Holding

The phrase "imprisonment for a term not less than ten years" denotes a minimum sentence of ten years, so offences with a lower minimum fall under the 60‑day default‑bail regime, and an oral claim suffices to invoke the indefeasible right before a charge‑sheet is filed.

Summary

Rakesh Kumar Paul was arrested under the Prevention of Corruption Act, 1988 and remained in custody for more than 60 days without a charge‑sheet. The State argued that because the offence could attract imprisonment of up to ten years, the 90‑day period under clause (i) of proviso (a) to Section 167(2) CrPC applied, denying him bail. The petitioner claimed entitlement to "default bail" after the statutory 60‑day period, asserting that the phrase "imprisonment for a term not less than ten years" refers to a minimum sentence of ten years. The Supreme Court held that the expression means a minimum imprisonment of ten years; offences with a lower minimum fall under the 60‑day category, so the petitioner was entitled to default bail. The Court also ruled that an oral claim for default bail suffices and that the indefeasible right persists until a charge‑sheet is filed. Consequently, the High Court’s rejection of bail was set aside.

Issues considered

The meaning of "imprisonment for a term not less than ten years" in clause (i) of proviso (a) to Section 167(2) CrPC – does it refer to the minimum or maximum punishment?
Whether the petitioner is entitled to default bail under Section 167(2) after 60 days when the offence is punishable up to ten years but the minimum sentence is less than ten years.
Whether an oral application for default bail, without a specific written prayer, satisfies the statutory requirement.
Whether the indefeasible right to default bail survives the filing of a charge‑sheet.

Legislation cited

Code of Criminal Procedure, 1973s. 167(2)(a)(i), s. 167(2)(a)(ii)
Indian Penal Code, 1860s. 304B, s. 386
Lokpal and Lokayuktas Act, 2013
Prevention of Corruption Act, 1988s. 13(1)(a)(b)(d), s. 7

Subjects

default bailSection 167(2)personal libertyinterpretation of statutesminimum imprisonmentPrevention of Corruption ActLokpal Actcriminal procedureindefeasible right

Judgment

[2017] 8 S.C.R. 785

RAKESH KUMAR PAUL A
v.
STATE OF ASSAM
(Special Leave to Appeal (Cr!.) No. 2009 of 2017)
AUGUST 16,2017 B

[MADAN B. LOKUR, PRAFULLA C. PANT
AND DEEPAK GUPTA, JJ.]
Code of Criminal Procedure, 1973: ,
Cl.(i) of proviso (a) to s.167(2) - Interpretation of words C
"imprisonment for a term not less than ten years" - Petitioner
arrested for an offence, inter alia, uls. 13(1) of the PC Act, 1988 -
Offence uls. 13(1) of the PC Act punishable with imprisonment for
a term not less than four years but may extend to ten years - After
,expiry of 60 days of detention, bail application filed by the D
petitioner before High Court which was rejected on ground that he
could be detained for 90 days - State contended that the petitioner
could be kept in custody for a period of 90 days in terms of cl.(i) of
proviso (a) to s.167(2) as offences committed by petitioner could
result in "imprisonment for a term not less than ten years" - Whether
the Petitioner-accused entitled to grant of bail in terms of s.167(2) E
of the Cr.P.C. as the investigating agency did not file charge-sheet
within 60 days - Held: Yes .:._Per Mada11 B. Lokur, J.: The words
"not less than" in cl(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 F
or more - If minimum sentencing is laid down by the Legislature,
then the sentencing judge has no option but to give a sentence "not
less than" that sentence provided for -; Therefore, the words "not
less than" occurring in cl(i) to proviso (a) of s.167(2) of the code
(and in other provisions) must be given their natural and obvious
meaning which is to say, not below a minimum threshold and in G
case of s.167 of the code these words must relate to an offence
punishable with a minimum of JO years imprisonment~ In instant
case, alleged offence against the petitioner was not punishable with
imprisonment for a minimum period of ten years - Thus, petitioner
had indefeasible right to the grant of 'default bail' after expiry of
H
785
786 SUPREME COURT REPORTS [2017] 8 S. C.R.

A sixty days of detention - Per Deepak Gupta, J, (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. J67(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,
J3(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 ·
F
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
G (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.
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
B respected. (Para 271 (814-C-H)

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
E 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
5. This Court had occasion to review the entire case law on
F 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
G 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

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.

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
B 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
E reasonable terms and conditions of bail. [Para 47) (823-D-E)
Rajeev Chaudhary v. State (NCT) of Delhi) (2001) 5
SCC 34 : (20011 ~ SCR 508 - affirmed.
Sanjay Dutt v. State (1994) 5 SCC 410 : (1994) 3 Suppl.
F SCR 263; Mohammed Ajmal Mohammad Amir Kasab
v. State of Maharashtra (2012) 9 SCC 1: [2012) 8
SCR 295 - relied on.
Bhupinder Singh v. Jarnail Singh. (2006) 6 SCC 277 :
(2006) 3 Suppl. SCR 513 ; Prakash Singh v. Union of
India. (2006) 8 SCC 1: (2006) 6 Suppl. SCR 473 ;
G
Hitendra Vishnu Thakur v. State of Maharashtra (1994)
4 SCC 602 : (1994) 1 Suppl. SCR 360; Union of
India v. Nirala Yadav (2014) 9 SCC 457 : (2014) 6
SCR 148 ; Uday Mohan/al Acharya v. State of

H
RAKESH KUMAR PAUL v. STATE OF ASSAM 793

Maharashtra (2001) 5 SCC 453 : [2001) 2 SCR 878; A
Mohamed Iqbal Madar Sheikh v. State of Maharashtra
(1996) 1 SCC 722 : [1996] 1 SCR 183; Sunil Batra
II v. Home Secretary, Delhi Administration (1980) 3 SCC
488 ~ (1980] 2 SCR 557; Hussainara Khatoon v.
State of Bihar (1980) 1 SCC 98 : [1979) 3 SCR 532 ;
B
Rubabbuddin Sheikh v. State of Gujarat (2007) 4 SCC
318 ; Kishore Singh Ravinder Dev v. State of Rajasthan
(1981) 1 SCC 503 : [1981) 1 SCR 995; Paramjit Kaur
(Mrs.) v. State of Punjab (1996) 7 SCC 20 : (1995) 5
Suppl. SCR 250 ; Bandhua Mukti Morcha v. Union of
India (1984) 3 SCC 161 : [1984) 2 SCR 67 ; Peoples c
Union for Democratic Rights v. Union of India AIR
1982 SC 1473 : [1983] 1 SCR 456; Dr. Upendra Baxi
(I) v. State of Uttar Pradesh (1983) 2 SCC 308 ; Sheela
Barse v. State of Maharashtra (1983) 2 SCC 96 : (1983)
2 SCR 337 ; Khatri v. State of Bihar (1981) 1 SCC
D
627 : [1981] 2 SCR 408 ; Suk Das v. Union Territory
of Arunachal Pradesh (1986) 2 SCC 401 : [1986) 1
SCR 590; Rajoo @ Ramakant v. State of Madhya
Pradesh (2012) 8 SCC 553 : [2012) 6 SCR 1182 -
referred to.
Per Deepak Gupta, J. (Concurring): E
1. The only concern here is the interpretation of the phrase
"for a term of not less than ten years" occurring in Section
167(2)(a)(i), which provides a period of 90 days where the
investigation relates. to an offence punishable with death,
imprisonment for life or imprisonment for a term not less than 10 F
years. On consideration, without indulging in any semantic
gymnastics, the meaning of this provision is absolutely clear. It
envisages three types of offences: ·
(i) Offences which are punishable with death;
(ii) Offences which are punishable with imprisonment for life; G
(iii) Offences which are punishable with a term not less than
10 years. [Paras 8 and 9) [843-F-H]
2; The language of the statute is clear and unambiguous.
Out of the three categories of offences, the category of offences
H
794 SUPREME COURT REPORTS [2017] 8 S.C.R.

A where the punishment prescribed is not less than 10 years is
required to dealt with. If an offence is punishable with death
then whatever be the minimum punishment, the period of
investigation permissible would be 90 days. Similarly, if the
offence is punishable with life imprisonment, even ifthe minimum
B sentence provided is less than 10 years, the period of detention
before 'default bail' is available would be 90 days. [Para 101 [844-
A-B)
3. In the first two categories, the legislature made reference
only to the maximum punishment imposable, regardless of the
minimum punishment, which may be imposed. Therefore, if a
C person is charged with an offence, which is punishable with death
or life imprisonment, but the minimum imprisonment is less than
10 years, then also the period of 90 days will apply. However, in
the third category, the words used by the legislature are "not
less than ten years". This obviously means that the punishment
D should be 10 years or more. This cannot include offences where
the maximum punishment is 10 years. It obviously means that
the minimum punishment is 10 years whatever be the maximum
punishment. [Para 121 [844-E-GJ
4. While interpreting any statutory provision, it has always
E been accepted as a golden rule of interpretation that the words
used by the legislature should be given their natural meaning.
Normally, the courts should be hesitant to add words or subtract
words from the statutory provision. An effort should always be
made to read the legislative provision in such a way that there is
no wastage of words and any construction which makes some
F words of the statute redundant should be avoided. No doubt, if
the natural meaning of the words leads to an interpretation which
is contrary to the objects of the Act or makes the provision
unworkable or highly unreasonable and arbitrary, then the Courts
either add words or subtract words or read down the statute, but
G this should only be done when there is an ambiguity in the language
used. There is no ambiguity in the wording of Section 167(2) of
the Code. [Para 13) [844-G-H; 845-A-Bl
5. A bare reading of Section 167 of the Code clearly indicates
that if the offence is punishable with death or life imprisonment
H or with a minimum sentence of 10 years, then Section 167(2)(a)(i)
RAKESH KUMAR PAUL v. STATE OF ASSAM 795

will apply and the accused can apply for 'default bail' only if the A
investigating agency does not file charge.sheet within 90 days.
However, in all cases where tl~e minimum sentence is less than
10 years but the maximum· sentence is not death or life
imprisonment then Section 167(2)(a)(ii) will apply and the accused
will be entitled to grant of 'default bail' after 60 days in case
8
charge-sheet is not filed. (Para 17) (845-G-H; 846-A-B) .
. 6. Section 167 of the Code lays down the procedure
established by law by which a person can be deprived of his
personal liberty, guaranteed to him under: Article 21 of the
Constitut.ion of India. If two meanings could be attributed to C
such a provision then the court~ must lean towards liberty and .. .
accept that interpretation of the statute, which upholds theliberty
of the citizen and which keeps· the eternal flame of liberty alive.
If words are ambiguous then also the court should be relJ1ctant
to accept that interpretation which curtails the right of a lwman
being of being free. (Para 18) (846-D·E) D
7. Once the High Court permitted the counsel for the
petitioner to argue the petition on the ground of grant of 'default
bail' and no objection was raised by the counsel for the State theil
at this stage it cannot be urged that the petitioner never applied
for 'default bail' and is not entitled to 'default bail'. If this objection E
had been raised at that stage, either by the Court or by the. State,
the accused could have either filed a fresh application for grant
of 'default bail' or could have prayed for 'default bail' by adding
an additional ground in the existing application much before
· 24.01.2017 when the charge-sheet was filed. (Para 23) (848·C·
DJ F
. 8. The requirem;nt is of furnishing of bail. Tbe accused ·· ·
does not have to inake out any grounds for grant of bail. He does
not have to file a detailed application. All he has to aver .in the
application is that .since 60/90 days have expired and charge-sheet
has not been filed, he is entitled to bail and is willing to furnish G
.bail. This indefeasible right cannot be defeated by. filing the
charge-sheet after the accused has offered to furnish bail.. (Para
28] (850-G-H)
Aswini Kumar Ghose v. Arabinda Bose Al]i 1952 SC
369: (1953] SCR 1; Jugalkishore Sarafv. Raw Cotton H
796 SUPREME COURT REPORTS [2017] 8 S.C.R.

A Co. Ltd. AIR 1955 SC 376 : [1955) SCR 1369 ; Kanai
Lal Sur v. Paramnidhi Sadhukhan AIR 1957 SC 907 :
[1958) SCR 360 - relied on.
Rajeev Chaudhary v. State (NCT) ofDelhi (2001) 5 SCC
34 : [2001) 3 SCR 508; Bhupinder Singh & Ors. v.
B Jarnail Singh & Anr. (2006) 6 SCC 277 : [20061 3
Suppl. SCR 513 ; Prakash Singh v. Union of India
(2006) 8 SCC 1 ; Sanjay Dutt v. State through CB.I..
Bombay (JI) (1994) 5 SCC 410 : (1994) 3 Suppl. SCR
263; Uday Mohan/al Acharya v. State of Maharashtra
(2001) 5 SCC 453 : [2001[ 2 SCR 878; Union of
c India v. Nirala Yadav (2014) 9 SCC 457 : (2014) 6
SCR 148 ; Mohamed Iqbal Madar Sheikh & Ors. v.
State of Maharashtra (1996) 1 SCC 722 : [1996[ 1
SCR 183 - referred to.
MINORITY OPINION
D
Per Prafulla C. Pant, J. (Dissenting):
1. If the legislature intended to exclude the offences for
which the minimum imprisonment was ten years, it could have
used the words "or imprisonment for a term more than ten years".
E Thus the argument that ninety days period does not cover the
cases where maximum imposable sentence is ten years cannot
be accepted. (Para 15) [830-G)
2. The intention of the legislature was that if an offence was
punishable with imprisonment upto ten years, then it falls within
F the provision of Section 167(2)(a)(i) of the Code, and the
permissible period for investigation is ninety days. The intention
of the Legislature in extending the permissible time period from
sixty days to ninety days for investigation is to include the offences
in which sentence awardable i~ at least ten years or more.
Therefore, though the expression "not less than ten years" used
G in Section 167(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 awardable sentence. In other words, for offences wherein
the punishment may extend to ten years imprisonment, the
H
RAK.ESH KUMAR PAUL v. STATE OF ASSAM 797

permissible period for filing charge sheet shall be ninety days, A
and only after the period of ninety days, the accused shall be
entitled to bail on default for non filing of the charge sheet. (In
the present case, admittedly the charge sheet is filed within ninety
days). Since the expression "not less than ten years" has caused
ambiguity in interpretation, the best course for the legislature B
would be to clear its intention by using the appropriate words.
[Para 20) [833-D-G)
3. The law laid down clearly shows that the requirement of
an application claiming the statutory right under Section 167(2)
of the Code is a prerequisite for the grant of bail on default. Such C
application has to be made before the Magistrate for enforcement
of the statutory right. In the cases under the Prevention of
Corruption Act or other Acts where Special Courts are constituted
by excluding the jurisdiction of the Magistrate, it has to be made
before such Special Court. In the present case, since the appellant
never sought default bail before the court concerned, as such he D
was not entitled to the same. [Para 26) [837-C-EJ
4. In the present case, the allegations do not disclose merely
an economic offence but it shows a transgression of .the
constitutional rights of the victims of the crime. If the allegations
are found to be true, then the offence cannot merely be considered E
as an economic offence, but a fraud on the Constitution itself by
the persons appointed to enforce it. [Para 29) [838-F-GJ
5. In the above circumstances, withe>ut expressing any
views on the merits of the case pending before the trial court,
looking into the nature of allegations, the role attributed to the F
appellant, the fact that further investigation regarding the offence
is underway, possibility of tampering evidence and influencing
witnesses, therefore, it is not a fit case for grant of bail at this
stage even on merits. [Para 30) [838-G-H; 839-A-BJ
Sanjay Dutt v. State through C.B.J., Bombay (1994) 5 G
SCC 410: [1994) 3 Suppl. SCR 263; Uday Mohan/a/
Acharya v. State of Maharashtra (2001) S SCC 453 :
[2001) 2 SCR 878.; Dr. Bi/in Shanti/a/ Panchal v.
State of Gujarat (1996) 1 SCC 718 : (1996) 1 SCR
193 ; Mohamed Iqbal Madar Sheikh v Stat.e of
H
798 SUPREME COURT REPORTS· (2017] 8 S.C.R.

