Right to seek default bail is right to personal liberty: HC

New Delhi: Right to seek 'default' bail is a fundamental right and an indefeasible part of right to personal liberty under the Constitution which cannot be suspended even during a pandemic situation, the Delhi High Court said.

The high court said the right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and file a charge sheet. As per law, once the maximum period, that is, 60, 90 and 180 days from arrest, provided for an investigation in a case is over and no charge sheet is filed, the accused becomes entitled to be released on bail, which is called the 'default' bail. Justice Manoj Kumar Ohri said the order of remanding an undertrial to custody or its extension is held to be a judicial function requiring due application of mind. "The right to seek default bail under Section 167(2) CrPC is a fundamental right and not merely a statutory right, which flows from Article 21 of the Constitution. It has been held to be an indefeasible part of the right to personal liberty under Article 21 of the Constitution, and such a right cannot be suspended even during a pandemic situation.

"The right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a charge sheet," it said. The court said the rights of an undertrial under the Constitution cannot be allowed to be defeated on technicalities of procedure, and laid down a slew of directions to ensure that their right to seek default bail is not defeated and the custody of an accused is not extended mechanically. The judgement came on a petition by an accused challenging a trial court's order dismissing his revision plea seeking default bail on account of failure of prosecution to file charge sheet within the statutory period of 90 days from arrest in a case of dowry death and causing harassment to a married woman.

The high court released the man on default bail on furnishing of a personal bond of Rs 25,000 and a surety of the like amount and directed him not to try to tamper with the evidence or leave Delhi without prior permission. The man was arrested in the dowry death case on January 18, 2020 and was sent to judicial custody by a magisterial court and his custody was extended from time to time.

While the period of 90 days from arrest expired on April 18, 2020, the man applied for default bail through e-mail on April 20 last year as physical functioning of courts was restricted due to the nationwide COVID-19 lockdown, however, no response was received. "…when the petitioner was produced before the jail visiting magistrate on April 15, 2020, the concerned magistrate without any application of mind and rather unmindful of the fact that 90 days were expiring on April 18, 2020, mechanically extended the petitioner's judicial custody till April 29, 2020," the high court noted.