RAKESH KUMAR PAUL v. STATE OF ASSAM

Judgment

, (concurring): The words used by the Legislature are "not less than ten years", this means that the punishment should be 10 years or more - This can not include offences where the maximum punishment is JO years - It obviously means that minimum punishment is JO years whatever B be the maximum punishment - There is no ambiguity in the wording of s.167(2) of the code - Per Prafu/la C. Pant, J. (dissenting) : The intention of the Legislature was that if an offence was punishable with imprisonment upto ten years, then it falls within the provision of s. l 67(2)(a)(i) of the code, and permissible period for investigation is 90 days - Though the expression "not less than ten C years" used ins. J 67(2)(a)(i) of the code has created some ambiguity, the real intention of the legislature seems to include all such offences wherein an imprisonment which may extend to ten years is an award a bl e sentence - Prevention of Corruption Act, 1988 - ss. 7, J 3(l)(a)(b)(d) and 13(2) (as amended by the Lokpal and Lokayukta D Act, 2013). Default Bail - After expiry of sixty days of detention ulcl.(i) of proviso (a) to s.167(2) - Petitioner was arrested ulss. 7, 13(l)(a)(b)(d} of the PC Act, 1988, which is punishable with imprisonment for a period ranging from 4 to JO years - After expiry of 60 days of detention, bail application filed by the petitioner E before High Court was for regular bail and not for 'default bail' ul s.167(2), however, oral arguments made before the High Court were predominantly based on u/s.167(2) - Whether petitioner entitled to default bail uls.167(2) - Held: Per Madan B. Lokur, J.: Jn instant case, an alleged offence against the petitioner was not punishable F with imprisonment for a minimum period of ten years - Petitioner had orally applied for 'default bail', under these circumstances the only course open to High Court was to enquire whether petitioner was prepared to furnish bail and if so then grant him 'default bail' on reasonable conditions - Per Deepak Gupta, J.(concurring): Admittedly, there is no plea for 'default bail' in bail application, but G High Court permitted arguments on the ground of grant of 'default bail' and no objection was raised by the counsel for the State - if this objection had been raised at that stage, the accused could have either filed fresh application for grant of 'default bail' or could have prayed for 'default bail' by adding an additional ground in H RAKESH KUMAR PAUL v. STATE OF ASSAM 787 the existing application much before filing of charge sheet - Further. A requirement is of furnishing bail, he does not have to file detailed .application and has to only aver in the application is that since 601 90 days have expired and charge sheet has not been filed, he is entitled to bail and is willing to furnish bail - Per Prafulla C. Pant, J. (dissenting): Requirement of an application claiming the statutory B right uls.167(2) of the code is a pre-requisite for the grant of bail on default - Such application has to be made before the Magistrate for enforcement of statutory right - Jn present case petitioner never sought 'default bail' before the court concerned, as such not entitled to the same. Default bail - State contended that since charge sheet was C filed against the petitioner. he is not entitled to 'default bail' and must apply for regular bail - Held: Jn instant case, petitioner had applied for 'default bail' and availed his indefeasible right, when no chqrge sheet was filed - It would have been a different matter altogether if the petitioner had not applied for 'default bail' for D whatever reason - But, that is not the case insofar as the petitioner .did not give up his indefeasible right for default bail, on the contrary he had availed of his right, which is now acknowledged and enforced - This indefeasible right cannot be defeated by filing charge sheet after the accused has offered to furnish bail (Per . Madan B. Lokur and Deepak Gupta, JJ.) E Constitution of India: Art. 21 - Personal Liberty - Held: Jn matters of personal liberty, view should not be too technical and must lean in favour of personal liberty - Consequently, whether the accused makes a F 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 require ments namely, whether the statutory period for filing charge sheet or cha/Ian has expired, whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish G bail - It is not advisable in matters of personal liberty to be ritualistic and formal. (Per Madan B. Lokur. J.) Judicial Discipline: Duty of Courts - Held: Jn matters concerning personal liberty H 788 SUPREME COURT REPORTS (2017) 8 S.C.R. A and penal statutes, it is the obligation of the court to inform the accused that he or she is entitled to free legal assistance as a matter of right - Equally, Court on coming to know that the accused person before it is entitled to 'default bail', to at least apprise him or her of the indefeasible right. (Per Madan B. Lokur. J.) B Interpretation of Statutes: Golden rule of Interpretation - Held: Words used by the legislature should be given their natural meaning - Normally, Courts should be hesitant to add words or subtract words from the statutory provision - An effort should always be made to read the legislative C provision in such a way that there is no wastage of words and any construction which makes words of the statute redundant should be avoided - Courts can either add words or subtract words or read down the statute, but this should be done when there is ambiguity in the language used. (Per Deepak Gupta, J.) D Two meaning attributed to provision - Held: If two meanings could be attributed to such provision then the courts must lean towards liberty and accept that interpretation of the statute, which upholds the liberty of the citizen (Per Deepak Gupta, J.) Prevention of Corruption Act, 1988 - Amendment made to, E by the Lokpal and Lokayuktas Act - Applicability of - Held: It applies to all accused charged with offences under the PC Act irrespective of the fact whether the action is initiated under the Lokpal and Lokayuktas Act or any other law - Lokpal and Lokayuktas Act, 2013. Disposing of the petitions, the Court · HELD: MAJORITY OPINION Per Madan B. Lokur, J.: 1. The primary question need to be decided first is the meaning of the expression "punishable with imprisonment for not less than ten years" occurring in Clause (i) to proviso (a) of Section 167(2) of the Code of Criminal Procedure, 1973. [Para 19) [810-F)

