INTRODUCTION

The law of bail takes central stage in Indian criminal judicial system, as it safeguards individual from arbitration deprivation of personal liberty. The difference between Bailable and Non-Bailable offence is defined under criminal procedure code (corresponding to Bharatiya Nagarik Suraksha Sanhita 2023).

In Indian judicial system the paramount importance is given to the individual liberty, it protects the accused from a malice investigation and grants him to conduct his normal day to day business, highlighting the principle of innocence, equality, dignity, and non- discrimination which is enshrined in the Indian constitution. This case highlights the principle of constitution morality in rapidly evolving landscape of the country and  thereby through judicial interpretation in Non bailable offence the principle that bail is the rule and jail is the exemption is being highlighted numerous times, this principle flows from Article 21 of the Indian constitution,  however the practical application of this principal is being challenged by the investigation authority and one of such design is filing incomplete chargesheet to prolong the custody of the accused beyond the statutory limit.

By filing incomplete chargesheet the intention is to deprive the accuse of Default bail, although this right is a statutory right but by judicial interpretation it has gotten the status of fundamental right under article 21. 

Supreme court in the RITU CHABBARIA -VS- U.O.I has reiterated that abuse or failure of procedure cannot be ground of denial of default bail. This case is of significant importance as it clarifies the distinction between chargesheet under section 173(2) of criminal procedure code (corresponding to section 193(3) of Bharatiya Nagarik Suraksha Sanhita2023).  and supplementary chargesheet under section 173(8) of criminal procedure code (corresponding to section 193(9) of Bharatiya Nagarik Suraksha Sanhita2023).  and emphasis on continuation of custody on the basis of incomplete chargesheet is flawed and abuse of power, the court through the instant case tried to restore the balance between the state interest and fundamental right.

HISTORY BACKGROUND: ABUSE OF REMAND AND DEFAULT BAIL

“Procedure is not a mere handmaiden of justice; it is the very shield that protects personal liberty from the excesses of State power.”
In the Indian criminal judicial system, very few provision reflect the constitutional promises as default bail. The supreme court in the case of Ritu Chabbaria -versus- U.O.I, reaffirmed that statutory timelines are not empty formalities, but enforceable guarantees of liberty under article 21 of the Indian constitution.

Ritu Chhabria vs union of Indian is the most Consequential case, if not the most important case in the history of the bail cases, which has determined the trajectory of the bail cases in India. In a bailable offence the bail is right whereas in non-bailable offence the bail is a rule and jail is an exception.

 The concept of bail was elaborated by supreme court in the case of Sunil Fulchand vs union of India, Air 2000 wherein the supreme court said that bail is granted to a person who is being arrested in non bailable offence, the bail is a release of an accused from custody through court it does not mean complete freedom but control freedom which can be exercised through the condition of the bond secured from him.

  Before going into the topic let’s introduced ourselves into the history of criminal justice procedure in India, it was the practice at that time to deny an accused of the statutory right or default bail given under criminal procedure code 1898, the investigation agency used to file incomplete chargesheet to ensure that the accused remain in custody.

 The practice was time and time again criticized by the Indian jurist and later on pointed by the  law commission in its 14th and 41st report criticizing the same and noted that, the practice of filing preliminary report  to put an accused under custody for longer period then prescribe by statute is against the civil liberties, the purpose of filing report is to help the court to take cognizance in the matter,  the object of this cannot be fulfil by filing a preliminary report.

 Allowing remand on the basis of preliminary report is unjust and which may lead to serious abuse. However, the court do understand the burden to complete an investigation within 15 days is a herculean task hence the period for remand is extended from 15 days to 60 days as it would be better to kept a longer period of remand than continued practice which violates the spirit of law made to safeguard the individual from arbitrariness. 

CHARGESHEET AND AN INCOMPLETE CHARGESHEET

As noted in Dinesh Dalima -vs- CBI  The purpose of the Chargesheet under section 173(2) (corresponding to section 193(3) of Bharatiya Nagarik Suraksha Sanhita2023).  is to assist the court whether cognizance need to be taken or not, chargesheet is filed once the investigation is complete not during the investigation under section 173(2) (corresponding to section 193(3) of Bharatiya Nagarik Suraksha Sanhita2023).

Another purpose which chargesheet ought to achieve is to give the accused a complete information about the allegation against him, it is the basic requirement of the fair trial. Chargesheet play a crucial role in the criminal trial as it tells the accused for what he is put under trail for following which he prepares his defiance.

After understanding what chargesheet is now let’s understand the meaning of incomplete chargesheet and how it is different from chargesheet, in Sharadchand Vinayak Dongre -vs- state of Maharashtra, the court said the chargesheet filed without the completion of investigation will amount to incomplete chargesheet, which cannot be treated as police report under section 173(2) of criminal procedure (corresponding to section 193(3) of Bharatiya Nagarik Suraksha Sanhita2023)..

