# M. RAVINDRAN v. THE INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE

- **Citation:** [2020] 12 S.C.R. 915
- **Court:** Supreme Court of India
- **Decided:** 2020-10-26
- **Case number:** Criminal Appeal No. 699 of 2020
- **Bench:** Uday Umesh Lalit, Mohan M. Shantanagoudar, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-ravindran-v-the-intelligence-officer-directorate-of-revenue-intelligence-34542
- **Pages:** 41

## Headnote

Code of Criminal Procedure, 1973:
s. 167(2) r/w s. 36A of Narcotic Drugs and Psychotropic
Substances Act, 1985 - Default bail/ Compulsive bail - Application
for - After completion of 180 days from the remand date - Bail
granted by trial court - High Court set aside the bail order on the
ground that since additional complaint was filed before disposal of
the bail application, bail could not have been granted - Appeal to
Supreme Court - Held: Section 167(2) was enacted with the
objectives of ensuring fair trial, expeditions investigation and trial
and reasonable procedure prior to depriving any person of his
personal liberty, which is intrinsically linked to Art. 21 of the
Constitution - Section 167(2) has to be interpreted keeping in mind
the aforesaid objectives - If the accused applies for bail u/s. 167(2)
r/w. s. 36 A (4) NDPS Act upon expiry of 180 days or the extended
period, Court has to release him on bail forthwith - Prosecution
cannot defeat enforcement of such right of accused by subsequently
filing a final report, additional complaint or report seeking extention
to time - However, actual release on bail is contingent upon the
directions passed by the competent court granting bail - In the
present case, accused was deemed to have availed the right to bail,
the moment he filed the application seeking bail and offered to abide
by the terms and conditions of the bail order - He was entitled to be
released on bail notwithstanding the subsequent additional
complaint - Constitution of India - Art. 21.
Interpretation of Statutes:
Interpretation of penal statutes - Held: In case of any
ambiguity in the construction of penal statute, courts must favour
[2020] 12 S.C.R. 915
915
A
B
C
D
E
F
G
H
916
SUPREME COURT REPORTS
[2020] 12 S.C.R.
the interpretation which leans towards protecting the right of the
accused - Such principle is applicable not only in the case of
substantive penal statute, but also in cases of procedures providing
for curtailment of liberty of the accused.
Allowing the appeal, the Court
HELD: 1. In common legal parlance, the right to bail under
the Proviso to Section 167(2) of Cr. P.C. is commonly referred to
as 'default bail' or 'compulsive bail' as it is granted on account of
the default of the investigating agency in not completing the
investigation within the prescribed time, irrespective of the merits
of the case. [Para 6][929-A-B]
2. Section 36A of the Narcotic Drugs and Psychotropic
Substances Act (NDPS Act) prescribes modified application of
the CrPC as indicated therein. The effect of Sub-Clause (4) of
Section 36A NDPS Act is to require that investigation into certain
offences under the NDPS Act be completed within a period of
180 days instead of 90 days as provided under Section 167(2)
CrPC. Hence the benefit of additional time limit is given for
investigating a more serious category of offences. This is
augmented by a further Proviso that the Special Court may extend
time prescribed for investigation up to one year if the Public
Prosecutor submits a report indicating the progress of
investigation and giving specific reasons for requiring the
detention of accused beyond the prescribed period of 180 days.
In the present matter, it is admitted that the Public Prosecutor
had not filed any such report within the 180-day period for seeking
extension of time up to one year for filing final report/additional
complaint before the Trial Court. The final report was required
to be filed within 180 days from the first date of remand. [Para
6.2][929-E-H; 930-A]
3. While computing the period under Section 167(2) Cr.P.C.,
the day on which accused was remanded to judicial custody has
to be excluded and the day on which challan/charge-sheet is filed
in the court has to be included. [Para 7][930-B]
Ravi Prakash Singh @ Arvind Singh v. State of Bihar
(2015) 8 SCC 340 : [2015] 2 SCR 241 - referred to.
A
B
C
D
E
F
G
H
917
4. Article 21 of the Constitution of India provides that "no
person shall be deprived of his life or

## Text

_Characters 0–39,843 of 93,960. This is a partial read: ask again with offset=39843 for what follows._

A
B
C
D
E
F
G
H
915
M. RAVINDRAN
v.
THE INTELLIGENCE OFFICER, DIRECTORATE OF
REVENUE INTELLIGENCE
(Criminal Appeal No. 699 of 2020)
OCTOBER 26, 2020
[UDAY UMESH LALIT, MOHAN M. SHANTANAGOUDAR
AND VINEET SARAN, JJ.]
