RITU CHHABARIAversusUNION OF INDIA & ORS.

826                      [2023]REPORTS
               SUPREME COURT    3 S.C.R. 826                  [2023] 3 S.C.R.


A                              RITU CHHABARIA
                                         v.
                           UNION OF INDIA & ORS.
                     (Writ Petition (Criminal) No. 60 of 2023)
B                                APRIL 26, 2023
           [KRISHNA MURARI AND C. T. RAVIKUMAR, JJ.]
             Code of Criminal Procedure, 1973 – s.167(2) – Right of
      default bail – A chargesheet, if can be filed in piecemeal without
      first completing the investigation and whether the filing of such
C
      chargesheet extinguishes the right of an accused for grant of default
      bail – Held: No – Without completing the investigation of a case, a
      chargesheet or prosecution complaint cannot be filed by an
      investigating agency only to deprive an arrested accused of his
      right to default bail u/s.167(2) – Such a chargesheet, if filed, would
D     not extinguish the right to default bail u/s.167(2) – In such cases,
      Trial Court cannot continue to remand an arrested person beyond
      the maximum stipulated time without offering the arrested person
      default bail – Right of default bail u/s.167(2) is not merely a statutory
      right, but a fundamental right flowing from Article 21 – Constitution
      of India – Article 21.
E
             Constitution of India – Art.32 – Writ petition – Maintainability
      of – Held: Constitution entrusted the Supreme Court with the most
      important task of protecting civil liberties of individuals, and the
      society at large – Article 32 falls within Part III of the Constitution
      which deals with fundamental rights and thus, the right to invoke
F
      Article 32 is a fundamental right in itself – The relief of statutory
      bail u/s.167(2), Cr.PC is a fundamental right directly flowing from
      Article 21 of the Constitution – Thus, violation of such a right directly
      attracts consideration u/Article 32 – In the present case, preliminary
      objection raised by respondent regarding the maintainability of the
G     writ petition is rejected – Code of Criminal Procedure, 1973 –
      s.167(2).
            Code of Criminal Procedure, 1973 – s.167(2) – History of
      the provision of default bail – Law Commission Reports,
      recommendations – Discussed – Code of Criminal Procedure, 1898
H     – s.167.
                                        826
        RITU CHHABARIA v. UNION OF INDIA & ORS.                         827


      Disposing of the writ petition, the Court                         A
      HELD: 1.1 The relief of statutory bail under Section 167(2)
of the Cr.PC is a fundamental right directly flowing from Article
21 of the Constitution of India, and the violation of such a right
directly attracts consideration under Article 32 of the Constitution.
The preliminary objections raised by the respondent regarding           B
the maintainability of this petition under Article 32 of the
Constitution stand rejected. [Para 14][834-B-C]
       1.2 Section 167(2) of the Cr.PC was enacted to ensure that
the investigating agency completes the investigation within the
prescribed time limit, failing which no accused could be detained       C
if they are willing to avail bail. [Para 21][839-A-B]
      Law Commission of India Report No. 14, Vol.-I (1958);
      Law Commission Report No. 41 (September,1969), Para.
      14.19 – referred to.
      M. Ravindran v. The Intelligence Officer, Directorate             D
      of Revenue Intelligence (2021) 2 SCC 485; Satendar
      Kumar Antil v. CBI & Anr. (2021) 10 SCC 773 – relied
      on.
      1.3 The right of statutory bail, however, is extinguished, if
the charge sheet is filed within the stipulated period. The question    E
of resorting to a supplementary chargesheet u/s 173(8) of the
Cr.PC only arises after the main chargesheet has been filed, and
as such, a supplementary chargesheet, wherein it is explicitly
stated that the investigation is still pending, cannot under any
circumstance, be used to scuttle the right of default bail, for then,   F
the entire purpose of default bail is defeated, and the filing of a
chargesheet or a supplementary chargesheet becomes a mere
formality, and a tool, to ensue that the right of default bail is
scuttled. First investigation is to be completed, and only then
can a chargesheet or a complaint be filed within the stipulated
period, and failure to do so would trigger the statutory right of       G
default bail under Section 167(2) of Cr.PC. [Paras 24 and 25][840-
G-H; 841-A-B]
      Union of India v. Thamisharasi & Ors. (1995) 4 SCC
      190 : [1995] 3 SCR 905; Ashok Munilal Jain & Anr.
                                                                        H
828            SUPREME COURT REPORTS                       [2023] 3 S.C.R.


