Wednesday, December 9, 2009

Criminal Procedure Code-Section 167(2)-1 Question

The Question
When will the right of the accused to seek statutory/compulsory bail extinguish?
The Answer(Detailed)
The accused when brought before the magistrate can move for bail. If it is a non-bailable offence the discretion of the magistrate to authorise to detain the accused varies from 60 to 90 days depending upon the gravity of the offence. But after the completion of 60 or 90 days, as the case may be the accused gets the statutory right to be released on bail. But the right will extinguish if in the meantime or after the completion the police files charge sheet. It is not the law that the accused gets released soon after the completion of days prescribed. Even after the prescribed days he will not be released if he is not prepared to. And if he is prepared to but in the interim the charge sheet is filed the right to statutory bail extinguishes.
A short glimpse into the provision will be helpful:
S.167(2) Proviso (a)-the magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding-(i)ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.
Thus it can be clearly seen that right of accused arises as soon as the period prescribed is completed. He can on any day after that file the bail application. The words 'if he is prepared to and does furnish bail' used in the section makes it clearer that it is the accused who has to diligently exercise the right. If in the meantime the chargesheet is filed the right to bail remains. But the right to statutory bail extinguishes.
The following decision will be helpful:
Parties: Sajid Bashir Shaikh v. State of Maharashtra
Present: Hon'ble Mr.Justice A.S.Oka
Citation: 2006(1)KLT S 62(C.No.85)Bombay
It was held that the right of filing for statutory bail is extinguished if the accused failed to exercise it and the prosecution has filed charge sheet. The magistrate has an obligation to inform him of his right. But even if the magistrate fails to inform the applicant the right extinguishes on filing of the charge sheet.

4 comments:

  1. it would have been more helpful had it been supported with decisions of Apex Court.

    ReplyDelete
  2. Where the accused does not file bail application after the expiry of the prescribed period envisaged by Sec.167,the accused cannot be released on bail under the default clause once the charge sheet is filed. In Dr.Bipin Shantilal Panchal v. State of Gujrat, AIR 1996 SC 2847 (A.M.Ahmadi,Jeevan Reddy and N.P.Singh,JJ ) a Full Bench of Supreme Court observed:"....if an accused person fails to exercise his right to be released on bail for the failure of prosecution to file the charge sheet within the maximum time alloted by law, he cannot conted that he had an indefensible right to exercise it at any time notwitstanding the fact that in the mean time the charge-sheet is filed. But on the other hand if he exercises the right within the time alloted by law and is released on bail under such circumstramnces, he cannot be rearrested on the mere filing of charge-sheet, as pointed out in Aslam Bablal Desai v. State of Maharashtra, (1992)4SCC 272(A.M.Ahmadi,M.M.Punchhi and K.Ramaswamy,JJ).
    Whether the accused who was entitled to be released on on bail under Sec.167(2) , not having made an application when such right had accrued, can exercise that right at a later stage of proceeding, has been examined by the Connstitution Bench of Supreme Court in Sanjay Dutt v. State Through C.B.I., Bombay (II), (1994)5 SCC 410(A.M.Ahmadi,J.S.Verma,P.B.Sawant,Jeevan Reddy and N.P.Singh,JJ). The Court held that the 'indefeasible right' in accused to be relaeased on bail under Sec.167(2) arises from the time of default and continues till filing of charge-sheet, but does not survive thereafter. After filing of charge-sheet, grant of bail would be decided on merits according to the provisions relating to grant of bail applicable at that stage.
    Latheesh kumar K.J., Advocate,Suprememe Court of India

    ReplyDelete
  3. Wow. What a useful comment. I like to see people read my blog and take the posts very seriously. This is the lengthy comment ever made on this blog. Thumbs up for u Mr.Latheesh Kumar.
    U have researched on the matter. Proud to be having some interesting readers like u.