Code of Criminal Procedure, 1973:
s. 167(2) r/w s. 36A of Narcotic Drugs and Psychotropic
Substances Act, 1985 - Default bail/ Compulsive bail - Application
for - After completion of 180 days from the remand date - Bail
granted by trial court - High Court set aside the bail order on the
ground that since additional complaint was filed before disposal of
the bail application, bail could not have been granted - Appeal to
Supreme Court - Held: Section 167(2) was enacted with the
objectives of ensuring fair trial, expeditions investigation and trial
and reasonable procedure prior to depriving any person of his
personal liberty, which is intrinsically linked to Art. 21 of the
Constitution - Section 167(2) has to be interpreted keeping in mind
the aforesaid objectives - If the accused applies for bail u/s. 167(2)
r/w. s. 36 A (4) NDPS Act upon expiry of 180 days or the extended
period, Court has to release him on bail forthwith - Prosecution
cannot defeat enforcement of such right of accused by subsequently
filing a final report, additional complaint or report seeking extention
to time - However, actual release on bail is contingent upon the
directions passed by the competent court granting bail - In the
present case, accused was deemed to have availed the right to bail,
the moment he filed the application seeking bail and offered to abide
by the terms and conditions of the bail order - He was entitled to be
released on bail notwithstanding the subsequent additional
complaint - Constitution of India - Art. 21.
Interpretation of Statutes:
Interpretation of penal statutes - Held: In case of any
ambiguity in the construction of penal statute, courts must favour
[2020] 12 S.C.R. 915
915
A
B
C
D
E
F
G
H
916
SUPREME COURT REPORTS
[2020] 12 S.C.R.
the interpretation which leans towards protecting the right of the
accused - Such principle is applicable not only in the case of
substantive penal statute, but also in cases of procedures providing
for curtailment of liberty of the accused.
Allowing the appeal, the Court
HELD: 1. In common legal parlance, the right to bail under
the Proviso to Section 167(2) of Cr. P.C. is commonly referred to
as 'default bail' or 'compulsive bail' as it is granted on account of
the default of the investigating agency in not completing the
investigation within the prescribed time, irrespective of the merits
of the case. [Para 6][929-A-B]
2. Section 36A of the Narcotic Drugs and Psychotropic
Substances Act (NDPS Act) prescribes modified application of
the CrPC as indicated therein. The effect of Sub-Clause (4) of
Section 36A NDPS Act is to require that investigation into certain
offences under the NDPS Act be completed within a period of
180 days instead of 90 days as provided under Section 167(2)
CrPC. Hence the benefit of additional time limit is given for
investigating a more serious category of offences. This is
augmented by a further Proviso that the Special Court may extend
time prescribed for investigation up to one year if the Public
Prosecutor submits a report indicating the progress of
investigation and giving specific reasons for requiring the
detention of accused beyond the prescribed period of 180 days.
In the present matter, it is admitted that the Public Prosecutor
had not filed any such report within the 180-day period for seeking
extension of time up to one year for filing final report/additional
complaint before the Trial Court. The final report was required
to be filed within 180 days from the first date of remand. [Para
6.2][929-E-H; 930-A]
3. While computing the period under Section 167(2) Cr.P.C.,
the day on which accused was remanded to judicial custody has
to be excluded and the day on which challan/charge-sheet is filed
in the court has to be included. [Para 7][930-B]
Ravi Prakash Singh @ Arvind Singh v. State of Bihar
(2015) 8 SCC 340 : [2015] 2 SCR 241 - referred to.
A
B
C
D
E
F
G
H
917
4. Article 21 of the Constitution of India provides that "no
person shall be deprived of his life or personal liberty except
according to procedure established by law". Such a procedure
cannot be arbitrary, unfair or unreasonable. The history of the
enactment of Section 167(2) Cr. P.C. and the safeguard of 'default
bail' contained in the Proviso thereto is intrinsically linked to
Article 21 promising protection of life and personal liberty against
unlawful and arbitrary detention. This is nothing but a legislative
exposition of the constitutional safeguard that no person shall be
detained except in accordance with rule of law. This must be
interpreted in a manner which serves this purpose. The Courts
cannot adopt a rigid or formalistic approach whilst considering
any issue that touches upon the rights contained in Article 21.
[Paras 11.1 and 11.6][935-B-C; 938-G]
Maneka Gandhi v. Union of India (1978) 1 SCC 248 :
[1978] 2 SCR 621 - followed.
The Law Commission of India Report No. 14 on Reforms
of the Judicial Administration (Vol. II, 1948, pages 758760); Law Commission Report No. 41 on The Code of
Criminal Procedure, 1898 (Vol. I, 1969, pages 76-77)
- referred to.
