OVERVIEW
The proviso to sub-section (2) of Section 167 Code of Criminal Procedure, 1973 (“CrPC “),titled “Procedure when investigation cannot be completed in twenty-four hours”, provides that an accused shall be entitled to “default bail” if the investigation is not complete within 60 (sixty) or 90 (ninety) days – depending on the prescribed punishment for the offence. However, if a chargesheet is filed in this duration, then default bail cannot be granted.
In recent judgements in Ritu Chhabaria v Union of India & Ors.(“Ritu Chhabaria”)[1]and CBI v Kapil Wadhwan and Anr.(“Kapil Wadhwan”),[2]the Hon’ble Supreme Court of India has seemingly taken divergent views on the grant of “default bail” to an accused, even though investigation may be pending.
In Ritu Chhabaria,the Court held that without completing the investigation, a chargesheet cannot be filed merely to deprive the accused of the right to “default bail”.
In Kapil Wadhwan,however, the Court held that as long as the chargesheet/report discloses the material requirements under Section 173(2) (inter aliaincluding whether an offence appears to be committed, persons involved, persons familiar with the circumstances etc.), the pendency of the investigation against certain other accused persons would not be grounds to grant “default bail”.
In the present article, we analyse these seemingly contrasting positions.
ANALYSIS
Background of Section 167(2) CrPC
For a nuanced understanding of the present issue, it would be pertinent to briefly trace the history leading to enactment of the Section 167 of the CrPC.
Under the earlier statute – the Code of Criminal Procedure, 1898 – Section 167 provided for remand of only 15 (fifteen) days to complete the investigation, which often proved insufficient. To give this a go-by, there was a widespread practice of investigating officers filing a “preliminary” chargesheet and requesting the magistrate to remand the accused further (under Section 344), until a final chargesheet could be filed.
Resultantly, the accused was kept in remand for far longer than the prescribed period – in a circuitous manner. The accused’s right to a speedy trial was further impacted because of being subjected to remand beyond 15 days – the maximum period provided for completion of investigation. The trial, too, was also postponed as the investigation was still pending.
To remedy this, under the present CrPC, the maximum period of remand was extended to 60/90 days, with the provision of “default bail” thereafter. The intent was to balance the interests of the investigation, provide investigating authorities with a more reasonable time frame to investigate, and protect the rights and liberty of the accused by providing the safeguard of “default bail”, should the agencies fail to complete the investigation in this extended time.
Present scenario
This practice of filing a preliminary chargesheet within this 60/90-day period, followed by a “supplementary” chargesheet, seemingly continues even to this day. Parallelly, while the investigation continues, the investigating agencies also seek postponement of the trail and remand of the accused under sub-section 2 of Section 309 of the CrPC titled “Power to postpone or adjourn proceedings”.
Thus, filing of only a preliminary chargesheet may lead to:
- the accused person’s right to default bail being defeated.
- the accused person’s remand being continued (under Section 309(2)).
- the trial of the accused person getting delayed.
The judgments in Ritu Chhabaria and Kapil Wadhwan are to be considered against this backdrop.
Judgment in Ritu Chhabaria
The wife of an accused had preferred a criminal writ petition under Article 32 of the Constitution of India.
The contention was that the accused had been arrested and denied default bail based on a “supplementary” chargesheet, which stated that the investigation was still ongoing.
In its judgment, the Hon’ble Supreme Court held:
- Section 167 prescribes a maximum time period beyond which a person cannot be remanded for the purpose of investigation.
- Without completing investigation, a chargesheet cannot be filed only to defeat the accused’s right to default bail.
- Such a chargesheet without completing the investigation, even if filed, would not defeat the accused’s right to default bail.
- In such situations, the trial court cannot remand a person beyond maximum prescribed period.
In Ritu Chhabaria, the Courtrelied on the pendency of the investigation as the ground for holding that the chargesheet filed in the case did not meet the threshold of Section 167(2) and could not be used as a ground to deny “default bail”.
Thus, the Court laid down that a chargesheet filed on an incomplete investigation could not be the basis to deny “default bail” to the accused.
Judgment in Kapil Wadhwan
The CBI had filed an appeal against a judgement passed by the Hon’ble Delhi High Court that upheld the Ld. Trial Court’s decision to grant “default bail” to certain accused persons (the respondents in the appeal).
