# RAKESH KUMAR PAUL v. STATE OF ASSAM

- **Citation:** [2017] 8 S.C.R. 785
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Bench:** Madan B. Lokur, Prafulla C. Pant, Deepak Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rakesh-kumar-paul-v-state-of-assam-32272
- **Pages:** 67

## Headnote

Code of Criminal Procedure, 1973: ,
Cl.(i) of proviso (a) to s.167(2) - Interpretation of words
C
"imprisonment for a term not less than ten years" - Petitioner
arrested for an offence, inter alia, uls. 13(1) of the PC Act, 1988 -
Offence uls. 13(1) of the PC Act punishable with imprisonment for
a term not less than four years but may extend to ten years - After
,expiry of 60 days of detention, bail application filed by the D
petitioner before High Court which was rejected on ground that he
could be detained for 90 days - State contended that the petitioner
could be kept in custody for a period of 90 days in terms of cl.(i) of
proviso (a) to s.167(2) as offences committed by petitioner could
result in "imprisonment for a term not less than ten years" - Whether
the Petitioner-accused entitled to grant of bail in terms of s.167 (2)
E
of the Cr.P.C. as the investigating agency did not file charge-sheet
within 60 days - Held: Yes .:._Per Mada11 B. Lokur, J.: The words
"not less than" in cl(i) would mean that the imprisonment should be
10 years or more and would cover only those offences for which
punishment of imprisonment could be for a clear period of 10 years
F
or more - If minimum sentencing is laid down by the Legislature,
then the sentencing judge has no option but to give a sentence "not
less than" that sentence provided for -; Therefore, the words "not
less than" occurring in cl(i) to proviso (a) of s.167(2) of the code
(and in other provisions) must be given their natural and obvious
meaning which is to say, not below a minimum threshold and in
G
case of s.167 of the code these words must relate to an offence
punishable with a minimum of JO years imprisonment~ In instant
case, alleged offence against the petitioner was not punishable with
imprisonment for a minimum period of ten years - Thus, petitioner
had indefeasible right to the grant of 'default bail' after expiry of H
785
786
SUPREME COURT REPORTS
[2017] 8 S. C.R.
A sixty days of detention - Per Deepak Gupta, J, (concurring): The
words used by the Legislature are "not less than ten years", this
means that the punishment should be 10 years or more - This cannot include offences where the maximum punishment is JO years -
It obviously means that minimum punishment is JO years whatever
B be the maximum punishment - There is no ambiguity in the wording
of s.167(2) of the code - Per Prafu/la C. Pant, J. (dissenting) : The
intention of the Legislature was that if an offence was punishable
with imprisonment upto ten years, then it falls within the provision
of s. l 67(2)(a)(i) of the code, and permissible period for
investigation is 90 days - Though the expression "not less than ten
C years" used ins. J 67(2)(a)(i) of the code has created some ambiguity,
the real intention of the legislature seems to include all such offences
wherein an imprisonment which may extend to ten years is an awarda bl e sentence - Prevention of Corruption Act, 1988 - ss. 7,
J 3(l)(a)(b)(d) and 13(2) (as amended by the Lokpal and Lokayukta
D Act, 2013).
Default Bail - After expiry of sixty days of detention ulcl.(i)
of proviso (a) to s.167(2) - Petitioner was arrested ulss. 7,
13(l)(a)(b)(d} of the PC Act, 1988, which is punishable with
imprisonment for a period ranging from 4 to JO years - After
expiry of 60 days of detention, bail application filed by the petitioner
E before High Court was for regular bail and not for 'default bail' ul
s.167(2), however, oral arguments made before the High Court were
predominantly based on u/s.167(2) - Whether petitioner entitled to
default bail uls.167(2) - Held: Per Madan B. Lokur, J.: Jn instant
case, an alleged offence against the petitioner was not punishable
F
with imprisonment for a minimum period of ten years - Petitioner
had orally applied for 'default bail', under these circumstances the
only course open to High Court was to enquire whether petitioner
was prepared to furnish bail and if so then grant him 'default bail'
on reasonable conditions - Per De

## Text

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[2017] 8 S.C.R. 785
RAKESH KUMAR PAUL
A
v.
STATE OF ASSAM
(Special Leave to Appeal (Cr!.) No. 2009 of 2017)
AUGUST 16,2017
B
[MADAN B. LOKUR, PRAFULLA C. PANT
AND DEEPAK GUPTA, JJ.]