A           Vs. Assistant Director, Directorate of Enforcement (2018)
            16 SCC 158 – relied on.
            1.4 Without completing the investigation of a case, a
      chargesheet or prosecution complaint cannot be filed by an
      investigating agency only to deprive an arrested accused of his
B     right to default bail under Section 167(2) of the CrPC. Such a
      chargesheet, if filed by an investigating authority without first
      completing the investigation, would not extinguish the right to
      default bail under Section 167(2) CrPC. The trial court, in such
      cases, cannot continue to remand an arrested person beyond the
      maximum stipulated time without offering the arrested person
C     default bail. [Para 32][842-E-G]
            1.5 In the instant case, during the pendency of the
      investigation, supplementary chargesheets were filed by the
      Investigation Agency just before the expiry of 60 days, with the
      purpose of scuttling the right to default bail accrued in favour the
D     accused. This factual position was missed by the trial court, and
      instead of offering default bail to the accused, the trial court
      mechanically accepted the incomplete chargesheets filed by the
      Investigating Agency, and further continued the remand of the
      accused beyond the maximum period specified. The Investigating
E     Agency and the trial court, thus, failed to observe the mandate of
      law, and acted in a manner which was manifestly arbitrary and
      violative of the fundamental rights guaranteed to the accused.
      The interim order of bail passed in favor of the accused is made
      absolute. [Paras 33 and 35][843-A-C; 843-F]

F           K. S. Puttaswamy & Anr. v. Union Of India & Ors. (2017)
            10 SCC 1 : [2017] 10 SCR 569; K. K Kochunni, Moopil
            Nayar v. State of Madras & Ors. [1959] 2 Suppl. SCR
            316 – followed.
            State of West Bengal v. Salap Service Station & Ors.
G           (1994) 3 Supp SCC 318; Dharam Pal v. State of
            Haryana & Ors. (2016) 4 SCC 160 : [2016] 1 SCR
            194; Ram Narain Popli v. CBI (2003) 3 SCC 641 :
            [2003] 1 SCR 119; Rajesh Ranjan Yadav v. CBI (2007)
            1 SCC 70 : [2006] 9 Suppl. SCR 40 – distinguished.

H
        RITU CHHABARIA v. UNION OF INDIA & ORS.                               829


      State Of Bihar & Others v. J.A.C Saldanha & Ors. (1980)                 A
      1 SCC 554 : [1980] 2 SCR 16 – referred to.
                         Case Law Reference
[1980] 2 SCR 16                      referred to         Para 8 (II)
[2017] 10 SCR 569                    followed            Para 12              B
[1959] 2 Supp SCR 316                followed            Para 13
[1995] 3 SCR 905                     relied on           Para 25
[2016] 1 SCR 194                     distinguished       Para 30
[2003] 1 SCR 119                     distinguished       Para 30              C
[2006] 9 Suppl. SCR 40               distinguished       Para 30
      CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 60 of 2023.
      Under Article 32 of The Constitution of India                           D
      Dr. Sujay Kantawala, Santosh Sachin, Advs. for the Petitioner.
       K M Nataraj, ASG, Ms. Indira Bhakar, Vatsal Joshi, Vinayak
Sharma, B K Satija, Pratyush Shrivastava, Arvind Kumar Sharma, Advs.
for the Respondents.
                                                                              E
      The Judgment of the Court was delivered by
      KRISHNA MURARI, J.
       1. The present writ petition under Article 32 of the Constitution of
India has been filed by the writ petitioner herein seeking the release of
her husband on default bail. The writ petition also raises an issue of        F
grave importance of personal liberty enshrined under Article 21 of the
Constitution of India.
      FACTS
      2. Briefly, the facts relevant to the present writ petition are that
an FIR was lodged under Section 120(B) read with Section 420 of the           G
Indian Penal Code, 1860 (for short, ‘IPC’) along with Sections 7,12 and
13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,
1988, wherein the writ petitioner’s husband was not named.