The Ld. Trial Court, despite taking cognizance of the offence had granted “default bail”, noting that the investigation was pending qua some of the other accused persons (not the respondents in the appeal) and that the chargesheet was being filed piecemeal.
In this background, the Hon’ble Supreme Court, while tracing the precedents on the issue held as follows:
- The report/chargesheet under Section 173(2) is an intimation to the magistrate that upon investigation, there is sufficient evidence for the court to enquire into the offence (K Veeraswami v Union of India[3]).
- Not necessary that all details of offence must be stated in report/chargesheet. Requirement of Section 173(2) is complied with once details mentioned therein (inter alia including whether an offence was committed, persons acquainted with facts around the case, persons involved, whether an arrests have been made etc.). are included in report/chargesheet (K Veeraswami v Union of India[4]).
- Not every document/information related to the case is to be placed at the time of filing the chargesheet-chargesheet does not get vitiated on this account (Dinesh Dalmia v CBI[5]).
- The court takes cognizance of the offence and not the offender (Anil Saran v State of Bihar[6]).
- Once court is satisfied on materials produced along with the chargesheet and cognizance is taken, it does not matter if further investigation is pending.
Accordingly, the Hon’ble Supreme Court held that mere pendency of an investigation against other accused would not impugn the chargesheet filed or be a ground for granting default bail, as long as the conditions of Section 173(2) were met and the chargesheet was filed in time.
It may be noted that in Kapil Wadhwan, the Hon’ble Supreme Court has not answered/dealt with the question whether the accused should be granted default bail in a scenario where a chargesheet is filed against an accused, but the investigation against the said accused is pending.
Subsequent developments
The Hon’ble Supreme Court has stayed the judgment in Ritu Chhabaria,and a review of the said judgment is being filed. Orders dated May 1, 2023, and May 12, 2023,[7] reflect this position – the Hon’ble Supreme Court was pleased to stay the judgment and pass further directions for courts to consider the grant of “default bail” without reference to the judgment in Ritu Chhabaria.
CONCLUSION
The intent behind “default bail” under Section 167(2) CrPC is to give impetus to speedy investigations and protection of the rights of the accused should the investigating authorities drag their feet. The investigating authorities cannot be permitted to deprive the accused of personal liberty by securing remand while also making no headway in the investigation into the commission of the offence. Thus, undeniably, there is a need to ensure that the benefits of Section 167(2) do infact accrue to the accused, should the investigation remain incomplete within the stipulated time. An accused should not be deprived of such benefits merely based on a “preliminary” chargesheet that was filed as a formality and does not disclose the commission of an offence.
Equally, an investigation may not immediately reveal the full extent of the offence, but a “preliminary chargesheet” may disclose the commission of a cognizable offence, which the relevant court can take cognizance of and set in motion the criminal process.
Therefore, courts could consider whether the chargesheet filed within the 60/90-day period serves its intended purpose, i.e., adheres to the requirements of Section 173(2) and presents sufficient (if not fully complete) materials for the magistrate to determine whether to take cognizance of the offence.
If an offence is disclosed and cognizance is taken, the issue of default bail no longer survives and the grant of bail ought to be subject to the regular provisions.
The judgment in Ritu Chhabaria laid down a blanket proposition that a chargesheet cannot be filed without completing the investigation – without reference to the purpose of a chargesheet – merely on the ground that the investigation was still pending.
In a similar situation in Kapil Wadhwan,however, the Hon’ble Supreme Court considered the necessary requirements of the “chargesheet”. Since such requirements were met and the chargesheet was filed within the relevant 60/90-day period, no “default bail” could be granted.
Hence, in the matter of “default bail”, rather than solely considering whether the investigation is entirely complete, the key considerations ought to be whether:
- The chargesheet is filed in the prescribed 60/90-day time period and
- materials produced with the chargesheet disclose the commission of an offence.
- materials produced with the chargesheet are sufficient by themselves for the court to take cognizance under the applicable section.
“Default bail” may not be granted if these conditions are met.
For further information, please contact:
Kapil Arora ,Partner, Cyril Amarchand Mangaldas
kapil.arora@cyrilshroff.com
[1] Writ Petition (Criminal) No. 60 of 2023
[2] 2024 SCC OnLine SC 66
[3] (1991) 3 SCC 655
[4] Supra
[5] (2007) 8 SCC 770
[6] (1995) 6 SCC 142
[7] SLP (Criminal) No. 5724/2023
