That Period Must Be Counted For Seeking Default Bail U/S 167(2) CrPC, Liberty Of Accused Lost If Secured On Body Warrant: In Karnataka High Court

The Karnataka High Court has reiterated that even if the accused is secured on the body warrant, his or her liberty is fortified, and that period would come  to the accused’s aid in seeking default or statutory bail under section 176(2) of the CrPC.

In the case of Comanduru Parthasarathy Vs State of Karnataka (Ciminal Petition No. 2802 of 2022), a single judge bench of honourable Justice M Nagaprasanna allowed the petition filed by one Comanduru Parthsarathy and set aside the trial court’s order refusing default bail to the accused.

“The right of the accused under Section 167(2) holds that it is an indefensible right of the accused to be enlarged on bail the moment the statutory period begins to operate, except in statutes where such provision for extension is available,” the bench stated.

Case Details:

The Seshadripuram Police Station has registered a crime against the petitioner under various provisions of the Indian Penal Code. A body warrant and escort memo were issued against the petitioner, who was in the custody of the Central Crime Station (CCS) in Hyderabad for a different crime. The body warrant was executed on October 20, 2021, and the accused was brought before the Court in Bangalore on October 21, 2021. According to the Court’s order, the petitioner was taken into custody and remanded to police custody on the same day.

On December 18, 2021, the Police filed a preliminary charge sheet against accused Nos. 3 and 12, but no charge sheet was filed against the petitioner. The period of 90 days from the date the petitioner was arrested expired on January 20, 2022. On the 95th day, the petitioner filed an application under Section 167 (2) of the Cr.P.C. seeking statutory/default bail on the grounds that the police had not filed a charge sheet against him.

The state objected to the same. On the basis of the application filed under Section 167(2) Cr.P.C., the Magistrate issued an order rejecting the statutory bail on January 29, 2022. On March 23, 2022, another order was issued rejecting a regular bail application also filed under Section 437 of the Cr.P.C.

The petitioner stated The order impugned dated 29-01-2022 passed by the Magistrate was said to be erroneous on the face of it because the Magistrate holds that the petitioner was in police custody for 13 days on a body warrant and that period will have to be excluded for consideration of the expiry of 90 days for consideration of application for default bail.

Furthermore, it was claimed that even today, no charge sheet has been filed against the petitioner, who has been imprisoned for nearly 180 days. The petitioner’s right to be enlarged on default bail under Section 167(2) of the Cr.P.C.

The prosecution objected to the plea, claiming that the chargesheet had been filed in the case at hand, but against the other accused. However, once a charge sheet is filed, the petitioner is no longer eligible for default bail. According to his submission, the case against the petitioner is still under investigation, and thus the default bail clause would not be applicable, in light of the charge sheet already filed in the case of others.

Furthermore, permission is granted for further investigation against the petitioner, so he would not be eligible for bail extension.

The bench relied on the coordinate bench’s decisions in the cases of Vijay Kumar v. State, ILR 2009 KAR 327, Jayabalu v. State of Karnataka, 2012 SCC OnLine Kar 4269, and CBI v. Kenche Mahesh Kumar, ILR 2015 KAR 4054, which held that even when the accused is secured on body warrant, the accused’s liberty is lost and that period would come to the accused’s aid for seeking default or

Following that, it stated, “In light of the aforementioned findings in this Court’s body warrant judgments, the body warrant against the petitioner was executed on 20-10-2021, and the petitioner was produced before the learned Magistrate on 21-10-2021. As a result, the clock starts ticking on 21-10-2021, when he was taken into custody and remanded to police custody in accordance with the said order. On 2.11.2021, the petitioner was in police custody and his liberty had been restricted because he was in the custody of the police on a body warrant.”

It also rejected the prosecution’s argument that once a charge sheet is filed against one of the accused, the other accused cannot claim a right under Section 167(2) of the Cr.P.C. “On the surface, this appears to be unacceptable, as it is fundamentally flawed,” it said.

It continued, “The prosecution claims that the matter was under investigation by the police against the petitioner/accused No.2. Even today, the case of the High Court Government Pleader is that the case against the petitioner is still under investigation, and on a simple mathematical calculation, the petitioner is now in custody for nearly 180 days, twice the period of a right under Section 167(2) of the Cr.P.C.”

As a result, it ordered the petitioner’s release on statutory bail under Section 167(2) of the Cr.P.C. in connection with Crime No.82 of 2021 on the execution of a personal bond for one lakh rupees with one surety of the same amount. While granting bail, the court imposed a few additional conditions.

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