Code of Criminal Procedure, 1973: ,
Cl.(i) of proviso (a) to s.167(2) - Interpretation of words
C
"imprisonment for a term not less than ten years" - Petitioner
arrested for an offence, inter alia, uls. 13(1) of the PC Act, 1988 -
Offence uls. 13(1) of the PC Act punishable with imprisonment for
a term not less than four years but may extend to ten years - After
,expiry of 60 days of detention, bail application filed by the D
petitioner before High Court which was rejected on ground that he
could be detained for 90 days - State contended that the petitioner
could be kept in custody for a period of 90 days in terms of cl.(i) of
proviso (a) to s.167(2) as offences committed by petitioner could
result in "imprisonment for a term not less than ten years" - Whether
the Petitioner-accused entitled to grant of bail in terms of s.167 (2)
E
of the Cr.P.C. as the investigating agency did not file charge-sheet
within 60 days - Held: Yes .:._Per Mada11 B. Lokur, J.: The words
"not less than" in cl(i) would mean that the imprisonment should be
10 years or more and would cover only those offences for which
punishment of imprisonment could be for a clear period of 10 years
F
or more - If minimum sentencing is laid down by the Legislature,
then the sentencing judge has no option but to give a sentence "not
less than" that sentence provided for -; Therefore, the words "not
less than" occurring in cl(i) to proviso (a) of s.167(2) of the code
(and in other provisions) must be given their natural and obvious
meaning which is to say, not below a minimum threshold and in
G
case of s.167 of the code these words must relate to an offence
punishable with a minimum of JO years imprisonment~ In instant
case, alleged offence against the petitioner was not punishable with
imprisonment for a minimum period of ten years - Thus, petitioner
had indefeasible right to the grant of 'default bail' after expiry of H
785
786
SUPREME COURT REPORTS
[2017] 8 S. C.R.
A sixty days of detention - Per Deepak Gupta, J, (concurring): The
words used by the Legislature are "not less than ten years", this
means that the punishment should be 10 years or more - This cannot include offences where the maximum punishment is JO years -
It obviously means that minimum punishment is JO years whatever
B be the maximum punishment - There is no ambiguity in the wording
of s.167(2) of the code - Per Prafu/la C. Pant, J. (dissenting) : The
intention of the Legislature was that if an offence was punishable
with imprisonment upto ten years, then it falls within the provision
of s. l 67(2)(a)(i) of the code, and permissible period for
investigation is 90 days - Though the expression "not less than ten
C years" used ins. J 67(2)(a)(i) of the code has created some ambiguity,
the real intention of the legislature seems to include all such offences
wherein an imprisonment which may extend to ten years is an awarda bl e sentence - Prevention of Corruption Act, 1988 - ss. 7,
J 3(l)(a)(b)(d) and 13(2) (as amended by the Lokpal and Lokayukta
D Act, 2013).
Default Bail - After expiry of sixty days of detention ulcl.(i)
of proviso (a) to s.167(2) - Petitioner was arrested ulss. 7,
13(l)(a)(b)(d} of the PC Act, 1988, which is punishable with
imprisonment for a period ranging from 4 to JO years - After
expiry of 60 days of detention, bail application filed by the petitioner
E before High Court was for regular bail and not for 'default bail' ul
s.167(2), however, oral arguments made before the High Court were
predominantly based on u/s.167(2) - Whether petitioner entitled to
default bail uls.167(2) - Held: Per Madan B. Lokur, J.: Jn instant
case, an alleged offence against the petitioner was not punishable
F
with imprisonment for a minimum period of ten years - Petitioner
had orally applied for 'default bail', under these circumstances the
only course open to High Court was to enquire whether petitioner
was prepared to furnish bail and if so then grant him 'default bail'
on reasonable conditions - Per Deepak Gupta, J.(concurring):
Admittedly, there is no plea for 'default bail' in bail application, but
G High Court permitted arguments on the ground of grant of 'default
bail' and no objection was raised by the counsel for the State - if
this objection had been raised at that stage, the accused could have
either filed fresh application for grant of 'default bail' or could
have prayed for 'default bail' by adding an additional ground in
H
RAKESH KUMAR PAUL v. STATE OF ASSAM
787
the existing application much before filing of charge sheet - Further.
A
requirement is of furnishing bail, he does not have to file detailed
.application and has to only aver in the application is that since 601
90 days have expired and charge sheet has not been filed, he is
entitled to bail and is willing to furnish bail - Per Prafulla C. Pant,
J. (dissenting): Requirement of an application claiming the statutory B
right uls.167(2) of the code is a pre-requisite for the grant of bail
on default - Such application has to be made before the Magistrate
for enforcement of statutory right - Jn present case petitioner never
sought 'default bail' before the court concerned, as such not
entitled to the same.
Default bail - State contended that since charge sheet was
C
filed against the petitioner. he is not entitled to 'default bail' and
must apply for regular bail - Held: Jn instant case, petitioner had
applied for 'default bail' and availed his indefeasible right, when
no chqrge sheet was filed - It would have been a different matter
altogether if the petitioner had not applied for 'default bail' for D
whatever reason - But, that is not the case insofar as the petitioner
.did not give up his indefeasible right for default bail, on the contrary
he had availed of his right, which is now acknowledged and
enforced - This indefeasible right cannot be defeated by filing
charge sheet after the accused has offered to furnish bail (Per
. Madan B. Lokur and Deepak Gupta, JJ.)
E
Constitution of India:
Art. 21 - Personal Liberty - Held: Jn matters of personal
liberty, view should not be too technical and must lean in favour of
personal liberty - Consequently, whether the accused makes a
F
written application for 'default bail' or an oral application for
'default bail' is of no consequence - The concerned court must
deal with such an application by considering the statutory requirements namely, whether the statutory period for filing charge sheet
or cha/Ian has expired, whether the charge sheet or challan has
been filed and whether the accused is prepared to and does furnish
G
bail - It is not advisable in matters of personal liberty to be
ritualistic and formal. (Per Madan B. Lokur. J.)
Judicial Discipline:
Duty of Courts - Held: Jn matters concerning personal liberty H
788
SUPREME COURT REPORTS
(2017) 8 S.C.R.