                                                                              H
830                 SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A            3. Subsequently, two supplementary chargesheets were filed,
      wherein the writ petitioner’s husband (hereinafter referred to as
      “accused”) was made a prosecution witness in the supplementary
      chargesheet dated 26.05.2020. Multiple other supplementary
      chargesheets were later filed, and the accused was not named in any of
      the said chargesheets.
B
             4. The investigation was then transferred to another investigating
      officer, and the accused was then arrested by CBI and was remanded
      to custody on 28.04.2022. Multiple other supplementary chargesheets
      were then filed, wherein the accused herein was named as a suspect,
      and the remand of the accused under Section 309(2) of the Code of
C     Criminal Procedure, 1973 (for short, ‘Cr.PC’) was renewed and was
      continued from time to time, and he was never released on default bail.
             5. Subsequently, vide I.A No. 37424/2023, the petitioner sought to
      incorporate additional grounds and prayers for seeking bail in the writ
      petition, which was allowed by this Court vide order dated 20.02.2023,
D     and interim bail was granted.
              6. It is against this continuation of custody, and the scuttling of
      relief of default bail, the petitioner herein has filed the present writ. Every
      Supplementary chargesheet filed, as per the writ petitioner herein, is an
      attempt to ensure that her husband is not released on default bail.
E
               ARGUMENTS ADVANCED BY THE PETITIONER
               7. The learned counsel for the petitioner contended that:
               I.   The Respondent has admitted in writing in the supplementary
                    chargesheet that the investigation is still pending, and in light
F                   of the same the trial court ought not to have issued process
                    and remanded the petitioner’s husband under Section 309
                    Cr.PC.
               II. The accused’s fundamental rights are in prejudice due to
                   continued custody on grounds of investigation not being
G                  completed. It was argued that the provisions of the CrPC do
                   not empower continued remand to custody beyond 60 days if
                   the investigation is still in progress. For this, the learned counsel
                   relied on the judgment in the case of M. Ravindran Vs. The
                   Intelligence Officer, Directorate of Revenue Intelligence.1
      1
H         (2021) 2 SCC 485
              RITU CHHABARIA v. UNION OF INDIA & ORS.                            831
                       [KRISHNA MURARI, J.]

         ARGUMENTS ADVANCED BY THE RESPONDENT                                    A
      8. The learned counsel appearing on behalf of the respondent
contended that:
         I.      The present writ is not maintainable, and for the grant of
                 bail, the accused herein should have either approached the
                 High Court against the order of the Magistrate refusing         B
                 default bail or filed a Special Leave Petition against the
                 said order invoking provisions of Article 136 of the
                 Constitution of India.
         II.     The contention of the petitioner that the accused is not
                 named in the FIR is not a relevant submission, as the FIR is    C
                 not a complete document, and is only the first step to set
                 the criminal procedure in motion. To support the contention,
                 learned counsel relied on the case of State Of Bihar &
                 Others Vs. J.A.C Saldanha & Ors.2
         III.    The supplementary chargesheet filed on 25.06.2022 is a          D
                 complete document in respect to the offence committed by
                 the persons arraigned in the said supplementary chargesheet,
                 therefore no right to default bail has been accrued in favor
                 of the petitioner’s husband.
         ISSUES                                                                  E
      9. In light of the abovementioned arguments raised by the learned
counsel for the parties, the following three issues arise for our
consideration:-
         I.      Can a chargesheet or a prosecution complaint be filed in
                                                                                 F
                 piecemeal without first completing the investigation of the
                 case?
         II.     Whether the filing of such a chargesheet without completing
                 the investigation will extinguish the right of an accused for
                 grant of default bail?
                                                                                 G
         III.    Whether the remand of an accused can be continued by
                 the trial court during the pendency of investigation beyond
                 the stipulated time as prescribed by the CrPC?