A Maharashtra (1996) 1 SCC 722 : (1996) 1 SCR 183;
Hitendra Vishnu Thakur and Others etc. etc. v. State of
Maharashtra and Others (19941 ..! -:.;cc 602 : (1994) 1
Suppl. SCR 360 - relied on.
Rajeev Choudhary v. State (NCT) ofDelhi (2001) 5 SCC
B 34: [2001) 3 SCR 508; Kiran Chander Asri v. State of
Haryana (2016) 1 SCC 578; Bhupinder Singh and ors.
v. Jarnail Singh and Another (2006) 6 SCC 277 : (2006)
3 Suppl. SCR 513 ; Nimmagadda Prasad v. Central
Bureau of Investigation 2013 (7) SCC 466 - referred
to.
c
Case Law Reference
In t!le J:ud&ment of Madan B. Lokur1 J.
[2001) 3 SCR 508 affirmed P•ra 20

D [2006) 3 Suppl. SCR 513 referred to Para 21
[2006) 6 Suppl. SCR 473 referred to Para 32
[1994) 3 Suppl. SCR 263 referred to Para35
(1994) 1 Suppl. SCR 360 referred to Para35
E [2014) 6 SCR 148 referred to Para37
(2001) 2 SCR 878 referred to Para37
(1996) 1 SCR 183 referred to Para39
[1980) 2 SCR 557 referred to Para 42
F (1979) 3 SCR 532 referred to Para42
c2001) 4 sec 318 referred to Para42
(1981) 1 SCR 995 referred to Para42
(1995) 5 Suppl. SCR 250 referred to Para42
G (1984) 2 SCR 67 referred to Para 42
(1983) 1 SCR 456 referred to Para42
(1983) 2 sec 308 referred to Para42

H
RAKESH KUMAR PAUL v. STATE OF ASSAM 799

(1983) 2 SCR 337 referred to · Para42 A
(1981) 2 SCR 408 referred to Para43
(1986) 1 SCR 590 referred to Para43
(2012) 6 SCR 1182 referred to Para43
(2012) 8 SCR 295 relied on Para4 B

In the Jud&ment of Deeuak Guuta1 J.
(1953) SCR 1 relied OD Para 13
(1955) SCR 1369 relied on Para 13
(1958) SCR 360 relied on Para IS
c
(2001) 3 SCR 508 referred to Para 20
(2006) 3 Suppl. SCR 513 referred to Para 21
· (2006) 8 sec 1 referred to Para 22
D
(1994) 3 Suppl. SCR 263 referred to Para24
(2001) 2 SCR. 878 referred to Para24
(2014). 6 SCR 148 referred to Para 25
(1996) l SCR 183. referred to Para 25
E
lg the Jud2mentof P-r~tulla C. Parit1 J.
(2001 I 3 SCR 508 . referred to Para4
(2016) 1 sec 578 . relied OD Para9
(2006) 3 Suppl. SCR 513 referred to Para9 F
(1994) 3 Suppl. SCR 263 relied on Par!t 22
(2001) 2 SCR 878 relied on Para23
(1996) 1 SCR 193 relied on . Para 23
(1996) 1 SCR 183 relied on · Para24 G
· (1994) 1 Suppl. SCR 360 rjllied ·on Para 25
(2013) 1 sec 466 referred to Para 28

H
800 SUPREME COURT REPORTS [2017] 8 S.C.R.

A CRIMINAL APPELLATE JURISDICTION : Special Leave to
Appeal (Criminal) No. 2009 of2017.
From the Judgment and Order dated 11.0l.2017 of the High Court
ofGauhati in BA No. 23 of2017
WITH
B
SLP(Crl.) No. 2176 of2017.
Dr. Abhishek Manu Singhvi, Sr. Adv., Wajeeh Shafiq, Dhairay
Kapoor, Amit Bhandari, Advs. for th&Appellant.
Mukul Rohatgi, Sr. Adv., Ms. Deeksha Rai, Debojit Borkakati,
C Advs. for the Respondent.
The Judgments of the Court were delivered by
MADAN B. LOKUR, J. I. In Measure for Measure the Duke
complains (in the given situation): "And liberty plucks justice by the nose". 1
D The truth is that personal liberty cannot be compromised at the altar of
what the State might perceive as justice - justice for one might be
perceived as injustice for another. We are therefore unable to agree
with learned counsel for the State that the petitioner is not entitled to his
liberty through what is commonly referred to as 'default bail' or that the
justice of the case should persuade us to decide otherwise.
E 2. The facts in these petitions are not in dispute and we need not
go into them in any great detail since we are really concerned with the
interpretation of the words "imprisonment for a term not less than ten
years" appearing in clause (i) of proviso (a) to Section 167(2) of the
Code of Criminal Procedure, 1973 as amended in 1978.
F A few facts
3. A First Information Report No. 936 of2016 was lodged on
27"' Ocfober, 2016 in respect of allegations made under the provisions of
the Prevention of Corruption Act, 1988 (PC Act) and the Indian Penal
Code, 1860 (IPC). Although the petitioner was not named in the First
G Information Report, investigations seemed to implicate him in a very
large and structured conspiracy. Accordingly, on 5"' November, 2016
the petitioner was taken into custody pending further investigation.

1
Act I Scene Ill line 20-32
H
RAKESH KUMAR PAUL v. STATE OF ASSAM 801
[MADAN B. LOKUR, J.]

4. Ordinarily, the maximum period of detention during the course A.
of investigation (without a charge sheet or challan being filed) would be
60 days in terms of clause (ii) of proviso (a) to Section 167(2) of the
Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.'). In the
petitioner's case, this period would come to an end on 3n1January,2017.
However according to the State, since the petitioner had committed B
offences which cou,Id result in "imprisonment for a term not less than
ten years" he could be kept in custody for a period of90 days in terms of
.clause (i) of proviso (a) to Section 167(2) of the Cr.P.C. Therefore, the
question before us is whether, pending investigation, the petitioner could
be kept in custody for a maximum period of 60 days in terms of clause
(ii) of proviso (a) to Section 167(2) of the Cr.P.C. or for 90 days in terms C
of clause (i) of proviso (a) to Section 167(2) ofthe Cr.P.C. without a
charge sheet being filed.
5. On 20'h December, 2016 (before the expiry of 60 days), the
petitioner applied for bail before the Special Judge dealing with cases
relating to offences under the PC Act. His application was rejected. D
6. Subsequently, on or about 11 •h January, 2017 (after the expiry
of 60 days of detention but before the expiry of90 days of detention),
the petitioner applied for bail before the Gauhati High Court, but that
application was rejected on ll'h January, 2017. The prayer made in the
application for bail was for grant of"regular bail" under Section 439 of E
the Cr.P.C. This is of some importance because, according to learned
counsel for the State, assuming the petitioner could be detained only for
a maximum period of 60 days during investigations, he had not applied
for 'default bail', that is bail in default of the prosecution filing a charge
sheet against him soon after that 60 day period of detention, but had only
applied for "regular bail". F
7. At this stage, it may be mentioned that even though the petitioner
had not applied for 'default bail' he did contend before the High Court
that he was entitled to 'default bail' since no charge sheet had been filed
against him within 60 days of his arrest during investigations. This
submission was considered by the High Court but rejected, not on the G
ground that the petitioner had not applied for 'default bail' but on the
ground that he could be detained for 90 days without a charge sheet
being filed and that period of90 days had not yet come to an end. (The
period of90 days would come to an end on or about 211d February, 2017).
H
802 SUPREME COURT REPORTS [2017] 8 S.C.R.

A 8. To complete the narration of essential facts, it may be mentioned
that a charge sheet was filed against the petitioner on 24th January, 2017
that is after 60 days of his detention but before completion of90 days of
detention.
9. In view of the charge sheet having been filed, the modified
B question before us is whether the petitioner was entitled to 'default bail'
with effect from 3n1 or 4th January, 2017 onwards and, in any case on
11lhJanuary,2017 when his application for "regular bail" was rejected
by the Gauhati High Court.
History behind the enactment of Section 167 of the Cr.P.C.
·C 10. The Code of Criminal Procedure enacted in 18~8 contained
Section 167 which laid down the procedure to be followed in the event
the investigation into an offence is not completed within twenty-four
hours. What is significant is that the legislative expectation was that the
investigation would ordinarily be completed within twenty-four hours.
D Incidentally, tliis legislative expectation continues till today. Whatever be
the anxiety of the Legislature in 1898, there can be no gainsaying that
investigation into an offence deserves an early closure, one way or the
. other. Therefore, when Section 1~7 was enacted in the Code of Criminal
Procedure, 1898 it was premised on the conclusion of investigations
within twenty-four hours or within 15 days on the outside, regardless of
E the nature of the offence orthepunishment. Section 167 of the Code of·
Criminal Procedure, 1898 reads as follows: '
· 167. [Marginal Note: Procedure when investigation cannot be
completed in twenty-four hours] (1) Whenever any person is
arrested and detained in custody, and it appears that the
·F investigation cannot be completed within the period oftwenty-
four hours fixed by section 61, and there are grounds for
believing that the accusation or information is well-founded,
the officer in charge of the police-station or the police-officer
making the investigation if he is not below the rank of sub-
G inspector shall forthwith transmit to the nearest Magistrate a
copy of the entries in the diary hereinafter prescribed relating
to the case, and shall at the same time fotward the accused to
such Magistrate.
(2) The Magistrate to whom an accused·person is forwarded
under this section may, whether he has· or has not jurisdiction
H
RAKESH KUMAR PAUL v. STATE OF ASSAM 803
[MADAN B. LOKUR, J.]

to try the case, from time to time authorise the detention of the A
accused in such custody as such Magistrate thinks fit, for a
term not exceeding fifteen days in the whole. If he has not
jurisdiction to try the case or commit it for trial, and considers
further detention unnecessary, he may order the accused to be
· forwarded to a Magistrate having such jurisdiction:
B
Provided that no Magistrate of the third class, and no
Magistrate of the second class not specially empowered in
this behalf by the State Government shall authorise detention
in the custody of the police.
(3) A Magistrate authorizing under this section detention in the c
custody of the police shall record his reasons for so doing.
(4) If such order is given by a Magistrate other than the District
Magistrate or Sub-divisional Magistrate, he shall forward a
copy of his order, with his reasons for making it, to the
Magistrate to whom he is immediately subordinate. D
t. 11.Unfortuiiately, all laws tend to be misused whenever opportunity
knocks, and Section 167 of the Code of Criminal Procedure, 1898 was·.
no exception. Since there was a practical difficulty in completing
~ investigations within the .15 day time limit, the prosecution often took
recourse to the provisions of Section 344 of the Code of Crimirial E
Procedure, 1898 and filed a preliminary or incomplete report before the
Magistrate to keep the accused in custody. The Law Commission of
· India noted this in its 41 st Report (after carefully studying several earlier .
Reports) and pr0posed .to increase the time limit for completion of
investigations to 60 days, acknowledging that "such an extension may
.result in the maximum period becoming the rule in every case as a matter F
of routine: but we trust that proper supervision by the superior .
·courts will prevent that." (Emphasis supplied by us). The view
expressed by the Law Commission of India and its proposal is as follows: ·
''·i
14.19. Section 167 provides for remands. The total period for
which an arrested person may be remanded to custody - police G
. or judicial:... is 15 days. The assumption is that the investigation
. must be completed within 15 days, and the final report under I,
section 173 sent to court by then. In actual practice, however,
this has frequently been found unworkable. Quite often, a
complicated.investigation cannot be completed within 15 days, H
804 SUPREME COURT REPORTS [2017) 8 S.C.R.

A and if the offence is serious, the police naturally insist that the
accused be kept in custody. A practice of doubtful legal validity
has therefore grown up. The police file before a magistrate a
preliminary or "incomplete" report, and the magistrate, purporting
to act under section 344, adjourns the proceedings and remands
the accused to custody. In the Fourteenth Report, the Law
B
Commission doubted if such an order could be made under section
344, as that section is intended to operate only after a magistrate
has taken cognizance of an offence, which can be properly done
only after a final report under section 173 has been received, and
not while the investigation is still proceeding. We are of the same
c view, and to us also it appears proper that the law should be clarified
in this respect. The use of section 344 for a remand beyond the
statutory period fixed under section 167 can lead to serious abuse,
as an arrested person can in this manner be kept in custody
indefinitely while the investigation can go on in a leisurely manner.
It is, therefore, desirable, as was observed in the Fourteenth
D
Report, that some time limit should be placed on the power of the
police to obtain a remand, while the investigation is still going on:
and if the present time limit of 15 days is too short, it would be
better to fix a longer period rather than countenance a practice
which violates the spirit of the legal safeguard. Like the earlier
E Law Commission, we feel that 15 days is perhaps too short, and
we propose therefore to follow the recommendation in the
Fourteenth Report that the maximum period under section 167
should be fixed at 60 days. We are aware of the danger that such
an extension may result in the maximum period becoming the rule
in every case as a matter of routine: but we trust that proper
F supervision by the superior courts will prevent that. We propose
accordingly to revise sub-sections (2) and (4) of section 167 as
follows:-
"(2) The Magistrate to whom an accused person is forwarded
under this section may, whether he has or has not jurisdiction
G to try the case, from time to time authorise the detention of
the accused in such custody as such Magistrate thinks fit,
for a term not exceeding fifteen days at a time and sixty
days in the whole. Ifhe has no jurisdiction to try the case or
commit it for trial, and considers further detention
H
RAK.ESH KUMAR PAUL v. STATE OF ASSAM 805
[MADAN B. LOKUR, J.]

unnecessary, he may order the accused to be forwarded to A
a Magistrate having such jurisdiction:
Provided that -
(a) no Magistrate shall authorize detention in any
custody under this section unless the accused is
produl:ed before him; B
(b) no Magistrate of the second c lass not specially
empowered in this behalf by the High Court shall
authorise detention in the custody of the police.
(4) Any Magistrate other than the Chief Judicial Magistrate C
making such order shall forward a copy of his order, with his
reasons for making it, to the Chief Judicial Magistrate."
12. The recommendations ofthe Law Commission of India were
carefully examined and then accepted. The basic considerations for
acceptance, as mentioned in the Statement of Objects and Reasons dated D
7'h November, 1970 for introducing the (new) Code of Criminal
Procedure, 1973 were:
3. The recommendations of the Commission were examined
carefully by the Government, keeping in view among others,
the following basic considerations:-
E
(i) an accused person should get a fair trial in accordance
with the accepted principles ofnaturaljustice;
(ii) every effort should be made to avoid delay in
investigation and trial which is harmful not only to the
individuals involved but also to society; and
F
(iii) the procedure should not be complicated and should, to
the utmost extent possible; ensure fair deal to the poorer
sections of the community.
The occasion has been availed of to consider and adopt where
appropriate suggestions received from other quarters, based G
on practical experience of investigation and the working of
criminal Courts.
13.Accordingly, Section 167 of the Code of Criminal Procedure,
1973 (the Cr.P.C.) was enacted as follows, with the recommended time
limit and again regardless of the nature of the offence or the punishment:
H
806 SUPREME COURT REPORTS [2017] 8 S.C.R.