A and penal statutes, it is the obligation of the court to inform the
accused that he or she is entitled to free legal assistance as a matter
of right - Equally, Court on coming to know that the accused person
before it is entitled to 'default bail', to at least apprise him or her of
the indefeasible right. (Per Madan B. Lokur. J.)
B
Interpretation of Statutes:
Golden rule of Interpretation - Held: Words used by the
legislature should be given their natural meaning - Normally, Courts
should be hesitant to add words or subtract words from the statutory
provision - An effort should always be made to read the legislative
C provision in such a way that there is no wastage of words and any
construction which makes words of the statute redundant should be
avoided - Courts can either add words or subtract words or read
down the statute, but this should be done when there is ambiguity in
the language used. (Per Deepak Gupta, J.)
D
Two meaning attributed to provision - Held: If two meanings
could be attributed to such provision then the courts must lean
towards liberty and accept that interpretation of the statute, which
upholds the liberty of the citizen (Per Deepak Gupta, J.)
Prevention of Corruption Act, 1988 - Amendment made to,
E by the Lokpal and Lokayuktas Act - Applicability of - Held: It
applies to all accused charged with offences under the PC Act
irrespective of the fact whether the action is initiated under the
Lokpal and Lokayuktas Act or any other law - Lokpal and
Lokayuktas Act, 2013.
F
Disposing of the petitions, the Court ·
HELD: MAJORITY OPINION
Per Madan B. Lokur, J.: 1. The primary question need to
be decided first is the meaning of the expression "punishable
with imprisonment for not less than ten years" occurring in Clause
G (i) to proviso (a) of Section 167(2) of the Code of Criminal
Procedure, 1973. [Para 19) [810-F)
H
2. The petitioner relied upon Rajeev Chaudhary v. State
(NCT) of Delhi) case to contend that "not less than" 10 years
imprisonment must mean a minimum of 10 years imprisonment.
RAKESH KUMAR PAUL v. STATE OF ASSAM
789
In that decision, the offence was punishable under Section 386 of A
the IPC which provides that an accused, if found guilty, shall be
punished with imprisonment for a term "which may extend to 10
years". This Court contrasted that expression with the words
"not less than" occurring in Clause (i) to proviso (a) of Section
167(2) of the Cr.P.C. Juxtaposing the two expressions, this Court B
concluded that the words "not less than" in Clause (i) would mean
that the imprisonment should be 10 years or more and would
cover only those offences for which punishment of imprisonment
could be for a clear period of 10 years or more. The view
expressed in Rajeev Cllaudhary case is acceptable. [Paras 20 and
26) [810-G-H; 811-A-B; 814-B-C)
C
3. It is true that an offence punishable with a sentence of
death or imprisonment for life or imprisonment for a term that
may extend to 10 years is a serious offence entailing intensive
and perhaps extensive investigation. It would therefore appear
that given the seriousness of the offence, the extended period of D
90 days should be available to the investigating officer in such
cases. In other words, the period of investigation should be
relatable to the gravity of the offence - understandably so. This
could be contrasted with an offence where the maximum
punishment under the IPC or any other penal statute is (say) 7 E
years, the offence being not serious or grave enough to warrant
an extended period of 90 days of investigation. This is certainly a
possible view and indeed the Cr.P.C. makes a distinction in the
period of investigation for the purposes of 'default bail' depending
on the gravity of the offence. Nevertheless, to avoid any
uncertainty or ambiguity in interpretation, the law was enacted
F
with two compartments. Offences punishable with imprisonment
of not less than ten years have been kept in one compartment
equating them with offences punishable with death or
imprisonment for life. This category of offences undoubtedly calls
for deeper investigation since the minimum punishment is pretty G
stiff. All other offences have been placed in a separate
compartment, since they provide for a lesser minimum sentence,
even though the maximum punishment could be more than ten
years imprisonment. While such offences might also require
·deeper investigation (since the maximum is quite high) they have
H
790
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A been kept in a different compartment because of the lower
minimum imposable by the sentencing court, and thereby
reducing the period of incarceration during investigations which
must be concluded expeditiously. The cut-off, whether one likes
it or not, is based on the wisdom of the Legislature and must be
B respected. (Para 271 (814-C-H)
4. The entire issue may also be looked at from the
perspective of personal liberty. Ever since 1898, the legislative
intent has been to conclude investigations within twenty-four
hours. The basic legislative intent of completing investigations
C within twenty-four hours and also within an otherwise time-bound
period remains unchanged, even though that period has been
extended over the years. This is an indication that in addition to
giving adequate time to complete investigations, the Legislature
has also and always put a premium on personal liberty and has
always felt that it would be unfair to an accused to remain in
D custody for a prolonged or indefinite period. It is for this reason
and also to hold the investigating agency accountable that time
limits have been laid down by the Legislature. There is a
legislative appreciation of the fact that certain offences require