2
    (1980) 1 SCC 554.                                                            H
832             SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A           PRELIMINARY OBJECTION
             10. A preliminary objection has been raised by the learned counsel
      appearing on behalf of the respondent stating that the present writ is not
      maintainable before this court on grounds that no relief at such an early
      stage of the investigation can be granted.
B            11. We have considered the preliminary objection, however, we
      are not inclined to concur with the same. It must be remembered that
      our Constitution has entrusted the Supreme Court with the most important
      task of protecting civil liberties of individuals, and the society at large.
      These civil liberties, which manifest themselves in the form of fundamental
C     rights, are what allow the people of this country to effectively negotiate
      with the state and maintain the parity in power in the social contract
      between the people and the state. If this Court refuses to exercise its
      jurisdiction on technicalities in cases of violations of fundamental rights,
      it will lead to a ripple effect that will result in a dysfunctional social
      contract, wherein the people of this country would become subject to an
D     arbitrary and unfettered tyranny of the state.
            12. Article 32 of the Constitution of India provides remedies for
      enforcement of rights conferred by this Part. The said Article reads as
      under:-

E           “32. Remedies for enforcement of rights conferred by this
            Part-(1) The right to move the Supreme Court by appropriate
            proceedings for the enforcement of the rights conferred by
            this Part is guaranteed.
            (2) The Supreme Court shall have power to issue directions
F           or orders or writs, including writs in the nature of habeas
            corpus, mandamus, prohibition, quo warranto and certiorari,
            whichever may be appropriate, for the enforcement of any of
            the rights conferred by this Part.
            (3) Without prejudice to the powers conferred on the Supreme
            Court by clauses (1) and (2), Parliament may by law empower
G
            any other court to exercise within the local limits of its
            jurisdiction all or any of the powers exercisable by the
            Supreme Court under clause (2).
            (4) The right guaranteed by this article shall not be suspended
            except as otherwise provided for by this Constitution.”
H
           RITU CHHABARIA v. UNION OF INDIA & ORS.                            833
                    [KRISHNA MURARI, J.]

      Article 32 falls within Part III of the Constitution which deals        A
with fundamental rights and thus the right to invoke Article 32 is a
fundamental right in itself, that exists to protect and safeguard the other
fundamental rights guaranteed by Part III of the Constitution. We may
usefully refer to the following observations of a Constitution Bench of
this Court made in the case of K.S. Puttaswamy & Anr. vs. Union Of
                                                                              B
India & Ors.3 :-
         “A constitutional democracy can survive when citizens have
         an undiluted assurance that the Rule of Law will protect their
         rights and liberties against any invasion by the State and that
         judicial remedies would be available to ask searching
         questions and expect answers when a citizen has been                 C
         deprived of these, most precious rights.”
      13. Further, another Constitution Bench of this Court in the case
of K.K Kochunni, Moopil Nayar vs. State of Madras & Ors.4 as early
as 1959, has observed that the Court must exercise its jurisdiction in
matters where there is an abuse of fundamental rights. The relevant           D
paragraphs of the said judgment are being extracted hereunder:
         “Further, even if the existence of other adequate legal remedy
         may be taken into consideration by the High Court in deciding
         whether It should issue any of the prerogative writs on an
         application under Article 226 of the Constitution, as to which       E
         we say nothing now - this Court cannot, on a similarground,
         decline to entertain a petition under Article 32, for the right
         to move this Court by appropriate proceedings for the
         enforcement of the rights conferred by Part I of the Constitution
         is itself a guaranteed right. It has accordingly been held by        F
         this Court in Romesh Thappar v. State of Madras [1950 SCC
         436 1950 SCR 594] that under the Constitution this Court is
         constituted the protector and guarantor of fundamental rights
         and it cannot, consistently with the responsibility so laid upon
         it, refuse to entertain applications seeking the protection of
         this Court against infringement of such rights, although such        G
         applications are made to this Court in the first instance without
         resort to a High Court having concurrent jurisdiction in the
         matter. The mere existence of an adequate alternative legal
3
    (2017) 10 SCC 1
4
    1959 Supp (2) SCR 316                                                     H
834             SUPREME COURT REPORTS                              [2023] 3 S.C.R.