A 167. [Marginal Note: Procedure when investigation cannot be
completed in twenty-four hours] (I) Whenever any person is
arrested and detained in custody, and it appears that the
investigation cannot be completed within the period of twenty-
four hours fixed by section 57, and there are grounds for believing
that the accusation or information is well-founded, the officer in
B
charge of the police station or the police officer making the
investigation, if he is not below the rank of sub-inspector shall
forthwith transmit to the nearest Judicial Magistrate a copy of the
entries in th.e diary hereinafter prescribed relating to the case, and
shall at the same time forward the accused to such Magistrate.
c (2) The Magistrate to whom an accused person is forwarded
under this section may, whether he has or has not jurisdiction to
try the case, from time to time authorise the detention of the accused
in such custody as such Magistrate t)links fit, for a term not
exceeding fifteen days in the whole: and ifhe has no jurisdiction
D to try the case or commit it for trial, and considers further detention
unnec~ssary, he may order the accused to be forwarded to a
Magistrate having such jurisdiction:
Provided that
(a) the Magistrate may authorise detention of the accused
E person, otherwise than in custody of the police, beyond the
period of fifteen days ifhe is satisfied that adequate grounds
exists for doing so, but no Magistrate shall authorise the
detention of the accused person in custody under this section
for a total period exceeding sixty days, and on the expiry of
F the said period of sixty days, the accused person shall be
released on bail ifhe is prepared to and does furnish bail;
and every person released on bail under this section shall
be deemed to be so released under the provisions of Chapter
XXXIII for the purposes of that Chapter;

.G
(b) no Magistrate shall authorise detention in any custody
under this section unless the accused is produced before
him;
(c) no Magistrate of the second dass, not specially
empowered in this behalf by the High Court, shall authorise
detention in the custody of the police.
H
RAKESH KUMAR PAUL v. STATE OF ASSAM 807
[MADAN B. LOKUR, J.]

Explanation.- If any question arises whether an accused A
person was produced before the Magistrate as required under
paragraph (b), the production of the accused person may be
proved by his signature on the order authorising detention.

(3) to (6) Not relevant for the present purposes.
B
14. A few years later in 1978, a need was felt to amend Section
167 of the Cr.P.C. by not only extending the period for completing
investigation but also relating that period to'the offence. Therefore, a
shift was proposed to grant an aggregate period of90 days for completing
the investigation in cases relating to offences punishable with death, c
imprisonment for life or "imprisonment for not less than ten years or
more" and up to 60 days in any other case, as stated in the Notes on
Clauses accompanying the Statement of Objects and Reasons dated 9th
May, 1978 for amending the statute. What is of significance (for our
purposes) is the use of the words "imprisonment for not less than ten
years or more". In our opinion, the use of the words "or more" gives a D
·clear indication that the period of 90 days was relatable to an offence
punishable with a minimum imprisonment for a period of not less than
ten years, if not more. The Notes on Clauses reads as follows:

. Clause 13.- Section 167 is being ai:nended to empower the E
Magistrate to authorise detention, pending investigation, for an
aggregate period of 90 days in cases where the investigation
relates to offences punishable with death, imprisonment for life or
imprisonment for not less than ten years or more and up to
60 days in any other case. These amendments are intended to
remove difficulties which have been actually experienced in relation F
to the investigation of offences of a serious nature.

A new sub-section is being inserted empowering an Executive
Magistrate .............. (Emphasis supplied by us).

15. When Section 167 of the Cr.P.C. was enacted, it was perhaps G
·felt that the words "or more" were superfluous. (as indeed we believe
that they ate in the context of the use of the words "not less than") and
Section 167 came to read:

H
808 SUPREME COURT REPORTS (2017] 8 S.C.R.

A 167. Procedure when investigation cannot be completed in
twenty-four hours - (I) Whenever any person is arrested and
detained in custody, and it appears that the investigation cannot
be completed within the period of twenty-four hours fixed by
Section 57, and there are grounds for believing that the accusation
or information is well-founded, the officer in charge of the police
B
station or the police officer making the investigation, if he is not
below the rank of sub-inspector, shall forthwith transmit to the
nearest Judicial Magistrate a copy of the entries in the diary
hereinafter prescribed relating to the case, and shall at the same
time forward the accused to such Magistrate.
c (2) The Magistrate to whom an accused person is forwarded
under this section may, whether he has or has not jurisdiction to
try the case, from time to time, authorise the detention of the
accused in such custody as such Magistrate thinks fit, for a term
not exceeding fifteen days in the whole; and ifhe has no jurisdiction
D to try the case or commit it for trial, and considers further detention
unnecessary, he may order the accused to be forwarded to a
Magistrate having such jurisdiction:
Provided that, -
(a) the Magistrate may authorise the detention of the accused
E person, otherwise than in the custody of the police, beyond
the period of fifteen days, if he is satisfied that
adequate grounds exist for doing so, but no Magistrate shall
authorise the detention of the accused person in custody
under this paragraph for a total period exceeding,-
F (1) ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or imprisonment
for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other
offence,
G
and, on the expiry of the said period of ninety days, or sixty days,
as the case may be, the accused person shall be released on bail
ifhe is prepared to and does furnish bail, and every person released
on bail under this sub-section shall be deemed to be so released

H
RAK.ESH KUMAR PAUL v. STATE OF ASSAM 809
[MADAN B. LOKUR, J.]

under the provisions of Chapter XXXIII for the purposes of that A
Chapter;
(b) no Magistrate shall authorise detention of the accused in
custody of the police under this section unless the accused is
produced before him in person for the first time and
subsequently every time till the accused remains in the custody B
of the police, but the Magistrate may extend further detention
in judicial custody on production of the accused either in person
or through the medium of electronic video linkage;
(c) no Magistrate of the second class, not specially
empowered in this behalf by the High Court, shall authorise c
detention in the custody of the police.
· Explanation 1.- For the avoidance of doubts, it is hereby
declared that, notwithstanding the expiry of the period specified
in paragraph (a), the accused shall be detained in custody so long
as he does not furnish bail. D
Explanation 11.- If any question arises whether an accused
person was produced before the Magistrate as required under
clause (b), the production of the accused person may be proved
. by his signature on the order authorising detention or by the order
certified by the Magistrate as to production of the accused person E
through the medium of electronic video linkage, as the case may
be:
Provided further that in case of a woman under eighteen years
of age, the detention shall be authorised. to be in the custody of a
remand home or recognised social institution. F
(2A) to (6) Not relevant for the present purposes.
16. Generally speaking therefore, it could be said that the legislative
intent is and always has been to complete the investigation into an offence
within twenty-four hours, failing which within 15 days (Cr.P.C. of 1898).
The period of 15 days was later extended to 60 days (Cr.P.C. of 1973) G
and eventually it was extended to 90 days ifthe investigation was relatable
to an offence punishable with death, imprisonment for life or imprisonment
for a term of not less than ten years. In respect of all other offences, the
period of 60 days remained unchanged.
H
810 SUPREME COURT REPORTS [2017) 8 S.C.R.

A 17. The significance of the period of60 days or 90 days, as the
case may be, is that if the investigation is not completed within that
period then the accused (assuming he or she is in custody) is entitled to
'default bail' if no charge sheet or challan is filed on the 60th or90th day,
the accused applies for 'default bail' and is prepared to and does furnish
bail for release. As can be seen from the narration of facts, no charge
B sheet or challan was filed against the petitioner on the 60th day but was
filed before the conclusion of90 days. Consequently, was the petitioner
entitled to 'default bail' after 60 days? According to the petitioner the
answer is in the affirmative since he had not committed an offence
punishable with imprisonment for not less than ten years, but according
C to the State he had committed an offence punishable with imprisonment
for ten years.
18. So what was the offence allegedly committed by the petitioner?
According to the State he was liable for punishment for an offence,
inter alia, under Section 13(1) of the PC Act, the offence being
D "punishable with imprisonment for a term which shall be not less than
four years but which may extend to ten years" and~fine. Therefore, the
view of the State is that since the petitioner could face imprisonment
that could extend to 10 years, the date for applying for 'default bail'
would commence on the expiry of 90 days. However, according to the
petitioner the date for obtaining 'default bail' would commence on the
E expiry of 60 days that is on or about 3n1 January, 2017. (On the facts of
this case, we need not quibble on the exact date). To this extent there is
no dispute between the petitioner and the State.
Discussion on int~rpretation
F 19. To answer the primary question before us, we need to first
decide 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) ofthe Cr.P.C. Its interpretation stirred considerable debate
and discussion before us.
G 20. Learned counsel for the petitioner relied upon Rajeev
Chaudhary v. State (NCT) ofDelhi)2 to contend that "not less than"
l 0 years imprisonment must mean a minimum of l 0 years imprisonment.
In that decision, the offence was punishable under Section 386 of the
IPC which provides that an accused, iffound guilty, shall be punished
H '(2000 s sec 34
RAKESH KUMAR PAUL v. STATE OF ASSAM 811
[MADAN B. LOKUR, J.]

with imprisonment for a term "which may extend to 10 years''.3 This A
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 Cot1rt 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. It was. B
held in paragraph 6 of the Report:
"From the relevant part of the aforesaid sections, it is apparent
that pending investigation relating to an offence punishable with
imprisonment for a term "not less than 10 years", the Magistrate
is empowered to authorize the detention of the accused in custody C
for not more than 90 days. For rest of the offences, the period
prescribed is 60 days. Hence in cases where offence is punishable
with imprisonment for 10 years or more, the accused could be
detained up to a period of90 days. In this context, the expression
"not less than" would mean imprisonment should be 10 years or 0
more and would cover only those offences for which punishment
could be imprisonment for a clear period of 10 years or more..
Under Section 386 punishment provided is imprisonment of either
description for a term which may extend to 10 years and also
fine. That means, imprisonment can be for a clear period of 10
years or less. Hence, it could not be said that minimum sentence E
would be 10 years or more. Further, in context also if we consider
· clause (i) of proviso (a) to Secti0n 167(2), it would be applicable
in case where investigation relates to an offence punishable (1)
with death; (2) imprisonment for life; and (3) imprisonment for a
term of not less than ten years. It would not cover the offence F
for which punishment could be imprisonment for less than 10 years.
Under Section 386 IPC, imprisonment can vary from minimum to
maximum of 10 years and it cannot be said that imprisonment
prescribed is not less than 10 years."
This decision certainly supports the contention oflearned counsel
and there is also a feeling of deja vu in the use of the words "or more" G

3 386. Extortion by putting a person In fear of death or grievous hurt.-Whoever

commits extortion by putting any person in fear of death or of grievous hurt to that
person or to any other, shall be punished with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to fine. H
812 SUPREME COURT REPORTS [2017] 8 S.C.R.

A in the decision, those words having been used in the Notes on Clauses
when the Cr.P.C. was sought to be amended in 1978.
21. In contrast, learned counsel for the State referred to and relied
upon Bhupinder Singh v. Jarnail Singh. 4 That case concerned an
offence under Section 304-B of the IPC where the punishment provided
B is not less than 7 years but which may extend to imprisonment for life. 5
In other words, the 'punishment range' or 'punishable range' available
to a sentencing judge varied from not less than 7 years extending to life
imprisonment. Keeping this in mind, it was noted that what is the adequate
punishment in a given case would be decided by the court on the basis of
the facts and circumstances before it.
c
22. The decision in Rajeev Cltaudhary was distinguished by
recording that the case
"related to an offence punishable under Section 386 IPC and the
sentence in respect of the said offence is not less than 10 years.
D This Court held that the expression "not less than" means that the
imprisonment should be 10 years or more to attract 90 days' period.
In that context it was said that for the purpose of clause (i) of
proviso (a) of Section 167(2) CrPC the imprisonment should be
for a clear period of 10 years or more."
This is factually incorrect, inasmuch as Section 386 of the IPC
E
provides for a punishment "which may extend to ten years". It is Clause
(i) that uses the expression "imprisonment for a term not less than ten
years". This Court unfortunately overlooked the juxtaposition and
diStinction referred to above.

F
• (2006) 6 sec 211
' 304-B. Dowry death.-( I) Where the death of a woman is caused by any bums or
bodily injury or occurs otherwise than under normal circumstances within seven years
of her marriage and it is shown that soon betore her death she was subjected to cruelty
or harassment by her husband or any relative of her husband for, or in connection with,
G any demand for dowry, such death shall be called "dowry death", and such husband or
relative shall be deemed to have caused her death.
Explanation.-For the purpose of this sub-section, "dowry" shall have the same meaning
as in Section 2 of the Dowry Prohibition Act, 1961 (28of1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term
which shall not be less than seven years but which may extend to imprisonment for life.
H
RAKESH KUMAR PAUL v. STATE OF ASSAM 813
[MADAN B. LOKUR, J.]

23. It was further· held in paragraph 11 of the Report: A
"The position is different in respect of the offence punishable
under Section 304-B IPC. In the case of Section 304-B the range
varies between 7 years and imprisonment for life. What should
be the adequate punishment in a given case has to be decided by
the court on the basis of the facts and circumstances involved in B
the particular case. The stage of imposing a sentence comes
only after recording the order of conviction of the accused person.
The significant word in the proviso is "punishable". The word
''punishable" as used in statutes which declare that certain offences
are punishable in a certain way means liable to be punished in the
way designated. It is ordinarily defined as deserving of or capable C
or liable to punishment, capable of being punished by law or right,
may be punished or liable to be punished, and not must be punished."
24. In the context of the word "punishable" occurring in Clause
(i) and the meaning attached to this word taken from several dictionaries,
this Court held in Bliupinder Singh that where a minimum and maximum D
sentence is prescribed, both are imposable depending upon the facts of
the case. Therefore, if an offence is punishable with imprisonment that
may extend upto or beyond or including l 0 years, then the period available
for completing investigations would be 90 days before the provision for
'default bail' kicks in. It was said in paragraph 15 of the Report: E
"Where minimum and maximum sentences are prescribed, both
are imposable depending on the facts of the cases. It is for the
court, after recording conviction, to impose appropriate sentence.
It cannot, therefore, be accepted that only the minimum sentence
· is imposable and not the maximum sentence. Merely because F
minimum sentence is provided that does not mean that the sentence
imposable is only the minimum sentence."
25. While it is true that merely because a minimum sentence is
provided for in the statute it does not mean that only the minimum sentence
is imposable. Equally, there is also nothing to suggest that only the G
maximum sentence is imposable. Either punishment can be imposed and
even something in between. Where does one strike a balance? It was
held that it is eventually for the court to decide what sentence should be
imposed given the range available. Undoubtedly, the Legislature can
bind the sentencing court by laying down the minimum sentence (not
H
814 SUPREME COURT REPORTS [2017) 8 S.C.R.

