Sec 167(2) CrPC: Accused Can't Be Released On Default Bail Merely Because He Was Not Produced Before Special Court- Madhya Pradesh HC

The Madhya Pradesh High Court, Jabalpur Bench has held that as per Section 167(2) of the Criminal Procedure Code (CrPC), the accused cannot be released on default bail merely because he was not produced before the Special Court on some dates.

A petition under Section 482 of CrPC was filed by the petitioners or accused persons praying for a direction to the Trial Court to release them on bail. They were accused in the case arising out of an FIR registered for the commission of offences under various provisions of the Indian Penal Code (IPC) and Unlawful Activities (Prevention) Act, 1967 (Amendment 2012) i.e., UAPA.

A Single Bench of Justice Dinesh Kumar Paliwal said, “In view of foregoing discussion and the settled position of law, it is apparent that petitioners cannot be released on default bail merely because they were not produced before the Special Court on some dates and there is non-compliance of the provision of producing through video linkage or physical appearance. In absence of any corresponding provision for grant of bail when charge sheet is not filed within the mandatory period, petitioners cannot claim to be released on default bail.”

Advocate Mujeeb Ur Rehman appeared on behalf of the petitioners/accused while Deputy Advocate General B.D. Singh appeared on behalf of the respondent/State.

In this case, the petitioners were booked for the offences punishable under Sections 121A, 153A, 120B, and 201 of IPC and Sections 13(1)(b) and 18 of UAPA. The accused persons had challenged the orders allowing their judicial custody. The said orders were challenged on the ground that their judicial custody was allowed in their absence as they were neither produced in person before the Court nor through the medium of electronic video linkage.

The short questions which were involved for determination before the court are as follows :-

(a) Whether accused can be released on statutory/ default bail under section 167(2) of Cr.P.C merely on the ground that at the time of extension of judicial custody by Special Judge accused persons were not produced either physically or virtually before the court on the dates mentioned?

(b) Whether accused who have not moved any application to exercise their right for grant of statutory bail before charge sheet is filed, can be released on default bail merely on the ground of their non-production either physically or virtually before the Special Judge extending judicial custody and the time for investigation?

The High Court while considering the above questions noted, “… in this case it cannot be over looked that accused were not produced before the court on some dates at the time of extension of judicial remand. The learned Special Judge has also not given reasons why he extended remand even when accused was not produced before him. The manner in which Superintendent of Jail are performing their duties and judges are dealing with the issue, is unsatisfactory. Every one is aware that in judicial custody, physical as well as virtual production is recognized by the Code of Criminal Procedure. So, Superintendent of Jail are required to produce the accused through virtual mode.”

The Court observed that the Judges seized of the matter are also expected to procure presence of the accused lodged in jail through virtual production if physical production is not possible for any reason and that the procedure can be adopted in both type of cases where investigation is going on and charge sheet has not been filed and also in cases when remand is extended under Section 309 of the Code.

“In the State of Madhya Pradesh, facility of video conferencing has been provided to all courts and jails. Therefore, there are no reasons for Superintendent of Jail and the courts seized with the matter not to procure presence of the accused who are lodged in jail through video conferencing at the time of extending remand and not to comply with the provisions of Section 167(2)(b) of Cr.P.C.”, further noted the Court.

The Court also directed that the courts/magistrates while extending custody period will make all efforts to procure presence of accused through the medium of video linkage if they are not produced in-person at the time of extension of further detention in judicial custody.

“Superintendent of Jail shall also make all attempts to adduce such accused before the court through virtual mode till charge sheet is filed and even after filing of charge sheet when accused are remanded under section 309 of Cr.P.C and are not produced in-person before the court, they will be produced through medium of electronic linkage and factum of their production be recorded in the order-sheet by the Judges/Magistrtes seized with the matter”, added the Court.

Accordingly, the High Court dismissed the petition.

Cause Title- Abdul Jamil & Ors. v. The State of Madhya Pradesh

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