The time of filing of the application for bail to be considered in matters relating to extinguishment of the right to default bail: High court of Himachal Pradesh

The right to default bail would not be extinguished by subsequent filing of additional complaint by the investigating agency and importance must be given to the time of filing of the application for bail based on default of investigating agency, but not the time of disposal of application for bail. This was held by The Hon’ble Mr. Justice Vivek Singh Thakur in the case of, Om Prakash Vs. The State of Himachal Pradesh[Cr.M.P. (M) No. 838 of 2021] on 28th of June 2021.

The brief facts of the case are, the petitioner was found in possession of 522 grams of charas which is a contraband under the NDPS act. The punishment under this act for such an action is an imprisonment for the term which can extend to a period of 10 years. The maximum period of detention is 60 days for the offence and this was completed on 16.05.2021. During the pendency of the petition, the counsel for the petitioner applied for a default bail by invoking the provisions of Section 167 of the CrPC. However, the matter was adjourned 2 times. Petitioner in present case had been arrested on 17.3.2021 and he was produced before the Magistrate on the same day and since then he is in judicial custody. Asper the counsel for the respondent, challan has been presented on 17.6.2021, but without any extension of time to file the challan beyond sixty days and thus the right of default bail is extinguished.

The court after listening to both the counsels applied the rules held by the court in Rakesh Kumar Paul Vs. State of Assam, 2017(15) SCC 67, wherein it was held that, “In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for ‘default bail’ or an oral application for ‘default bail’ is of no consequence. The concerned court must deal with such an application by considering the statutory requirements namely, whether the statutory period for filing a charge sheet or challan has expired, whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail.” The court also made connections with article 21 of the constitution and held that it is not advisable to be formalistic or technical in matters relating to personal liberty.

Applying the rationale of the above-mentioned case, the court in the present case held that although the challan had been filed after the expiry of 60 days and no extension was sought from the court, it was observed that the counsel for he petitioner constantly made efforts to get bail and undertook therein to abide by any condition imposed upon him by the court and is ready to furnish bail bonds for extending his undertaking averred in para 6 of the application/petition. Thus, the court found that the petitioner was entitled for default bail and disposed he petition by imposing conditions and a bail bond of Rs.50,000.

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