Supreme Court Upholds Default Bail as a Fundamental Right

Supreme Court Upholds Default Bail as a Fundamental Right

The Supreme Court (SC) on 15 March 2021, in the case titled Fakhrey Alam (Appellant) v. State of UP (Respondent) stated that default bail under the first proviso of Section 167(2) of the Code of Criminal Procedure (CrPC) is a fundamental right and not merely a statutory right.

The SC bench comprising of Justices Sanjay Kishan Kaul and R Subhas Reddy received an appeal against an order of the Allahabad High Court (HC). The Court held, "Default bail under Section 167 of CrPC is a procedure established by law under Article 21 of the Constitution."

The factual background of the case is that on 8 March 2017, the appellant was arrested and charged for offenses under Sections 420, 467, 468, 471, and 120-B of the Indian Penal Code (IPC) and 3/25/30 of the Arms Act and Section 18 of the Unlawful Activities Prevention Act, 1967 (UAPA).

The Chief Judicial Magistrate granted 180 days to the police to file the charge sheet. On 4 September 2017, the police filed a charge sheet under all provisions, except under the UAPA Act. A second charge sheet was filed by the police after obtaining the sanction of the State Government on 5 October 2017.

Subsequently, on 3 October 2017, the accused had applied for default bail under Section 167(2) of CrPC. The case set up by the appellant was that the charge sheet had been filed after 180 days and thus he was entitled to the default bail.

The lower court opined that what was stated to be a second charge sheet was really a supplementary charge sheet and thus default bail would not be admissible. The HC confirmed the said view of the lower court and the HC order was challenged before the Apex Court.

It was noted by the SC that the charge sheet filed under the provisions of law i.e. filed on 4 September 2017 required to be filed within 90 days but it was beyond that time. This was on the premise of the charge under Section 18 of the UAPA Act.

The Top Court further observed that no charge sheet was filed even within 180 days under the UAPA Act, but it was filed after 211 days. It noted that the period of 180 days to file the charge sheet qua UAPA Act had elapsed.

The Top Court stated that liberty is a Constitutional right; the period is specifically provisioned in the Statute and hence default is not complying with the same would violate the rights of the accused to default bail.

The Court further ruled that the time limit to complete investigation and file char sheet under Section 167 of CrPC could not be extended by the State for seeking to file the supplementary charge sheet regarding the offenses under the UAPA.

The Top Court added that "We do not think that the State can take advantage of the fact that in one case there is one charge sheet and supplementary charge sheets are used to extend the time period in this manner by seeking to file the supplementary charge sheet qua the offenses under the UAPA Act even beyond the period specified under Section 167 of the CrPC beyond which default bail will be admissible, i.e., the period of 180 days."

The Apex Court emphasized that default bail under Section 167 of the CrPC dealt with a procedure established by law under Article 21 of the Constitution of India. It further stated that it's a fundamental right that was granted to an accused to be released on bail if the conditions provided u/s 167(2) Proviso (1) of the CrPC were fulfilled.

The SC ruled that the State cannot use supplementary charge sheets with regard to UAPA offenses to extend the deadline prescribed under Section 167 of CrPC.

It concluded, "That period having expired and the charge sheet not having been filed qua those offenses (albeit a supplementary charge sheet), we are of the view the appellant would be entitled to default bail in the aforesaid facts and circumstances."