5. Section 167(2) Cr.P.C. was enacted within the presentday CrPC, providing for time limits on the period of remand of
the accused, proportionate to the seriousness of the offence
committed, failing which the accused acquires the indefeasible
right to bail. The intent of the legislature was to balance the need
for sufficient time limits to complete the investigation with the
need to protect the civil liberties of the accused. Section 167(2)
provides for a clear mandate that the investigative agency must
collect the required evidence within the prescribed time period,
failing which the accused can no longer be detained. This ensures
that the investigating officers are compelled to act swiftly and
efficiently without misusing the prospect of further remand. This
also ensures that the Court takes cognizance of the case without
any undue delay from the date of giving information of the offence,
so that society at large does not lose faith and develop cynicism
towards the criminal justice system. [Para 11.5][936-G-H; 937A-C]
A
B
C
D
E
F
G
H
918
SUPREME COURT REPORTS
[2020] 12 S.C.R.
6. In case of any ambiguity in the construction of a penal
statute, the Courts must favour the interpretation which leans
towards protecting the rights of the accused, given the ubiquitous
power disparity between the individual accused and the State
machinery. This is applicable not only in the case of substantive
penal statutes but also in the case of procedures providing for
the curtailment of the liberty of the accused. The right of the
accused to be set at liberty takes precedence over the right of
the State to carry on the investigation and submit a chargesheet.
[Paras 11.7 and 11.8][939-A-C]
7. With respect to the CrPC particularly, the Statement of
Objects and Reasons is an important aid of construction. Section
167(2) has to be interpreted keeping in mind the three-fold
objectives expressed by the legislature namely ensuring a fair
trial, expeditious investigation and trial, and setting down a
rationalized procedure that protects the interests of indigent
sections of society. These objects are nothing but subsets of the
overarching fundamental right guaranteed under Article 21. [Para
11.8][939-D]
8. The Court cannot suo motu grant bail without considering
whether the accused is ready to furnish bail or not. This is an inbuilt safeguard within Section 167(2) Cr. P.C. to ensure that the
accused is not automatically released from custody without
obtaining the satisfaction of the Court that he is able to guarantee
his presence for further investigation, or for trial, as the case
may be. There could be rare occasions where the accused
voluntarily forfeits his right to bail on account of threat to his
personal security outside of remand or for some other reasons.
Once a chargesheet is filed, such waiver of the right by the accused
becomes final and Section 167(2) ceases to apply. [Para 12.4][942C-E]
9. It cannot be said that even where the accused has
promptly exercised his right under Section 167(2) and indicated
his willingness to furnish bail, he can be denied bail on account of
delay in deciding his application or erroneous rejection of the
same. Nor can he be kept detained in custody on account of
subterfuge of the prosecution in filing a police report or additional
A
B
C
D
E
F
G
H
919
complaint on the same day that the bail application is filed.
[Para 12.4][942-F]
10. The interpretation of the expression "availed of" as
actual release after furnishing the necessary bail would cause
grave injustice to the accused and would defeat the very purpose
of the Proviso to Section 167(2) CrPC. There will be many
instances where the Public Prosecutor might prolong the hearing
of the application for bail so as to facilitate the State to file an
additional complaint or investigation report before the Court
during the interregnum. In some cases, the Court may also delay
the process for one reason or the other. In such an event, the
indefeasible right of the accused to get the order of bail in his
favour would be defeated. This could not have been the intention
of the legislature. If such a practice is permitted, the same would
amount to deeming illegal custody as legal. After the expiry of
the stipulated period, the Court has no further jurisdiction to
remand the accused to custody. The prosecution would not be
allowed to take advantage of its own default of not filing the
investigation report/complaint against the appellant within the
stipulated period. [Para 12.5][942-G-H; 943-A-C]
11. As a cautionary measure, the counsel for the accused
as well as the Magistrate ought to inform the accused of the
availability of the indefeasible right under Section 167(2) once it
accrues to him, without any delay. This is especially where the
accused is from an underprivileged section of society and is
unlikely to have access to information about his legal rights. Such
knowledge-sharing by magistrates will thwart any dilatory tactics
by the prosecution and also ensure that the obligations spelled
out under Article 21 of the Constitution and the Statement of
Objects and Reasons of the CrPC are upheld. [Para 12.7][943G-H; 944-A-B]
Rakesh Kumar Paul v. State of Assam (2017) 15 SCC
67 : [2017] 8 SCR 785 - relied on.