A            remedy cannot per se be a good and sufficient ground for
             throwing out a petition under Article 32, if the existence of a
             fundamental right and a breach, actual or threatened, of such
             right is alleged and is prima facie established on the petition.”
             14. It is also pertinent to note that the relief of statutory bail under
B     Section 167(2) of the Cr.PC, in our opinion, is a fundamental right directly
      flowing from Article 21 of the Constitution of India, and the violation of
      such a right, as mentioned above, directly attracts consideration under
      Article 32 of the Constitution. In such circumstance, we are not inclined
      to agree with the preliminary objections raised by the learned counsel
      for the respondent regarding the maintainability of this petition under
C     Article 32 of the Constitution and the said objection, therefore, stands
      rejected.
             ANALYSIS
              15. Before we deal with the issues framed, we find it pertinent to
D     mention that in the present case, this Court is not dealing with the merits
      of the case and as such is not inclined to make any observations regarding
      the same. Every court, when invoked to exercise its powers, must be
      mindful of the relief sought, and must act as a forum confined to such
      relief. In the present case at hand, this Court is not a court of appeal, but
      a court of writ, and therefore is inclined to limit its jurisdiction only to the
E     personal liberty of the writ petitioner’s husband and the impugned points
      of law.
             16. For the purpose of deciding the issues framed by us, we deem
      it appropriate to trace the history of the provision of default bail, and the
      reasons which led the legislature to incorporate the existing provisions in
F     the new statute. Under Section 167 of the Code of Criminal Procedure,
      1898, which was the Act that governed criminal procedure before the
      enactment of CrPC presently in force, an accused, either under judicial
      or police custody, could be remanded only for a maximum period of 15
      days. For a ready reference Section 167 of the 1898 Code is being
G     reproduced herein:-
             “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 investigation cannot be
             completed within the period of twenty-four hours fixed by
H
        RITU CHHABARIA v. UNION OF INDIA & ORS.                              835
                 [KRISHNA MURARI, J.]

      Section 61, and there are grounds for believing that the               A
      accusation or information is well-founded, the officer in
      charge of the police station or the police officer in 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 Magistrate a copy of the entries in the
                                                                             B
      diary hereinafter prescribed relating to the case, and shall at
      the same time forward 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
      to try the case, from time to time authorise the detention of the
      accused in such custody as such Magistrate thinks fit, for a           C
      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 :
      Provided that no Magistrate of the third class, and no                 D
      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 authorising under this section detention in
      the custody of the police shall record his reasons for so doing.       E

      (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.”
                                                                             F
       17. This period of 15 days, however, more often than not, was
inadequate to conclude investigations, especially in complicated cases
which required a longer and deeper investigation. This lack of time,
because of the abovementioned provision of the 1898 Act, led to a
widespread practice wherein investigating officers would file preliminary
chargesheets after the expiry of the remand period, and subsequently         G
request the magistrate to postpone the commencement of trial and remand
the accused under Section 344 of the 1898 Act for a further time, till the
final chargesheet was filed.

                                                                             H
836                SUPREME COURT REPORTS                              [2023] 3 S.C.R.


A            18. This practice of filing preliminary chargesheets was first pointed
      out by the Law Commission of India in its Report No. 145 on Reforms of
      the Judicial Administration, wherein it was stated that in many cases, the
      accused persons, without the filing of any detailed reports before the
      courts by the investigating authority, were languishing in jail for a prolonged
      period of time. It thus recommended that there existed an urgent need
B
      for a provision that provided for an appropriate time frame for the
      completion of an investigation while also safeguarding the personal liberty
      of the accused.
             19. These recommendations made by the abovementioned law
      commission report were again emphasized by the Law Commission in
C     its Report No. 416, wherein it was explicitly stated that there was an
      urgent need to protect the civil liberties of accused persons against the
      misuse of Section 344 of the 1898 Act, wherein the accused persons, on
      grounds of a preliminary report and pending investigation, were remanded
      to custody indefinitely. The relevant paragraphs from the said report are
D     being reproduced hereunder:-
                “Section 167 provides for remands. The total period for which
                an arrested person may be remanded to custody-police or
                judicial-is 15 days. The assumption is that the investigation
                must be completed within 15 days and the final report under
E               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,
                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
F               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 Commission doubted if such an
                order could be made under section 344, as that section is
G               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

      5
          Law Commission of India in Report No. 14, Vol.-I (1958).
H     6
          Law Commission in its Report No. 41 (September,1969), Para. 14.19.
 RITU CHHABARIA v. UNION OF INDIA & ORS.                            837
          [KRISHNA MURARI, J.]

same view, and to us also it appears proper that the law should     A
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
                                                                    B
observed in the Fourteenth 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 safe-guard. Like the earlier       C
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
                                                                    D
becoming the rule in every case as a matter of routine: but we
trust that proper 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      E
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. If he has no jurisdiction to try the case or commit it
for trial, and considers further detention unnecessary, he may      F
order the accused to be forwarded to a Magistrate having
such jurisdiction
Provided that-
(a) no Magistrate shall authorise detention in any custody
under this section unless the accused is produced before him;       G
(b) 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.