#2. The petitioner relied upon Rajeev Chaudhary v. State (NCT) of Delhi) case to contend that "not less than" 10 years imprisonment must mean a minimum of 10 years imprisonment. F G H RAKESH KUMAR PAUL v. STATE OF ASSAM 789 In that decision, the offence was punishable under Section 386 of A the IPC which provides that an accused, if found guilty, shall be punished with imprisonment for a term "which may extend to 10 years". This Court contrasted that expression with the words "not less than" occurring in Clause (i) to proviso (a) of Section 167(2) of the Cr.P.C. Juxtaposing the two expressions, this Court B concluded that the words "not less than" in Clause (i) would mean that the imprisonment should be 10 years or more and would cover only those offences for which punishment of imprisonment could be for a clear period of 10 years or more. The view expressed in Rajeev Cllaudhary case is acceptable. [Paras 20 and 26) [810-G-H; 811-A-B; 814-B-C) C

#3. It is true that an offence punishable with a sentence of death or imprisonment for life or imprisonment for a term that may extend to 10 years is a serious offence entailing intensive and perhaps extensive investigation. It would therefore appear that given the seriousness of the offence, the extended period of D 90 days should be available to the investigating officer in such cases. In other words, the period of investigation should be relatable to the gravity of the offence - understandably so. This could be contrasted with an offence where the maximum punishment under the IPC or any other penal statute is (say) 7 E years, the offence being not serious or grave enough to warrant an extended period of 90 days of investigation. This is certainly a possible view and indeed the Cr.P.C. makes a distinction in the period of investigation for the purposes of 'default bail' depending on the gravity of the offence. Nevertheless, to avoid any uncertainty or ambiguity in interpretation, the law was enacted F with two compartments. Offences punishable with imprisonment of not less than ten years have been kept in one compartment equating them with offences punishable with death or imprisonment for life. This category of offences undoubtedly calls for deeper investigation since the minimum punishment is pretty G stiff. All other offences have been placed in a separate compartment, since they provide for a lesser minimum sentence, even though the maximum punishment could be more than ten years imprisonment. While such offences might also require ·deeper investigation (since the maximum is quite high) they have H 790 SUPREME COURT REPORTS [2017] 8 S.C.R. A been kept in a different compartment because of the lower minimum imposable by the sentencing court, and thereby reducing the period of incarceration during investigations which must be concluded expeditiously. The cut-off, whether one likes it or not, is based on the wisdom of the Legislature and must be respected. (Para 271 (814-C-H) B