12. It is true that Explanation I to Section 167(2) Cr. P.C.
provides that the accused shall be detained in custody so long as
he does not furnish bail. However, Explanation I to Section 167(2)
applies only to those situations where the accused has availed of
A
B
C
D
E
F
G
H
920
SUPREME COURT REPORTS
[2020] 12 S.C.R.
his right to default bail and undertaken to furnish bail as directed
by the Court, but has subsequently failed to comply with the terms
and conditions of the bail order within the time prescribed by the
Court. In such a scenario, if the prosecution subsequently files a
chargesheet, it can be said that the accused has forfeited his right
to bail under Section 167(2) Cr. P.C.. Explanation I is only a
safeguard to ensure that the accused is not immediately released
from custody without complying with the bail order. [Para 13][944B-D]
13. The expression 'the accused does furnish bail' in Section
167(2) and Explanation I thereto cannot be interpreted to mean
that if the accused, in spite of being ready and willing, could not
furnish bail on account of the pendency of the bail application
before the Magistrate, or because the challenge to the rejection
of his bail application was pending before a higher forum, his
continued detention in custody is authorized. If such an
interpretation is accepted, the application of the Proviso to Section
167(2) would be narrowly confined only to those cases where the
Magistrate is able to instantaneously decide the bail application
as soon as it is preferred before the Court, which may sometimes
not be logistically possible given the pendency of the docket
across courts or for other reasons. Moreover, the application for
bail has to be decided only after notice to the public prosecutor.
Such a strict interpretation of the Proviso would defeat the rights
of the accused. Hence his right to be released on bail cannot be
defeated merely because the prosecution files the chargesheet
prior to furnishing of bail and fulfil the conditions of bail of
furnishing bonds, etc., so long as he furnishes the bail within the
time stipulated by the Court. [Para 13.1][944-E-H]
14. The observations made in *Hitendra Vishnu Thakur and
**Sanjay Dutt Cases to the effect that the application for default
bail and any application for extension of time made by the Public
Prosecutor must be considered together are only applicable in
situations where the Public Prosecutor files a report seeking
extension of time prior to the filing of the application for default
bail by the accused. In such a situation, notwithstanding the fact
that the period for completion of investigation has expired, both
A
B
C
D
E
F
G
H
921
applications would have to be considered together. However,
where the accused has already applied for default bail, the
Prosecutor cannot defeat the enforcement of his indefeasible right
by subsequently filing a final report, additional complaint or report
seeking extension of time. [Para 14.1][946-B-C]
15. It is well settled that issuance of notice to the State on
the application for default bail filed under the Proviso to Section
167(2) is only so that the Public Prosecutor can satisfy the Court
that the prosecution has already obtained an order of extension
of time from the Court; or that the challan has been filed in the
designated Court before the expiry of the prescribed period; or
that the prescribed period has actually not expired. Such issuance
of notice would avoid the possibility of the accused obtaining
default bail by deliberate or inadvertent suppression of certain
facts and also guard against multiplicity of proceedings. However,
Public Prosecutors cannot be permitted to misuse the limited
notice issued to them by the Court on bail applications filed under
Section 167(2) by dragging on proceedings and filing subsequent
applications/reports for the purpose of 'buying extra time' and
facilitating filling up of lacunae in the investigation by the
investigating agency. [Para 14.2][946-D-F]
16. The decision in **Sanjay Dutt case only lays down as a
precautionary principle that the accused must apply for default
bail the moment the right under Section 167(2) accrues to him. If
he fails to do so, he cannot claim the right at a subsequent stage
of the proceedings after the prosecution has filed a chargesheet.
The words "not having made an application when such right had
accrued, can exercise that right at a later stage" clearly indicate
that the accused is deemed to have exercised his right to bail
once he makes an application for the same. [Para 15.1][948-B-C]
17. Once the accused files an application for bail under the
Proviso to Section 167(2) he is deemed to have 'availed of' or
enforced his right to be released on default bail, accruing after
expiry of the stipulated time limit for investigation. Thus, if the
accused applies for bail under Section 167(2), CrPC read with
Section 36A (4), NDPS Act upon expiry of 180 days or the
A
B
C
D
E
F
G
H
922
SUPREME COURT REPORTS
[2020] 12 S.C.R.
extended period, as the case may be, the Court must release
him on bail forthwith without any unnecessary delay after getting
necessary information from the public prosecutor. Such prompt
action will restrict the prosecution from frustrating the legislative
mandate to release the accused on bail in case of default by the
investigative agency. [Para 18.1][954-C-E]
18. 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. [Para 18.2][954E-F]
19. 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.
