Ritu Chhabaria v. Union of India & Ors.

RITU CHHABARIA v. UNION OF INDIA & ORS. (Writ Petition (Criminal) No. 60 of 2023) APRIL 26, 2023 [KRISHNA MURARI AND C. T. RAVIKUMAR, JJ.] Code of Criminal Procedure, 1973 – s.167(2) – Right of default bail – A chargesheet, if can be filed in piec emeal without first completing the investigation and whether the filing of such chargesheet extinguishes the right of an accused for grant of default bail – Held: No – Without completing the investigation o f a case, a chargesheet or prosecution complaint cannot be file d by an investigating agency only to deprive an arrested ac cused of his right to default bail u/s.167(2) – Such a chargesheet, if file d, would not extinguish the right to default bail u/s.167(2) – In such cases, Trial Court cannot continue to remand an arrested perso n beyond the maximum stipulated time without offering the arr ested person default bail – Right of default bail u/s.167(2) is not merely a statutory right, but a fundamental right flowing from Article 21 – Const itution of India – Article 21. Constitution of India – Art.32 – Writ petition – Maintainabil ity of – Held: Constitution entrusted the Supreme Court with the most important task of protecting civil liberties of indi viduals, and the society at large – Article 32 falls within Part III of the Constitution which deals with fundamental rights and thus, the right to invoke Article 32 is a fundamental right in itself – The rel ief of statutory bail u/s.167(2), Cr.PC is a fundamental right directly flo wing from Article 21 of the Constitution – Thus, violation of such a right directly attracts consideration u/Article 32 – In the present case, preliminary objection raised by respondent regarding the maintainabilit y of the writ petition is rejected – Code of Criminal Proced ure, 1973 – s.167(2). Code of Criminal Procedure, 1973 – s.167(2) – Histo ry of the provision of default bail – Law Commission Repo rts, recommendations – Discussed – Code of Criminal Procedure, 1898 – s.167. Disposing of the writ petition, the Court HELD: 1.1 The relief of statutory bail under Section 167(2) of the Cr.PC is a fundamental right directly flowing f rom Article 21 of the Constitution of India, and the violation of such a right directly attracts consideration under Article 32 of the Constitution. The preliminary objections raised by the respondent re garding the maintainability of this petition under Article 32 of the Constitution stand rejected. [Para 14][834-B-C]

1.2 Section 167(2) of the Cr.PC was enacted to ensure that the investigating agency completes the investigation within the prescribed time limit, failing which no accused could be detained if they are willing to avail bail. [Para 21][839-A-B] Law Commission of India Report No. 14, Vol.-I (1958); Law Commission Report No. 41 (September,1969), Para.

14.19 – referred to. M. Ravindran v. The Intelligence Officer, Directora te of Revenue Intelligence (2021) 2 SCC 485; Satendar Kumar Antil v. CBI & Anr. (2021) 10 SCC 773 – relied on.

1.3 The right of statutory bail, however, is extinguished, i f the charge sheet is filed within the stipulated period. The question of resorting to a supplementary chargesheet u/s 173 (8) of the Cr.PC only arises after the main chargesheet has been fi led, and as such, a supplementary chargesheet, wherein it is explicitly stated that the investigation is still pending, cann ot under any circumstance, be used to scuttle the right of default bail, for then, the entire purpose of default bail is defeated, and th e filing of a chargesheet or a supplementary chargesheet becomes a mere formality, and a tool, to ensue that the right of defa ult bail is scuttled. First investigation is to be completed, a nd only then can a chargesheet or a complaint be filed within the s tipulated period, and failure to do so would trigger the statutory r ight of default bail under Section 167(2) of Cr.PC. [Paras 24 and 25][840-G-H; 841-A-B] Union of India v. Thamisharasi & Ors. (1995) 4 SCC 190 : [1995] 3 SCR 905; Ashok Munilal Jain & Anr. Vs. Assistant Director, Directorate of Enforcement(2018) 16 SCC 158 – relied on.