                                                                    H
838                SUPREME COURT REPORTS                              [2023] 3 S.C.R.


A               (4) Any Magistrate other than the Chief Judicial Magistrate
                making such order shall forward a copy of his order, with his
                reasons for making it, to the Chief Judicial Magistrate.”
             20. On the recommendation made by the Law Commission through
      the aforesaid reports recommending to curtail the abuse of such power,
B     Section 167(2) as it exists today in the statute was incorporated in the
      Cr.PC, 1973, which provides for a longer period of maximum remand,
      but also guarantees default bail, to ensure that accused persons are bereft
      of arbitrary detention. 7 The Statement of Objects and Reasons of
      CrPC,1973 also refer to the 41st law Commission Report and inter alia
      reads as follows:-
C
                “(2).....A comprehensive report for the revision of the Code,
                namely, the Forty-first Report, was presented by the Law
                Commission in September, 1969. This report took into
                consideration the recommendations made in the earlier l
                Reports of the Commission dealing with specific matters
D               namely, the Fourteenth, Twenty-fifth, Thirty-second, Thirty-
                third, Thirty-sixth, Thirty-seventh and Fortieth Reports.
                (3) The recommendation 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 of natural justice;
                (ii)every effort should be made to avoid delay in investigation
                and trial which is harmful not onlv to individuals involved
F               but also to society; and
                (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
G               appropriate suggestions received from other quarters, based
                on practical experience of investigation and the working of
                criminal courts”


      7
H         Law Commission in its Report No. 41 (September, 1969), Para. 14.19.
           RITU CHHABARIA v. UNION OF INDIA & ORS.                              839
                    [KRISHNA MURARI, J.]