[Para 18.3][954-G-H]
20. 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. [Para 18.4][955-A-B]
21.1 In the present case, admittedly the appellant-accused
had exercised his option to obtain bail by filing the application at
10:30 a.m. on the 181st day of his arrest, i.e., immediately after
the court opened, on 01.02.2019. It is not in dispute that the
Public Prosecutor had not filed any application seeking extension
of time to investigate into the crime prior to 31.01.2019 or prior
A
B
C
D
E
F
G
H
923
to 10:30 a.m. on 01.02.2019. The Public Prosecutor participated
in the arguments on the bail application till 4:25 p.m. on the day
it was filed. It was only thereafter that the additional complaint
came to be lodged against the Appellant. Therefore, the appellantaccused 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. [Para 17][953-B-E]
21.2. In the present case, apart from furnishing the sureties
as directed by the Trial Court, the appellant-accused should also
surrender his passport, undertake to report to the Respondent
Directorate when required for purposes of investigation, and also
undertake to not leave Chennai city limits without the leave of
the Trial Court. [Para 19][955-C]
Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC
67 : [2017] 8 SCR 785; S. Kasi v. State Through The
Inspector of Police Samaynallur Police Station Madurai
District (2020) SCC OnLine SC 529; Uday Mohanlal
Acharya v. State of Maharashtra (2001) 5 SCC 453 :
[2001] 2 SCR 878; Mohamed Iqbal Madar Sheikh v.
State of Maharashtra (1996) 1 SCC 722 : [1996] 1
SCR 183; Dr. Bipin Shantilal Panchal v. State of Gujarat
(1996) 1 SCC 718 : [1996] 1 SCR 193; State through
CBI v. Mohd. Ashraft Bhat (1996) 1 SCC 432 : [1995]
6 Suppl. SCR 300; Ateef Nasir Mulla v. State of
Maharashtra (2005) 7 SCC 29 : [2005] 2 Suppl. SCR
919; Mustaq Ahmed Mohammed Isak v. State of
Maharashtra (2009) 7 SCC 480 : [2009] 8 SCR 465;
Sayed Mohd. Ahmad Kazmi v. State (Government of NCT
of Delhi) (2012) 12 SCC 1 : [2012] 9 SCR 836; Union
of India v. Nirala Yadav (2014) 9 SCC 457 : [2014] 6
SCR 148; Bikramjit Singh v. State of Punjab (2020)
SCC OnLine SC 824 - relied on.
Pragyna Singh Thakur v. State of Maharashtra, (2011)
10 SCC 445 : [2011] 14 SCR 617 - held per in curiam.
A
B
C
D
E
F
G
H
924
SUPREME COURT REPORTS
[2020] 12 S.C.R.
Uday Mohanlal Acharya v. State of Maharashtra (2001)
5 SCC 453 : [2001] 2 SCR 878; Sanjay Dutt v. State
through C.B.I. (1994) 5 SCC 410 : [1994] 3 Suppl. SCR
263; Hitendra Vishnu Thakur v. State of Maharashtra
(1994) 4 SCC 602 : [1994] 1 Suppl. SCR 360; State
through CBI v. Mohd. Ashraft Bhat (1996) 1 SCC 432
: [1995] 6 Suppl. SCR 300; Dr. Bipin Shantilal Panchal
v. State of Gujarat (1996) 1 SCC 718 : [1996] 1 SCR
193; Mohamed Iqbal Madar Sheikh v. State of
Maharashtra (1996) 1 SCC 722 : [1996] 1 SCR 183 -
referred to.
Case Law Reference
[2015] 2 SCR 241
referred to
Para 7
[2001] 2 SCR 878
referred to
Para 10
[1994] 3 Suppl. SCR 263
referred to
Para 10
[1994] 1 Suppl. SCR 360
referred to
Para 10
[1995] 6 Suppl. SCR 300
referred to
Para 10
[1996] 1 SCR 193
referred to
Para 10
[1996] 1 SCR 183
referred to
Para 10
[1978] 2 SCR 621
followed
Para 11.1
[2017] 8 SCR 785
relied on
Para 11.6
[2001] 2 SCR 878
relied on
Para 12.6
[2017] 8 SCR 785
relied on
Para 12.7
[1996] 1 SCR 183
relied on
Para 15
[1996] 1 SCR 193
relied on
Para 15.1
[1995] 6 Suppl. SCR 300
relied on
Para 15.2
[2005] 2 Suppl. SCR 919
relied on
Para 15.2
[2009] 8 SCR 465
relied on
Para 15.2
[2012] 9 SCR 836
relied on
Para 15.3
[2014] 6 SCR 148
relied on
Para 15.4
[2011] 14 SCR 617
held per in curiam
Para 16
A
B
C
D
E
F
G
H
925
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
699 of 2020.