    ReplyDelete
  4. The rationale of statutory bail u/s 167-2 crpc is that an investigating agency
    should be competant enough to coplete investigation and file a full set of charge sheet within 90 days of arrest of an accused.If the investigating agency failed to file a complete charge sheet with in the statutory period,the accused is eligible to get a statutory bail and no force on earth can deny bail to him.
    surya n kottapalli

    ReplyDelete

do not use abusive language

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Wednesday, December 9, 2009

Criminal Procedure Code-Section 167(2)-1 Question

The Question
When will the right of the accused to seek statutory/compulsory bail extinguish?
The Answer(Detailed)
The accused when brought before the magistrate can move for bail. If it is a non-bailable offence the discretion of the magistrate to authorise to detain the accused varies from 60 to 90 days depending upon the gravity of the offence. But after the completion of 60 or 90 days, as the case may be the accused gets the statutory right to be released on bail. But the right will extinguish if in the meantime or after the completion the police files charge sheet. It is not the law that the accused gets released soon after the completion of days prescribed. Even after the prescribed days he will not be released if he is not prepared to. And if he is prepared to but in the interim the charge sheet is filed the right to statutory bail extinguishes.
A short glimpse into the provision will be helpful:
S.167(2) Proviso (a)-the magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding-(i)ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.
Thus it can be clearly seen that right of accused arises as soon as the period prescribed is completed. He can on any day after that file the bail application. The words 'if he is prepared to and does furnish bail' used in the section makes it clearer that it is the accused who has to diligently exercise the right. If in the meantime the chargesheet is filed the right to bail remains. But the right to statutory bail extinguishes.
The following decision will be helpful:
Parties: Sajid Bashir Shaikh v. State of Maharashtra
Present: Hon'ble Mr.Justice A.S.Oka
Citation: 2006(1)KLT S 62(C.No.85)Bombay
It was held that the right of filing for statutory bail is extinguished if the accused failed to exercise it and the prosecution has filed charge sheet. The magistrate has an obligation to inform him of his right. But even if the magistrate fails to inform the applicant the right extinguishes on filing of the charge sheet.

4 comments:

  1. it would have been more helpful had it been supported with decisions of Apex Court.

    ReplyDelete
  2. Where the accused does not file bail application after the expiry of the prescribed period envisaged by Sec.167,the accused cannot be released on bail under the default clause once the charge sheet is filed. In Dr.Bipin Shantilal Panchal v. State of Gujrat, AIR 1996 SC 2847 (A.M.Ahmadi,Jeevan Reddy and N.P.Singh,JJ ) a Full Bench of Supreme Court observed:"....if an accused person fails to exercise his right to be released on bail for the failure of prosecution to file the charge sheet within the maximum time alloted by law, he cannot conted that he had an indefensible right to exercise it at any time notwitstanding the fact that in the mean time the charge-sheet is filed. But on the other hand if he exercises the right within the time alloted by law and is released on bail under such circumstramnces, he cannot be rearrested on the mere filing of charge-sheet, as pointed out in Aslam Bablal Desai v. State of Maharashtra, (1992)4SCC 272(A.M.Ahmadi,M.M.Punchhi and K.Ramaswamy,JJ).
    Whether the accused who was entitled to be released on on bail under Sec.167(2) , not having made an application when such right had accrued, can exercise that right at a later stage of proceeding, has been examined by the Connstitution Bench of Supreme Court in Sanjay Dutt v. State Through C.B.I., Bombay (II), (1994)5 SCC 410(A.M.Ahmadi,J.S.Verma,P.B.Sawant,Jeevan Reddy and N.P.Singh,JJ). The Court held that the 'indefeasible right' in accused to be relaeased on bail under Sec.167(2) arises from the time of default and continues till filing of charge-sheet, but does not survive thereafter. After filing of charge-sheet, grant of bail would be decided on merits according to the provisions relating to grant of bail applicable at that stage.
    Latheesh kumar K.J., Advocate,Suprememe Court of India

    ReplyDelete
  3. Wow. What a useful comment. I like to see people read my blog and take the posts very seriously. This is the lengthy comment ever made on this blog. Thumbs up for u Mr.Latheesh Kumar.
    U have researched on the matter. Proud to be having some interesting readers like u.

    ReplyDelete
  4. The rationale of statutory bail u/s 167-2 crpc is that an investigating agency
    should be competant enough to coplete investigation and file a full set of charge sheet within 90 days of arrest of an accused.If the investigating agency failed to file a complete charge sheet with in the statutory period,the accused is eligible to get a statutory bail and no force on earth can deny bail to him.
    surya n kottapalli

    ReplyDelete

do not use abusive language