more extensive and intensive investigations and, therefore, for
E those offences punishable with death or with imprisonment for
life or a minimum sentence of imprisonment for a term not less
than 10 years, a longer period is provided for completing
investigations. [Paras 28 and 291 [815-A-B, E-GJ
5. This Court had occasion to review the entire case law on
F the subject in the case of Union of India v. Nirala Yadav. In that
decision this Court also noted the principle laid down to the effect
that if the charge sheet is not filed and the right for 'default bail'
has ripened into the status ofindefeasibility, it cannot be frustrated
by the prosecution on any pretext. The accused can avail his
liberty by filing an application stating that the statutory period for
G filing the charge sheet or challan has expired and the same has
not yet been filed and therefore the indefeasible right has accrued
in his or her favour and further the accused is prepared to furnish
the bail bond. [Para 381 (818-E-FI
H
RAKESH KUMAR PAUL v. STATE OF ASSAM
791
6. In the present case, it was also argued by the State that A
the petitioner did not apply for 'default bail' on or after 4th January,
2017 till 24th January, 2017 on which date his indefeasible right
got extinguished on the filing of the charge sheet. Strictly speaking
this is correct since the petitioner applied for regular bail on 11th
January, 2017 in the High Court- he made no specific application B
for grant of 'default bail'. However, the application for regular
bail filed by the accused on 11th January, 2017 did advert to the
.statutory period for filing a charge sheet having expired and that
perhaps no charge sheet had in fact being filed. In any event,
this issue was argued by the petitioner in the High Court and it
was considered but not accepted by the High Court. The High C
Court did not reject the submission on the ground of
maintainability but on merits. Therefore it is not as if the
petitioner did not make any application for default bail - such an
application was definitely made (if not in writing) then at least
orally before the High Court. In matters of personal liberty, Court D
should not be too technical and must lean in favour of personal
liberty. Consequently, whether the accused makes a written
application for 'default bail' or an oral application for 'default bail'
is of no consequence. The concerned court must deal with such
an application by considering the statutory requirements namely,
whether the statutory period for filing a charge sheet or challan
E
has expired, whether the charge sheet or challan has been filed
and whether the accused is prepared t" and does furnish bail. In
matters of personal liberty and Article 21 of the Constitution, it
is not always advisable to be formalistic or technical. [Paras 40
and 411 [819-B-H]
F
7. It was submitted that as of today, a charge sheet having
been filed against the petitioner, he is not entitled to 'default
bail' but must apply for regular bail - the 'default bail' chapter
being now closed. It cannot be agreed upon for the simple reason
that this case concerns the interregnum between 4th January,
2017 and 24th January, 2017 when no charge sheet had been G
filed, during which period he had availed of his indefeasible right
of 'default bail'. It would have been another matter altogether if
the petitioner had not applied for 'default bail' for whatever reason
during this interregnum. There could be a situation (however
H
792
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A rare) where an accused is not prepared to be bailed out perhaps
for his personal secutity sine:! he or she might be facing some
threat outside the correction home or for any other reason. But
then in such an event, the uc'.:uscd voluntarily gives up the
indefeasible right for defa1t_lt [:Pl and having forfeited that right
B the accused cannot, after the charge sheet or challan has been
filed, claim , resuscitatio.~ of the indefeasible right. But that is
not the case insofar as the :>etiti1111er is concerned, since he did
not give up his indefeasible right for 'default bail' during the
interregnum between 4th January, 2017 and 24th January, 2017
as is evident from th>! decision of the High Court rendered on
. C 11th January, 2017. On the contrary, he had availed of his right to
'default bail' which could not have been defeated on 11th January,
2017 and which is now r.cknowledged and enforced. (Para 46)
[822-G-H; 823-A-Dl
8. The petitioner I.ad satisfied all the requirements of
D obtaining 'default ball' whith B that on 11th January, 2017 he had
put in more than 60 l!ays in custody pending investigations into
an alleged offence not punishable with imprisonment for a
minimum period of 10 years, no charge sheet had been filed
against him and he was prepared to furnish bail for his release, as
such, he ought to have been released by the High Court on
E reasonable terms and conditions of bail. [Para 47) (823-D-E)
F
G
H
Rajeev Chaudhary v. State (NCT) of Delhi) (2001) 5
SCC 34 : (20011 ~ SCR 508 - affirmed.
Sanjay Dutt v. State (1994) 5 SCC 410 : (1994) 3 Suppl.
SCR 263; Mohammed Ajmal Mohammad Amir Kasab
v. State of Maharashtra (2012) 9 SCC 1: [2012) 8
SCR 295 - relied on.
Bhupinder Singh v. Jarnail Singh. (2006) 6 SCC 277 :
(2006) 3 Suppl. SCR 513 ; Prakash Singh v. Union of
India. (2006) 8 SCC 1: (2006) 6 Suppl. SCR 473 ;
Hitendra Vishnu Thakur v. State of Maharashtra (1994)
4 SCC 602 : (1994) 1 Suppl. SCR 360; Union of
India v. Nirala Yadav (2014) 9 SCC 457 : (2014) 6
SCR 148 ; Uday Mohan/al Acharya v. State of
RAKESH KUMAR PAUL v. STATE OF ASSAM
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; Sunil Batra
II v. Home Secretary, Delhi Administration (1980) 3 SCC
488 ~ (1980] 2 SCR 557; Hussainara Khatoon v.
