- In Akheraj vs State of Rajasthan the Hon’ble Rajasthan HC has reiterated that the right to seek default bail under section 167(2) of CrPC is an indefeasible right of the accused, but this is so only in cases where the remedy has been availed of by preferring an application within the prescribed period.
- The Court also observed that if an additional offence is found to be made against an accused then the computation of the period of 60 or 90 days, as is laid down under section 167 CrPC would be done afresh.
- It is the case of the petitioner that an FIR was lodged on 16-10-2021 under section 363 IPC by the complainant alleging that his brother’s daughter was abducted by the accused/petitioner, in pursuance of which the accused/petitioner was arrested on 19-10-2021. He remained in custody for one day and was released on 20-10-2021. However, subsequently the accused was again arrested and taken into custody on 27-10-2021 and remained in custody till 24-01-2022 (when the charge sheet was filed), after additional charges under sections 457, 342, 366A, 376(2)(n) 376D of IPC and 3/4 and 5(G)/6 of POCSO Act were made out against him and included in the charge sheet.
- Thus, the Counsel for the petitioner alleged that the accused/petitioner had been in custody for a total period of 92 days, which exceeded the limits as provided in section 167(2) of CrPC, and that the accused had an indefeasible right to be released on bail.
- The Court observed that a bare perusal of section 167(2) CrPC shows that the period of 90 days would be computed when the investigation with regard to the said offence began. The Court also observed that if an additional or new offence is found to be made out by the investigating authority against the accused then the computation of the period under section 167(2) CrPC would be done afresh.
- Thus, the Hon’ble HC agreed with the observation of the Trial Court when it had observed that the period of detention would be computed from 27-10-2021, until the charge sheet was filed on 24-01-2022, and therefore, the charge sheet was rightly filed within the stipulated period of 90 days.
- The Court also observed that the accused/petitioner had, in the present case, filed an application for default bail on 22-02-2022, which is well beyond the statutory period of 90 days.
- As regards the issue whether a bail application filed after the filing of the charge sheet, although the charge sheet had been filed after the expiration of the prescribed statutory period, would be maintainable, the Court referred to a plethora of decisions, including Suresh Kumar Bhikamchand Jain vs State of Maharashtra and ors (2013) SCC and Sanjay Dutt vs State through CBI Bombay (1994) SCC wherein it was observed that the right of statutory bail which is accrued to the accused and gains the status of an indefeasible right only after the expiry of the total period laid down in section 167(2) of CrPC and until the chargesheet is subsequently filed. It was also held in Sanjay Dutt’s case that the right to default bail is enforceable only after the expiry of the prescribed period, and the right does not survive after the charge sheet was filed, unless the right had been already availed of.
- In Achpal and ors vs State of Rajasthan (2019) SCC the Apex Court had clarified that the Courts are not empowered to grant an extension of time for the detention of the accused or overlook the delay in filing of the chargesheet in case an application seeking bail is preferred by the accused.
- Thus, the Court was of the opinion that what is of utmost significance is whether the application seeking default bail is filed before the filing of the charge sheet, and the said right of the accused becomes an indefeasible right only when the prescribed period had expired and the chargesheet had not been filed. Other attending circumstances are immaterial.
- In light of the aforementioned observations, the petition was disposed of, and the order of the lower Court did not warrant interference.
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