A less than) and it can also lay down the maximum sentence. If the
minimum is laid down, the sentencing judge has no option but to give a
sentence "not less than" that sentence 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
B 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.
26. Of the two views expressed by this Court, we accept the
view in Rajeev Chaudhary.
c 27. 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 90 days should be available to the
investigating officer in such cases. In other words, the period of
D 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 years, the offence being not serious or grave enough to warrant an
extended period of90 days ofinvestigation. This is certainly a possible
E 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 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
F or imprisonment for life. This category ofoffences undoubtedly calls for
deeper investigation since the minimum punishment is pretty 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
G offences might also require deeper investigation (since the maximum is
quite high) they have 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.
H
.\.:
RAKESH KUMAR PAUL v. STATE OF ASSAM 815
[MADAN B. LOKUR, J.]
'
Ducussion from personal liberty perspective A
28. We rti.ay also look at the entire issue not only from the narrow
interpretiltional perspective but from the perspective of personal liberty.
Ever since 1898, the legislative intent has been to conclude investigations
within twenty-four hours. This intention has not changed for more than
a century, as the marginal notes to Section 167 of the Cr.P.C. suggest. B
However, the Legislature has been pragmatic enough to appreciate that
it is not always possible to complete investigations into an offence within
twenty-four hours. Therefore initially, in the Cr.P.C. of 1898, a maximum
period of 15 days was provided for completing the investigations.
Unfortunately, this limit was being violated through the subterfuge of
taking advantage of Section 344 of the Cr.P.C of 1898. The misuse was C
recognized in the 41st Report of the Law Commission of India and
·consequently the Law Commission recommended fixing a maximum
period of 60 days for completing investigations and that recommendation
came to be enacted as the law in the Cr.P.C. of 1973. Subsequently, thi's , .
period was also found to be insufficient for completing investigations o
into more serious offences and, as mentioned above, the period. 'for
completing investigations was bifurcated into 90 days for some offences
and 60 days for the remaining offences. · ~· · '1'.~;~
29. Notwithstanding this, the basic legislative intent of completing q
investigations within twenty-four hours and also within an otherwise tii:ne-: E
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 arid
always put a premium on personal liberty and has always felt thatit
would be unfair to an accused to remain in custody for a prolonged oi: 1
indefinite period. It is for this reason and also to hold the investigating F
agency accountable that time limits have been laid do~- 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 G
10 years, a longer period is provided for completing investigations.
t . ·' "t

I.
30. The need to expeditiously conclude investigations haibeen'
discussed from time to time over the years and the view has been that·
as far as practicable, the investigating agency should be distinct
. i ... :.
from
H
816 SUPREME COURT REPORTS (2017] 8 S.C.R.

A the police staff assigned to the enforcement of law and order. 'rhis was
the view expressed (in 1958) in the J41h Report of the Law Commission
of India as reflected in its 154th Report {in 1996). 6
31. In the I 54th Report, the Law Commission noted that the
unanimous opinion of members of the Bench and the Bar, prosecuting
B agencies and senior police officers during legal workshops held at various
places was that the investigation of serious offences punishable with a
sentence of7 years or more should invariably be undertaken by senior
officers. The Law Commission concluded, as a result of these extensive
discussions, that it was desirable to separate the investigating police from
the law and order police and as many as seven reasons were given for
C arriving at this conclusion in Chapter II of the Report.
32. Even this Court had occasion to consider this issue and looked
into several reports including those of the National Police Commission in
Prakash Singh v. Union of India. 7 In paragraphs 20 and 21 of the
decision, this Court noted that the Home Minister, all the commissions
· D and committees have concluded that there is an urgent need for police
reforms and that there is convergence of views on the need, inter alia,
to separate investigation work from law and order. Such views and
opinions over a prolonged period have prompted the Legislature for more
than a century to ensure expeditious conclusion ofinvestigations so that
E an accused person is not unnecessarily deprived of his or her personal
liberty by remaining in prolonged custody for an offence that he or she
might not even have committed. In our opinion, the entire debate before
us must also be looked at from the point of view ofexpeditious conclusion
of investigations and from the angle of personal liberty and not from a
purely dictionary or textual perspective as canvassed by learned counsel
F for the State.
Default bail as an indefeasible right
33. It was submitted by learned counsel for the State that the
charge sheet having been filed against the petitioner on 24'h January,
2017 the indefeasible right of the petitioner to be nowreleased on 'default
· G bail' gets extinguished and the petitioner must apply for regular bail.
34. What is forgotten is that the indefeasible right for 'default
bail' accrued to the petitioner when the period of60 days for completing

'Chapter II paragraph 4
H '(2006) s sec 1
RAKESH KUMAR PAUL v. STATE OF ASSAM 817
[MADAN B. LOKUR, J.]

.the investigation and filing a charge sheet came to an end on 3n1 or 4th A
January, 2017 and that the indefeasible right continued till 24th January,
2017. The question is whether during this interregnum the petitioner
was entitled to 'default bail' or not? .Ordinarily, the answer would be
"yes" but in the present case, the petitioner was not granted bail and a
charge sheet was filed against him on 24th January, 2017. Was his B
indefeasible right completely taken away?
35. Our attention was drawn to the decision of the Constitution
Bench in Sanjay Dutt v. State. 8 In paragraph 46 of the Repoit it was
conceded by learned counsel appearing for the accused that the
indefeasible right is enforceable only up to the filing of a charge sheet or C
challan and does not survive after the charge sheet or challan is filed in
the court against him. This submission was not refuted by but agreed to
by the learned Additional Solicitor General appearing for the State. The
submission made by both the learned counsels was based on an
interpretation of the decision of this Court inHitendra Vishnu Thakur
.v. State of Maharashtra 9 which was a case under the Terrorist and D
Disruptive Activities (Prevention) Act, 1987.
36. While dealing with this common stance, the Constitution Bench
in Sanjay Dutt made it clear in paragraph 48 of the Report that the
indefeasible right accruing to the accused is enforceable only prior to
the filing of the charge sheet and it does not survive or remain enforceable E
thereafter, if already not availed of. In other words, the Constitution
Bench took the view that the indefeasible right of' default bail' continues
till the charge sheet or challan is filed and it gets extinguished thereafter.
This is clear from the conclusion stated by the Constitution Bench in
paragraph 53(2)(b) of the Report. This reads as follows:
F
"(2)(b) The "indefeasible right" of the accused to be released on
bail in accordance with Section 20(4)(bb) of the TADAAct read
with Section 167(2) of the Code of Criminal Procedure in default
of completion of the investigation and filing of the challan within
the time allowed, as held in Hitendra Vishnu Thakur is a right
which enures to, and is enforceable by the accused only from the G
time of default till the filing of the challan and it does not survive
or remain enforceable on the challan being filed. If the accused
applies for bail under this provision on expiry of the period of 180
• (1994)s sec 410
• (1994) 4sec 602 H
818 SUPREME COURT REPORTS [2017) 8 S.C.R.

A days or the extended period, as the case may be, then he has to
be released on bail forthwith. The accused, so released on bail
may be arrested and committed to custody according to the
provisions of the Code of Criminal Procedure. The right of the
accused to be released on bail after filing of the challan,
notwithstanding the default in filing it within the time allowed, is
B
governed from the time of filing of the challan only by the
provisions relating to the grant of bail applicable at that stage."
37. This Court had occasion to review the entire case law on the
subject in Union ofIndia v. Nira/a Yadav. 10 In that decision, reference
was made to Uday Mohan/a/ Acharya v. State of Maharashtra 11 and
C the conclusions arrived at in that decision. We are concerned with
conclusion No. 3 which reads as follows:
"(3) On the expiry of the said period of90 days or 60 days, as the
case may be, an indefeasible right accrues in favour of the accused
for being released on bail on account of default by the investigating
D agency in the completion of the investigation within the period
prescribed and the accused is entitled to be released on bail, ifhe
is prepared to and furnishes the bail as directed by the Magistrate."
38. This Court also dealt with the decision rendered in Sanjay
Dutt and noted that the principle laid down by the Constitution Bench is
E to the effect that if the charge sheet is not filed and the right for 'default
bail' has ripened into the status of indefeasibility, 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
F therefore the indefeasible right has accrued in his or her favour and
further the accused is prepared to furnish the bail bond.
39. This Court also noted that apart from the possibility of the
prosecution frustrating the indefeasible right, there are occasions when
even the court frustrates the indefeasible right. Reference was made to
G Mohamed Iqbal Madar Sheikh v. State of Maharashtra 12 wherein it
was observed that some courts keep the application for 'default bail'
pending for some days so that in the meantime a charge sheet is
1• c2014) 9 sec 457
" (200 o 5 sec 453
12 (1996) 1 sec 122
H
RAKESH KUMAR PAUL v. STATE OF ASSAM 819
[MADAN B. LOKUR, J.]

submitted. While such a practice both on the part of prosecution as well A
as some courts must be very strongly and vehemently discouraged, we
reiterate that no subterfuge should be resorted to, to defeat the indefeasible
. right of the accused for 'default bail' during the interregnum when the
statutory period for filing the charge sh~et or challan expires and the
submission of the charge sheet or challan in court.
B
Procedure for obtaining default bail
40. In the present case, it was also argued by learned counsel for
the State that the petitioner did not apply for 'default bail' on or after 4th
January, 2017 till 24•h January, 2017 on which date his indefeasible right
got extinguished on the filing of the charge sheet. Strictly speaking this is c
correct since the petitioner applied for regular bail on 11th January, 2017
in the Gauhati High Court- he made no specific application for grant of
'default bail'. However, the application forregular 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 learned counsel for the D
petitioner in the High Court and it was considered but not accepted by
the High Court. The High Court did not reject the submission on the
.ground vf 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 E
High Court. In our opinion, in matters of personal liberty, we cannot and
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 ofno consequence.
The concerned court must deal with such an application by considering
the statutory requirements namely, whether the statutory period for filing F
a charge sheet or challan has expired, whether the charge sheet or challan
has been filed and whether the accused is prepared to and does furnish
bail.
41. We take this view keeping in mind that in matters of personal
liberty and Article 21 of the Constitution, it is not always advisable to be G
formalistic or technical. The history of the personal liberty jurisprudence
of this Court and other constitutional courts includes petitions for a writ
.of habeas corpus and for other writs being entertained even on the
basis of a letter addressed to the Chief Justice or the Court.
H
820 SUPREME COURT REPORTS [2017) 8 S.C.R.

A 42. In Sunil Batra II v. Home Secretary, DelhiAdministration 13
this Court accepted a letter, which was treated as petition, written by a
prisoner in Tihar Jail, Delhi complaining ofinhuman torture inflicted on
another prisoner by the Jail Warder. In Hussainara Khatoon v. State of
Bihar14 a number of writ petitions, some by way of a letter, were grouped
B together and treated as habeas corpus petitions. In Rubabbuddin
Sheikh v. State ofGujarat15 the brother of the deceased wrote a letter
to the Chief Justice of India complaining of a fake encounter and
subsequent disappearance of his sister-in-law. This was treated as a
habeas corpus petition. In Kishore Singh Ravinder Dev v. State of
Rajasthan 16 the petitioners sent a telegram to a learned judge of this
C Court complaining of solitary confinement of prisoners. The telegram
was treated as a habeas corpus petition and the concerned persons
were directed to be released from solitary confinement. In Paramjit
Kaur (Mrs.) v. State ofPunjab 11 a telegram received at the residential
office of a learned judge of this Court alleging an incident of kidnapping
by the police was treated as a habeas corpus petition. In Bandhua
D Mukti Morcha v. Union of Jndia 18 a petition addressed to a learned
judge of this Court relating to the inhumane and intolerable conditions of
stone quarry workers in many States and how many of them were bonded
labour was treated as a writ petition on the view that the "Constitution-
makers deliberately did not lay down any particular form of proceeding
E for enforcement of a fundamental right nor did they stipulate that such
proceeding should conform to any rigid pattern or straight-jacket formula".
In People's Union for Democratic Rights v. Union of Jndia 19 a letter
addressed to a learned Judge of this Court concerning violation of various
labour laws in the construction projects connected to the Asian Games
was treated as a writ petition. In Dr. Upendra Baxi (I) v. State of
F Uttar Pradesh 20 a letter relating to inhuman conditions in the Agra
Protective Home for Women was treated as a writ petition and in Sheela
Barse v. State ofMaharashtra 21 a letter addressed by a journalist
" ( 1980) 3 sec 488
" (1980) 1 sec 98
G "c2001) 4 sec 318
"(1981) 1 sec so3
11
(1996)1sec20
"(1984) 3 sec 161
19
AIR 1982 SC 1473
10 (1983) 2 sec 308

"(1983) 2 sec 96
H
RAKESH KUMAR PAUL v. STATE OF ASSAM 821
[MADAN B. LOKUR, J.]

complaining of custodial violence against woman prisoners in Bombay A
was treated as a writ petition. These cases are merely illustrative of the
personal liberty jurisprudence of this Court and in matters pertaining to
Article 21 of the Constitution oflndia this Court has consistently taken
the view that it is not advisable to be ritualistic and formal. However, we
must make it clear that we should not be understood to suggest that B
_procedures must always be given a go-by - that is certainly not our
intention.

Duty of the Courts
43. This Court and other constitutional courts have also taken the c
view that in the matters concerning personal liberty 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. In Khatri v. State of
Bihar21 the Judicial Magistrate did not provide legal representation to
the accused since they did not ask for it. It was held by this Court that
this was unacceptable and that the Magistrate or the Sessions Judge D
before whom an accused appears must be held under an obligation to
inform the accused of his or her entitlement to obtain free legal assistance
at the cost of the State. In Suk Das v. Union Territory ofArunachal
Pradesh 23 the accused was tried and convicted without legal
representation, due to his poverty. He had not applied for legal E
.representation but notwithstanding this, this Court held that the trial was
vitiated and the sentence awarded was set aside, particularly since the
accused was not informed of his entitlement to free legal assistance, nor
was an inquiry made from him whether he wanted a lawyer to be provided
at State expense. In Rajoo@Ramakant v. State ofMadhya Pradesh24
the High Court dismissed. the appeal of the accused without enquiring F
whether he required legal assistance at the expense of the State even
though he was unrepresented. Relying on Khatri and Suk Das this
Court remanded his appeal to the High Court for re-hearing after giving
an opportunity to the accused to take legal assistance. Finally, in
MohammedAjmal Mohammad Amir Kasab v. State ofMaharashtra 25 G

"(1981) 1 sec 627
n (1986) 2 sec 401
"c2012) 8 sec 553
"(2012) 9 sec 1
H
822 SUPREME COURT REPORTS [2017] 8 S.C.R.