State of Bihar (1980) 1 SCC 98 : [1979) 3 SCR 532 ;
Rubabbuddin Sheikh v. State of Gujarat (2007) 4 SCC
318 ; Kishore Singh Ravinder Dev v. State of Rajasthan
(1981) 1 SCC 503 : [1981) 1 SCR 995; Paramjit Kaur
(Mrs.) v. State of Punjab (1996) 7 SCC 20 : (1995) 5
Suppl. SCR 250 ; Bandhua Mukti Morcha v. Union of
India (1984) 3 SCC 161 : [1984) 2 SCR 67 ; Peoples
Union for Democratic Rights v. Union of India AIR
1982 SC 1473 : [1983] 1 SCR 456; Dr. Upendra Baxi
(I) v. State of Uttar Pradesh (1983) 2 SCC 308 ; Sheela
Barse v. State of Maharashtra (1983) 2 SCC 96 : (1983)
2 SCR 337 ; Khatri v. State of Bihar (1981) 1 SCC
627 : [1981] 2 SCR 408 ; Suk Das v. Union Territory
of Arunachal Pradesh (1986) 2 SCC 401 : [1986) 1
SCR 590; Rajoo @ Ramakant v. State of Madhya
Pradesh (2012) 8 SCC 553 : [2012) 6 SCR 1182 -
referred to.
Per Deepak Gupta, J. (Concurring):
793
A
B
c
D
E
1. The only concern here is the interpretation of the phrase
"for a term of not less than ten years" occurring in Section
167(2)(a)(i), which provides a period of 90 days where the
investigation relates. to an offence punishable with death,
imprisonment for life or imprisonment for a term not less than 10
F
years. On consideration, without indulging in any semantic
gymnastics, the meaning of this provision is absolutely clear. It
envisages three types of offences:
·
(i) Offences which are punishable with death;
(ii) Offences which are punishable with imprisonment for life;
G
(iii) Offences which are punishable with a term not less than
10 years. [Paras 8 and 9) [843-F-H]
2; The language of the statute is clear and unambiguous.
Out of the three categories of offences, the category of offences
H
794
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A where the punishment prescribed is not less than 10 years is
required to dealt with. If an offence is punishable with death
then whatever be the minimum punishment, the period of
investigation permissible would be 90 days. Similarly, if the
offence is punishable with life imprisonment, even ifthe minimum
B sentence provided is less than 10 years, the period of detention
before 'default bail' is available would be 90 days. [Para 101 [844A-B)
3. In the first two categories, the legislature made reference
only to the maximum punishment imposable, regardless of the
minimum punishment, which may be imposed. Therefore, if a
C person is charged with an offence, which is punishable with death
or life imprisonment, but the minimum imprisonment is less than
10 years, then also the period of 90 days will apply. However, in
the third category, the words used by the legislature are "not
less than ten years". This obviously means that the punishment
D should be 10 years or more. This cannot include offences where
the maximum punishment is 10 years. It obviously means that
the minimum punishment is 10 years whatever be the maximum
punishment. [Para 121 [844-E-GJ
4. While interpreting any statutory provision, it has always
E been accepted as a golden rule of interpretation that the words
used by the legislature should be given their natural meaning.
Normally, the courts should be hesitant to add words or subtract
words from the statutory provision. An effort should always be
made to read the legislative provision in such a way that there is
no wastage of words and any construction which makes some
F
words of the statute redundant should be avoided. No doubt, if
the natural meaning of the words leads to an interpretation which
is contrary to the objects of the Act or makes the provision
unworkable or highly unreasonable and arbitrary, then the Courts
either add words or subtract words or read down the statute, but
G this should only be done when there is an ambiguity in the language
used. There is no ambiguity in the wording of Section 167(2) of
the Code. [Para 13) [844-G-H; 845-A-Bl
5. A bare reading of Section 167 of the Code clearly indicates
that if the offence is punishable with death or life imprisonment
H or with a minimum sentence of 10 years, then Section 167(2)(a)(i)
RAKESH KUMAR PAUL v. STATE OF ASSAM
795
will apply and the accused can apply for 'default bail' only if the A
investigating agency does not file charge.sheet within 90 days.
However, in all cases where tl~e minimum sentence is less than
10 years but the maximum· sentence is not death or life
imprisonment then Section 167(2)(a)(ii) will apply and the accused
will be entitled to grant of 'default bail' after 60 days in case 8
charge-sheet is not filed. (Para 17) (845-G-H; 846-A-B) .
. 6. Section 167 of the Code lays down the procedure
established by law by which a person can be deprived of his
personal liberty, guaranteed to him under: Article 21 of the
Constitut.ion of India. If two meanings could be attributed to C
such a provision then the court~ must lean towards liberty and .. .
accept that interpretation of the statute, which upholds theliberty
of the citizen and which keeps· the eternal flame of liberty alive.
If words are ambiguous then also the court should be relJ1ctant
to accept that interpretation which curtails the right of a lwman
being of being free. (Para 18) (846-D·E)
D
7. Once the High Court permitted the counsel for the
petitioner to argue the petition on the ground of grant of 'default
bail' and no objection was raised by the counsel for the State theil
at this stage it cannot be urged that the petitioner never applied
for 'default bail' and is not entitled to 'default bail'. If this objection
E
had been raised at that stage, either by the Court or by the. State,
the accused could have either filed a fresh application for grant
of 'default bail' or could have prayed for 'default bail' by adding
an additional ground in the existing application much before
· 24.01.2017 when the charge-sheet was filed. (Para 23) (848·C·
DJ
F
. 8. The requirem;nt is of furnishing of bail. Tbe accused ·· ·
does not have to inake out any grounds for grant of bail. He does
not have to file a detailed application. All he has to aver .in the
application is that .since 60/90 days have expired and charge-sheet
has not been filed, he is entitled to bail and is willing to furnish
G
.bail. This indefeasible right cannot be defeated by. filing the
charge-sheet after the accused has offered to furnish bail.. (Para
28] (850-G-H)
Aswini Kumar Ghose v. Arabinda Bose Al]i 1952 SC
369: (1953] SCR 1; Jugalkishore Sarafv. Raw Cotton
H
796
A
B
c
D
SUPREME COURT REPORTS
[2017] 8 S.C.R.