1.4 Without completing the investigation of a case, a chargesheet or prosecution complaint cannot be file d by an investigating agency only to deprive an arrested accus ed of his right to default bail under Section 167(2) of the CrPC . Such a chargesheet, if filed by an investigating authority w ithout first completing the investigation, would not extinguish the r ight to default bail under Section 167(2) CrPC. The trial court , in such cases, cannot continue to remand an arrested person beyon d the maximum stipulated time without offering the arrested p erson default bail. [Para 32][842-E-G]

1.5 In the instant case, during the pendency of the investigation, supplementary chargesheets were file d by the Investigation Agency just before the expiry of 60 days, with the purpose of scuttling the right to default bail accrued in favour the accused. This factual position was missed by the trial c ourt, and instead of offering default bail to the accused, th e trial court mechanically accepted the incomplete chargesheets file d by the Investigating Agency, and further continued the remand of the accused beyond the maximum period specified. The Investig ating Agency and the trial court, thus, failed to observe the man date of law, and acted in a manner which was manifestly arbitrary an d violative of the fundamental rights guaranteed to the accused. The interim order of bail passed in favor of the accuse d is made absolute. [Paras 33 and 35][843-A-C; 843-F] K. S. Puttaswamy & Anr. v. Union Of India & Ors.(2017) 10 SCC 1 : [2017] 10 SCR 569; K. K Kochunni, Moopil Nayar v. State of Madras & Ors. [1959] 2 Suppl. SCR 316 – followed. State of West Bengal v. Salap Service Station & Ors .

(1994) 3 Supp SCC 318; Dharam Pal v. State of Haryana & Ors. (2016) 4 SCC 160 : [2016] 1 SCR 194; Ram Narain Popli v. CBI (2003) 3 SCC 641 : [2003] 1 SCR 119; Rajesh Ranjan Yadav v. CBI (2007) 1 SCC 70 : [2006] 9 Suppl. SCR 40 – distinguished. State Of Bihar & Others v. J.A.C Saldanha & Ors.(1980) 1 SCC 554 : [1980] 2 SCR 16 – referred to. Case Law Reference [1980] 2 SCR 16 referred to Para 8 (II) [2017] 10 SCR 569 followed Para 12 [1959] 2 Supp SCR 316 followed Para 13 [1995] 3 SCR 905 relied on Para 25 [2016] 1 SCR 194 distinguished Para 30 [2003] 1 SCR 119 distinguished Para 30 [2006] 9 Suppl. SCR 40 distinguished Para 30 CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 60 of 2023. Under Article 32 of The Constitution of India Dr. Sujay Kantawala, Santosh Sachin, Advs. for the Petitioner. K M Nataraj, ASG , Ms. Indira Bhakar, Vatsal Joshi, Vinay ak Sharma, B K Satija, Pratyush Shrivastava, Arvind Kumar Sharma, Advs. for the Respondents. The Judgment of the Court was delivered by

KRISHNA MURARI, J.

¶1The present writ petition under Article 32 of the Constitution of India has been filed by the writ petitioner herein seeking the release of her husband on default bail. The writ petition also rais es an issue of grave importance of personal liberty enshrined under Article 21 of the Constitution of India. FACTS

¶2Briefly, the facts relevant to the present writ petition are that an FIR was lodged under Section 120(B) read with Section 420 of the Indian Penal Code, 1860 (for short, ‘IPC’) along with Sections 7,12 and 13(2) read with Section 13(1)(d) of the Prevention of Corru ption Act, 1988, wherein the writ petitioner’s husband was not named.

¶3Subsequently, two supplementary chargesheets were filed , wherein the writ petitioner’s husband (hereinafter referred to as “accused”) was made a prosecution witness in the supplementary chargesheet dated 26.05.2020. Multiple other supple mentary chargesheets were later filed, and the accused was not named in any of the said chargesheets.

¶4The investigation was then transferred to another investigating officer, and the accused was then arrested by CBI and was remanded to custody on 28.04.2022. Multiple other supplementary chargesheets were then filed, wherein the accused herein was named as a su spect, and the remand of the accused under Section 309(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.PC’) was renewed and was continued from time to time, and he was never released on default bail.

¶5Subsequently, vide I.A No. 37424/2023, the petitioner sought to incorporate additional grounds and prayers for seeking bail in the writ petition, which was allowed by this Court vide order dated 20.02.2023, and interim bail was granted.

