In BAIL APPLN. 3454/2023-DEL HC- Delhi HC grants default bail to accused in case where chargesheet was not filed within stipulated period of 60 days as mandated by Sec.167 of CrPC
Justice Swarana Kanta Sharma [22-12-2023]

Read Order: SAKIL AHMAD v. STATE OF NCT OF DELHI

Tulip Kanth

New Delhi, December 28, 2023: The Delhi High Court has reaffirmed that Section 167 of CrPC provides indefeasible right to default bail which arises at the very moment of expiry of the stipulated period of 60 days.

The application under Section 439 of the Criminal Procedure Code, 1973 had been filed by the petitioner seeking grant of regular bail in a case registered under Section 354 of Indian Penal Code, 1860 and Section 8 of the Protection of Children from Sexual Offence Act, 2012.

Briefly stated, the facts of the present case were that a PCR Call, regarding physical assault of a 17 year old victim was received at P.S. Govindpuri, New Delhi. The victim had stated that she is living with her parents in Govindpuri, and is currently studying.

It was stated that her mother had called barber Sakil Ahamad i.e. the present applicant/accused to cut her hair and he had visited their home in the night. It was alleged that the present applicant/accused Sakil Ahamad had molested the minor victim. Thereafter, the present FIR was registered and the medical examination of the victim was conducted at AIIMS, New Delhi. During the course of investigation, present applicant/accused Sakil Ahmad was arrested.

It was argued from the side of the applicant that the charge-sheet in the said FIR was filed on the 61^st Day. He points out that the first day of the remand in this case i.e. 03.05.2023 is to be included for the purpose of calculating the statutory period of completion of investigation and filing of chargesheet. It was submitted that the day when the accused was remanded has to be included in the statutory period provided under Section 167(2) of Cr.P.C.

The single-judge Bench of Justice Swarana Kanta Sharma noted that the application had been filed seeking grant of default bail on the ground that the chargesheet in the present case was not filed within the stipulated period of 60 days as has been mandated by the provisions of Section 167 of Cr.P.C.

Reference was also made to Enforcement Directorate, Government of India v. Kapil Wadhawan & Anr wherein it was had held that the day of remand shall be counted within the stipulated period of 60 days as has been mandated by Section 167 of Cr.P.C.

Placing reliance on this judgment, the High Court reaffirmed that the provision of Section 167 of Cr.P.C. provides an indefeasible right to default bail which arises at the very moment of expiry of the stipulated period of 60 days. The investigating agency is under this obligation to file the chargesheet within the stipulated period and if the same is filed beyond this period then the accused will have an indefeasible right to default bail.

On the merits of the case, the Bench observed that the applicant/accused was arrested on 02.05.2023 and the remand order was issued on 03.05.2023. The date of remand of the accused had to be seen as the date of beginning of the stipulated period of 60 days as held by Enforcement Directorate, Government of India v. Kapil Wadhawan & Anr. (Supra).

The chargesheet in the present case was prepared on 01.07.2023 and was filed before the Trial Court on 02.07.2023 as recorded in order dated 02.07.2023 passed by the Trial Court. Thus, the Bench observed that the period of consideration before this Court was from 02.05.2023 to 02.07.2023.

It was also noted that as per calculation, the total number of days taken for the filing of chargesheet in the present case thus come to be 61 days, which is more than the stipulated period of 60 days as has been mandated by the provision of Section 167 of Cr.P.C.

Thus, considering the fact that the chargesheet was not filed within the stipulated period of 60 days as mandated by Section 167 of Cr.P.C., the Bench was inclined to grant default bail to the applicant on his furnishing personal bond in the sum of Rs 25,000 with one surety of the like amount to the satisfaction of the Trial Court/Successor Court/Link Court/Duty Judge concerned on certain terms and conditions.