Co. Ltd. AIR 1955 SC 376 : [1955) SCR 1369 ; Kanai
Lal Sur v. Paramnidhi Sadhukhan AIR 1957 SC 907 :
[1958) SCR 360 - relied on.
Rajeev Chaudhary v. State (NCT) of Delhi (2001) 5 SCC
34 : [2001) 3 SCR 508; Bhupinder Singh & Ors. v.
Jarnail Singh & Anr. (2006) 6 SCC 277 : [20061 3
Suppl. SCR 513 ; Prakash Singh v. Union of India
(2006) 8 SCC 1 ; Sanjay Dutt v. State through CB.I ..
Bombay (JI) (1994) 5 SCC 410 : (1994) 3 Suppl. SCR
263; Uday Mohan/al Acharya v. State of Maharashtra
(2001) 5 SCC 453 : [2001[ 2 SCR 878; Union of
India v. Nirala Yadav (2014) 9 SCC 457 : (2014) 6
SCR 148 ; Mohamed Iqbal Madar Sheikh & Ors. v.
State of Maharashtra (1996) 1 SCC 722 : [1996[ 1
SCR 183 - referred to.
MINORITY OPINION
Per Prafulla C. Pant, J. (Dissenting):
1. If the legislature intended to exclude the offences for
which the minimum imprisonment was ten years, it could have
used the words "or imprisonment for a term more than ten years".
E
Thus the argument that ninety days period does not cover the
cases where maximum imposable sentence is ten years cannot
be accepted. (Para 15) [830-G)
2. The intention of the legislature was that if an offence was
punishable with imprisonment upto ten years, then it falls within
F
the provision of Section 167(2)(a)(i) of the Code, and the
permissible period for investigation is ninety days. The intention
of the Legislature in extending the permissible time period from
sixty days to ninety days for investigation is to include the offences
in which sentence awardable i~ at least ten years or more.
Therefore, though the expression "not less than ten years" used
G in Section 167(2)(a)(i) of the Code has created some ambiguity,
the real intention of the legislature seems to include all such
offences wherein an imprisonment which may extend to ten years
is an awardable sentence. In other words, for offences wherein
the punishment may extend to ten years imprisonment, the
H
RAK.ESH KUMAR PAUL v. STATE OF ASSAM
797
permissible period for filing charge sheet shall be ninety days, A
and only after the period of ninety days, the accused shall be
entitled to bail on default for non filing of the charge sheet. (In
the present case, admittedly the charge sheet is filed within ninety
days). Since the expression "not less than ten years" has caused
ambiguity in interpretation, the best course for the legislature B
would be to clear its intention by using the appropriate words.
[Para 20) [833-D-G)
3. The law laid down clearly shows that the requirement of
an application claiming the statutory right under Section 167(2)
of the Code is a prerequisite for the grant of bail on default. Such C
application has to be made before the Magistrate for enforcement
of the statutory right. In the cases under the Prevention of
Corruption Act or other Acts where Special Courts are constituted
by excluding the jurisdiction of the Magistrate, it has to be made
before such Special Court. In the present case, since the appellant
never sought default bail before the court concerned, as such he D
was not entitled to the same. [Para 26) [837-C-EJ
4. In the present case, the allegations do not disclose merely
an economic offence but it shows a transgression of .the
constitutional rights of the victims of the crime. If the allegations
are found to be true, then the offence cannot merely be considered E
as an economic offence, but a fraud on the Constitution itself by
the persons appointed to enforce it. [Para 29) [838-F-GJ
5. In the above circumstances, withe>ut expressing any
views on the merits of the case pending before the trial court,
looking into the nature of allegations, the role attributed to the
F
appellant, the fact that further investigation regarding the offence
is underway, possibility of tampering evidence and influencing
witnesses, therefore, it is not a fit case for grant of bail at this
stage even on merits. [Para 30) [838-G-H; 839-A-BJ
Sanjay Dutt v. State through C.B.J., Bombay (1994) 5
G
SCC 410: [1994) 3 Suppl. SCR 263; Uday Mohan/a/
Acharya v. State of Maharashtra (2001) S SCC 453 :
[2001) 2 SCR 878.; Dr. Bi/in Shanti/a/ Panchal v.
State of Gujarat (1996) 1 SCC 718 : (1996) 1 SCR
193 ; Mohamed Iqbal Madar Sheikh v Stat.e of
H
798
SUPREME COURT REPORTS·
(2017] 8 S.C.R.
A
Maharashtra (1996) 1 SCC 722 : (1996) 1 SCR 183;
Hitendra Vishnu Thakur and Others etc. etc. v. State of
Maharashtra and Others (19941 ..! -:.;cc 602 : (1994) 1
Suppl. SCR 360 - relied on.
