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Filing Incomplete Chargesheet Without Completing

Investigation Would Not Extinguish The Right Of Accused
To Get Default Bail: Supreme Court
Sohini Chowdhury
(/sohini-chowdhury)
26 Apr 2023 11:38 AM

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The Supreme Court, on Wednesday, held that without completing an investigation of
a case, a chargesheet or prosecution complaint can't be filed by an Investigating
Agency only to deprive an accused of his right to default bail under Section 167 of
CrPC.

A Bench comprising Justice Krishna Murari and Justice CT Ravikumar held the
same while considering a criminal writ petition filed by Ritu Chhabaria (of the Radius
Group) seeking the release of her husband on default bail. Upon consideration of the
petition, the Bench made the interim order, granting bail to the petitioner's
husband/accused, absolute.

Discussing the history of CrPC and the reason why amendments have been brought
in for Section 167 CrPC for default bail, the Bench noted that if the Investigating
Agency files a chargesheet without completing the investigation, the same would
not extinguish the right of the accused to get default bail. It further observed that
the Trial Court, in such cases, cannot continue to remand the arrested person
beyond the maximum stipulated time without opting arrested person default bail.

The case in brief

An FIR was lodged under Section 120(B) read with Section 420 of the IPC along with
Sections 7,12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption
Act, 1988, wherein the writ petitioner’s husband was not named. Subsequently,
supplementary chargesheets were filed, wherein the writ petitioner’s husband
(accused) was made a prosecution witness in a supplementary chargesheet,
however, in such chargesheets, the accused was not named.

Thereafter, the investigation of the case was transferred to another investigating

officer, and the accused was then arrested by CBI and remanded to custody on April
28, 2022. Multiple other supplementary chargesheets were then filed, wherein he was
named as a suspect, and his remand under Section 309(2) of CrPC was renewed and
continued from time to time, and he was never released on default bail.

Against the backdrop of these facts, the wife of the accused moved the instant
criminal writ plea before the Supreme Court against his continuation of custody, and
the scuttling of relief of default bail contending that every Supplementary
chargesheet filed in the case was an attempt to ensure that her husband is not
released on default bail. Hearing the plea, the Supreme Court granted him interim bail
on March 20 this year.

Arguments advanced

Before the SC, the counsel for the petitioner argued that the Fundamental rights of
the accused were being prejudiced due to continued custody on the grounds of the
investigation not being completed.

It was contended that he was kept in jail beyond the period of 60 days, even though
the provisions of the CrPC do not empower continued remand to custody beyond 60
days if the investigation is still in progress.

On the other hand, the Counsel for the respondent argued that the writ was not
maintainable as for grant of bail, the accused 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 the
Constitution of India.

It was also argued that the supplementary chargesheet filed on June 25, 2022, is a
complete document in respect to the offence committed by the persons arraigned in
the said supplementary chargesheet (including the accused), therefore no right to
default bail has been accrued in his favour.

Supreme Court's observations

At the outset, the Court rejected the preliminary objection regarding the
maintainability of the writ plea in the facts of the case as it observed that relief of
statutory bail under Section 167(2) of the CrPC is a fundamental right directly flowing
from Article 21, and the violation of such a right directly attracts consideration under
Article 32.

"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
dysfunctional social contract, wherein the people of this country would become
subject to an arbitrary and unfettered tyranny of the state," the Court said.

Further, in light of the arguments raised by the counsel for the parties, the Court
formed the following three issues for its 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?

To examine the questions framed, the Court perused Section 167(2) of the CrPC to
note that the provision was enacted to ensure that the investigating agency
completes the investigation within the prescribed time limit (60 days or 90 days as
the case may be) failing which no accused could be detained if they are willing to
avail bail.

In this regard, the Court also referred to the ruling of Satender Kumar Antil vs Central
Bureau Of Investigation 2022 LiveLaw (SC) 577 (https://www.livelaw.in/top-
stories/supreme-court-41a-crpc-non-compliance-bail-satender-kumar-antil-vs-central-
bureau-of-investigation-2022-livelaw-sc-577-203486), wherein it was held that
Section 167(2) of the CrPC is a limb of Article 21 of the Constitution of India, and as
such, the investigating authority is under a constitutional duty to expedite the
process of investigation within the stipulated time, failing which, the accused is
entitled to be released on default bail.

Against this backdrop, the Court categorically held that first, the investigation has to
be completed, and only then, can a chargesheet or a complaint be filed within the
stipulated period, and failure to do so would trigger the statutory right of default bail
under Section 167(2) of CrPC.

"The question of resorting to a supplementary chargesheet u/s 173(8) of the

Cr.PC only 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 becomes a mere formality, and a
tool, to ensue that the right of default bail is scuttled."

The Court further said that if it were to be held that chargesheets 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 fundamental rights guaranteed to accused persons is violated.

In view of this, the Court answered the issues framed by it 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 not 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.

With this, finding that in the instant case, during the pendency of the investigation,
supplementary chargesheets were 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 of the accused, the Court made its interim bail order, absolute.

"...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 importance being given to a 21 seemingly insignificant
procedural formality is to ensure that no accused person is subject to unfettered
and arbitrary power 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
investigation 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 Investigation Agency in
order to prevent the harassment of accused persons at their hands," the Court
further remarked as it parted with the case.

[Case Title: Ritu Chhabaria v. Union of India And Ors. WP(Crl) No. 60/2023]

Citation : 2023 LiveLaw (SC) 352

Click Here To Read/Download Judgment (https://www.livelaw.in/pdf_upload/352-ritu-

chhabaria-v-union-of-india-26-apr-2023-471217.pdf)

Tags #Supreme Court (https://www.livelaw.in/tags/supreme-court)

#Default Bail (https://www.livelaw.in/tags/default-bail)