A this Court relied on Khatri and held that in paragraph 474 of the Report
as follows:
" ... it is the duty and obligation of the Magistrate before whom a
person accused of committing a cognizable offence is first
produced to make him fully aware that it is his right to consult and
B be defended by a legal practitioner and, in case he has no means
to engage a lawyer of his choice, that one would be provided to
him from legal aid at the expense of the State. The right flows
from Articles 21 and 22( 1) of the Constitution and needs to be
strictly enforced. We, accordingly, direct all the Magistrates in
the country to faithfully discharge the aforesaid duty and obligation
c and further make it clear that any failure to fully discharge the
duty would amount to dereliction in duty and would make the
Magistrate concerned liable to departmental proceedings."
44. Strong words indeed. That being so we are of the clear opinion
that adapting this principle, it would equally be the duty and responsibility
D of a 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. A
contrary view would diminish the respect for personal liberty, on which
so much emphasis has been laid by this Court as is evidenced by the
decisions mentioned above, and also adverted to in Nirala Yadav.
E Application of the law to the petitioner
45. On 11 ... January, 2017 when the High Court dismissed the
application for bail filed by the petitioner, he had an indefeasible right to
the grant of 'default bail' since the statutory period of 60 days for filing
a charge sheet had expired, no charge sheet or challan had been filed
F against him (it was filed only on 24... January, 2017) and the petitioner
had orally applied for 'default bail'. Under these circumstances, the
only course open to the High Court on 11 ... January, 2017 was to enquire
from the petitioner whether he was prepared to furnish bail and if so
then to grant him 'default bail' on reasonable conditions. Unfortunately,
G this was completely overlooked by the High Court.
46. 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. We
cannot agree for the simple reason that we are concerned with the
H interregnum between 41h January, 2017 and 24'h January, 2017 when no
RAKESH KUMAR PAUL v. STATE OF ASSAM 823
[MADAN B. LOKUR, J.]

charge sheet had been filed, during which period he had availed of his A
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
rare) where an accused is not prepared to be bailed out perhaps for his
personal securitY since he or she might be facing some threat outside B
the correction home or for any other reason. But then in such an event,
the accused voluntarily gives up the indefeasible right for default bail
and having forfeited that right the accused cannot, after the charge sheet
or challan has been filed, claim a resuscitation of the indefeasible right.
·But that is not the case insofar as the petitioner is concerned, since he
did not give up his indefeasible right for 'default bail' during the C
interregnum between 41h January, 2017 and 241h January, 2017 as is
evident from the decision of the High Court.rendered on 11th January,
2017. On the contrary, he had availed of his right to 'default bail' which
could not have been defeated on 11 lh January, 2017 and which we are
today compelled to acknowledge and enforce.
D
47. Consequently, we are of opinion that the petitioner had satisfied
all the requirements ofobtaining 'default bail' which is that on 11 lh January,
2017 he had put in more than 60 days 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 E
been released by the High Court on reasonable terms and conditions of
bail.
48. It may be mentioned that learned counsel for the petitioner
had contended that the extended period of 90 days for filing a charge
sheet would not apply to the petitioner since he is not covered by the F
provisions of the Lokpal and Lokayuktas Act, 2013 and therefore the
maximum sentence that could be awarded to him would be 7 years
under the Prevention of Corruption Act, 1988. This argument of
desperation is recorded only to be summarily rejected. Even if the
petitioner is not within the purview of the Lokpal and Lokayuktas Act, G
20 l3 he is certainly not outside the purview of the PC Act and can be
prosecuted and punished for a violation of Section 13( 1) thereof. There
is absolutely no cogent reason for excluding the petitioner from the rigours
of the PC Act as amended by the Lokpal and Lokayuktas Act, 2013.
H
824 SUPREME COURT REPORTS [2017] 8 S.C.R.

A Conclusion
49. The petitioner is held entitled to the grant of 'default bail' on
the facts and in the circumstances of this case. The Trial Judge should
release the petitioner on 'default bail' on such terms and conditions as
may be reasonable. However, we make it clear that this does not prohibit
B or otherwise prevent the arrest or re-arrest of the petitioner on cogent
grounds in respect of the subject charge and upon arrest or re-arrest,
the petitioner is entitled to petition for grant of regular bail which
application should be considered on its own merit. We also make it clear
that this will not impact on the arrest of the petitioner in any other case.
c 50. We allow the petition and set aside the judgment and order of
the High Court.
51. The companion petition, being S.L.P. (Cr!.) No. 2176 of2017
is rendered infructuous and is dismissed as such.
52. By way of a footnote, we may add that it is time that the
D reports of the Law Commission of India and the decision of this Court
in Prakash Singh are given very serious thought and in addition a greater
degree of professionalism is introduced in investigations into offences
along with scientific methods and techniques of investigation and the
use of technology. ·
E PRAFULLA C. PANT, J. 1. I have the benefit of going through
the draft judgment authored by My Lord Hon'ble Justice Madan B.
Lokur. Agreeing with the importance of right of personal liberty, with
great regard to His Lordship, I beg to differ on the interpretation of
Section 167(2)(a)(i) of the Code of Criminal Procedure 1973, and in the
F facts and circumstances of the case at hand, in my opinion, both the
appeals are liable to be dismissed. I express my opinion in the matter as
under:-
2. These appeals are directed against the order dated 11.01.2017,
passed by the High Court of Guwahati in Bail Application No.23/2017
G and the order dated 13.2.2017 in Bail Application No.136/2017, wherein
the bail applications filed by the appellant under Section 439 of the Code
of Criminal Procedure 1973, have been rejected.
3. Prosecution story in short is that the appellant - Rakesh Kumar
Paul was working as the Chairman of the Assam Public Service
H
RAKESH KUMAR PAUL v. STATE OF ASSAM 825
[PRAFULLA C. PANT, J.]

Commission (APSC) from Il.I2.2013. On27.10.20I6 an FIR No. 936 A
of 20 I 6 was lodged by one Dr. Angshumita Gogoi for offences under
Sections 7, 13(1 )(b)(2) of the Prevention of Corruption Act I 988 (For
short "PC Act") at Police Station Dibrugarh, Assam stating that one
Mr. Nabakanta Patir contacted her and asked her to pay Rs. I0,00,000/
- (Rupees ten lacs only) to him for recruiting her as Dental Surgeon in B
the selection conducted by APSC. Upon her intimation to the police, a
trap was laid up, wherein Nabakanta Patir was apprehended in his
residential premises located at Circuit House Road while he was receiving
the amount from the informant. He was arrested and it was found that
there was a network of such illegal activities to recruit persons for
government service in connivance and conspiracy of other persons. C
.Investigation revealed that the appellant being the Chairman of the APSC
was involved in running a network to recruit people to government services
· . in the state in connivance and conspiracy with others. He was found
having direct access to the said Nabakanta Patir. During the search at
the residence of the appellant, cash amounting to Rs. I 0,00,000/-(Rupees
D
ten lacs only) answer scripts of the APSC Examination were recovered
which contained extra marks bearing the signature of the invigilator
including the APSC tabulation sheet, master paper of answer scripts,
draft copy of APSC answer booklets including instructions part from a
particular printing press of the brother of the appellant. The Papers were
supposed to be printed at the Government Printing Press as per the E
APSC provisions, but they were made to be printed at the private press
without any authority. Telephonic conversation records revealed that
Nabakanta Patir was in contact with a candidate regarding appointment
for the post of BDO also for the year 20 I 6. Some other recoveries were
also made from his office and the printing press. The appellant was F
arrested on 4.11.2016 and was produced before the Judge, Special Court,
·Guwahati on S.11.2016, wherein he was remanded to custody.
4. The present appellant first preferred a regular bail application
before the Special Judge which was dismissed on 20.12.2016. Thereafter,
in January 2017, he filed Bail Application No. 23 of 2017 before the
High Court of Guwahati under Section 439 of the Code of Criminal G
Procedure I 973 (for short "the Code"). It is significant to note that this
application was for regular bail on merits as is evident from a perusal of
the same. As such, there was no ground taken in the petition to enlarge
the appellant on default bail for non filing of chargesheet within a period
H
826 SUPREME COURT REPORTS [2017] 8 S.C.R.

A of sixty days. This issue will be addressed later in the judgment. The bail
application came to be disposed on 11.1.2017. It is to be noted that the
arguments made before the High Court were predominantly based on
the ground that the accused was entitled to bail under Section 167(2) of
the code since the chargesheet was not filed within a period of sixty
B days. The counsel for the accused argued that since the maximum
punishment u/s 13(2) of the PC Act 1988 was seven years, the charge
sheet was to be filed within sixty days, i.e. upto 04.01.2017, but since
chargesheet was not filed, the accused is entitled to bail under Section
167(2) of the Code. It was also argued that assuming the PC Act was
amended by the Lokpal and Lokayuktas Act, 2013 the punishment under
C Section 13(2) as amended will extend to l 0 years and in that case also
the chargesheet had to be filed within 60 days. He placed reliance on
the judgment of the decision of this court in the case of Rajeev
Choudhary vs. State (NCT) of Delhi'.
5. Counsel for the State contested the bail application before the
D High Court by stating that upon the amendment of Section 13(2) of the
PC Act 1988 by the Lokpal and Lokayuktas Act, 2013 which came into
effect from 16.1.2014, the maximum punishment imposable is ten years
imprisonment and thus the time period for filing charge sheet is ninety
days. It was also contested on merits. The High Court vide impugned
order dated 11.1.2017 rejected the bail application by holding that in the
E present case, since the offence under Section 13(2) of the PC Act (as
amended by the Lokpal and Lokayuktas Act, 2013) is punishable with
imprisonment which may extend to l 0 years imprisonment, the provisions
of Section l 67(2)(a)(i) of the Code would be applicable and the accused
is not entitled to his bail due to the default of the prosecution in not filing
F the chargesheet within a period of sixty days under Section l 67(2)(a)(ii)
of the Code. The High Court did not consider it a fit case to grant bail on
the merits either.
6. Thereafter, on 24.01.2017, the police filed charge sheet in FIR
No. 936 of2017 for the offences under Sections 7, 13(l)(a)(b)(d) and
G 13(2) of the PC Act and Sections 120B, 420, 462, 468, 471, 477(A), 201
of the Indian Penal Code (IPC) against the appellant and other co-
accused. After filing the chargesheet, the appellant moved bail application
No.136 of 2017 before the High Court of Guwahati seeking bail on
•c2001) ssec 34
H
RAKESH KUMAR PAUL v. STATE OF ASSAM 827
[PRAFULLA C. PANT, J.]

merits. This bail application also came to be rejected on 13.2.2017. These A
two orders of the High Court dated 11.1.2017 and 13.2.2017 are
challenged before this Court in these present appeals.
7. Heard Shri Abhishek Manu Singhvi, senior counsel for the
appellant and Shri Mukul Rohtagi, senior counsel for the State ofAssam.
8. The primary argument advanced by the learned counsel for the B
appellant is that the default of the Investigating Agency in not filing the
chargesheet within sixty days entitles the accused to be released as per
·the provision of Section 167(2) of the Code. It is contended that the
maximum punishment for the offences for which the chargesheet has
been filed against the accused is seven years. The PC Act was amended c
by the Lokpal and Lokayuktas Act, 2013 primarily by enhancing the
punishments for certain offences, to be investigated and prosecuted by
Lok Pal or Lokayukta. Learned Counsel submits that such amendment
.of the PC Act 1988 by the Lokpal and Lokayuktas Act 2013 was not
permissible in respect of offences tried by ordinary Special Courts. Further
it was argued that, assuming that the Act stood amended and the D
punishment for the offence under Section 13(2) of the PC Act was
amended and the maximum punishment stood extended to ten years, the
Investigating agency was still required to file the charge sheet within
sixty days and in default of which the accused would be entitled to bail
under Section 167(2) of the Code. He placed reliance on a decision of E
this Court in the case of Rajeev Cltaudltary vs. State (NCT) of Del/ti
(supra) wherein the court held that for the offence under Section 386
IPC which is punishable with imprisonment upto ten years, the
chargesheet was required to be filed within sixty days.
9. Mr. Mukul Rohatgi argued that power of the parliament to F
amend the PC Act 1988 by way of the Lokpal and Lokayuktas Act,
2013 cannot be questioned. He further submitted that the Amendment
came into force with effect from 16.1.2014 as recognised by this court
.in the case of Kiran Cltander Asri vs. State of Haryana. 2 Reference
is also made to the case of Bltupinder Singh and ors. vs. Jarnail
Singh andAnotlzei3 to contend that, when minimum as well as maximum G
sentences are imposable, it cannot be said that only minimum sentences
are imposable and not the maximum sentence. While reiterating the
2
c2016) 1 sec s1s
' c2006) 6 sec 211
H ,, ..
828 SUPREME COURT REPORTS [2017) 8 S.C.R.

A reasoning given by the High Court, he further conteded that, in the instant
case, the accused had only approached the High Court for regular bail
under Section 439 of the Code wherein no ground of default bail on the
ground of not filing chargesheet within sixty days, was taken in the
application. It is only during the arguments, the ground for non compliance
B of Section 167(2) was taken by the counsel before the High Court. He
argued that this cannot be said to be in conformity with the procedure
provided under Section 167(2) of the Code for availing the bail on the
default of the investigation to file the charge sheet. Further, since the
charge sheet came to be filed on 24.01.2017, he is no longer entitled to
such relief. On merits it was argued that it is not a fit case for bail.
c I 0. At the outset, it may be stated that the argument taken by the
counsel for the accused that the Amendment made to the Prevention of
Corruption Act 1988 by the Lokpal and Lokayukta Act, 2013 has not
been enforced, has no legs to stand on. The Amendment has been
enforced with effect from 16.01.2014 which has been accepted by this
D Court in the case of Kiran Chander Asri vs. State ofHaryana (supra).
The challenge to the power of the parliament to amend the provisions of
the Prevention of Corruption Act 1988 by way of the Lokpal and,.
Lokayuktas Act, 2013 is neither substantiated nor further pressed and is
thus liable to be rejected.
E 11. The three main questions that arise in these appeals for our
consideration are as under:
I. Whether in a case regarding offence for which the punishment
imposable may extend upto ten years, the accused is entitled to
bail under Section 167(2) of the Code of Criminal Procedure
F 1973 due to default on the part of investigating agency in not
filing the charge sheet within sixty days?
II. Whether the appellant is entitled to default bail under Section
167(2) of the Code thou;;;i "e has not made any application
(oral or written) under section 167(2) of the Code before the •
G Magistrate (or Special Judge), but has instead argued orally
without pleadings in a pending regular bail application filed under
Section 439 of the Code before the High Court?
m. Whether the appellant is entitled to bail on merits?

H
RAKESH KUMAR PAUL v. STATE OF ASSAM 829
[PRAFULLA C. PANT, J.]