Rajeev Choudhary v. State (NCT) of Delhi (2001) 5 SCC
B
34: [2001) 3 SCR 508; Kiran Chander Asri v. State of
Haryana (2016) 1 SCC 578; Bhupinder Singh and ors.
v. Jarnail Singh and Another (2006) 6 SCC 277 : (2006)
3 Suppl. SCR 513 ; Nimmagadda Prasad v. Central
Bureau of Investigation 2013 (7) SCC 466 - referred
c
to.
Case Law Reference
In t!le J:ud&ment of Madan B. Lokur1 J.
[2001) 3 SCR 508
affirmed
P•ra 20
D [2006) 3 Suppl. SCR 513
referred to
Para 21
[2006) 6 Suppl. SCR 473
referred to
Para 32
[1994) 3 Suppl. SCR 263
referred to
Para35
(1994) 1 Suppl. SCR 360
referred to
Para35
E [2014) 6 SCR 148
referred to
Para37
(2001) 2 SCR 878
referred to
Para37
(1996) 1 SCR 183
referred to
Para39
[1980) 2 SCR 557
referred to
Para 42
F (1979) 3 SCR 532
referred to
Para42
c2001) 4 sec 318
referred to
Para42
(1981) 1 SCR 995
referred to
Para42
(1995) 5 Suppl. SCR 250
referred to
Para42
G (1984) 2 SCR 67
referred to
Para 42
(1983) 1 SCR 456
referred to
Para42
(1983) 2 sec 308
referred to
Para42
H
RAKESH KUMAR PAUL v. STATE OF ASSAM
799
(1983) 2 SCR 337
referred to
· Para42
A
(1981) 2 SCR 408
referred to
Para43
(1986) 1 SCR 590
referred to
Para43
(2012) 6 SCR 1182
referred to
Para43
(2012) 8 SCR 295
relied on
Para4
B
In the Jud&ment of Deeuak Guuta1 J.
(1953) SCR 1
relied OD
Para 13
(1955) SCR 1369
relied on
Para 13
(1958) SCR 360
relied on
Para IS
c
(2001) 3 SCR 508
referred to
Para 20
(2006) 3 Suppl. SCR 513
referred to
Para 21
· (2006) 8 sec 1
referred to
Para 22
(1994) 3 Suppl. SCR 263
referred to
D
Para24
(2001) 2 SCR. 878
referred to
Para24
(2014). 6 SCR 148
referred to
Para 25
(1996) l SCR 183.
referred to
Para 25
E
lg the Jud2mentof P-r~tulla C. Parit1 J.
(2001 I 3 SCR 508 .
referred to
Para4
(2016) 1 sec 578
. relied OD
Para9
(2006) 3 Suppl. SCR 513
referred to
Para9
F
(1994) 3 Suppl. SCR 263
relied on
Par!t 22
(2001) 2 SCR 878
relied on
Para23
(1996) 1 SCR 193
relied on .
Para 23
(1996) 1 SCR 183
relied on
· Para24
G
· (1994) 1 Suppl. SCR 360
rjllied ·on
Para 25
(2013) 1 sec 466
referred to
Para 28
H
800
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A
CRIMINAL APPELLATE JURISDICTION : Special Leave to
B
Appeal (Criminal) No. 2009 of2017.
From the Judgment and Order dated 11.0l.2017 of the High Court
ofGauhati in BA No. 23 of2017
WITH
SLP(Crl.) No. 2176 of2017.
Dr. Abhishek Manu Singhvi, Sr. Adv., Wajeeh Shafiq, Dhairay
Kapoor, Amit Bhandari, Advs. for th&Appellant.
Mukul Rohatgi, Sr. Adv., Ms. Deeksha Rai, Debojit Borkakati,
C Advs. for the Respondent.
The Judgments of the Court were delivered by
MADAN B. LO KUR, J. I. In Measure for Measure the Duke
complains (in the given situation): "And liberty plucks justice by the nose".1
D The truth is that personal liberty cannot be compromised at the altar of
what the State might perceive as justice - justice for one might be
perceived as injustice for another. We are therefore unable to agree
with learned counsel for the State that the petitioner is not entitled to his
liberty through what is commonly referred to as 'default bail' or that the
E
F
justice of the case should persuade us to decide otherwise.
2. The facts in these petitions are not in dispute and we need not
go into them in any great detail since we are really concerned with the
interpretation of the words "imprisonment for a term not less than ten
years" appearing in clause (i) of proviso (a) to Section 167(2) of the
Code of Criminal Procedure, 1973 as amended in 1978.
A few facts
3. A First Information Report No. 936 of2016 was lodged on
27"' Ocfober, 2016 in respect of allegations made under the provisions of
the Prevention of Corruption Act, 1988 (PC Act) and the Indian Penal
Code, 1860 (IPC). Although the petitioner was not named in the First
G Information Report, investigations seemed to implicate him in a very
large and structured conspiracy. Accordingly, on 5"' November, 2016
the petitioner was taken into custody pending further investigation.
1 Act I Scene Ill line 20-32
H
RAKESH KUMAR PAUL v. STATE OF ASSAM
801
[MADAN B. LOKUR, J.]
