Rakesh Kumar Paul Vs. State of Assam
The hon’ble Supreme Court in this case by a majority of 2:1 held that case in
which punishment with imprisonment extending 10 years shall for the purpose of
“default bail” fall within section-167 (a) (ii) of the code and in such case, if
charge-sheet is not filled within 60 days, the accused shall be entitled to be
released on bail.
|Madan B. Lokur
||Prafull C. Pant J.
|The Bail is the indefeasible right of a
person and petitioner shall be released within period of 60 days in case
the charge sheet is not filled.
||The indefeasible right could not be defeated
by filling the charge-sheet after the accused has offered to furnish
||For an offence wherein the punishment may
extend to 10 years imprisonment, the accused is only entitled to bail on
default after the period of 90 days.
|The petitioner had satisfied all the
requirements of obtaining ‘default bail’.
||Even, though the period had expired, the
Accused would be deemed to be in legal custody till he does not furnish
The requirement was to furnish the bail.
|The allegation did not disclose merely and
economic offence but it shows a transgression of the constitutional
rights of the victim of the crime. It was not fit case of grant of bail
at this stage even on merits.
|If the minimum period is laid down, the
sentencing judge has no option but to give a sentence “not less than”
that provided for. Therefore, the words “not less than” occurring in
Clause (i) to proviso (a) of Section 167(2) of the Cr.P.C. (and in other
provisions) must be given their natural and obvious meaning which is to
say, not below a minimum threshold and in the case of Section 167 of the
Cr.P.C. these words must relate to an offence punishable with a minimum
of 10 years imprisonment.
||In all cases where the minimum is less than
10 years but the maximum the sentence is not death or life imprisonment,
the section:167 (2) (a) (ii) will apply.
||The intention of the legislature was that if
an offence was punishable with imprisonment upto 10 years, then it falls
within the provision of Section-167 (2) (a) (i).
|In the matter of personal liability, the
court should not be too technical and must lean in favor of personal
liberty. In the matters of personal liberty and Article 21 of the
Constitution, it is not advisable to be formalistic and technical.
||The Accused does not have to make out any
ground for grant of bail. He does not have to fill a detailed
application. All he has to aver in the application is that since 60 days
have expired and charge-sheet has not be filled, he is entitled to bail.
||The requirement for application claiming the
statutory right under section 167(2) of the code is a prerequisite for
the bail on default. Such application has to be made before the
magistrate for enforcement of statutory right.
|The default bail shall be granted.
||The Bail shall be granted, if bail is
||It is the matter related to Constitutional
fraud and not only related to economy fraud. The Accused shall remain in
custody till 90 days.