¶6It is against this continuation of custody, and the scuttling of relief of default bail, the petitioner herein has filed the present writ. Every Supplementary chargesheet filed, as per the writ petitioner herein, is an attempt to ensure that her husband is not released on default bail. ARGUMENTS ADVANCED BY THE PETITIONER

¶7The learned counsel for the petitioner contended that: I. The Respondent has admitted in writing in the supplementary chargesheet that the investigation is still pending, and in light of the same the trial court ought not to have issued process and remanded the petitioner’s husband under Section 309 Cr.PC. II. The accused’s fundamental rights are in prejudice due to continued custody on grounds of investigation not being completed. It was argued that the provisions of the CrPC do not empower continued remand to custody beyond 60 days if the investigation is still in progress. For this, the learned counsel relied on the judgment in the case of M. Ravindran Vs. The Intelligence Officer, Directorate of Revenue Intelligence.1 1 (2021) 2 SCC 485 ARGUMENTS ADVANCED BY THE RESPONDENT

¶8The learned counsel appearing on behalf of the respondent contended that: I. The present writ is not maintainable, and for the grant of bail, the accused herein should have either approached the High Court against the order of the Magistrate refusing default bail or filed a Special Leave Petition against the said order invoking provisions of Article 136 of th e Constitution of India. II. The contention of the petitioner that the accused is not named in the FIR is not a relevant submission, as the FIR is not a complete document, and is only the first step to set the criminal procedure in motion. To support the contention, learned counsel relied on the case of State Of Bihar & Others Vs. J.A.C Saldanha & Ors. 2 III. The supplementary chargesheet filed on 25.06.2022 is a complete document in respect to the offence committed by the persons arraigned in the said supplementary chargesheet, therefore no right to default bail has been accrued in favor of the petitioner’s husband. ISSUES

¶9In light of the abovementioned arguments raised by the learned counsel for the parties, the following three issues arise for our consideration:- I. Can a chargesheet or a prosecution complaint be filed in piecemeal without first completing the investigation of the case? II. Whether the filing of such a chargesheet without completing the investigation will extinguish the right of an accused for grant of default bail? III. Whether the remand of an accused can be continued by the trial court during the pendency of investigation beyond the stipulated time as prescribed by the CrPC? 2 (1980) 1 SCC 554. PRELIMINARY OBJECTION

¶10 A preliminary objection has been raised by the learned counsel appearing on behalf of the respondent stating that the present writ is not maintainable before this court on grounds that no relief at such an early stage of the investigation can be granted.

¶11We have considered the preliminary objection, however, we are not inclined to concur with the same. It must be remembe red that our Constitution has entrusted the Supreme Court with the most important task of protecting civil liberties of individuals, and the society at large. These civil liberties, which manifest themselves in the form of fundamental rights, are what allow the people of this country to effectively negotiate with the state and maintain the parity in power in the so cial contract between the people and the state. If this Court refuses to exercise its jurisdiction on technicalities in cases of violations of fundamental rights, it will lead to a ripple effect that will result in a dy sfunctional social contract, wherein the people of this country would become subject to an arbitrary and unfettered tyranny of the state.

¶12Article 32 of the Constitution of India provides remedies for enforcement of rights conferred by this Part. The said Art icle reads as under:- “32. Remedies for enforcement of rights conferred by this Part-(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights confe rred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue dire ctions or orders or writs, including writs in the nature o f habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of an y of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supre me Court by clauses (1) and (2), Parliament may by law emp ower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable b y the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.” Article 32 falls within Part III of the Constitution which de als with fundamental rights and thus the right to invoke Article 32 is a fundamental right in itself, that exists to protect and safeguard the other fundamental rights guaranteed by Part III of the Constitution. We may usefully refer to the following observations of a Constitution Bench of this Court made in the case of K.S. Puttaswamy & Anr. vs. Union Of India & Ors. 3 :- “A constitutional democracy can survive when citizens have an undiluted assurance that the Rule of Law will protect t heir rights and liberties against any invasion by the State and that judicial remedies would be available to ask searchi ng questions and expect answers when a citizen has bee n deprived of these, most precious rights.”

