Default bail an indefeasible right, can't be suspended even during pandemic: Delhi High Court

Default bail is a fundamental right which flows from Article 21 of the Constitutution and cannot be suspended even during COVID pandemic, the Delhi High Court said while granting bail to a dowry death accused [Abhishek v. State]..Justice Manoj Kumar Ohri on October 18, 2021, also observed that the order of remanding an undertrial or extending such remand is a judicial function which requires due application of mind. “It has been held to be an indefeasible part of the right to personal liberty under Article 21 of the Constitution of India, and such a right cannot be suspended even during a pandemic situation,” the Court said..The Court, therefore, issued a slew of directions so that the rights of undertrial prisoners to seek default bail are not defeated and custody of an undertrial is not extended mechanically as in the present case..The accused man’s plea before the High Court was against an order of a Sessions Judge who had upheld a Magistrate's order dismissing the accused's plea for default bail. The accused and his family members were booked under Sections 304B (dowry death) 498A (husband or relative of husband of a woman subjecting her to cruelty), 406 (criminal breach of trust), 34 (common intention) of the Indian Penal Code on January 16, 2020..It also came on record that the petitioner, following his arrest on January 18, 2020, was first produced before a Magistrate Court on the next day, when he was remanded to custody..As one of the offences he was booked under pertained to dowry death, which is punishable with imprisonment for a period exceeding 10 years or with life imprisonment, or death, the maximum period of his judicial custody was 90 days..The custody period was stated to have ended on April 18, 2020. However, in between, when the petitioner was produced before the Jail Visiting Magistrate on April 15, 2020, the Magistrate concerned “without any application of mind and rather unmindful” of the fact that 90 days would expire on April 18, 2020, was stated to have “mechanically” extended the petitioner’s judicial custody till April 29, 2020.The revision petition against the same was dismissed by the Additional Sessions Judge following which the present petition was filed before the High Court under Section 482 of Code of Criminal Procedure..The petitioner’s counsel highlighted the non-filing of the chargesheet by the prosecution till April 18, 2020 and stated that right of default bail was in his client’s favour..The High Court noted that owing to peculiar situation prevailing in the country on account of the lockdown due to COVID when the physical filing of the bail application was not possible, an application was filed on behalf of the petitioner through an email sent on April 20, 2020 at around 1.16 pm at the email address provided to the counsel.The e-mail, according to records, had not only prayed for release on default bail but also communicated the acceptability of condition requiring filing of bail bonds. It was also submitted that the mail mentioned the provision of Section 167(2) of Code of Criminal Procedure (CrPC) under which the default bail was sought as well as the details of the case.“Nothing more was required to be done by the petitioner. The listing of such an application was not in his hand. Sending an email on behalf of the petitioner, in the opinion of this Court, amounted to availing of his right to seek default bail. The contention raised on behalf of the State that the application never came to be listed or was abandoned by the petitioner, being meritless, is rejected,” the High Court held..The chargesheet in the case was observed to have been filed physically before the duty Magistrate as reflected from an order dated April 20, 2020 available in the trial court record.“It is pertinent to note that the charge sheet having been filed before a duty Magistrate, no cognisance was taken on that date,” the Court added.After examining a status report filed in reply to the man’s petition, the Court said it was incumbent on the State to positively state the time when chargesheet came to be filed before the Court on April 20, 2020, i.e., whether it was prior to the filing of the application for default bail or later.The Court underscored that the answer to the above question was of paramount importance in view of the relevant laws, but it remained unanswered. Therefore, it was held that it couldn’t be concluded that at the time of petitioner availing his right to seek default bail, the chargesheet was already filed..While releasing the man on default bail, the Court issued the following guidelines:.1) While extending the custody of an undertrial prisoner, the Magistrate/concerned Court shall not mechanically extend the period of custody for the maximum period of 15 days as prescribed under Section 167(2) Cr.P.C.;2) The custody shall be extended while keeping in mind the 60th, 90th or 180th day (depending on the nature of offence and applicability of any Special Act) of completing the investigation and submission of charge sheet. If such 60th, 90th or 180th day falls before the maximum extension period of 15 days, then the custody shall be extended only upto the 60th , 90th or 180th, as may be applicable;3) As a necessary corollary, the undertrial prisoner, shall be produced before the concerned Court on the next day i.e., on the 61st, 91st or 181st day as the case may be, so that he can be duly informed of his fundamental right to seek default bail if no charge sheet is filed in the maximum period prescribed or the permitted extended period of investigation, as the case may be..4) Further, the present format of the "Custody Warrant" was also ordered to be modified. The existing format already ensures mentioning of certain details with respect to an undertrial including the date of arrest, period of police custody, date of first judicial custody etc..It would now also include a column indicating the day on which the right of "default bail" will accrue to the undertrial under proviso (a) to Section 167(2) CrPC.5) The District Legal Services Authority concerned was directed to ensure that the remand advocates/legal aid counsel posted in criminal courts are instructed to keep an undertrial informed of his right to seek default bail and the date of accrual of such right..6) The jail authorities shall also have a corresponding obligation to inform the undertrial of the date when the right to seek default bail accrues.Considering the seriousness of the issue involved, the Court sought a response from the Registrar General of the High Court as well the Director General (Prisons) on the steps undertaken so that an undertrial is informed of his right to seek “default bail” and that such right is not defeated but rather timely exercised.“The response and suggestions, if any, shall be submitted in light of the ‘inter-operable criminal justice system (ICJS)’, a platform which came into existence under the aegis of the e-committee, Supreme Court. Let the response be filed within four weeks from today. List the matter for the aforesaid purpose on 18.11.2021,” it added.The Court also directed that the judgment be forwarded to all District and Sessions Judges to ensure strict compliance with the directions passed. The registry was also directed to bring the judgment to the notice of the Registrar General and transmit a copy of the same to the DG (Prisons) as well as to the Member Secretary, Delhi State Legal Services Authority.Advocate Rajesh Anand represented the petitioner while Additional Public Prosecutor appeared for the State..[Read Judgment]