4. Ordinarily, the maximum period of detention during the course A.
of investigation (without a charge sheet or challan being filed) would be
60 days in terms of clause (ii) of proviso (a) to Section 167(2) of the
Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.'). In the
petitioner's case, this period would come to an end on 3n1January,2017.
However according to the State, since the petitioner had committed B
offences which cou,Id result in "imprisonment for a term not less than
ten years" he could be kept in custody for a period of90 days in terms of
.clause (i) of proviso (a) to Section 167(2) of the Cr.P.C. Therefore, the
question before us is whether, pending investigation, the petitioner could
be kept in custody for a maximum period of 60 days in terms of clause
(ii) of proviso (a) to Section 167(2) of the Cr.P.C. or for 90 days in terms
C
of clause (i) of proviso (a) to Section 167(2) ofthe Cr.P.C. without a
charge sheet being filed.
5. On 20'h December, 2016 (before the expiry of 60 days), the
petitioner applied for bail before the Special Judge dealing with cases
relating to offences under the PC Act. His application was rejected.
D
6. Subsequently, on or about 11 •h January, 2017 (after the expiry
of 60 days of detention but before the expiry of90 days of detention),
the petitioner applied for bail before the Gauhati High Court, but that
application was rejected on ll'h January, 2017. The prayer made in the
application for bail was for grant of"regular bail" under Section 439 of E
the Cr.P.C. This is of some importance because, according to learned
counsel for the State, assuming the petitioner could be detained only for
a maximum period of 60 days during investigations, he had not applied
for 'default bail', that is bail in default of the prosecution filing a charge
sheet against him soon after that 60 day period of detention, but had only
applied for "regular bail".
F
7. At this stage, it may be mentioned that even though the petitioner
had not applied for 'default bail' he did contend before the High Court
that he was entitled to 'default bail' since no charge sheet had been filed
against him within 60 days of his arrest during investigations. This
submission was considered by the High Court but rejected, not on the
G
ground that the petitioner had not applied for 'default bail' but on the
ground that he could be detained for 90 days without a charge sheet
being filed and that period of90 days had not yet come to an end. (The
period of90 days would come to an end on or about 2
11d February, 2017).
H
802
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A
8. To complete the narration of essential facts, it may be mentioned
that a charge sheet was filed against the petitioner on 24th January, 2017
that is after 60 days of his detention but before completion of90 days of
detention.
9. In view of the charge sheet having been filed, the modified
B question before us is whether the petitioner was entitled to 'default bail'
with effect from 3n1 or 4th January, 2017 onwards and, in any case on
11lhJanuary,2017 when his application for "regular bail" was rejected
by the Gauhati High Court.
History behind the enactment of Section 167 of the Cr.P.C.
· C
10. The Code of Criminal Procedure enacted in 18~8 contained
Section 167 which laid down the procedure to be followed in the event
the investigation into an offence is not completed within twenty-four
hours. What is significant is that the legislative expectation was that the
investigation would ordinarily be completed within twenty-four hours.
D Incidentally, tliis legislative expectation continues till today. Whatever be
the anxiety of the Legislature in 1898, there can be no gainsaying that
investigation into an offence deserves an early closure, one way or the
. other. Therefore, when Section 1~7 was enacted in the Code of Criminal
Procedure, 1898 it was premised on the conclusion of investigations
within twenty-four hours or within 15 days on the outside, regardless of
E the nature of the offence orthepunishment. Section 167 of the Code of·
·F
G
H
Criminal Procedure, 1898 reads as follows: '
· 167. [Marginal Note: Procedure when investigation cannot be
completed in twenty-four hours] (1) Whenever any person is
arrested and detained in custody, and it appears that the
investigation cannot be completed within the period oftwentyfour hours fixed by section 61, and there are grounds for
believing that the accusation or information is well-founded,
the officer in charge of the police-station or the police-officer
making the investigation if he is not below the rank of subinspector shall forthwith transmit to the nearest Magistrate a
copy of the entries in the diary hereinafter prescribed relating
to the case, and shall at the same time fotward the accused to
such Magistrate.
(2) The Magistrate to whom an accused·person is forwarded
under this section may, whether he has· or has not jurisdiction
RAKESH KUMAR PAUL v. STATE OF ASSAM
803
[MADAN B. LOKUR, J.]
to try the case, from time to time authorise the detention of the A
accused in such custody as such Magistrate thinks fit, for a
term not exceeding fifteen days in the whole. If he has not
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 no Magistrate of the third class, and no
Magistrate of the second class not specially empowered in
this behalf by the State Government shall authorise detention
in the custody of the police.
B
(3) A Magistrate authorizing under this section detention in the c
custody of the police shall record his reasons for so doing.
( 4) If such order is given by a Magistrate other than the District
Magistrate or Sub-divisional Magistrate, he shall forward a
copy of his order, with his reasons for making it, to the
Magistrate to whom he is immediately subordinate.
D
t.
11.Unfortuiiately, all laws tend to be misused whenever opportunity
knocks, and Section 167 of the Code of Criminal Procedure, 1898 was·.
no exception. Since there was a practical difficulty in completing
~ investigations within the .15 day time limit, the prosecution often took
recourse to the provisions of Section 344 of the Code of Crimirial E
Procedure, 1898 and filed a preliminary or incomplete report before the
Magistrate to keep the accused in custody.