¶13Further, another Constitution Bench of this Court in the case of K.K Kochunni, Moopil Nayar vs. State of Madras & Ors. 4 as early as 1959, has observed that the Court must exercise its jur isdiction in matters where there is an abuse of fundamental rights. The relevant paragraphs of the said judgment are being extracted hereunder: “Further, even if the existence of other adequate legal rem edy may be taken into consideration by the High Court in deciding whether It should issue any of the prerogative writ s on an application under Article 226 of the Constitution, as to which we say nothing now - this Court cannot, on a similarground, decline to entertain a petition under Article 32, for the rig ht to move this Court by appropriate proceedings for t he enforcement of the rights conferred by Part I of the Constitution is itself a guaranteed right. It has accordingly bee n held by this Court in Romesh Thappar v. State of Madras [1950 SCC 436 1950 SCR 594] that under the Constitution this Court is constituted the protector and guarantor of fundamental rights and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking the pr otection of this Court against infringement of such rights, although such applications are made to this Court in the first instance without resort to a High Court having concurrent jurisdiction i n the matter. The mere existence of an adequate alternativ e legal 3 (2017) 10 SCC 1 4 1959 Supp (2) SCR 316 remedy cannot per se be a good and sufficient groun d for throwing out a petition under Article 32, if the existence of a fundamental right and a breach, actual or threatened, of such right is alleged and is prima facie established on the petit ion.”

¶14It is also pertinent to note that the relief of statutory bail under Section 167(2) of the Cr.PC, in our opinion, is a fundamental right directly flowing from Article 21 of the Constitution of India, and the violation of such a right, as mentioned above, directly attracts consideration unde r Article 32 of the Constitution. In such circumstance, we are not inclined to agree with the preliminary objections raised by the lea rned counsel for the respondent regarding the maintainability of this pe tition under Article 32 of the Constitution and the said objection, therefore, stands rejected. ANALYSIS

¶15Before we deal with the issues framed, we find it pertinent to mention that in the present case, this Court is not dealing with the merits of the case and as such is not inclined to make any observations regarding the same. Every court, when invoked to exercise its powers, must be mindful of the relief sought, and must act as a forum confined to such relief. In the present case at hand, this Court is not a court of appeal, but a court of writ, and therefore is inclined to limit its jurisdiction only to the personal liberty of the writ petitioner’s husband and the impugned points of law.

¶16For the purpose of deciding the issues framed by us, we deem it appropriate to trace the history of the provision of default bail, and the reasons which led the legislature to incorporate the existing provisions in the new statute. Under Section 167 of the Code of Criminal Procedure, 1898, which was the Act that governed criminal procedure bef ore the enactment of CrPC presently in force, an accused, either under judicial or police custody, could be remanded only for a maximum period of 15 days. For a ready reference Section 167 of the 1898 Code is be ing reproduced herein:- “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 c annot be completed within the period of twenty-four hours fi xed by Section 61, and there are grounds for believing tha t the accusation or information is well-founded, the offi cer in charge of the police station or the police officer in char ge of the police station or the police officer making the invest igation if he is not below the rank of sub-inspector 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 forward 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 to try the case, from time to time authorise the detention o f the 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 cons iders further detention unnecessary, he may order the accus ed 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 empowe red in this behalf by the State Government shall authorise detention in the custody of the police.

(3) A Magistrate authorising under this section deten tion in the custody of the police shall record his reasons for so doing.

(4) If such order is given by a Magistrate other th an the District Magistrate or Sub-Divisional Magistrate, h e shall forward a copy of his order, with his reasons for making it, to the Magistrate to whom he is immediately subordinate.”

¶17This period of 15 days, however, more often than not, was inadequate to conclude investigations, especially in complic ated cases which required a longer and deeper investigation. This lack of t ime, because of the abovementioned provision of the 1898 Act, led to a widespread practice wherein investigating officers would file preliminary chargesheets after the expiry of the remand period, and su bsequently request the magistrate to postpone the commencement of trial and remand the accused under Section 344 of the 1898 Act for a further time, till the final chargesheet was filed.

¶18This practice of filing preliminary chargesheets was first pointed out by the Law Commission of India in its Report No. 145 on Reforms of the Judicial Administration, wherein it was stated that in many cases, the accused persons, without the filing of any detailed reports befor e the courts by the investigating authority, were languishing in jail for a prolonged period of time. It thus recommended that there existed an urgen t need for a provision that provided for an appropriate time fram e for the completion of an investigation while also safeguarding the personal liberty of the accused.