Consequently, no cognizance can be taken by the court on the basis of such incomplete report, the magistrate cannot take cognizance under section 190(1) criminal procedure (corresponding to section 210(1) of Bharatiya Nagarik Suraksha Sanhita2023).

The role of incomplete chargesheet falls under section 173(8), in Rama Chaudhary -vs- State of Bihar in which court explained in order to add or supplement the existing chargesheet, no fresh or reinvestigation is needed, the purpose to open a closed investigation report can be achieved through section 173(8) (corresponding to section 193(9) of Bharatiya Nagarik Suraksha Sanhita2023).

ANALYSIS OF SECTION 167 AND DEFAULT BAIL

“The gravest threat to liberty does not always come from conviction, but from prolonged incarceration without trial.”

Section 167 bound the investigation agency to investigate the case within specified time limit and a failure of which entitle the Accused of statutory right or Default bail as an absolute right which means the filing of supplementary chargesheet will not extinguish the right of accused of default bail under section 167(2) of criminal procedure code, 1973 (corresponding to section 187 of Bharatiya Nagarik Suraksha Sanhita2023).  

The section emphasis on the maximum time period to complete the investigation, the object of the section is laudable as it not only ensures the expeditious investigation but also make sure there remain a balance between the investigation process and the rights of the individual remain protected.

 It would not be wrong to say that section 167 is another limb of Article 21 of the constitution of India as it not only curtails the power of state or investigating agency but also try to protect the civil liberty of the individual and gives presumption of innocence to accused which is also embodied in this provision.

The condition for the default bail to be denied are stated as follows: -

1. The chargesheet is filled within 60/90 days period depending upon the offence,

2. Material record is sufficient to ascertain the commission of offence,

3. Material produced within the chargesheet are sufficient by court to take the cognizance

If all these conditions are there the court will not grant “Default bail”  

The criticism against the said provision is that, given the workload of the investigation agency it is not always possible to complete the investigation process within the stipulated time but the said criticism fails, as just by stating that the investigation is incomplete and therefore Accused should remain in the custody for further interrogation or investigation defeat the purpose and object of section 167.

 Allowing this practice would convert supplementary chargesheet into a tool to be abused by the investigation authority to curtail the liberty of the individual. 

FACTS OF THE CASE

Let’s read the fact of the case which are stated as: -

1. The writ petition arises from an FIR which was lodged under 120(B) read with section 420 of Indian penal code, 1860 (IPC) along with section 7, 12 and 13(2) of the prevention of corruption Act, 1988 wherein the petitioner husband (Accused) was not named in the chargesheet.

2. Thereafter, two supplementary chargesheet was filed in which the petitioner husband (Accused) was made prosecution witness and thereafter multiple chargesheet was filed where the petitioner named was not mentioned in the chargesheet.

3. The investigation was later transferred to another investigation officer and thereafter accused was arrested by the CBI and remanded on custody, after the arrest multiple chargesheets was filed naming the petitioner husband (Accused) as suspect and the remand of the accused continued from time to time under section 309(2) of the criminal procedure code, 1973 (cr.pc) (corresponding to section 346(2) of Bharatiya Nagarik Suraksha Sanhita2023).  

4. Later, an I.A was filled before the supreme court of India by the petitioner seeking for bail which was allowed by the court and granting interim bail to the Accused.

5. The present writ matter is against the continuation of custody and every supplementary chargesheet filed was an attempt to ensure petitioner husband (Accused) is not released on bail.

LEGAL ISSUE RAISED

1. Without completing the investigation of a case, a chargesheet or prosecution complaint cannot be filed by an investigating agency only to deprive an arrested accused of his right to default bail under Section 167(2) of the CrPC (corresponding to section 187(2) of Bharatiya Nagarik Suraksha Sanhita2023).

2. Such a chargesheet, if filed by an investigating authority without first completing the investigation, would not extinguish the right to default bail under Section 167(2) CrPC (corresponding to section 187(2) of Bharatiya Nagarik Suraksha Sanhita2023).

3. The trial court, in such cases, cannot continue to remand an arrested person beyond the maximum stipulated time without offering the arrested person default bail.

RELEVANT PROVISION AND LAWS

• Article 21 of the Constitution of India: Protects the right to life and personal liberty, stating that no person shall be deprived of his life or personal liberty except according to the procedure established by law.

• Section 167(2) of the Code of Criminal Procedure (CrPC): Specifies the maximum period an accused can be detained in custody during the investigation phase. If the investigation is not completed and a chargesheet is not filed within 60 or 90 days (depending on the offense), the accused is entitled to default bail.

• Section 482 of the CrPC: Grants inherent powers to the High Courts to make orders to prevent the abuse of process or to secure the ends of justice.