Answer to question I: A
12. To answer this question, I shall briefly trace out the history of
the provision under Section l 67(2)(a) of the Code, The erstwhile Code
of Criminal Procedure 1898 did not contain any such provision for grant
of bail on default of the investigating agency in not filing the charge
sheet within a specific period of time. When the Code of Criminal B
Procedure 1973 was enacted to replace the Criminal Procedure Code
of 1898, it was felt that the investigation into offences ought to be carried
out in a time bound manner so as to provide speedy justice and to protect
the life and liberty of the accused persons who are remanded to custody
during the pendency of investigation. Thus the provision of Section
167(2)(a) was introduced in the Code of Criminal Procedure 1973, C
wherein the accused was entitled to get bail on defaultof the investigating
agency" in not filing the charge sheet within sixty days of remand.
Thereafter, in the year 1978, the Code of Criminal Procedure
(Amendment) Act 1978 (Act 45of1978) was passed, making several
amendments to the Code of Criminal Procedure, 1973. One such D
amendment was a classification within the proviso to section 167(2)(a)
.by authorising the detention ofupto ninety days in cases punishable with
death, imprisonment for life or imprisonment for a term not less than ten
years; and authorising detention upto sixty days where the investigation
relates to other offences.
E
13. The text of Section 167 (2) of the Code as amended and as it
stands today is reproduced below:
"167- Procedure when investigation cannot be completed
in twenty-four hours.
(1) xxxxxxxxxx F
(2) xxxxxxxxxx
Provided that-
. . .
(a) The Magistrate may authorize the detention of the accused
person, otherwise than in the custody of the police, beyond the G
period of fifteen days, if he is satisfied that adequate grounds
exist for doing so, but no Magistrate shall authorise the detention
of the accused person in custody under this paragraph for a total
period exceeding-
H
830 SUPREME COURT REPORTS (2017) 8 S.C.R.

A (i) Ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or imprisonment for
a term of not less than ten years~
(ii) Sixty days, where the investigation relates to any other
offence."
B 14. The question that arises in the instant case is whether for the
offence which is punishable with imprisonment for a term which may
extend to ten years, the accused will be entitled to be released on bail for
default in not filing charge sheet within sixty days from the date of
remand. The learned counsel of the accused has relied on the case of
c Rajeev Cliaudhary (supra) wherein a Division Bench of this Court
was dealing with the permissible period of custody for an offence under
Section 386 IPC, which is punishable with imprisonment which may
extend to ten years.
15. ln Rajeev Cltaudltary (supra) it has been observed that only
D if the minimum prescribed punishment is ten years imprisonment or more,
then the requirement of completing investigation may extend to ninety
days. But in my opinion when S.167(2) of Code was amended, there
was no such category of offences in the Indian Penal Code where
minimum sentence of ten years imprisonment was required to be imposed
in I978 without alternative prescribed sentence of imprisonment for life.
E For example: offences punishable under Sections 121A, 122, 128, 131,
194, 304 (part I), 313, 314, 326, 329, 371, 394, 395, 409, 412, 413, 436,
449, 450, 459, 460 of the !PC provide for a punishment of life
imprisonment, also and as such the expression - 'or imprisonment for a
term not less that ten years", does not help any determine for the purposes
F of Section 167(2) of the Code in the above category of cases as the
alternative punishment of imprisonment for life already covered in the
said clause. Similarly, offences under Sections 132, 305 and 396 are
punishable with death, or life imprisonment also. In my view if the
legislature intended to exclude th.; vffences for which the minimum
imprisonment was ten years, it could have used the words "or
G imprisonment for a term more than ten years". Thus the argument that
ninety days period does not cover the cases where maximum imposable
sentence is ten years can not be accepted. It is also relevant to mention
here that there seems to be some contusion in the disposition of the
Rajeev Cltaudhary case (supra) wherein the appellant in that Case,
H
RAK.ESH KUMAR PAUL v. STATE OF ASSAM 831
[PRAFlJLLA C. PANT, J.]

Rajeev Chaudhary, was an accused, and had in fact approached this A
Court challenging the decision of the High Court of Delhi passed in
Cr.M.(M.) No.2532of1999 (reported in 2001 Cri. L. J. 2023) wherein
.the High Court had held that the accused was not entitled to bail at the
expiry of sixty days in custody for the offence under Section 386 IPC
which was punishable with imprisonment which may extend to ten years.
If this Court in the said case intended that Section 386 IPC is not covered B
under Section 167(2)(a)(i), then the appeal would have been allowed,
but, in fact, the appeal of the accused was dismissed by this court.
16. In the case of Bl111pinder Singh vs. Jarnail Singh (supra),
this Court was faced with the question regarding period when the accused
would be entitled to bail on default in filing charge sheet in a case for C
offence under Section 304B IPC. The offence under Section 304B is
punishable with imprisonment of not less than seven years but may extend
to imprisonment for life. While holding that the permissible period in
filing challan is ninety days in a case for offence under Section 304B
IPC, the court observed that the significant word used in the proviso is D
"punishable". And since life imprisonment was a punishable sentence,
the permissible period for filing challan was for the offence under Section
_304B IPC was held to be ninety .days. While holding so, the Court
observed as under:
"Where minimum and maximum sentences are prescribed both E
are imposable depending on the facts of the cases. It is for the
Court, after recording conviction, to impose appropriate sentence.
It cannot, therefore, be accepted that only the minimum sentence
is imposable and not the maximum sentence. Merely because
minimum sentence is provided that does not mean that the sentence
imposable is only the minimum sentence ......... " F
(emphasis supplied)
17. The main ambiguity in the interpretation of the provision arises
in the use of the words "not less than ten years" in Section 167(2)(a)(i)
of the Code. The legislative drafts on the amendment of this provision G
do not throw much light on the expression "not less than ten years" used
in the provision. But while answering the criticism to the amendment at
the Raj ya Sabha, the then Minister of State in the Ministry of Home
·Affairs - Shri S.D.Patil, who had moved the bill in both the houses, made
the following statement which may help us to know the kinds of cases
H
832 SUPREME COURT REPORTS [2017] 8 S.C.R.

A that were intended to be included in the ninety days category. The
statement is as under:
"Then, Sir, a lot of criticism has been levelled against section 167
as to why the investigation is not completed within 60 days. There
is a provision for releasing a person on bail. Why do we want to
B extend it by thirty days? We have made two categories. Ninety
days are-applicable where the investigation relates to an offence
punishable with death,- there are eight offences punishable with
death- Imprisonment for life-we have 48 offences punishable
with imprisonment for life-- or imprisonment for a term of not
less than ten years and we have 36 offences punishable with this
c sentence. Only in such cases which are complicated in nature
investigation takes a longer time. To complete this kind of
investigation, one has to go through other states as well. This has
been our experience ... "4
18. If we look at the figures of 8, 48 and 36, referred to in the
D
aforementioned statement, we may be able to cull out the intention of
the legislature in classifying the offences. From the first schedule of the
Code of Criminal Procedure 1973 (as it existed in 1978) read with whole
ofl.P.C, it can be gathered that, the "eight" cases punishable with death
were-Sections 121, 132, 194(part II), 302, 303 (struck down), 305, 307
. E (part III), 396 IPC; the forty eight offences punishable with life
imprisonment were-Sections 121A, 122, 124A, 125, 128, 130, 131, 194
(part I), 222, 225 (part V), 232, 238, 255, 304 (part I), 307 (part II), 311,
313, 314 (part II), 326, 329, 363A (part II), 364, 371, 376, 377, 388 (part
II), 389 (part II), 394, 395, 400, 409, 412, 413, 436, 437, 438, 449, 459,
460, 467, 472, 474 (part II), 475, 477, 489A, 489B, 489D and 511 (part I)
F IPC; and the thirty six offences refer to Sections 119 (part II), 123, 235
(part II), 240, 251, 304 (part II), 306, 307 (part I), 314, 315, 316, 327,
328, 331, 333, 363A (part I), 366, 366A, 366B, 367, 372, 373, 382, 386,
388 (part I), 389 (part I), 392 (part I), 399, 437, 439, 450, 454 (part II),
455, 493 and 495 IPC.
G
19. A perusal of the figure of eight, forty eight, and thirty six
mentioned in his speech by the then Hon'ble Minister of State in the

• Rajya Sabha Debates Vol CVII Nos.13-25, 6 to 25 December 1978, (6" December),
H pg203.
RAKESH KUMAR PAUL v. STATE OF ASSAM 833
[PRAFULLA C. PANT, J.]

Ministry of Home Affairs, Shri S.D.Patil, in the light what I have mentioned A
in preceding para shows that the Hon 'ble Minister classified cases which
are "punishable" with a particular sentence as a separate clas.s. His
statistics shows that he had classified the cases punishable witl:tdeath
sentence in one group, cases punishable with life imprisonment were
classified in another group and cases punishable with imprisonment of B
upto ten years were classified in the third group. The reference he was
-making to the 36 cases that fall in the category of"imprisonment of not
less than ten years" in section 167(2)(a)(i) of the Code, were in fact the
offences for which the punishment was of imprisonment for a period
which may extend to ten years. It can further be inferred that, when he
stated " ...or imprisonment for a term of not less than ten years and C
we have 36 offences punishable with this sentence... '', he referred
to offences wherein ten years imprisonment was also an imposable
punishment.
20. From the above analogy, I am of the opinion that the intention
of the legislature was that if an offence was punishable with imprisonment D
upto ten years, then it falls within the provision of Section 167(2)(a)(i) of
the Code, and the permissible period for investigation is ninety days. The
intention of the Legislature in extending the pemtlssible time period from
sixty days to ninety days for investigation is to include the offences in
which sentence awardable is at least ten years or more. Therefore, as
discussed above, though the expression "not less than ten years" used in E
·Section 167(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 awardable sentence.
In other words, for offences wherein the punishment may extend to ten
years imprisonment, the permissible period for filing charge sheet shall F
be ninety days, and only after the period of ninety days, the accused
shall be entitled to bail on default for non filing of the charge sheet. (In ,
the present case, admittedly the charge sheet is filed within ninety days).
I may further add that, since the expression "not less than ten years"
has caused ambiguity in interpretation, the best course for the legislature
would be to clear its intention by using the appropriate words. G
Answer to question II:
21. The second issue which requires to be addressed is whether
the appellant is entitled to statutory bail under Section 167(2) of the
H
834 SUPREME COURT REPORTS [2017] 8 S.C.R.

A Code though he has not made any application under Section 167(2) of
the Code before the Magistrate (or Special Judge) prior to the filing of
the charge sheet. The record of the case reveals that the appellant was
arrested on4.l l.2016 and produced before the Magistrate on 5.11.2016
and he was remanded to custody for the first time. The period of sixty
B days for filing charge sheet expired on 04.01.2017. The charge sheet
came to be filed on 24.1.2017. Initially the appellant had applied for
regular bail before the Sessions Court which came to be rejected on
20.12.2016. Thereafter he moved bail application No. 23/2017 for bail
under Section 439 of the Code before the High Court of Guwahati. This
bail application was disposed on 11.01.2017 which was after sixty days
C of arrest, but prior to filing of charge sheet. A perusal of this bail
application shows that this bail application was moved under Section
439 of the Code for regular bail on merits and not as a bail claiming the
statutory right under Section 167 of the Code. In none of the grounds
taken in the bail application, the appellant has pleaded for default bail as
D a result of non filing of the charge sheet. All the grounds urged are on
merits. The prayer is also for regular bail. It appears that, prior to the
time of hearing, the counsel for the appellant has realised that the accused
was entitled for default bail under Section 167(2) and has taken the plea
in the oral arguments in the High Court that since sixty days for filing
charge sheet has expired, he is entitled to bail as matter of right under
E Section 167(2) of the Code. The question thus arises, whether such
application on merits can be equated to be an application seeking
enforcement of statutory right under Section 167(2) of the Code and
whether such practice of taking such oral arguments directly before the
High Court in a pending regular bail application without having taken
such grounds in the application or having approached the Magistrate (or
F
Special Court) should be entertained.
22. The legal position regarding bail under Section 167(2) of the
Code was cemented by a Constitution Bench of this Court which has
inter alia held in the case of Sa11jay Dutt vs. State through C.R./.,
Bombay that:
G
" ...The "'indefeasible right" of the accused to be released on bail
in accordance with Section 20(4)(bb) of the TADA Act read with
Section 167(2) of the CrPC in default of completion of the

H '(1994) s sec 410
RAKESH KUMAR PAUL v. STATE OF ASSAM 835
[PRAFULLA C. PANT, J.]

investigation and filing of the challan within the time allowed, as A
held in Hitendra Vishnu Thakur vs. State of Maharashtra
[(1994) 4 sec 602], is a right which enures to, and is enforceable
by the accused only from the time of default till the filing of the
challan and it does not survive or remain enforceable on the challan
being filed. If the accused applies for bail under this provision on B
expiry of the period of 180 days or the extended period, as the
case may be, then he has to be released on bail forthwith. The
accused, so released on bail may be arrested and committed to
custody according to the provisions of the CrPC. The right of the
accused to be released on bail after filing of the challan,
notwithstanding the default in filing it within the time allowed, is C
governed from the time of filing of the challan only by the
provisions relating to the grant of bail applicable at that stage... "
23. In the case of Uday Mohan/al Acharya vs. State of
Maharashtra 6 three Judge Bench of this Court had the occasion to
determine when an accused can be said to have availed of his indefeasible D
right for being feleased on bail under the proviso to Section 167(2) of the
Code of Criminal Procedure, if a challan is not filed within the period
stipulated thereunder. The Court held in a majority of 2:1 that the
indefeasible right is said to be availed at the time when an application is
made for enforcement of the right under Section 167(2) of the Code and
the accused offers to abide by the terms and conditions of bail. While E
holding so, the court, in para 11, interpreted the decision in Dr. Bipin
.Shanti/a/ Panchal vs. State o/G11jarat7, a three Judge Bench decision
of this Court, as under:
"In this case (Dr. Bipin Shantilal Panchal), the accused had not
made application for enforcement of his right accruing under F
proviso to Section 167(2) of the Code. But raised the contention
only in the Supreme Court. This Court, therefore, formulated the
question thus - Whether the accused who was entitled to be
released on bail under proviso to sub-section (2) of Section 167 of
the Code, not having made an application when.such right G
had accrued, can exercise that right at a. later stage of the
proceeding, and answered in the negative."

• c2001) s sec 453
1
(1996) 1sec11s
H
836 SUPREME COURT REPORTS [2017] 8 S.C.R.