¶19These recommendations made by the abovementioned law commission report were again emphasized by the Law Commission in its Report No. 41 6, wherein it was explicitly stated that there was an urgent need to protect the civil liberties of accused persons against the misuse of Section 344 of the 1898 Act, wherein the accused persons, on grounds of a preliminary report and pending investigation, were remanded to custody indefinitely. The relevant paragraphs from the said report are being reproduced hereunder:- “Section 167 provides for remands. The total period for which an arrested person may be remanded to custody-polic e or judicial-is 15 days. The assumption is that the inves tigation must be completed within 15 days and the final report under section 173 sent to court by then. In actual practice, however , this has frequently been found unworkable. Quite of ten, a complicated investigation cannot be completed within 15 days, and if the offence is serious, the police naturally insist that the accused be kept in custody. A practice of doubtful legal validity has therefore grown up. The police file be fore a magistrate a preliminary or “incomplete” report, an d the magistrate, purporting to act under section 344, ad journs the proceedings and remands the accused to custody. In the Fourteenth Report, the Law Commission doubted if suc h an order could be made under section 344, as that sect ion is intended to operate only after a magistrate has tak en cognizance of an offence, which can be properly done only after a final report under section 173 has been received, and not while the investigation is still proceeding. We are of the 5 Law Commission of India in Report No. 14, Vol.-I (1 958). 6 Law Commission in its Report No. 41 (September,1969 ), Para. 14.19. same view, and to us also it appears proper that the law shou ld be clarified in this respect. The use of section 344 for a remand beyond the statutory period fixed under section 167 can lead to serious abuse, as an arrested person can in this manner be kept in custody indefinitely while the investigation can g o on in a leisurely manner. It is, therefore, desirable, as was observed in the Fourteenth Report that some time limit sh ould be placed on the power of the police to obtain a re mand, while the investigation is still going on: and if t he present time limit of 15 days is too short, it would be better to fix a longer period rather than countenance a practice wh ich violates the spirit of the legal safe-guard. Like t he earlier Law Commission, we feel that 15 days is perhaps too s hort and we propose therefore to follow the recommendati on in the Fourteenth Report that the maximum period under section 167 should be fixed at 60 days. We are aware of the danger that such an extension may result in the maximum pe riod becoming the rule in every case as a matter of routine: but we trust that proper supervision by the superior court s will prevent that. We propose accordingly to revise sub-s ections

(2) and (4) of section 167 as follows :-“(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention o f the accused in such custody as such Magistrate thinks fit , for a term not exceeding fifteen days at a time and sixty days i n the whole. If he has no jurisdiction to try the case or co mmit it for trial, and considers further detention unnecessary, he ma y order the accused to be forwarded to a Magistrate h aving such jurisdiction Provided that-

(a) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him ;

(b) no Magistrate of the second class not specially empower ed in this behalf by the High Court shall authorise detent ion in the custody of the police.

(4) Any Magistrate other than the Chief Judicial Magi strate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrat e.”

¶20On the recommendation made by the Law Commission through the aforesaid reports recommending to curtail the abuse of such power, Section 167(2) as it exists today in the statute was incor porated in the Cr.PC, 1973, which provides for a longer period of maximum remand, but also guarantees default bail, to ensure that accused persons are bereft of arbitrary detention. 7 The Statement of Objects and Reasons of CrPC,1973 also refer to the 41 st law Commission Report and inter alia reads as follows:- “(2).....A comprehensive report for the revision of the Code, namely, the Forty-first Report, was presented by th e Law Commission in September, 1969. This report took int o consideration the recommendations made in the earli er l Reports of the Commission dealing with specific mat ters namely, the Fourteenth, Twenty-fifth, Thirty-second, Thirty-third, Thirty-sixth, Thirty-seventh and Fortieth Rep orts.

(3) The recommendation of the Commission were examine d carefully by the Government, keeping in view, among other s, the following basic considerations-

(i) an accused person should get a fair trial in ac cordance with the accepted principles of natural justice;

(ii)every effort should be made to avoid delay in investigation and trial which is harmful not onlv to individuals involved but also to society; and

(iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community. The occasion has been availed of to consider and adopt where appropriate suggestions received from other quarters, based on practical experience of investigation and the work ing of criminal courts” 7 Law Commission in its Report No. 41 (September, 196 9), Para. 14.19.

