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Thursday, December 02, 2021

Courts must inform undertrials when they can seek default bail, says Delhi HC

The court said that an order remanding an accused to custody is “not an empty formality” and that the magistrate is required to apply his mind.

By: Express News Service | New Delhi |
Updated: October 21, 2021 9:25:06 am
The court was hearing a petition filed by a Defence Colony resident for removal of the “encroachment” made in front of his property. (File)

The Delhi High Court has made it mandatory for authorities, including lower courts, to inform undertrial prisoners about their fundamental right to seek default bail in cases where no chargesheet has been filed within the maximum period prescribed under the law.

“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,” said Justice Manoj Kumar Ohri in an order.

The court said that an order remanding an accused to custody is “not an empty formality” and that the magistrate is required to apply his mind. “The 60th or 90th day of custody assumes great significance as, in the event of non-filing of chargesheet, a right under Section 167(2) CrPC, which is held to be an indefeasible and fundamental right, accrues in favour of the accused. To ensure that this right does not get defeated in any manner, an obligation is cast upon the Magistrate to inform an undertrial prisoner about accrual of such right,” said Justice Ohri.

The Supreme Court has held that even an oral application for grant of default bail would suffice and as long as such application is made before the chargesheet is filed by the police, the default bail would be granted, said the HC bench. It issued a slew of directions “to ensure that the rights of undertrial prisoners to seek default bail are not defeated despite the legislative mandate and the principles of law enumerated by the Courts time and again”.

The court further said that the custody of the undertrial shall be extended while keeping in mind the 60th, 90th or 180th day of completing the investigation and submission of chargesheet. If such day falls before the maximum extension of 15 days, then the custody shall be extended only up to the 60th, 90th or 180th days, as may be applicable, it said.

“As a necessary corollary, the undertrial prisoner shall be produced before the court on the next day… so that he can be duly informed of his fundamental right to seek default bail if no chargesheet is filed in the maximum period prescribed or the permitted extended period of investigation,” reads the order.

The court has also ordered modification of the format of ‘custody warrant’ and asked authorities to include a column indicating the day on which the right of ‘default bail’ would become available to the undertrial prisoner. It said the District Legal Services Authorities and the jail authorities should ensure that the undertrial remains informed of the date.

It directed the High Court Registrar General and DG (Prisoners) to file a response on the steps being undertaken to ensure that an undertrial is informed of his right to seek ‘default bail’ and such right is not defeated but rather exercised in a timely manner.

The court passed the order while hearing a revision petition challenging the dismissal of an application seeking default bail by a metropolitan magistrate.

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