A 24. The requirement for making the application for seeking
enforcement of the right under Section 167(2) has been recognised in
several cases. In the case of Mohamed Iqbal Madar Sheikh vs State
of Maharashtra 8, this court rejected the claim for statutory bail under
Section 167(2) of the Code on the ground that no application was made
B on that ground. In para 11 of the Judgment the Court held as under:
"So far the facts of the present case are concerned, the appellant
Nos. 1 to 6 were taken into custody on 16.1.1993. The charge-
sheet was submitted on 30.8.1993; obviously beyond the statutory
period under Section 20(4 )(b ). There is nothing on record to show
that provisions of Section 20(4)(bb) were applied in respect of
c appellants. They had become entitled to be released on bail under
proviso (a) to Section 167(2) of the Code read with Section
20(4)(b) of the TADA. But it is an admitted position that no
application for bail on the said ground was made on behalf of the
appellants. Unless applications had been made on behalf of the
D appellants, there was no question of their being released on ground
of default in completion of the investigation within the statutory
period. It is now settled that this right cannot be exercised after
the charge-sheet has been submitted and cognizance has been
taken, because in that event the remand of the accused concerned
including one who is alleged to have committed an offence under
E TADA, is not under Section 167(2) but under other provisions of
the Code."
[Emphasis supplied]
25. In the case of Hitendra Vishnu Thakur and Others etc.
F etc. vs. State ofMaharashtra and Others 9, it was held in para 30 that:
"In conclusion, we may (even at the cost of repetition) say that an
accused person seeking bail under Section 20( 4) has to make an
application to the court for grant of bail on grounds of the 'default'
of the prosecution and the court shall release the accused on bail
G
after notice to the public prosecutor uninfluenced by the gravity
of the offence or the merits of the rrrosecution case since Section
20(8) does not control the grant of bail under Section 20(4) of
TADA and both the provisions operate in separate and independent

• (1996) 1 sec 122
H • (1994) 4 sec 602
RAK.ESH KUMAR PAUL v. STATE OF ASSAM 837
[PRAFULLA C. PANT, J.]

fields. It is, however, pennissible for the public prosecutor to resist A
the grant of bail by seeking an extension under Clause (bb) by
filing a report for the purpose before the court. However, no
extension shall be granted by the court without notice to an accused
to have his say regarding the prayer for grant of extension under
Clause (bb). In this view of the matter, it is immaterial whether B
the application for bail on ground of' default' under Section 20(4)
is filed first or the report as envisaged by Clause (bb) is filed by
the public prosecutor first so long as both are considered while
granting or refusing bail.. .. "
[Emphasis supplied]
c
26. The law laid down as above shows that the requirement of an
application claiming the statutory right under Section 167 (2) of the Code
is a prerequisite for the grant of bail on default. In my opinion, such
application has to be made before the Magistrate for enforcement of the
statutory right. In the cases under the Prevention of Corruption Act or
other Acts where Special Courts are constituted by excluding the D
jurisdiction of the Magistrate, it has to be made before such Special
Court. In the present case, for the reasons discussed, since the appellant
never sought default bail before the court concerned, as such not entitled
to the same.
Answer to question III: E

27. Now, it is to be seen whether the appellant is entitled to bail on
merits at this stage. Admittedly, the appellant was the Chairman of the
APSC from 11.12.2013. The allegations against him are serious in nature
and several recoveries appear to have been made from his residence
and other places. The provisions of the APSC with regard to handling of F
·the answer sheets and other procedural illegalities in dealing with the
examination are alleged. A network of illegal activities is said to have
been operating for huge amounts of illegal gratification. It is submitted
~by the state that the Investigating Officer has filed an application under
Section 173(8) of the Code seeking permission to carry out further G
investigation as materials have been unearthed which indicates
involvement of some other accused persons. It is further submitted that
at least fourteen witnesses have deposed under Section 164 of the Code
indicating that the appellant has demanded illegal gratification in lieu of
one post or the other and also received the same. .
H
838 SUPREME COURT REPORTS [2017) 8 S.C.R.

A 28. In the case of Nimmagadda Prasad vs. Central Bureau of
Investigation, 10 this Court, while rejecting bail in a case related to
economic offences, has observed that:
"While granting bail, the court has to keep in mind the nature of
accusations, the nature of evidence in support thereof, the severity
B of the punishment which conviction will entail, the character of
the accused, circumstances which are peculiar to the accused,
reasonable possibility of securing the presence of the accused at
the trial, reasonable apprehension of the witnesses being tampered
with, the larger interests of the public/State and other similar
considerations. It has also to be kept in mind that for the purpose
c of granting bail, the Legislature has used the words "reasonable
grounds for believing" instead of "the evidence" which means
the Court dealing with the grant of bail can only satisfy itself as to
whether there is a genuine case against the accused and that the
prosecution will be able to produce prima facie evidence in support
D of the charge. It is not expected, at this stage, to have the evidence
establishing the guilt of the accused beyond reasonable doubt.
Economic offences constitute a class apart and need to be visited
with a different approach in the matter of bail. The economic
offence having deep rooted conspiracies and involving huge loss
E of public funds needs to be viewed seriously and considered as a
grave offence affecting the economy of the country as a whole
and thereby posing serious threat to the financial health of the
country."
29. I may hasten to add that in the present case, the allegations do
F not disclose merely an economic offence but it shows a transgression of
the constitutional rights of the victims of the crime. The Chairman of the
APSC has the responsibility on behalf of the State for enforcement of
the Fundamental Rights of equality in matters of public employment
enshrined under Articles 14 and 16 of the Constitution of India. If the
allegations are found to be true, then the offence cannot merely be
G considered as an economic offence, but a fraud on the Constitution itself
by the persons appointed to enforce it.
30. In the above circumstances, without expressing any views on
the merits of the case pending before the trial court, looking into the

H
'° 2013 (7) sec 466
RAKESH KUMAR PAUL v. STATE OF ASSAM 839

nature of allegations, the role attributed to the appellant, the fact that A
further investigation regarding the offence is underway, possibility of
tampering evidence and influencing witnesses, I am of the opinion that it
is not a fit case for grant of bail at this stage even on merits.
31. Therefore both these appeals are liable to be dismissed, and
are accordingly dismissed. B
DEEPAK GUPTA, J. I. I have had the privilege of going through
the judgments authored by my learned brothers Madan B. Lokur and
Prafulla C. Pant, JJ.
2. Since the facts of the case and the legislative history of Section
167 of the Code of Criminal Procedure (for short 'the Code') have been C
set out in detail in the two judgments of my learned brothers, I do not
.want to burden the file with unnecessary facts. The main issue is whether
the petitioner, who is charged with an offence, which is punishable with
imprisonment for a period ranging from 4 to 10 years is entitled to 'default
bail' or 'statutory bail' in terms of Section 167(2) of the Code on D
completion of 60 days or not. The petitioner is a former Chairman of the
Assam Public Service Commission. The allegation against him is that
he used to take bribe from some candidates for recruiting them to the
posts advertised and filled in by the Assam Public Service Commission
(for short 'APSC'). A trap was laid and he was allegedly caught red-
h~nded. Amongst other offences he is also charged of having committed E
an offence under Section 13(l)(d)(ii) of the Prevention of Corruption
Act (for short 'PC Act').
3. The first submission of Mr. Abhishek Manu Singhvi, learned
senior counsel, was that the amendments made to the PC Act whereby
the sentence for committing offence under Section 13 has been increased F
from a minimum of one year to maximum of 7 years to a minimum of 4
.Years and maximum of 10 years is applicable only in those cases where
the prosecution is launched under the provisions ofLokpal and Lokayuktas
Act, 2013 (for short 'the Lokpal Act'). This argument is without any
merit whatsoever. Section 58 of the Lokpal Act incorporates amendments G
in other statutes as mentioned in the Schedule. Amendments have been
made to the Commission of Enquiry Act, 1952, The Delhi Special Police
Act, the Prevention of Corruption Act, 1988, The Code of Criminal
Procedure, 1973 and the Central Vigilance Commission Act, 2003. In
my view, the amendments made to these five Acts by the Lokpal Act
H
840 SUPREME COURT REPORTS [2017] 8 S.C.R.

· A will apply regardless of the fact whether the prosecution has been
launched under the Lokpal Act or under the provisions of any other law.
I fully agree with my learned brothers that this submission has no force.
4. The petitioner was arrested on 04.11.2016 and was remanded
to judicial custody on 05.11.2016. The period of60days of arrest would
B expireeitheron03.0l.2017 or04.0l.2017, which will make no difference,
as far as this case is concerned. Period of 90 days will expire on
02.02.2017. It is also not disputed that the police filed charge-sheet on
24.01.2017.
The petitioner had filed a regular bail application before the trial
c court, which was rejected on 20.12.2016. He moved an application in
the High Court for grant of bail. In this bail application no specific
prayer was made for grant of 'default bail'. However, the perusal of
the impugned order dated I I .01.20 I 7 whereby this bail application was
rejected, clearly shows that main contention of the counsel for the
petitioner was that the petitioner was entitled to grant of 'default bail'
D because 60 days had expired but this prayer did not find favour with the
High Court, which was of the view that since the offence was punishable
by imprisonment up to I 0 years, the investigating agency was entitled to
get 90 days to complete investigation and the accused could apply for
grant of' default bail' thereafter.
E 1\vo issues arise for consideration in this case:
(I) When an accused is charged with an offence in which the
punishment imposable is up to I 0 years, whether the accused is
entitled to grant of bail in terms of Section 167(2) of the Code if
the investigating agency does not file the charge-sheet within a
F period of 60 days.
(2) Whether an accused can be enlarged on bail under Section
167(2) even though he may not have made an application in writ-
ing under Section 167(2) of the Code but has orally argued that he
is entitled to grant of' default bail'.
G
5. Before dealing with Section 167 of the Code, I would like to
refer to Section 57, which provides that any person arrested by the police
should not be detained for more than 24 hours unless an order is obtained
from the magistrate under Section 167 of the Code. The Code was
originally enacted in the year 1898. We must remember that at that
H
RAK.ESH KUMAR PAUL v. STATE OF ASSAM 841
[DEEPAK GUPTA, J.]

time, the means of communication were very primitive; the means of A
telecommunications barely existed. Despite that, in the Code as originally
enacted, the police was expected to complete investigation within 15
days and the magistrate did not have any jurisdiction to pass an order
detaining him beyond 15 days if investigation was not completed. This
system worked well enough for more than seven decades. After the B
country attained independence, we enacted and gave to ourselves the
Constitution oflndia, which came into force on 26.01.1950. Article 21
of the Constitution provides that "no man shall be deprived of his life and
personal liberty except in accordance with the procedure established by
law". Right of personal liberty is not only a legal right but it is a human
right, which is inherent in every citizen of any civilised society. Article C
21 only recognises this right. We can read Section 57 and 167 to be the
procedure established by law which curtails this right.
6. The investigating agencies, for reasons best known to them,
found that it was not possible to complete investigation within 15 days
and, therefore, a very unhealthy practice of filing preliminary or D
·incomplete police reports before the magistrate was started to ensure
that the accused is kept ip.. custody and not released. This amounted to
virtually nullifying the legal provisions. Therefore, the Law Commission
of India, in its 41 st Report, recommended that the time limit for completion
of investigation should be enhanced to 60 days. Even though the Law
Commission was recommending enhancement from 15 days to 60 days, E
it expressed a hope and reposed a trust that the superior courts would
prevent misuse of the enhancement of this period.
7. Pursuant to the suggestion of the Law Commission, the new
Code of Criminal Procedure, 1973 was enacted; which provided a
maximum period of 60 days to complete the investi~ation failing which F
the accused would.be entitled to be released on bail. A few years later,
it was felt that the period of 60 days was also not sufficient and· a proposal
was made that where the investigation relates to offences punishable
with death, imprisonment for life and imprisonment for not less than i 0
years or more, the aggregate period for which an accused could be G
·detained without giving any right of bail would be 90 days and in all other
cases, it would be 60 days. The words "or more" in the Bill are obviously
superfluous. The other phrase "imprisonment for not less than ten years"
obviously means I 0 years or more. Section 167 of the Code was amended
and relevant portion of it reads as follows:
H
842 SUPREME COURT REPORTS (2017) 8 S.C.R.

A "167. Procedure when investigation cannot be completed
in twenty four hours.- (I) Whenever any person is arrested and
·detained in custody, and it appears that the investigation cannot
be completed within the period of twenty- four hours fixed by
section 57, and there are grounds for believing that the accusation
or information is well-founded, the officer in charge of the police
B
station or the police officer making the investigation, if he is not
below the rank of sub- inspector, shall forthwith transmit to the
nearest Judicial Magistrate a copy of the entries in the diary
hereinafter prescribed relating to the case, and shall at the same
time forward the accused to such Magistrate.
c (2) The Magistrate to whom an accused person is forwarde.d
under this section may, whether he has or has not jurisdiction to
try the case, from time to time, authorise the detention of the
accused in such custody as such Magistrate thinks fit, for a term
not exceeding fifteen days in the whole; and ifhe has no jurisdiction
D to try the case or commit it for trial, and considers further detention
unnecessary, he may order the accused to be forwarded to a
Magistrate having such jurisdiction:
Provided that-
(a) the Magistrate may authorise the detention of the accused
E person, otherwise than in the custody of the police, beyond the
period of fifteen days, if he is satisfied that adequate grounds
exist for doing so, but no Magistrate shall authorise the detention
of the accused person in custody under this paragraph for a total
period exceeding,-
F (i) ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or imprisonment
for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other
offence, and, on the expiry of the said period of ninety days, or
G sixty days, as the case may be, the accused person shall be
released on bail ifhe is prepared to and does furnish bail, and
every person released on bail under this sub- section shall be
deemed to be so released under the provisions of Chapter
XXXIII for the purposes of that Chapter;]
H
RAKESH KUMAR PAUL v. STATE OF ASSAM 843
[DEEPAK GUPTA, J.]

(b) no Magistrate shall authorise detention of the accused in A
custody of the police under this section unless the accused is
produced before him in person for the first time and
subsequently every time till the accused remains in the custody
of the police, but the Magistrate may extend further detention
in judicial custody on production of the accused either in person B
or through the medium of electronic video linkage;
(c) no Magistrate of the second class, not specially empowered
in this behalf by the High Court, shall authorise detention in the
custody of the police.
Explanation 1.-For the avoidance of doubts, it is hereby declared C
that, notwithstanding the expiry of the period specified in
paragraph (a), the accused shall be detained in custody so long
as he does not furnish bail].
Explanation II.- If any question arises whether an accused
person was produced before the Magistrate as required under D
clause (b), the production of the accused person may be proved
by his signature on the order authorising detention or by the
order certified by the Magistrate as to production of the accused
person through the medium of electronic video linkage, as the
case may be.]
Prpvided further that in case of a woman under eighteen years E
of age, the detention shall be authorised to be in the custody of
a remand home or recognised social institution."
8. We are only concerned with interpretation of the phrase "for a
term of not less than ten years" occurring in Section 167(2)(a)(i), which
provides a period of90 days where the investigation relates to an offence F
punishable with death, imprisonment for life or imprisonment for a term
not less than 10 years.
9. In my considered view, without indulging in any semantic
gymnastics, the meaning of this provision' is absolutely clear. It envisages
three types of offences: · G
(i) Offences which are punishable with death;
. (ii) Offences which are punishable with imprisonment for life;
(iii) Offences which are punishable with a term not less than 10
years. H
844 SUPREME COURT REPORTS (2017] 8 S.C.R.