¶21A bare perusal of the abovementioned statement of objects strongly indicates that Section 167(2) of the Cr.PC was enacted to ensure that the investigating agency completes the investigation wi thin the prescribed time limit, failing which no accused could be detained if they are willing to avail bail. This position was also laid emphasis on by a three-judge bench of this Court in the case of M. Ravindran Vs. Directorate Of Revenue Intelligence (Supra), the relevant paragraphs of the same are being reproduced hereunder: “The suggestion made in Report No. 14 was reiterated by the Law Commission in Report No. 41 on The Code of Criminal Procedure, 1898 (Vol. I, 1969, pp. 76-77). The Law Commission re-emphasised the need to guard against the misuse of Section 344 of the 1898 Code by filing “prelimina ry reports” for remanding the accused beyond the statu tory period prescribed under Section 167. It was pointed out that this could lead to serious abuse wherein “the arrested person can in this manner be kept in custody indefinitely w hile the investigation can go on in a leisurely manner”. Hen ce the Commission recommended fixing of a maximum time-limit of 60 days for remand. It was in this backdrop that Section 167(2) was enacted within the present day CrPC, providing for time-limits on the pe riod of remand of the accused, proportionate to the seri ousness of the offence committed, failing which the accused acquire s the indefeasible right to bail.”

¶22Further, this legal position was again reiterated in Satendar Kumar Antil vs CBI & Anr.8, wherein it was held that Section 167(2) of the Cr.PC is a limb of Article 21 of the Constitution of India, and as such, the investigating authority is under a constitutional duty to expediate the process of investigation within the stipulated time, failing which, the accused is entitled to be released on default bail. The relevant observations made in the said judgment are as under:- “Section 167(2) was introduced in the year 1978, gi ving emphasis to the maximum period of time to complete the investigation. This provision has got a laudable object behind it, which is to ensure an expeditious investigation and a fair 8 (2021) 10 SCC 773 trial, and to set down a rationalised procedure that protects the interests of the indigent sections of society. Th is is also another limb of Article 21. Presumption of Innocence is al so inbuilt in this provision. An investigating agency has to expedite the process of investigation as a suspect is lanquishing under incarceration. Thus, a duty is en joined upon the agency to complete the investigation within the t ime prescribed and a failure would enable the release o f the accused. The right enshrined is an absolute and indefeasible one, ensuring to the benefit of suspect. As a consequence of the right flowing from the said provision , courts will have to give due effect to it, and thus any det ention beyond this period would certainly be illegal, being an affr ont to the liberty of the person concerned. Therefore, it is not only the duty of the investigating agency but also the c ourts to see to it that an accused gets the benefit of Section 167( 2).”

¶23It is also to be noted that as per the scheme of Cr.PC , an investigation of a cognizable case commences with the recording of an FIR under Section 154 Cr.PC. If a person is arrested and the investigation of the case cannot be completed within 24 hours, he has to be produced before the magistrate to seek his remand under Section 167(2) of the Cr.PC during continued investigation. There is a statutory tim e frame then prescribed for remand of the accused for the p urposes of investigation, however, the same cannot extend beyond 90 days, as provided under Section 167(2)(a)(i) in cases where the investi gation relates to an offence punishable with death, imprisonment fo r life or imprisonment for a term of not less than 10 years and 60 days, as provided under Section 167(2)(a)(ii), where the investigation relates to any other offence. The relevant section further provides that on expiry of the period of 90 days or 60 days, as the case may be, the accused has a right to be released on default bail in case he is prepared to and furnishes bail.

¶24This right of statutory bail, however, is extinguished, if the charge sheet is filed within the stipulated period. The question of resorting to a supplementary chargesheet u/s 173(8) of the Cr.PC on ly arises after the main chargesheet has been filed, and as such, a supplementary chargesheet, wherein it is explicitly stated that the investigation is still pending, cannot under any circumstance, be used to scuttle the right of default bail, for then, the entire purpose of default bail is defeated, and the filing of a chargesheet or a supplementary chargesheet b ecomes a mere formality, and a tool, to ensue that the right of default bail is scuttled.

¶25 It is thus axiomatic that first investigation is to be completed, and only then can a chargesheet or a complaint be filed w ithin the stipulated period, and failure to do so would trigger the statutory right of default bail under Section 167(2) of Cr.PC. In the case of Union Of India vs Thamisharasi & Ors. 9, which was a case under the Narcotic Drugs and Psychotropic Substances Act, 1985, on finding that the investigation was not complete and a chargesheet was not filed w ithin the prescribed period, denial of default bail was held to be in violation of Article 21 of the Constitution of India, and it was further held that even the twin limitation on grant of bail would not apply.

¶26Further, in the case of Ashok Munilal Jain & Anr. Vs. Assistant Director, Directorate of Enforcement 10, it was held that the right of default bail under section 167(2) CrPC was held to be an indefeasi ble right of the accused even in matters under PMLA.

