A Division Bench of the Hon’ble Supreme Court has recently passed a judgment in Ritu Chhabaria vs. Union of India and ors. , where it highlighted the importance of the right to default bail and held that the default bail under Section 167(2) of the Code of Criminal Procedure, 1973 (“CrPC”) is not merely a statutory right but a fundamental right that flows from Article 21 of the Constitution of India. The judgment is noteworthy as it reinforces the importance of fundamental rights such as personal liberty and the right to a speedy trial granted to all citizens under the Indian Constitution. The Hon’ble Court asserted that this right cannot be undermined by filing an incomplete chargesheet before the investigation is complete.

The case arises out of an FIR that was filed under various sections of the Indian Penal Code (“IPC”) and the Prevention of Corruption Act (“PCA”). At the time of filing the FIR, the husband of the petitioner was not named as an accused. Later on, several supplementary chargesheets were filed, and the husband of the petitioner was made a prosecution witness in one of them. However, he was subsequently arrested by the Central Bureau of Investigation (CBI), and multiple supplementary chargesheets were filed, naming him as an accused. The accused was then sent to custody and was not granted default bail.

A perusal of Section 167(2) of CrPC makes it clear that the accused shall be released on bail if he/she is prepared to and does furnish bail on the expiry of the period of ninety days, or sixty days, as the case may be.

The Hon’ble Court observed that the Investigating Agency had filed supplementary chargesheets just before the expiry of the 60-day period in order to prevent the accused from receiving default bail, and the trial court had failed to recognize this tactic and granted an extension of remand beyond the specified maximum period. This was deemed a violation of the fundamental rights of the accused, and the Court further emphasized that the right to default bail is not merely a statutory right but a fundamental right that stems from Article 21 of the Indian Constitution.

The Supreme Court, in its judgment, stated that the default bail is a crucial measure against the possibility of lengthy pre-trial detention that could violate a person's fundamental rights. The Court further held that the right to default bail is not merely a statutory right, but a fundamental right that is inherent in the concept of personal liberty and fair trial.

The Apex Court, inter-alia, relied on its earlier judgments in the cases of Arnesh Kumar vs. State of Bihar and ors. as well as Hussainara Khatoon and ors. vs. State of Bihar , where it emphasized the importance of safeguarding personal liberty and the right to a speedy trial. The Hon’ble Court noted that the right to default bail is a necessary corollary to the right to a speedy trial and personal liberty.

In an interesting turn of event, the Central Government has filed an application against the abovementioned judgment praying the Supreme Court to recall the same. On May 1, a bench led by Chief Justice of India agreed to constitute a three-judge bench to consider the recall application. The hearing was initially scheduled for May 4 but is subsequently rescheduled for May 12, 2023.

However, as an interim measure, the Hon’ble Supreme Court has directed all courts across the country to defer the applications for default bail, which are based on 'Ritu Chhabaria' judgment, beyond May 12, 2023. Awaiting the hearing of the Hon’ble Court to resolve the quandary.

By - Muskan Maheshwari