From the Judgment and Order dated 21.11.2019 of the High Court
of Judicature at Madras in Crl.O.P. No. 9750 of 2019.
Aman Lekhi, ASG, Ms. Arunima Singh, K. Paari Vendhan, Rupesh
Kumar, Abhishek Kumar, Piyush Beriwal, Ujjawal Sinha, B. Krishna
Prasad, Advs. for the appearing parties.
The Judgment of the Court was delivered by
MOHAN M. SHANTANAGOUDAR, J.
1. Leave granted.
2. The judgment dated 21.11.2019 passed in Crl. O.P. No. 9750
of 2019 by the High Court of Judicature at Madras is called into question
in this appeal.
3. The brief facts leading to this appeal are as follows:
3.1 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, 31.01.2019, the Appellant
(Accused No.11) filed application for 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. Accordingly, on 05.02.2019, the Trial
Court granted the order of bail in Crl.M.P. No. 131 of 2019 in R.R. No.
09/2017 pending before the said court.
3.2 The Respondent/complainant, i.e. the Intelligence Officer,
Directorate of Revenue Intelligence filed Crl. O.P. No. 9750 of 2019
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. Being aggrieved, the Appellant has approached this Court
questioning the judgment of the High Court.
3.3 It is not in dispute that the Appellant was remanded to judicial
custody on 04.08.2018 and hence the mandatory period of 180 days
A
B
C
D
E
F
G
H
926
SUPREME COURT REPORTS
[2020] 12 S.C.R.
prescribed for filing of final report under Section 167(2), CrPC (excluding
the date of remand) was completed on 31.01.2019. This is made amply
clear by the calculation of days as per the Gregorian calendar as stated
below:
"August 2018 (from 05.08.2018 to 31.08.2018) - 27 days
September 2018
- 30 days
October 2018
- 31 days
November 2018
- 30 days
December 2018
- 31 days
January 2019
- 31 days
 ---------------------------
 Total
- 180 days
 ---------------------------"
3.4 Accordingly, the Appellant filed his bail application on
01.02.2019 at 10:30 a.m. before the Trial Court. During the course of
hearing of the bail application-after completion of the arguments of the
counsel for the Appellant, to be precise-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,
the Trial Court allowed the bail application 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).
3.5 The said judgment of the Trial Court was set aside by the
High 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),
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.
A
B
C
D
E
F
G
H
927
4. Ms. Arunima Singh, learned counsel appearing for the Appellant,
taking us through the material on record and relying heavily on the
observations of this Court in the case of Uday Mohanlal Acharya v.
State of Maharashtra, (2001) 5 SCC 453, argued that the High Court
has misconstrued the mandate of Section 167(2), CrPC and has gravely
erred in entering into the merits of the matter; that the legislative mandate
conferred by Section 167(2), CrPC was lightly brushed aside by the
High Court though the Appellant had rightly invoked the provisions thereof
after completion of the mandatory period of 180 days, that too prior to
filing of the chargesheet/additional complaint by the Respondent; and
that subsequent filing of chargesheet/additional complaint by the
investigating authority cannot defeat the indefeasible right of the Appellant.
5. Per contra, Mr. Aman Lekhi, learned Additional Solicitor General
argued in support of the judgment of the High Court contending that the
additional complaint was lodged while the Appellant was still in custody
and prior to the disposal of the application for bail under Section 167(2),
CrPC, hence there was no question of the Appellant-accused furnishing
the bail and consequently he was liable to continued detention in custody.
He contended that the time or date of disposal of the application of bail
filed under Section 167(2) is the deciding factor to adjudge whether the
accused is entitled to default bail or not.
6. Before we proceed further, it is relevant to note the provisions
of Section 167(2), CrPC:
"Section 167. Procedure when investigation cannot be
completed in twenty-four hours.-
(2) The Magistrate to whom an accused person is forwarded
under this section may, whether he has or has not jurisdiction to
try the case, from time to time, authorise the detention of the
accused in such custody as such Magistrate thinks fit, for a term
not exceeding fifteen days in the whole; and if he has no jurisdiction
to try the case or commit it for trial, and considers further detention
unnecessary, he may order the accused to be forwarded to a
Magistrate having such jurisdiction:
Provided that-
(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
A
B
C
D
E
F
G
H
928
SUPREME COURT REPORTS
[2020] 12 S.C.R.