       21. A bare perusal of the abovementioned statement of objects            A
strongly indicates that Section 167(2) of the Cr.PC was enacted to ensure
that the investigating agency completes the investigation within the
prescribed time limit, failing which no accused could be detained if they
are willing to avail bail. This position was also laid emphasis on by a
three-judge bench of this Court in the case of M. Ravindran Vs.
                                                                                B
Directorate Of Revenue Intelligence (Supra), the relevant paragraphs
of the same are being reproduced hereunder:
         “The suggestion made in Report No. 14 was reiterated by the
         Law Commission in Report No. 41 on The Code of Criminal
         Procedure, 1898 (Vol. I, 1969, pp. 76-77). The Law
         Commission re-emphasised the need to guard against the                 C
         misuse of Section 344 of the 1898 Code by filing “preliminary
         reports” for remanding the accused beyond the statutory
         period prescribed under Section 167. It was pointed out that
         this could lead to serious abuse wherein “the arrested person
         can in this manner be kept in custody indefinitely while the           D
         investigation can go on in a leisurely manner”. Hence the
         Commission recommended fixing of a maximum time-limit of
         60 days for remand.
         It was in this backdrop that Section 167(2) was enacted within
         the present day CrPC, providing for time-limits on the period          E
         of remand of the accused, proportionate to the seriousness
         of the offence committed, failing which the accused acquires
         the indefeasible right to bail.”
       22. Further, this legal position was again reiterated in Satendar
Kumar Antil vs CBI & Anr.8, wherein it was held that Section 167(2)             F
of the Cr.PC is a limb of Article 21 of the Constitution of India, and as
such, the investigating authority is under a constitutional duty to expediate
the process of investigation within the stipulated time, failing which, the
accused is entitled to be released on default bail. The relevant
observations made in the said judgment are as under:-
                                                                                G
         “Section 167(2) was introduced in the year 1978, giving
         emphasis to the maximum period of time to complete the
         investigation. This provision has got a laudable object behind
         it, which is to ensure an expeditious investigation and a fair
8
    (2021) 10 SCC 773                                                           H
840             SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A           trial, and to set down a rationalised procedure that protects
            the interests of the indigent sections of society. This is also
            another limb of Article 21. Presumption of Innocence is also
            inbuilt in this provision. An investigating agency has to
            expedite the process of investigation as a suspect is
            lanquishing under incarceration. Thus, a duty is enjoined
B
            upon the agency to complete the investigation within the time
            prescribed and a failure would enable the release of the
            accused. The right enshrined is an absolute and indefeasible
            one, ensuring to the benefit of suspect.
            As a consequence of the right flowing from the said provision,
C           courts will have to give due effect to it, and thus any detention
            beyond this period would certainly be illegal, being an affront
            to the liberty of the person concerned. Therefore, it is not
            only the duty of the investigating agency but also the courts
            to see to it that an accused gets the benefit of Section 167(2).”
D            23. It is also to be noted that as per the scheme of Cr.PC, an
      investigation of a cognizable case commences with the recording of an
      FIR under Section 154 Cr.PC. If a person is arrested and the investigation
      of the case cannot be completed within 24 hours, he has to be produced
      before the magistrate to seek his remand under Section 167(2) of the
E     Cr.PC during continued investigation. There is a statutory time frame
      then prescribed for remand of the accused for the purposes of
      investigation, however, the same cannot extend beyond 90 days, as
      provided under Section 167(2)(a)(i) in cases where the investigation
      relates to an offence punishable with death, imprisonment for life or
      imprisonment for a term of not less than 10 years and 60 days, as provided
F     under Section 167(2)(a)(ii), where the investigation relates to any other
      offence. The relevant section further provides that on expiry of the period
      of 90 days or 60 days, as the case may be, the accused has a right to be
      released on default bail in case he is prepared to and furnishes bail.
             24. This right of statutory bail, however, is extinguished, if the
G     charge sheet is filed within the stipulated period. The question of resorting
      to a supplementary chargesheet u/s 173(8) of the Cr.PC only arises
      after the main chargesheet has been filed, and as such, a supplementary
      chargesheet, wherein it is explicitly stated that the investigation is still
      pending, cannot under any circumstance, be used to scuttle the right of
H     default bail, for then, the entire purpose of default bail is defeated, and
         RITU CHHABARIA v. UNION OF INDIA & ORS.                                   841
                  [KRISHNA MURARI, J.]

the filing of a chargesheet or a supplementary chargesheet becomes a               A
mere formality, and a tool, to ensue that the right of default bail is scuttled.
       25. It is thus axiomatic that first investigation is to be completed,
and only then can a chargesheet or a complaint be filed within the
stipulated period, and failure to do so would trigger the statutory right of
default bail under Section 167(2) of Cr.PC. In the case of Union Of                B
India vs Thamisharasi & Ors.9, which was a case under the Narcotic
Drugs and Psychotropic Substances Act, 1985, on finding that the
investigation was not complete and a chargesheet was not filed within
the prescribed period, denial of default bail was held to be in violation of
Article 21 of the Constitution of India, and it was further held that even
the twin limitation on grant of bail would not apply.                              C

       26. Further, in the case of Ashok Munilal Jain & Anr. Vs. Assistant
Director, Directorate of Enforcement10, it was held that the right of
default bail under section 167(2) CrPC was held to be an indefeasible
right of the accused even in matters under PMLA.
                                                                                   D
       27. Therefore, in light of the abovementioned discussions, it can
be seen that the practice of filing preliminary reports before the
enactment of the present CrPC has now taken the form of filing
chargesheets without actually completing the investigation, only to scuttle
the right of default bail. If we were to hold that chargesheets can be
filed without completing the investigation, and the same can be used for           E
prolonging remand, it would in effect negate the purpose of introducing
section 167(2) of the CrPC and ensure that the fundamental rights
guaranteed to accused persons is violated.
       28. We have carefully perused the judgments relied upon by the
learned counsel for the respondent, however, none of the judgments                 F
relied upon permit the abuse of remand under Section 309(2) of the
CrPC by permitting the filing of incomplete chargesheets only to scuttle
the right of statutory bail.
      29. The judgment in State of West Bengal vs. Salap Service
Station & Ors.11 relied upon by the respondent was rendered, not in the            G
context of default bail, but only in the context of entitlement u/s. 173(8)


9
  (1995) 4 SCC 190
10
   (2018) 16 SCC 158
11
   1994 Supp (3) SCC 318                                                           H
842                SUPREME COURT REPORTS                         [2023] 3 S.C.R.


