167(2) of Cr.P.C. It is independent of all other reasons for which the arrested person can seek bail under Section 437 or Section 439 of the Criminal Procedure Code.
Reason for enacting section 167(2) Cr.P.C
12. The Courts in India had invariable held that the fundamental right of life and liberty cannot be curtailed perpetually under the guise of investigation. The paramount consideration of the legislature while enacting Section 167(2) Cr.P.C and the proviso thereto was that the investigation must be completed expeditiously and that the accused should not be detained unreasonably for long period. Thus, the law as well as judicial pronouncements are very clear on the point that, the accused arrested on suspicion of a cognizable offence gets right to seek bail on expiry of the period prescribed for completion of investigation. The dispute is whether the investigation if completed, such right will still survive or get extinguished on filing the final report.
13. Earlier two Judge Bench of the Supreme Court in Raghubir Singh and others v. State of Bihar, [(1986) 4 SCC 481] : [1986 SCC (Cri) 511], at page 497 held that:-
“………………”
14. Then in Hitendra Vishnu Thakur v. State of Maharashtra reported in [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087 ]: the Apex Court summarized its conclusion as under:
“……………….”
15. Then, came the Constitutional Bench Judgment in Sajay Dutt vs State reported in (1994 (5) SCC 410). In the case, the decision of Two Judges Bench in Hitendra Vishnu Thakur case came up for reconsideration by the Constitutional Bench, since it was canvassed that Thakur case judgement is being construed by the Designated Courts to mean that the right of the accused to be released on bail in such a situation is indefeasible in the sense that it survives and remains enforceable, without reference to the facts of the case, even after the challan has been filed and the court has no jurisdiction to deny the bail to the accused at any time if there has been a default in completing the investigation within the time allowed.
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24. From the judgments of the Hon’ble Supreme Court referred above, particularly the Constitutional Bench judgment (Sanjay Dutt case) and three Judges Bench judgement (Uday Mohanlal Acharya case) as well the Division Bench judgment of this High Court (Kannan case) read along with the view of the Single Judge in Punaekkar Seetharaman Dikula case, we find one opinion expressed uniformly by all Courts is that the accused, who is entitled for default bail, should ‘avail it’. Meaning, seek for bail under Section 167 of CrPC before filing of Final Report and express his readiness to offer surety. If the prosecution to defeat the said accrued right, even if file the Final Report soon after the bail petition or during the hearing of the bail petition or just before furnishing surety, the right accrued will not extinguish the right gained by the accused. Contrarily, if the accused failed to seek bail, though right to seek default bail accrued but not avail till the filing of the Final Report or after availing bail, fail to furnish surety, within the time prescribed or if time not prescribed, surety not furnished within a reasonable time explaining the reason for not furnishing the surety in time, then the right shall get extinguished on filing of Final Report. The reason for delay in not furnishing the surety must relate to external factors not within the control of the accused.
Reason for delay in furnishing surety not acceptable
25. In the case in hand, the default bail granted to some of the petitioners on 09/03/2023 and others on 13/03/2023. The Final Report was filed on 10/04/2023. The case committed to Sessions Court on 08/06/2023. The memo to furnish surety is filed on and after 27/07/2023. Going through the bail conditions, we find they are not onerous condition difficult to comply. The accused were asked to execute bond for Rs.10,000/- and two surety of likesum. One surety must be a blood relative. No reason stated in the petition, why there was delay of more than 3 months to furnish surety, even after availing the right under Section 167 (2) Cr.P.C. The learned counsels for the petitioners states that there was difficulty in getting a blood relative as surety. The said explanation only goes to show the accused persons are not even trusted by their own kith and kin. The delay therefore on filing of final report and committal to the Court of Sessions extinguish the right accrued. The default of the investigating agency which gave the right to seek compulsive bail got extinguished due to the default of the accused by not furnishing surety, which is an essential procedure to get release from jail.
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Accused may file regular bail
27. The dismissal of the petition shall no way take away the right of the petitioners/accused to seek regular bail. It is made clear that the dismissal of the petitions is purely on the law governing the field of default bail/compulsive bail and not on merits of the individual cases. Consequently, connected Miscellaneous Petitions are closed.
Party
Alex @ Alexpandiyan Now confined in Central Prison Puzhal, Chennai. .. Petitioner /versus/ The State rep.by The Inspector of Police (L&O), Town Police Station, Nagapattinam, (Cr.No.371 of 2022) .. Respondent
https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/1077335
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