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, and every person released
on bail under this sub-section shall be deemed to be so released
under the provisions of Chapter XXXIII for the purposes of that
Chapter;
(b) no Magistrate shall authorise detention of the accused in custody
of the police under this section unless the accused is produced
before him in person for the first time and subsequently every
time till the accused remains in the custody of the police, but the
Magistrate may extend further detention in judicial custody on
production of the accused either in person or through the medium
of electronic video linkage;
(c) no Magistrate of the second class, not specially empowered
in this behalf by the High Court, shall authorise detention in the
custody of the police.
Explanation I.- For the avoidance of doubts, it is hereby declared
that, notwithstanding the expiry of the period specified in paragraph
(a), the accused shall be detained in custody so long as he does
not furnish bail.
Explanation II.- If any question arises whether an accused person
was produced before the Magistrate as required under clause
(b), the production of the accused person may be proved by his
signature on the order authorising detention or by the order certified
by the Magistrate as to production of the accused person through
the medium of electronic video linkage, as the case may be.
Provided further that in case of a woman under eighteen
years of age, the detention shall be authorised to be in the custody
of a remand home or recognised social institution."
A
B
C
D
E
F
G
H
929
In common legal parlance, the right to bail under the Proviso to
Section 167(2) is commonly referred to as 'default bail' or 'compulsive
bail' as it is granted on account of the default of the investigating agency
in not completing the investigation within the prescribed time, irrespective
of the merits of the case.
6.1 It is also relevant to note Section 36A(4) of the NDPS Act for
the purpose of this matter:
"Section 36A. Offences triable by Special Courts.-
(4) In respect of persons accused of an offence punishable under
section 19 or section 24 or section 27A or for offences involving
commercial quantity the references in sub-section (2) of section
167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof
to "ninety days", where they occur, shall be construed as reference
to "one hundred and eighty days":
 Provided that, if it is not possible to complete the
investigation within the said period of one hundred and eighty days,
the Special Court may extend the said period up to one year on
the report of the Public Prosecutor indicating the progress of the
investigation and the specific reasons for the detention of the
accused beyond the said period of one hundred and eighty days."
(emphasis supplied)
6.2 Section 36A of the NDPS Act prescribes modified application
of the CrPC as indicated therein. The effect of Sub-Clause (4) of Section
36A, NDPS Act is to require that investigation into certain offences
under the NDPS Act be completed within a period of 180 days instead
of 90 days as provided under Section 167(2), CrPC. Hence the benefit
of additional time limit is given for investigating a more serious category
of offences. This is augmented by a further Proviso that the Special
Court may extend time prescribed for investigation up to one year if the
Public Prosecutor submits a report indicating the progress of investigation
and giving specific reasons for requiring the detention of accused beyond
the prescribed period of 180 days. In the matter on hand, it is admitted
that the Public Prosecutor had not filed any such report within the 180day period for seeking extension of time up to one year for filing final
report/additional complaint before the Trial Court.
A
B
C
D
E
F
G
H
930
SUPREME COURT REPORTS
[2020] 12 S.C.R.
From the aforementioned, it is clear that in the Appellant's case,
the final report was required to be filed within 180 days from the first
date of remand.
7. This Court ina catena of judgments including Ravi Prakash
Singh @ Arvind Singh v. State of Bihar, (2015) 8 SCC 340, has ruled
that while computing the period under Section 167(2), the day on which
accused was remanded to judicial custody has to be excluded and the
day on which challan/charge-sheet is filed in the court has to be included.
8. As mentioned supra, it is not disputed that in compliance of the
aforementioned statutory provisions and judgments of this Court, the
Appellant waited for 180 days from the date of remand (excluding the
remand day) and thereafter filed application for bail under Section 167(2),
CrPC at 10:30 a.m. on 01.02.2019 inasmuch as till 31.01.2019 or till
10:30 a.m. of 01.02.2019, the complainant had not yet filed final report/
additional complaint against the Appellant. On the same day, as mentioned
supra, during the course of hearing of the bail application, the Respondent/
complainant lodged an additional complaint at 4:25 p.m., and thus sought
dismissal of the bail petition.
9. Thus the points to be decided in this case are:
(a) 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;
(b) Whether the Court should take into consideration the time
of filing of the application for bail, based on default of the
investigating agency or the time of disposal of the application
for bail while answering (a).