• Section 173 of the CrPC: Report of police officer on completion of investigation

JUDGEMENT OF THE COURT

“The gravest threat to liberty does not always come from conviction, but from prolonged incarceration without trial.”

Section 167 is not a concession granted to the accused but constitutional command to the investigating agency to complete an investigation within stipulated timeframe, it protects the individual from investigating agency taking advantage of procedure loopholes thereby prolong the custody beyond the statutory limit is arbitrary and illegal.

In the instant case, the time period to file chargesheet is 60 days by investigating agency but for the purpose to deny the accuse the right of default bail the investigating agency just before completion of 60 days file an incomplete chargesheet. The trail court in this case fails to observe the mandate of law and mechanically accepted the incomplete chargesheet and which further extended the remand of the accused beyond the time prescribe period under section 167(2) of the criminal procedure code (corresponding to section 187(2) of Bharatiya Nagarik Suraksha Sanhita2023). and acted in the manner which is not only arbitrary but violative of the fundamental rights guaranteed to the accused.

It is important to note that the right under criminal procedure is not merely a statutory right but a fundamental right also, it restates the spirit of Article 21 of the constitution. The importance given to a procedural formality is to ensure that the accused  remain protected from the arbitrary power of the state, there is no doubt that the arrest and remand play a crucial role in finding of the evidence and attaining justice, However it is important to be aware that too much power in the hand of the state may result into autocracy so it become crucial to maintain check and balance upon the investigating agency. Given the fact and circumstances as we discussed in the above paragraph the accused was given bail in this instant case and the matter was disposed off. 

Conclusion

“Liberty once lost to procedural abuse cannot be restored by eventual acquittal.”

The judgment in Ritu Chhabria v. Union of India serves as a constitutional reminder that procedure is the first line of defence against tyranny.

In the case of Ritu Chhabra Vs union of India, two judge bench reemphasized upon the misuse of the preliminary chargesheet which lead to serious abuse wherein the accused kept under the custody for indefinite period while the investigation is going on, to deny an accused of default bail can only be done, if the filing of chargesheet is done within stipulated period given under section 167 of the criminal procedure code, 1973 not through preliminary chargesheet because the cognizance in the matter can only be taken by filing complete chargesheet without it the court cannot take judicial notice of it. The purpose to induct section 167 is to bound the investigation agency to complete their investigation within a certain time frame unless it is not done so the accuse will have option of default bail which will not extinguish by filing incomplete chargesheet. The purpose of chargesheet under section 173(2) (corresponding to section 193(3) of Bharatiya Nagarik Suraksha Sanhita2023).and incomplete chargesheet is different under section 173(8) (corresponding to section 193(9) of Bharatiya Nagarik Suraksha Sanhita2023). the investigation agency cannot deny personal liberty by securing remand.

Reference

1. Arora, K. (2024, May 9). Preliminary chargesHeet and grant of default bail: Untangling the Web | Dispute Resolution blog. Dispute Resolution Blog. https://disputeresolution.cyrilamarchandblogs.com/2024/05/preliminary-chargesheet-and-grant-of-default-bail-untangling-the-web/

2. https://www.scobserver.in/wp-content/uploads/2024/04/Rity-Chhabaria-v-Union-of-India.pdf

3. https://advocatetanwar.com/safeguarding-liberty-a-critical-analysis-of-ritu-chhabaria-vs-union-of-india/

4. https://lawandotherthings.com/incomplete-chargesheet-and-further-investigation-a-convenient-tool-to-delay-custody-of-an-accused/

Disclaimer

This article is published by CLEAR LAW (clearlaw.online) strictly for educational and informational purposes only. It does not constitute legal advice, legal opinion, or any form of professional counsel, and must not be relied upon as a substitute for consultation with a qualified legal practitioner. Nothing contained herein shall be construed as creating a lawyer-client relationship between the reader and the author, publisher, or CLEAR LAW (clearlaw.online).

All views, interpretations, and conclusions expressed in this article are solely those of the author and represent independent academic analysis. CLEAR LAW (clearlaw.online) does not endorse, verify, or guarantee the accuracy, completeness, or reliability of the content, and expressly disclaims any responsibility for the same.

While reasonable efforts are made to ensure that the information presented is accurate and up to date, no warranties or representations, express or implied, are made regarding its correctness, adequacy, or applicability to any specific factual or legal situation. Laws, regulations, and judicial interpretations are subject to change, and the content may not reflect the most current legal developments.

To the fullest extent permitted by applicable law, CLEAR LAW (clearlaw.online), the author, editors, and publisher disclaim all liability for any direct, indirect, incidental, consequential, or special damages arising out of or in connection with the use of, or reliance upon, this article.

Readers are strongly advised to seek independent legal advice from a qualified professional before making any decisions or taking any action based on the contents of this article. Reliance on any information provided in this article is strictly at the reader's own risk.

By accessing and using this article, the reader expressly agrees to the terms of this disclaimer.