Supreme Court says “the right to be released on default bail continues to remain enforceable if the accused applied for bail”

On May 01, 2023, the Supreme Court of India stated that the right to be released on default bail continues to remain enforceable if the bail was applied by the accused. Notwithstanding the pendency of the bail application or subsequent filing of the charge sheet or a report seeking an extension of time by the prosecution before the Supreme Court in this case. The bench further added that where the accused fails to apply for default bail when the right accrued to him, and subsequently a charge sheet, or a report seeking extension of time was preferred before the Magistrate or any other competent court, the right to default bail would be extinguished. The Supreme Court would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC. The matter was heard by Chief Justice of India DY Chandrachud, and Justice JB Pardiwala.

The bench also observed that “no merit in the principal argument canvassed on behalf of the appellants that a charge sheet filed without sanction is an incomplete charge sheet which could be termed as not in consonance with sub-section (5) of Section 173 of the CrPC.” It was conceded by the learned counsel appearing for the appellants that the charge sheet was filed well within the statutory time period i.e., 180 days, however, the Supreme Court concerned could not have taken cognizance of such charge sheet in the absence of the orders of sanction not being a part of such charge sheet. The bench determined that “It is also to be kept in mind that cognizance is taken of the offence and not of the offender.” It cannot be said that obtaining sanction from the competent authorities or the authorities concerned was part of the investigation. The sanction was required only to enable the Supreme Court to take cognizance of the offence. 

The Supreme Court may take cognizance of the offence after the sanction order was produced before the court, but the moment, the final report was filed along with the documents that might be relied on by the prosecution, then the investigation would be deemed to be completed. Supreme court need to consider the submission that since the chargesheet was filed in the Court of Magistrate on 15.11.2019, i.e., on the 161st day from the arrest of two of the appellants before us, the further detention thereafter, of the appellants could be termed as unlawful and the appellants were entitled to be released on statutory/default bail under the provisions of Section 167(2) of CrPC. The appeals were dismissed by the bench and pending applications were disposed of.