A 10. In my view the language of the statute is clear and
unambiguous. Out of the three categories of offences, we need to deal
only with that category of offences where the punishment prescribed is
not less than 10 years. If an offence is punishable with death then
whatever be the minimum punishment, the period of investigation
B permissible would be 90 days. Similarly, if the offence is punishable
with life imprisonment, even ifthe minimum sentence provided is less
than 10 years, the period of detention before 'default bail' is available
would be 90 days.
11. Keeping in view the legislative history of Section 167, it is
clear that the legislature was carving out the more serious offences and
C giving the investigating agency another 30 days to complete the
investigation before the accused became entitled to grant of 'default
bail'. It categorises these offences in the three classes:
I First category comprises of those offences where the maximum
punishment was death;
D
II Second category comprises of those offences where the
maximum punishment is life imprisonment.
III The third category comprises of those offences which are
punishable with a term not less than l 0 years.
E 12. In the first two categories, the legislature made reference
only to the maximum punishment imposable, regardless of the minimum
punishment, which may be imposed. Therefore, if a person is charged
with an offence, which is punishable with death or life imprisonment, but
the minimum imprisonment is less than 10 years, then also the period of
90 days will apply. However, when we look at the third category, the
F
words used by the legislature are "not less than ten years". This obviously
means that the punishment should be l 0 years or more. This cannot
include offences where the maximum punishment is l 0 years. It obviously
means that the minimum punishment is l 0 years whatever be the
maximum punishment.
G
13. While interpreting any statutory provision, it has always been
accepted as a golden rule of interpretation that the words used by the
legislature should be given their natural meaning. Normally, the courts
should be hesitant to add words or subtract words from the statutory
provision. An effort should always be made to read the legislative
H
RAK.ESH KUMAR PAUL v. STATE OF ASSAM 845
[DEEPAK GUPTA, J.]

provision in such a way that there is no wastage of words and any A
construction which makes some words of the statute redundant should
be avoided. No doubt, ifthe natural meaning of the words leads to an
interpretation which is contrary to the objects of the Act or makes the
provision unworkable or highly unreasonable and arbitrary, then the Courts
either add words or subtract words or read down the statute, but this B
.should only be done when there is an ambiguity in the language used. In
my view, there is no ambiguity in the wording of Section 167(2) of the
Code and, therefore, the wise course would be to follow the principle
laid down by Patanjali Shastry, CJI inAswini Kumar Ghose v. Arabinda
Bose, AIR 1952 SC 369, where he very eloquently held as follows:
"It is not a sound principle of construction to brush aside words in C
a statute as being inapposite surplusage, if they can have
appropriate application in circumstances conceivably within the
contemplation of the statute".
In Jugalkishore Sarafv. Raw Cotton Co. Ltd., AIR 1955 SC 376,
S.R. Das, J., speaking for this Court, held as follows: D
"The cardinal rule of construction of statutes is to read the statutes
literally, that is, by giving to the words their ordinary, natural and
grammatical meaning".
14. External aids of interpretation are to be used only when the E
·language of the legislation is ambiguous and admits of two or more
meanings. When the language is clear or the ambiguity can be resolved
under the more common rules of statutory interpretation, the court would
be reluctant to look at external aids of statutory interpretation.
15. Gajendragadkar J., speaking for this Court in the case of Kanai F
Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907 held :
"6 ......... the first and primary rule of construction is that the
intention of the Legislature must be found in the words used by
the Legislature itself."
16. These sound principles of statutory construction continue to G
hold the field. When the natural meaning of the words is clear and
unambiguous, no external aids should be used.
17. A bare reading of Section 167 of the Code clearly in,dicates
that ifthe offence is punishable with death or life imprisonment or with
H
846 SUPREME COURT REPORTS [2017] 8 S.C.R.

A a minimum sentence of 10 years, then Section 167(2)(a)(i) will apply
and the accused can apply for 'default bail' only if the investigating
agency does not file charge-sheet within 90 days. However, in all cases
where the minimum sentence is less than 10 years but the maximum
sentence is not death or life imprisonment then Section 167(2)(a)(ii) will
B apply and the accused will be entitled to grant of 'default bail' after 60
days in case charge-sheet is not filed.
18. Even if I were to assume that two views are possible and
third category envisaged in Section 167(2)(a)(ii) is ambiguous, as
suggested by learned brother Pant J ., then also I have no doubt in my
mind that a statute which curtails the liberty of a person must be read
C strictly. When any human right; a Constitutional fundamental right of a
person is curtailed, then the statute which curtails such right must be
read strictly. Section 167 of the Code lays down the procedure established
by law by which a person can be deprived of his personal liberty,
guaranteed to him under Article 21 of the Constitution oflndia. If two
D meanings could be attributed to such a provision then the courts must
lean towards liberty and accept that interpretation of the statute, which
upholds the liberty of the citizen and which keeps the eternal flame of
liberty alive. If words are ambiguous then also the court should be
reluctant to accept that interpretation which curtails the right of a human
being of being free.
E
19. lthas been urged that the accused is charged with very serious
offences and, therefore, he should not be released on bail. We are
dealing with 'default bail'. There is no discretion in such matters. At
times like this, it would be prudent to remind ourselves of what was said
by Benjamin Franklin more than two centuries ago:
F
"Any society that would give up a little liberty to gain a little security
will deserve neither and lose both''.
20. Two judgments have been cited before us which dealt with
the interpretation of the words "not less than ten years". In Rajeev
G Chaudhary v. State (NCT) of Delhi, (2001) 5 SCC 34, the accused was
charged with having committed offence punishable under Section 386
of the Indian Penal Code. The punishment whereof is a term of
imprisonment which may extend to I0 years. This Court held that in a
case where an offence is punishable with imprisonment for I0 years or

H
RAKESH KUMAR PAUL v. STATE OF ASSAM 847
[DEEPAK GUPTA, J.]

more, the accused could be detained up to 90 days. The Court further A
held that the expression "not less than ten years" obviously means 10
years or more and would cover only those offences for which punishment
could be imprisonment for a clear period of 10 years or more.
21. On the other hand, in Bhupinder Singh & Ors. v. Jarnail Singh
& Anr., (2006) 6 SCC 277, the Court had distinguished Rajeev B
Chaudhary's case (supra) and held that the word "punishable" is
significant and if the offence is punishable with imprisonment for 10
·years, whether that be the maximum punishment or minimum punishment,
the accused was not entitled to 'default bail' prior to 90 days. With due
respect, I am unable to agree with the view expressed in this case.
Strictly speaking, this question did not arise in Bhupinder Singh's case c
(supra). In that case, the accused was charged for an offence under
Section 304B of the Indian Penal Code and this offence is punishable
with imprisonment for a term which shall not be less than 7 years but
which may extend to imprisonment for life. Since the offence is
punishable with imprisonment for life, then the fact that the minimum D
sentence provided is 7 years would make no difference, as explained by
me above. It is only when the maximum sentence is less than life
imprisonment that the minimum sentence must be I 0 years to fall in the
third category of cases. Certain examples of such cases are offences
punishable under Section 2 I (c) and 22( c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985, which provide a minimum sentence E
of 10 years and a maximum sentence of 20 years .
. 22. The Code was initially enacted in the year 1898. We are now
in the year 2017. 119 years have elapsed. There have been- huge
technological advancements. We have moved from horse-carts to the
space age. From telegraph we have moved to the fast changing vistas F
in the field of telecommunications including internet, wi fi etc .. Scientific
investigation is the need of the hour. The investigating agencies must
investigate quickly and efficiently. They must use the latest technology.
Scientific investigation should be done in each and every case. If the
investigation agencies adopt scientific methods of investigation, the same G
will be much more efficient and faster. This can be done ifthere is a
special investigative branch in the police, which is trained in investigation.
Therefore, there is a need to ensure that the judgment of this Court in
the case of Prakash Singh v. Union oflndia, (2006) 8 SCC 1, does not lie

H
848 SUPREME COURT REPORTS (2017) 8 S.C.R.

A in the dusty library racks and is actually enforced. If investigation is
done scientifically and efficiently by the police officials, who are
earmarked and trained to do investigation work, then I see no reason
why investigation cannot normally be completed even within a period of
15 days, as envisaged in the year 1898.
B 23. The second issue which arises is whether the petitioner had
applied for 'default bail' or not. Admittedly, there is no such plea in the
bail application, but it is also not disputed that this was the main argument
at the time of hearing and this issue was specifically dealt with in the
impugned order. In my opinion, once the High Court permitted the counsel
for the petitioner to argue the petition on the ground of grant of' default
· C bail' and no objection was raised by the counsel for the State then at this
stage it cannot be urged that the petitioner never applied for 'default
bail' and is not entitled to 'default bail'. If this objection had been raised
at that stage, either by the Court or by the State, the accused could have
either filed a fresh application for grant of 'default bail' or could have
D prayed for 'default bail' by adding an additional ground in the existing
application much before 24.01.2017 when the charge-sheet was filed.
24. It has also been urged on behalf of the State that since the
charge-sheet has now been filed, the petitioner is not entitled to grant of
'default bail'. Both my learned brothers have referred to the case of
E Sanjay Dutt v. State through C.B.I., Bombay (II), (1994) 5 SCC 410.
Reference has also been made to Uday Mohanlal Acharya v. State of
Maharashtra, (2001) 5 SCC 453.
25. It is not necessary to multiply citations because in Union of
India v. Nirala Yadav, (2014) 9 SCC 457, this Court has considered the
. F entire law on the subject and followed the law laid down in Uday Mohanlal
Acharya's case (supra) as well as in Mohamed Iqbal Madar Sheikh &
Ors. v. State of Maharashtra, (1996) 1 SCC 722, wherein this Court
deprecated the practice followed by some courts of adjourning
applications for grant of'default bail' till the prosecution filed the charge-
sheet and held that the statutory right should not be defeated by keeping
G the applications pending till the charge-sheet is filed.
26. In Uday Mohanlal Acharya's case (supra) the Court culled
out six guidelines, which are as follows:
"l. Under sub-section (2) of Section 167, a Magistrate before
whom an accused is produced while the police is investigating
H
RAKESH KUMAR PAUL v. STATE OF ASSAM 849
[DEEPAK GUPTA, J.]

into the offence can authorise detention of the accused in such A
custody as the Magistrate thinks fit for a term not exceeding 15
days on the whole.
2. Under the proviso to the aforesaid sub-section (2) of Section
167, the Magistrate may authorise detention of the accused
otherwise than in the custody of police for a total period not B
exceeding 90 days where the investigation relates to offence
punishable with death, imprisonment for life or imprisonment for
a term of not less than 10 years, and 60 days where the investigation
relates to any other offence.
3. On the expiry of the said period of 90 days or 60 days, as the c
· case may be, an indefeasible right accrues in favour of the accused
for being released on bail on account of default by the investigating
agency in the completion of the investigation within the period
prescribed and the accused is entitled to be released on bail, if he
is prepared to and furnishes the bail as directed by the Magistrate.
D
4. When an application for bail is filed by an accused for
enforcement of his indefeasible right alleged to have been accrued
in his favour on account of default on the part of the investigating
agency in completion of the investigation within the specified
period, the Magistrate/court must dispose of it forthwith, on being
satisfied that in fact the accused has been in custody for the period E
of90 days or 60 days, as specified and no charge-sheet has been
filed by the investigating agency. Such prompt action on the part
of the Magistrate/court will not enable the prosecution to frustrate
the object of the Act and the legislative mandate of an accused
being released on bail on account of the default on the part of the F
investigating agency in completing the investigation within the period
stipulated.
5. If the accused is unable to furnish the bail as directed by the
Magistrate, then on a conjoint reading of Explanation I and the
proviso to sub-section (2) of Section 167, the continued custody G
of the accused even beyond the specified period in para (a) will
not be unauthorised, and therefore, if during that period the
investigation is complete and the charge-sheet is filed then the so-
called indefeasible right of the accused would stand extinguished.

H
850 SUPREME COURT REPORTS [2017] 8 S.C.R.

A 6. The expression "if not already availed of' used by this Court in
Sanjay Dutt v. State through CBI, (1994) 5 SCC 410, must be
understood to mean when the accused files an application and is
prepared to offer bail on being di~ected. In other words, on expiry
of the period specified in para (a) of the proviso to sub-section (2)
of Section 167 if the accused files an application for bail and offers
B
also to furnish the bail on being directed, then it has to be held that
the accused has availed of his indefeasible right even though the
court has not considered the said application and has not indicated
the terms and conditions of bail, and the accused has not furnished
the same."
c 27. A reading of the aforesaid judgments leaves no manner of
doubt that if an accused files an application for grant of default bail and
is willing to furnish bail then he is deemed to have exercised his right to
avail of bail and this right cannot be defeated by filing the charge-sheet
thereafter.
D 28. The right to get 'default bail' is a very important right. Ours
is a country where millions of our countrymen are totally illiterate and
not aware of their rights. A Constitution Bench of this Court in the case
ofSanjay Dutt (supra) has held that the accused must apply for grant of
'default bail'. As far as Section 167 of the Code is concerned,
E Explanation I to Section 167 provides that notwithstanding the expiry of
the period specified (i.e. 60 days or 90 days, as the case may be), the
accused can be detained in custody so long as he does not furnish bail.
Explanation I to Section 167 of the Code reads as follows:
"Explanation 1.- For the avoidance of doubts, it is hereby declared
F that, notwithstanding the expiry of the period specified in paragraph
(a), the accused shall be detained in custody so long as he does
not furnish bail."
This would, in my opinion, mean that even though the period had
expired, the accused would be deemed to be in legal custody till he does
G not furnish bail. The requirement is of furnishing of bail. The accused
does not have to make out any grounds for grant of bail. He does not
have to file a detailed application. All he has to aver in the application is
that since 60/90 days have expired and charge-sheet has not been filed,
he is entitled to bail and is willing to furnish bail. This indefeasible right
cannot be defeated by filing the charge-sheet after the accused has
H offered to furnish bail.
RAKESH KUMAR PAUL v. STATE OF ASSAM 851
[DEEPAK GUPTA, J.]

29. This Court in a large number of judgments has held that the A
right to legal aid is also a fundamental right. Legal aid has to be competent
legal aid and, therefore, it is the duty of the counsel representing the
accused whether they are paid counsel or legal aid counsel to inform the
accused that on the expiry of the statutory period of 60/90 days, they are
entitled to 'default bail'. In my view, the magistrate should also not B
encourage wrongful detention and must inform the accused of his right.
In case the accused still does not want to exercise his right then he shall
remain in custody but ifhe chooses to exercise his right and is willing to
furnish bail he must be enlarged on bail.
30. In view of the above discussion, my findings are as follows:
1. I agree with both my learned brothers that the amendment
c
made to the Prevention of Corruption Act, 1988 by the Lokpal
and LokayuktasAct, 2013 applies to all accused charged with
offences under this Act irrespective of the fact whether the
action is initiated under the Lokpal and Lokayuktas Act, 2013,
or any other law; D
2. Section 167(2)(a)(i) of the Code is applicable only in cases
where the accused is charged with (i) offences punishable
with death and any lower sentence; (ii) offences punishable
with life imprisonment and any lower sentence and (iii) offences
punishable with minimum sentence of 10 years; E
3. In all cases where the minimum sentence is less than I 0 years
but the maximum sentence is not death or life imprisonment
then Section 167(2)(a)'(ii) will apply and the accused will be
entitled to grant of' default bail' after 60 days in case charge-
sheet is not filed. F
4. The right to get this bail is an indefeasible right and this right
must be exercised by the accused by offering to furnish baiL ·
On issues 2 to 4, I agree and concur with my learned brother
Lokur J. and with due respect I am unable-to agree with learned brother
Pant J. G
I agree and concur with the conclusions drawn and directions
given by learned brother Lokur J. in Paras 49 to S1 of his judgment.

Ankit Gyan SLPs disposed of.