A     of the CrPC to place on record further evidence in support of the
      chargesheet already filed.
             30. Further, the judgment of Dharam Pal vs. State Of Haryana
      & Ors. 12, relied upon by the respondent, refers to the power of
      Constitutional Courts to transfer investigation. In Para 21 of the said
B     judgment, it has been stated that Section 173 empowers the police officer
      to conduct an investigation to file a report on the completion of the
      investigation and section 173(8) CrPC allows the conduct of further
      investigation. However, this judgment also does not talk about default
      bail and the misuse of the filing of supplementary chargesheets. It is also
      important to note that the judgment of Ram Narain Popli vs. CBI13
C     and Rajesh Ranjan Yadav vs. CBI14 have also not dealt with the issues
      being considered by us in the present matter.
             31. In light of the abovementioned discussion, the judgments relied
      upon by the learned counsel for the respondent are clearly distinguishable
      as issues being considered herein were not considered therein and reliance
D     placed by the learned counsel for the respondents on the said
      pronouncements is totally misfounded.
            32. In view of the above mentioned discussions, the issues framed
      by us stand answered as under:-

E            I.      Without completing the investigation of a case, a
                     chargesheet or prosecution complaint cannot be filed by an
                     investigating agency only to deprive an arrested accused
                     of his right to default bail under Section 167(2) of the CrPC.
             II.     Such a chargesheet, if filed by an investigating authority
F                    without first completing the investigation, would not
                     extinguish the right to default bail under Section 167(2)
                     CrPC.
             III.    The trial court, in such cases, cannot continue to remand
                     an arrested person beyond the maximum stipulated time
                     without offering the arrested person default bail.
G



      12
         2016 (4) SCC 160
      13
         (2003) 3 SCC 641
      14
H        (2007) 1 SCC 70
         RITU CHHABARIA v. UNION OF INDIA & ORS.                                   843
                  [KRISHNA MURARI, J.]

       CONCLUSION                                                                  A
       33. In the instant case, it is clear from the facts that during the
pendency of the investigation, supplementary chargesheets were filed
by the Investigation Agency just before the expiry of 60 days, with the
purpose of scuttling the right to default bail accrued in favour the accused.
This factual position was missed by the trial court, and instead of offering       B
default bail to the accused, the trial court mechanically accepted the
incomplete chargesheets filed by the Investigating Agency, and further
continued the remand of the accused beyond the maximum period
specified. The Investigating Agency and the trial court, thus, failed to
observe the mandate of law, and acted in a manner which was manifestly
arbitrary and violative of the fundamental rights guaranteed to the                C
accused.
        34. Even at the cost of repetition, we find it pertinent to mention
that the right of default bail under Section 167(2) of the CrPC is not
merely a statutory right, but a fundamental right that flows from Article
21 of the Constitution of India. The reason for such importance being              D
given to a seemingly insignificant procedural formality is to ensure that
no accused person is subject to unfettered and arbitrary power of the
state. The process of remand and custody, in their practical manifestations,
create a huge disparity of power between the investigating authority and
the accused. While there is no doubt in our minds that arrest and remand           E
are extremely crucial for the smooth functioning of the investigation
authority for the purpose of attaining justice, however, it is also extremely
important to be cognizant of a power imbalance. Therefore, it becomes
essential to place certain checks and balances upon the Investigation
Agency in order to prevent the harassment of accused persons at their
hands.                                                                             F

       35. With the above findings and conclusions, the interim order of
bail passed in favor of the accused is made absolute, and the present
writ petition is, accordingly, disposed of.

                                                                                   G
Divya Pandey                                          Writ Petition disposed of.
(Assisted by : Shevali Monga, LCRA)




                                                                                   H