I. The Principles Laid Down in Uday Mohanlal Acharya
10. Upon perusal of the relevant jurisprudence, we are unable to
agree with Mr. Lekhi's submissions. Rather, we find that both points (a)
and (b) mentioned supra have been answered by the majority opinion of
a three-Judge Bench of this Court in the case of Uday Mohanlal
Acharya (supra) by observing thus:-
"13...It is also further clear that that indefeasible right does not
survive or remain enforceable on the challan being filed, if already
not availed of, as has been held by the Constitution Bench in Sanjay
Dutt's case (supra). The crucial question that arises for
A
B
C
D
E
F
G
H
931
consideration, therefore, is what is the true meaning of the
expression 'if already not availed of'? Does it mean that an
accused files an application for bail and offers his willingness for
being released on bail or does it mean that a bail order must be
passed, the accused must furnish the bail and get him released on
bail? In our considered opinion it would be more in consonance
with the legislative mandate to hold that an accused must be held
to have availed of his indefeasible right, the moment he files an
application for being released on bail and offers to abide by the
terms and conditions of bail. To interpret the expression "availed
of" to mean actually being released on bail after furnishing the
necessary bail required would cause great injustice to the accused
and would defeat the very purpose of the proviso to Section 167(2)
of the Criminal Procedure Code and further would make an illegal
custody to be legal, inasmuch as after the expiry of the stipulated
period the Magistrate had no further jurisdiction to remand and
such custody of the accused is without any valid order of remand.
That apart, when an accused files an application for bail indicating
his right to be released as no challan had been filed within the
specified period, there is no discretion left in the Magistrate and
the only thing he is required to find out is whether the specified
period under the statute has elapsed or not, and whether a challan
has been filed or not. If the expression "availed of" is interpreted
to mean that the accused must factually be released on bail, then
in a given case where the Magistrate illegally refuses to pass an
order notwithstanding the maximum period stipulated in Section
167 had expired, and yet no challan had been filed then the accused
could only move to the higher forum and while the matter remains
pending in the higher forum for consideration, if the prosecution
files a charge-sheet then also the so-called right accruing to the
accused because of inaction on the part of the investigating agency
would get frustrated. Since the legislature has given its mandate it
would be the bounden duty of the court to enforce the same and
it would not be in the interest of justice to negate the same by
interpreting the expression "if not availed of" in a manner which
is capable of being abused by the prosecution....
...There is no provision in the Criminal Procedure Code authorising
detention of an accused in custody after the expiry of the period
indicated in proviso to sub-section (2) of Section 167 excepting
A
B
C
D
E
F
G
H
932
SUPREME COURT REPORTS
[2020] 12 S.C.R.
the contingency indicated in Explanation I, namely, if the accused
does not furnish the bail. It is in this sense it can be stated that if
after expiry of the period, an application for being released on bail
is filed, and the accused offers to furnish the bail and thereby
avail of his indefeasible right and then an order of bail is passed
on certain terms and conditions but the accused fails to furnish
the bail, and at that point of time a challan is filed, then possibly it
can be said that the right of the accused stood extinguished. But
so long as the accused files an application and indicates in the
application to offer bail on being released by appropriate orders
of the court then the right of the accused on being released on bail
cannot be frustrated on the off chance of the Magistrate not being
available and the matter not being moved, or that the Magistrate
erroneously refuses to pass an order and the matter is moved to
the higher forum and a challan is filed in interregnum. This is the
only way how a balance can be struck between the so-called
indefeasible right of the accused on failure on the part of the
prosecution to file a challan within the specified period and the
interest of the society, at large, in lawfully preventing an accused
from being released on bail on account of inaction on the part of
the prosecuting agency".
(emphasis supplied)
While holding so, this Court considered and discussed in depth the
catena of judgments on right of the accused to default bail including
Sanjay Dutt v. State through C.B.I., (1994) 5 SCC 410; Hitendra
Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602; State
through CBI v. Mohd. Ashraft Bhat, (1996) 1 SCC 432; Dr. Bipin
Shantilal Panchal v. State of Gujarat, (1996) 1 SCC 718; and
Mohamed Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1
SCC 722.
10.1 We also find it relevant for the present purpose to quote the
following conclusions of the Court in the said judgment: -
"13.3. On the expiry of the said period of 90 days or 60 days, as
the case may be, an indefeasible right accrues in favour of the
accused for being released on bail on account of default by the
investigating agency in the completion of the investigation within
the period prescribed and the accused is entitled to be released on
A
B
C
D
E
F
G
H
933
bail, if he is prepared to and furnishes the bail as directed by the
Magistrate.
13.4. When an application for bail is filed by an accused for
enforcement of his indefeasible right alleged to have been accrued
in his favour on account of default on the part of the investigating
agency in completion of the investigation within the specified
period, the Magistrate/court must dispose of it forthwith, on being
satisfied that in fact the accused has been in custody for the period
of 90 days or 60 days, as specified and no charge-sheet has been
filed by the investigating agency.