Delhi High Court: The accused persons approached the instant Court challenging the rejection of their applications for the grant of default bail. The single-Judge Bench of Subramonium Prasad*, J., noted that one of the alleged offences against the accused persons was under Section 3041 of the Penal Code, 1860 (‘IPC’), however, the police converted the offence to Section 304 Part I (‘304(I)’) on the 89th day since their arrest. The Court stated that since which Part applies to the case can only be determined at the concluding stage of trial, the period of detention proposed under Section 1672 of the Code of Criminal Procedure, 1973 (‘CrPC’) shall be 60 days, unless the facts of the case indicated towards an extended detention. The Court held that 60 days had lapsed since the accused persons were arrested, and the police had not filed the chargesheet until the 89th day, therefore, they were entitled to default bail.
Background
The accused persons challenged the Trial Court’s order whereby their Revision Petitions against the Orders of the Metropolitan Magistrate (‘Magistrate’) rejecting their applications for the grant of default bail under Section 167(2)(a)(ii) of CrPC was dismissed. FIR was filed by the complainant for the offences under Sections 304, 4193, 4204, 1965, 1976, 1987, 2018, and 120-B9 of IPC.
The facts of the case were as follows-
The complainant’s husband (‘patient’) had been experiencing acute abdomen pain and upon consultation with a local doctor, was referred to Agarwal Medical Centre (‘Centre’), owned by co-accused, who told the complainant and her husband (together, respondents) that he had a “super specialist” for gallbladder stone removal- Dr. J. The complainant submitted that a nurse (‘accused’), who was referred to as a “doctor”, checked the Blood Pressure of the patient. The complainant also submitted that another doctor came out of the operation theatre (‘OT’) at the Centre, referred to as Dr. M who was informed by co-accused that the patient’s surgery was also to be performed. Upon enquiry about Dr. J’s absence, the complainant was told that Dr. J could not attend due to some reasons, and that Dr. M was also good and a very old surgeon, having conducted thousands of stone surgeries.
The patient was operated by the accused persons, and sometime later, the complainant was told that the patient had to be shifted to another hospital. Upon reaching there, the patient was declared “brought dead”. The complainant later learnt that the accused and Dr. M were not really doctors.
The accused persons were arrested on 14-11-2023 and 60-days of police arrest were to be completed on 12-01-2024. On 09-01-2024, the police converted the charge under Section 304 of IPC to Section 301(I) , and the same was brought to the notice of the Magistrate on 16-01-2024, whereafter, the judicial custody of the accused persons was extended by 14 days. The chargesheet was filed on 11-02-2024, one day before 90 days since the arrest.
The accused persons filed for default bail on 29-01-2024, contending that since the chargesheet had not been filed within 60 days from the date of arrest, they were entitled to default bail. The Magistrate dismissed their bail applications, which was challenged through their Revision Petitions before the Trial Court, that also stood dismissed.
Issue
Whether the Magistrate ought to have been informed that the case had been converted to an offence punishable under Section 304(I) of IPC on the 60th day of the arrest?
Analysis and Decision
The Court perused Section 167 of CrPC and noted that the chargesheet had to be filed within 90 days since the arrest made for an offence punishable with death, imprisonment for life, or imprisonment for not less than 10 years.
The Court noted that the instant FIR did not specify whether it had been registered under Section 304 (I) or (II), and the police had only specified the charge under Section 304(I) of IPC only three days before the expiration of 60 days, and this was not brought before the Magistrate within the expiration of 60 days.
The Court referred to Varun Goyal v. State, NCT of Delhi, 2023 SCC OnLine Del 1292, wherein a coordinate Bench of the instant Court had observed that, “while investigating an offence…the Police is free to also investigate whether the same involves the offence in relation to culpable homicide of such nature so as to entitle them to complete investigation within the extended period of 90 days from the date of initial detention. The same has to be brought to the knowledge of the Magistrate before expiry of period of 60 days after which the accused gets an indefeasible right to apply for a bail in terms of Section 167(2) of CrPC.”
…“In so far as Section 304 is concerned, it should be seen from the FIR and the statement recorded during the course of investigation up to the filling of the application under Section 167 as to whether the investigation is in relation to Part I or Part II…In order to avoid any ambiguity, the same should be brought to the knowledge of the Magistrate before the expiry of the period of 60 days…”
The Court agreed with the observations in Varun Goyal (supra) and stated that it was the duty of the police to inform the Magistrate at least on the 60th day since the arrest was made, that they had decided to convert the offence to those under Section 304(I) of IPC. Failure to do so thus resulted in an indefeasible right to be released on bail enured on the accused persons by the 61st day since their arrest.
The Court perused Section 304 of IPC and noted that the period for filing the chargesheet would depend on which Part of Section 304 the charge has been made out. If the FIR and the police diary are silent on this aspect, the Magistrate cannot grant remand for more than 60 days. Applying this interpretation of to the present case, the Court noted that remand was ordered for 14 days beyond 60 days, which was not permissible. The failure of police to bring the conversion of offence under Section 304 to Section 304(I) of IPC before the Magistrate prior to the expiration of 60 days, deprived the accused persons of their right to apply for default bail in terms of Section 167(2), CrPC, and was violative of Article 21 of the Constitution.
The Court referred to Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, wherein the Supreme Court observed that, “… Section 167 of the Code (of Criminal Procedure, 1973) 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 of India. If two 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.”
The ED v. Kapil Wadhawan, (2024) 7 SCC 147, wherein the Supreme Court observed, “In order to avoid long incarceration of an accused only because the investigation is being carried out in a leisurely manner, the legislature was prompted, to confer a right on the accused to be released on default bail if he is prepared to offer bail bond and the investigation may still continue.”
The Court referred again to Varun Goyal (supra), and stated that it could not be left to the whims of the police to approach the Court after the expiry of 60 days to contend that they were investigating an offence more serious than the one alleged initially, thereby leaving the Court and the accused guessing when a Section 167(2) bail could be availed. Further, the Magistrate also must apply their mind to see whether further remand is required, and whether the conversion of offence by the police is proper or not.
The Court opined that the instant accused persons had been deprived of their right to know that the offence alleged against them had been converted to a higher charge. The Court also opined that with respect to the offence under Section 304, the duration of imprisonment can only be ascertained at the conclusion of trial, and the period of investigation for that offence shall only be 60 days and not 90 days, unless the facts of a case undisputedly indicate an intention of the accused to cause death or bodily injury likely to cause death.
In light of the above, the Court held that the accused persons were entitled to statutory bail under Section 167(2) of CrPC.
[Pooja Agarwal v. State (NCT of Delhi), 2024 SCC OnLine Del 6037, decided on 28-08-2024]
*Judgment authored by: Justice Subramonium Prasad
Advocates who appeared in this case :
For the petitioner: N. Hariharan, Senior Advocate; Prateek Bhalla, Mallika Chadha, Punya Rekha Angara, Kumud Nijhawan, Sharian, Aman Akhtar, Advocates
For the respondent: Sanjeev Bhandari, ASC; Kunal Mittal, Spriha Bhandari, Charu Sharma, Arjit Sharma, Vaibhav Vats, Advocates
Buy Code of Criminal Procedure, 1973 HERE
Buy Constitution of India HERE
Buy Penal Code, 1860 HERE
1. Corresponding Section 105 of Nyaya Sanhita, 2023 (BNS)
2. Corresponding Section 187 of Nagarik Suraksha Sanhita, 2023 (BNSS)
