By TIOL News Service

NEW DELHI, FEB 04, 2008 : THE High Court has reiterated some noble concepts on a citizen’s liberty.

The Petitioner prays for the issuance of a writ of habeas corpus for his release on such terms and conditions as the Court may deem fit and proper.

Earlier, the Petitioner had filed a bail application under Section 439 of the Code of Criminal Procedure, 1973 (Cr.PC) which was decided by a Single Judge whereby the Petitioner be admitted to bail on his depositing a sum of Rs.1,00,00,000/- in two installments, initially Rs.50,00,000/- to be deposited after one month from the date of his release, and the remainder Rs.50,00,000/- after three months of the first deposit. On these conditions the Petitioner was admitted to bail on his furnishing a Personal Bond in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the Trial Judge.

The High Court considered several decided cases and concluded:

Bail is the rule; Jail is the exception. In the criminal jurisprudence prevailing in all common law countries, every person is presumed to be innocent until proved to the contrary. The consequence that logically follows is that an accused ought not to be detained or imprisoned, that the personal liberty even of an accused should not be interfered with, until he is convicted by due process of law. Several offences are notified as being bailable and even in the remainder, that is non-bailable offences, the accused can be enlarged on bail by orders of the Court. Bail is the rule; Jail is the exception. This is what Sections 437/439 of the Cr. PC in terms postulate, viz. that when any person accused of or suspected of the commission of any non-bailable offence is arrested or detained he may be released on bail. However, an exception has simultaneously been prescribed, namely, that such a person shall not be so released unless it appears to the Court, on reasonable grounds, that he has been guilty of an offence punishable with death or imprisonment for life.

Investigation to be complete within sixty days :  The presumption of the innocence of an accused can easily be defeated if the investigation is not constrained by time, is open-ended and protracted. It is for this reason that the legislature has wisely provided that the investigation of an accused should reach its culmination by the filing of a Chargesheet within sixty days, or 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.

If not completed within sixty days - the accused has a statutory right to be released on bail : The effect of Section 167(2) of the Cr.PC is that where the investigation is not concluded even within the period of sixty days or ninety days, as the case may be, the accused has a statutory right to be released on bail if he is prepared to and does furnish bail. In other words, his personal liberty must be restored forthwith. However, there is always a clear and present danger of an accused absconding or rendering himself untraceable with a view to frustrating the Trial. It is for this reason that he is required to comply with the terms of bail. When law prescribes the furnishing of sound sureties it does so not by way of penalty but entirely to ensure that an accused participates in the Trial; so that he can be imprisoned or made to serve his sentence if he is eventually found guilty of the offences for which he stands charged.

Even within the period, it is not necessary that an accused must perforce languish in jail:  However, even within the period of sixty days or ninety days, as the case may be, it is not necessary that an accused must perforce languish in jail. Chapter-XXXIII of the Cr.PC enables him to apply for bail even during the currency of the investigation. The presumption of innocence for this period is not totally eclipsed but is in a penumbral state. When any accused is brought before Court his personal liberty can be restored provided adequate safeguards for ensuring his presence at the Trial are put in place, in the form of bail bonds, and sound sureties etc. and he does not interfere with or impede the investigation. The exception is in the case of a person's alleged involvement in a heinous offence punishable with death or imprisonment for life, in which case such person shall not be released if there appears reasonable grounds for believing in his involvement.

Presumption of innocence is fortified and strengthened in the event that the investigation is not completed within the prescribed period:  It seems to us that the presumption of innocence is fortified and strengthened in the event that the investigation is not completed within the prescribed period. Since Section 167(2) employs the words shall be released on bail if he is prepared to and does furnish bail, no discretion is available to the Court at this juncture; the only discretion is for the fixation of terms (being synonymous to conditions) calculated only to ensure the availability of the accused at the time of Trial. 11. On the strength of these decisions it is palpably clear that Section 167 is a pandect of its own; it operates independently of any other provision of the Cr.PC until bail is granted. It is only at this stage that bail will be deemed to have been granted under Chapter-XXXIII, that is, for the purposes of furnishing of bail bonds for modification of the terms on which bail has been granted, for cancellation of bail etc.-etc. Section 167 would be rendered otiose if the grant of bail on its invocation would have to meticulously meet all the provisions in Chapter-XXXIII. There would be no reason, purpose or justification for its separate existence. The purpose of the deeming clause is to avoid prolixity in prescribing these other provisions in two places within the Cr.PC. It is for this reason that bail granted under Section 167(2) is referred to as an indefeasible right and is commonly termed as Bail-on-Default.

Section 167 is a canon complete in itself insofar as Bail-on-Default is concerned, and upon its being given by a deeming fiction, Chapter XXXIII kicks into operation.

The present Petition prays for the issuance of a writ of habeas corpus, which will be granted only if the detention of the Petitioner is illegal. It has been argued on behalf of the Respondents that this is not the situation which prevails in the present case since bail orders had been granted under Section 439 and had not been availed of by the Petitioner because of certain conditions imposed therein. Does this fact obfuscate or negate the indefeasible rights of an accused to claim his release under Section 167(2) from restraint and detention, is the question which needs to be addressed. In our opinion, once a Bail Order is passed by a competent Court, the continued incarceration because of the failure of the accused to comply with the terms of bail, will not result in its being viewed as illegal. But this has no bearing whatsoever on the situation which would come into existence on the 61st day or 91st day, as the case may be, if the investigation has not been concluded by them. The nature of incarceration undergoes a metamorphosis on this day, in that the presumption of innocence can be seen as being further fortified. When the Court considers an application under Section 167(2) it does not have to go into the dialectics of the prima facie guilt of the accused. It simply lets him free because the prosecution or the appropriate authority has failed to crystalise the case against him. In this respect it is not the Court which allows the accused his liberty. It is, in fact, the prosecution or the appropriate authority concerned which is responsible for setting the accused free because of either their ineptitude and dereliction of duty, or their failure to conclude the investigation within the time prescribed by the Legislature. It would be most unfortunate and wholly unacceptable for the Fundamental Rights of a citizen to be abridged even where the prosecution fails to present a Chargesheet in consonance with the expectations of law. Our conclusion is that regardless of the rejection or the grant of regular bail previous to the relevant period under Section 167(2), an accused must be enlarged on bail on his applying for bail under this provision at the earliest.

Personal liberty of a citizen is a Fundamental Right  We must perforce keep in perspective the fact that the personal liberty of a citizen is a Fundamental Right guaranteed under the Constitution of India. Legal punctilio and procedure cannot defeat or delay such a right, especially when arguments have been addressed threadbare. In the present case, therefore, we think it proper to entertain this Petition even though it pertains to Bail-on- Default under Section 167, especially since this plea has been rejected by the Metropolitan Magistrate on a wrong appreciation of the law.

The case against the Petitioner is for the alleged evasion of Excise Duty of approximately Rupees 22 crores.

The High Court ordered, “the Petitioner/Accused shall be admitted to bail on his furnishing a Personal Bond in the sum of Rs.50,00,000/- with two Sureties in the like amount, to the satisfaction of the Trial Judge”.

(See 2008-TIOL-70-HC-DEL-CX in 'Excise' + 2008-TIOL-70-HC-DEL-CX in 'Legal Corner')