¶27Therefore, in light of the abovementioned discussions, it can be seen that the practice of filing preliminary rep orts before the enactment of the present CrPC has now taken the for m of filing chargesheets without actually completing the investigation, only to scuttle the right of default bail. If we were to hold that chargeshe ets can be filed without completing the investigation, and the same can be used for prolonging remand, it would in effect negate the purpose of introducing section 167(2) of the CrPC and ensure that the fundame ntal rights guaranteed to accused persons is violated.

¶28We have carefully perused the judgments relied upon by the learned counsel for the respondent, however, none of the judgments relied upon permit the abuse of remand under Section 309(2) of the CrPC by permitting the filing of incomplete chargesheets only to scuttle the right of statutory bail.

¶29The judgment in State of West Bengal vs. Salap Service Station & Ors.11 relied upon by the respondent was rendered, not in the context of default bail, but only in the context of entitlement u/s. 173(8) 9 (1995) 4 SCC 190 10 (2018) 16 SCC 158 11 1994 Supp (3) SCC 318 of the CrPC to place on record further evidence in sup port of the chargesheet already filed.

¶30Further, the judgment of Dharam Pal vs. State Of Haryana & Ors. 12, relied upon by the respondent, refers to the powe r of Constitutional Courts to transfer investigation. In Para 2 1 of the said judgment, it has been stated that Section 173 empowers the police officer to conduct an investigation to file a report on the completion of the investigation and section 173(8) CrPC allows the conduct of further investigation. However, this judgment also does not talk about d efault bail and the misuse of the filing of supplementary chargesheets. It is also important to note that the judgment of Ram Narain Popli vs. CBI 13 and Rajesh Ranjan Yadav vs. CBI14 have also not dealt with the issues being considered by us in the present matter.

¶31In light of the abovementioned discussion, the judgments relied upon by the learned counsel for the respondent are clearly distinguishable as issues being considered herein were not considered therein and reliance placed by the learned counsel for the respondents o n the said pronouncements is totally misfounded.

¶32In view of the above mentioned discussions, the issues framed by us stand answered as under:- I. Without completing the investigation of a case, a chargesheet or prosecution complaint cannot be filed by an investigating agency only to deprive an arrested accused of his right to default bail under Section 167(2) of the CrPC. II. Such a chargesheet, if filed by an investigating authority without first completing the investigation, would n ot extinguish the right to default bail under Section 167(2) CrPC. III. The trial court, in such cases, cannot continue to remand an arrested person beyond the maximum stipulated time without offering the arrested person default bail. 12 2016 (4) SCC 160 13 (2003) 3 SCC 641 14 (2007) 1 SCC 70 CONCLUSION

¶33In the instant case, it is clear from the facts that during the pendency of the investigation, supplementary chargesheets w ere filed by the Investigation Agency just before the expiry of 60 days, with the purpose of scuttling the right to default bail accrued in favour the accused. This factual position was missed by the trial court, and instead of offering default bail to the accused, the trial court mechanicall y accepted the incomplete chargesheets filed by the Investigating Agency, and further continued the remand of the accused beyond the maximum pe riod specified. The Investigating Agency and the trial court, thus, failed to observe the mandate of law, and acted in a manner which was manifestly arbitrary and violative of the fundamental rights guarante ed to the accused.

¶34Even at the cost of repetition, we find it pertinent to mention that the right of default bail under Section 167(2) of the CrPC is not merely a statutory right, but a fundamental right that flows from Article 21 of the Constitution of India. The reason for such importa nce being given to a seemingly insignificant procedural formality is to ensure that no accused person is subject to unfettered and arbitrary pow er of the state. The process of remand and custody, in their practical manifestations, create a huge disparity of power between the investigating authority and the accused. While there is no doubt in our minds that arrest and remand are extremely crucial for the smooth functioning of the invest igation authority for the purpose of attaining justice, however, it is also extremely important to be cognizant of a power imbalance. Therefore, it becomes essential to place certain checks and balances upon the Invest igation Agency in order to prevent the harassment of accused persons a t their hands.

¶35With the above findings and conclusions, the interim order of bail passed in favor of the accused is made absolute, and the present writ petition is, accordingly, disposed of. Divya Pandey Writ Petition disposed of. (Assisted by : Shevali Monga, LCRA)