Indefeasible Right Of Accused To Seek Bail Arises Only If Charge-Sheet Was Not Filed Before Expiry Of Statutory Period U/s. 167(2) CrPC: SC

In this case, an investigation was directed to be conducted into the affairs of Adarsh Group of Companies and LLPs by the Central Government in the exercise of the powers conferred under Section 212(1)(c) of the Companies Act, 2013 and sub-sections (2) and (3)(c)(i) of Section 43 of the Limited Liability Partnership Act, 2008.

Respondent Nos. 1 and 2 were arrested pursuant to the approval granted. The Delhi High Court directed interim release of Respondent Nos. 1 and 2 which was set aside by the Supreme Court, following which Respondent Nos. 1 and 2 surrendered. The Respondent Nos. 1 and 2 were remanded to 14 days' judicial custody. On account of continuation of the investigation, the Special Court, Gurugram extended the judicial custody of Respondent Nos. 1 and 2 while they filed regular bail applications for being released on bail before the Punjab & Haryana High Court which further directed the trial court to consider any application that may be filed by Respondent Nos.1 and 2 under Section 167 of the Code of Criminal Procedure, 1973 ("CrPC"), in the meanwhile. Respondent Nos. 1 and 2 filed applications for statutory bail under Section 167(2) of the CrPC. The said applications were dismissed by the Sessions Judge, Gurugram while The High Court directed their release on bail on the ground that they were entitled to statutory bail.

This impugned judgment of the Punjab & Haryana High Court granting bail to Respondent Nos. 1 and 2 was assailed before the Supreme Court by the Appellant i.e. Serious Fraud Investigation Office

Additional Solicitor General, Mr. Aman Lekhi, appeared on behalf of the Appellant, while Senior Counsel, Mr. Vikram Choudhri, appeared for Respondent Nos.1 and 2 while Senior Counsel, Mr. Mukul Rohatgi, represented the Intervenor.

The primary issue in this case was -

• Whether an accused was entitled for statutory bail under Section 167(2), CrPC on the ground that cognizance had not been taken before the expiry of 60 days or 90 days, as the case may be, from the date of remand.

It was contended by the Appellant that the High Court had committed a serious error in granting statutory bail to Respondent Nos. 1 and 2, in spite of the fact that the complaint was filed well before the expiry of 60 days from the date of the remand. It was argued that an egregious error had been committed by the High Court in holding that cognizance also had to be taken before the expiry of the 60-day period, or else, the accused would be entitled to statutory bail under Section 167(2), CrPC. It was thus submitted that the impugned judgment of the Punjab & Haryana High Court was contrary to the law laid down by the Apex Court in Suresh Kumar Bhikamchand Jain v. State of Maharashtra.

On behalf of the Respondent Nos. 1 and 2, it was claimed that the High Court was justified in granting statutory bail to them as, admittedly, cognizance was not taken before the expiry of the 60-day period. It was contended that the right under Section 167(2), CrPC could not be exercised after the charge-sheet had been submitted and cognizance had been taken. It was further argued that an accused had a right to seek statutory bail under the proviso to Section 167(2) even after the charge- sheet was filed, till the court takes cognizance.

Additionally, it was contended by the Intervenor that there was a conflict of opinion regarding the interpretation of Section 167(2), CrPC vis-à-vis the right of an accused to claim statutory bail in case cognizance was not taken before the expiry of the prescribed period of 60 or 90 days.

The Court observed that It was clear from the judgment of this Court in Suresh Kumar Bhikamchand Jain v. State of Maharashtra that filing of a charge-sheet was sufficient compliance with the provisions of Section 167, CrPC and that an accused could not demand release on default bail under Section 167(2) on the ground that cognizance had not been taken before the expiry of 60 days. The accused continued to be in the custody of the Magistrate till such time cognizance was taken by the court trying the offence, which assumed custody of the accused for the purpose of remand after cognizance was taken. The conclusion of the High Court that the accused could not be remanded beyond the period of 60 days under Section 167 and that further remand could only be at the post-cognizance stage, was held to be incorrect by the Apex Court.

The Supreme Court in order to answer the question as to whether this Court had taken a different view in Sanjay Dutt v. State, Mohamed Iqbal Madar Sheikh & Ors. v. State of Maharashtra and M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence undertook a close scrutiny of the judgments which showed that there was nothing contrary to what had been decided in Suresh Kumar Bhikamchand Jain v. State of Maharashtra.

In all the above judgments which were relied upon by either side, this Court had categorically laid down that the indefeasible right of an accused to seek statutory bail under Section 167(2), CrPC arose only if the charge-sheet had not been filed before the expiry of the statutory period. It was opined by the Court that non-filing of the charge-sheet within the statutory period was the ground for availing the indefeasible right to claim bail under Section 167(2), CrPC. It was thus made clear that the accused would remain in the custody of the Magistrate till cognizance was taken by the relevant court.

Thus, the order passed by the Punjab & Haryana High Court was hereby set aside and the appeals were allowed accordingly.

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