#4. The entire issue may also be looked at from the perspective of personal liberty. Ever since 1898, the legislative intent has been to conclude investigations within twenty-four hours. The basic legislative intent of completing investigations C within twenty-four hours and also within an otherwise time-bound period remains unchanged, even though that period has been extended over the years. This is an indication that in addition to giving adequate time to complete investigations, the Legislature has also and always put a premium on personal liberty and has always felt that it would be unfair to an accused to remain in D custody for a prolonged or indefinite period. It is for this reason and also to hold the investigating agency accountable that time limits have been laid down by the Legislature. There is a legislative appreciation of the fact that certain offences require more extensive and intensive investigations and, therefore, for those offences punishable with death or with imprisonment for life or a minimum sentence of imprisonment for a term not less than 10 years, a longer period is provided for completing investigations. [Paras 28 and 291 [815-A-B, E-GJ E

#5. This Court had occasion to review the entire case law on the subject in the case of Union of India v. Nirala Yadav. In that decision this Court also noted the principle laid down to the effect that if the charge sheet is not filed and the right for 'default bail' has ripened into the status ofindefeasibility, it cannot be frustrated by the prosecution on any pretext. The accused can avail his liberty by filing an application stating that the statutory period for filing the charge sheet or challan has expired and the same has not yet been filed and therefore the indefeasible right has accrued in his or her favour and further the accused is prepared to furnish the bail bond. [Para 381 (818-E-FI F G H RAKESH KUMAR PAUL v. STATE OF ASSAM 791

#6. In the present case, it was also argued by the State that A the petitioner did not apply for 'default bail' on or after 4th January, 2017 till 24th January, 2017 on which date his indefeasible right got extinguished on the filing of the charge sheet. Strictly speaking this is correct since the petitioner applied for regular bail on 11th January, 2017 in the High Court- he made no specific application B for grant of 'default bail'. However, the application for regular bail filed by the accused on 11th January, 2017 did advert to the .statutory period for filing a charge sheet having expired and that perhaps no charge sheet had in fact being filed. In any event, this issue was argued by the petitioner in the High Court and it was considered but not accepted by the High Court. The High C Court did not reject the submission on the ground of maintainability but on merits. Therefore it is not as if the petitioner did not make any application for default bail - such an application was definitely made (if not in writing) then at least orally before the High Court. In matters of personal liberty, Court D 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 E has expired, whether the charge sheet or challan has been filed and whether the accused is prepared t" and does furnish bail. In matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. [Paras 40 and 411 [819-B-H] F

#7. It was submitted that as of today, a charge sheet having been filed against the petitioner, he is not entitled to 'default bail' but must apply for regular bail - the 'default bail' chapter being now closed. It cannot be agreed upon for the simple reason that this case concerns the interregnum between 4th January, 2017 and 24th January, 2017 when no charge sheet had been G filed, during which period he had availed of his indefeasible right of 'default bail'. It would have been another matter altogether if the petitioner had not applied for 'default bail' for whatever reason during this interregnum. There could be a situation (however H 792 SUPREME COURT REPORTS [2017] 8 S.C.R. B A rare) where an accused is not prepared to be bailed out perhaps for his personal secutity sine:! he or she might be facing some threat outside the correction home or for any other reason. But then in such an event, the uc'.:uscd voluntarily gives up the indefeasible right for defa1t_lt [:Pl and having forfeited that right the accused cannot, after the charge sheet or challan has been filed, claim , resuscitatio.~ of the indefeasible right. But that is not the case insofar as the :>etiti1111er is concerned, since he did not give up his indefeasible right for 'default bail' during the interregnum between 4th January, 2017 and 24th January, 2017 as is evident from th>! decision of the High Court rendered on . C 11th January, 2017. On the contrary, he had availed of his right to 'default bail' which could not have been defeated on 11th January, 2017 and which is now r.cknowledged and enforced. (Para 46) [822-G-H; 823-A-Dl

#8. The petitioner I.ad satisfied all the requirements of D obtaining 'default ball' whith B that on 11th January, 2017 he had put in more than 60 l!ays in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge sheet had been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail. [Para 47) (823-D-E) E

Rajeev Chaudhary v. State (NCT) of Delhi) (2001) 5 SCC 34 : (20011 ~ SCR 508 - affirmed.