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LANDMARK JUDGEMENT — Bail—Default Bail—If offence is punishable with imprisonment upto 10 years’ then accused in entitled for default bail after 60 days and where minimum sentence is 10 years or more then after 90 days.
October 25, 2017

2017(3) Law Herald (SC) 1745 : 2017 LawHerald.Org 1271
IN THE SUPREME COURT OF INDiA
Before
Hon’ble Mr. Justice Madan B. Lokur
Hon’ble Mr. Justice Deepak Gupta
Hon’ble Mr. Justice Prafulla C. Pant
Special Leave to Appeal (Crl.) No. 2009 of 2017
Rakesh Kumar Paul
v.
State of Assam
Decided on 16/08/2017
For the Petitioner: Mr. Wajeeh Shafiq, Advocate.
For the Respondent: Mr. Debojit Borkakati, Advocate.
Bail—Default Bail—If offence is punishable with imprisonment upto 10 years’ then accused in entitled for default bail after 60 days and where minimum sentence is 10 years or more then after 90 days.
Criminal Procedure Code, 1973, S.167(2)–Default Bail-60 days or 90 days–Non-filing of charge sheet—Held;
(i) If the offence is punishable with death or life imprisonment or with a minimum sentence of 10 years then default bail can be claimed after expiry of 90 days; and
(ii) In all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment then accused would be entitled for default bail after 60 days
(iii) Right to get ‘default bail’ is an indefeasible right-Court must appraise accused of this right and grant bail on offer to furnish baii bond/surety.
As per Hon’ble Justice Madan B. Lokur (Majority View)
While it is true that merely because a minimum sentence is provided for in the statute it does not mean that only the minimum sentence is imposable. Equally, there is also nothing to suggest that only the maximum sentence is imposable. Either punishment can be imposed and even something in between. Where does one strike a balance? It was held that it is eventually for the court to decide what sentence should be imposed given the range available. Undoubtedly, the Legislature can bind the sentencing court by laying down the minimum sentence (not less than) and it can also lay down the maximum sentence. If the minimum is laid down, 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 Clause (i) to proviso (a) of Section 167(2) of the Cr.P.C (and in other provisions) must be given their natural and obvious meaning which is to say, not below a minimum threshold and in the case of Section 167 of the Cr. P. C. these words must relate to an offence punishable with a minimum of 10 years imprisonment.
As per Hon ‘ble Justice Deepak Gupta (Majority View) (
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 our opinion, in matters of personal liberty, we cannot and 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’ in 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 has expired, whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail.
As per Hon’ble Justice PrafullaC, Pant, J. (Dissenting View)
I am of the opinion that the intention of the legislature was that if an offence was punishable with imprisonment upto ten years, then it falls within the provision of Section 167(2)(a)(i) of the Code, and then 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 is at least ten years or more. Therefore, as discussed above, though the expression “not less than ten years” used 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 permissible period for filing charge sheet shall be ninety days, 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). I may further add that, since the expression “not less than ten years” has caused ambiguity in interpretation, the best course for the legislature would be to clear its intention by using the appropriate words.
A bare reading of Section 167 of the Code clearly indicates that if the offence is punishable with death or life imprisonment or with a minimum sentence of 10 years, then Section 167(2)(a)(i) will apply and the accused can apply for ‘default bail’ only if the investigating agency does not file charge-sheet within 90 days. However, in all cases where the 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 entitled to grant of ‘default bail’ after 60 days in case charge-sheet in not filed. Even if I wo-f> to assume that two views are possible and third category envisaged in
Section 167(2)(a)(ii) is ambiguous, as suggested by learned brother Pant J., then a/so / have no doubt in my mind that a statute which curtails the liberty of a person must be read strictly. When any human right; a Constitutional fundamental right of a person is curtailed, then the statute which curtails such right must be read strictly. 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 Constitution of India. If two meanings could be attributed to such a provision then the courts must lean towards liberty and accept that interpretation of the statute, which upholds the liberty of the citizen and which keeps the eternal flame of liberty alive. If words are ambiguous then a/so the court should be reluctant to accept that interpretation which curtails the right of a human being of being free.
CASES CITED:
Rajeev Chaudhary v. State (NCT) of Delhi), (2001) 5 SCC 34. (Para 20 & 101)
Bhupinder Singh v. Jarnai! Singh, (2006) 6 SCC 277. (Para 21)
Prakash Singh v. Union of India, (2006) 8 SCC 1. (Para 32 & 103)
Sanjay Dutt v. State, (1994) 5 SCC 410. (Para 35)
Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602. (Para 35)
Union of India v. Nirala Yadav, (2014) 9 SCC 457. (Para 37 & 106)
Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453. (Para 37 & 105)
Mohamed Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1 SCC 722. (Para 39)
Sunil Batra II v. Home Secretary, Delhi Administration, (1980) 3 SCC 488.. (Para 42)
Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98. (Para 42)
Rubabbuddin Sheikh v. State of Gujarat, (2007) 4 SCC 318. (Para 42)
Kishore Singh Ravinder Dev v. State of Rajasthan, (1981) 1 SCC 503. (Para 42)
Paramjit Kaur (Mrs.) v. State of Punjab, (1996) 7 SCC 20. (Para 42)
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161. (Para 42)
People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1473. (Para 42)
Upendra Baxi (I) v. State of Uttar Pradesh, (1983) 2 SCC 308. (Para 42)
Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96. (Para 42)
Khatri v. State of Bihar, (1981) 1 SCC 627. (Para 43)
Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401. (Para 43)
Rajoo @ Ramakant v. State of Madhya Pradesh, 2012(5) Law Herald (SC) 4268. (Para 43)
Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra, 2012(5) Law Herald (SC) 3862.
(Para 43)
Rajeev Chaudhary v. State (NCT) of Delhi, (2001) 5 SCC 34. (Para 56)
Kiran Chander Asri v. State of Haryana, 2015(5) Law Herald (SC) 3477 : 2015 LawHerald.Org 2151.
(Para 61)
Bhupinder Singh & Ors. v. Jarnail Singh & Anr., (2006) 6 SCC 277. (Para 61)
Sanjay Dutt v. State through C.B.I., Bombay, (1994) 5 SCC 410. (Para 74 & 105)
Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453. (Para 75)
Bipin Shantilal Panchal v. State of Gujarat, (1996) 1 SCC 718. (Para 75)
Mohamed Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1 SCC 722. (Para 76 & 106)
Hitendra Vishnu Thakur & Ors. etc. etc. v. State of Maharashtra & Ors., (1994) 4 SCC 602. (Para 77)
Nimmagadda Prasad v. Central Bureau of Investigation, 2013(4) Law Herald (SC) 2658. (Para 80)
Jugalkishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376. (Para 96)
Kanai La! Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907. (Para 98)
Bhupinder Singh & Ors. v. Jarnail Singh & Anr., (2006) 6 SCC 277. (Para 102)
Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369 (Para 96)
Default bail
Bail under section 167 (2) of cr.p.c
60 days or 90 days
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