Judicial Update -
Madras High Court - Courts affirm indefeasible right to statutory bail for accused added during the subsequent investigation.
In the case of Gnanasekaran Thiyagaraj v. State Represented by the Deputy Superintendent of Police Economic Offences Wing (EOW-II) [Crl. O.P.No.16024 of 2023], the petition has been filed challenging the order issued by the Special Judge under the Tamil Nadu Protection of Interest of Depositors (in Financial Establishments) Act, 1997 ("TANPID Act") in Criminal M.P.No.2402 of 2023, dated 28.06.2023. The order dismissed the Petitioner's application under Section 167(2) of the Criminal Procedure Code, 1973 (“CrPC”), which sought statutory bail.
The Respondent investigated several offences under the Indian Penal Code,1860 (“IPC”), the TANPID Act, and the Banning of Unregulated Deposit Schemes Act, 2019 ("BUDS Act"). The investigation was finished, the final report was submitted on December 29, 2022, and it was filed in C.C. No. 7 of 2022 against 19 listed accused parties for a variety of offences under the IPC, TANPID Act, and BUDS Act.
The Respondent continued his investigation in accordance with Section 173(8) of the CrPC. It should be noted that neither the FIR nor the final report listed the petitioner as an accuser. On March 23, 2023, the Petitioner was detained and sent to judicial custody as a result of an additional inquiry. The Petitioner was subsequently remanded to judicial detention after becoming an accused for the first time during the course of the ongoing investigation.
As a result of the Petitioner's protracted detention for more than 90 days after being placed on remand and the Respondent's failure to submit any additional or supplemental reports, the Petitioner applied to the court below for statutory bail in accordance with Section 167(2) of the CrPC.
By order dated June 28, 2023, the Special Judge dismissed the application on the grounds that the final report had already been taken into consideration and the Petitioner had only been detained during a subsequent investigation. As a result, the Petitioner was ineligible to request statutory bail under Section 167(2) of the CrPC and, at best, could only submit a regular bail application, which would be evaluated on the merits of the case. As a result of this, a Criminal O.P. has been filed under Section 482 of the CrPC.
The Court noted, “If an accused person is subsequently arrested in the course of further investigation and such accused person was not shown as an accused either in the FIR or in the final report that was filed, insofar as he is concerned, it must be construed as a stage of investigation under Chapter XII of the Code and as a consequence, Section 167(2) of Cr.P.C., can be made applicable”.
However, the Court deemed the judgement rejecting statutory bail an intermediate order. The dismissal prevented him from being released on statutory bail, but the court pointed out that it did not fully revoke his privilege; he could still submit an application for normal bail.
The Court stated “If a statutory bail application is dismissed, it certainly involves the determination of an indefeasible right given to the accused person and such an order cannot be considered to be an interlocutory order and such order is more than a purely interlocutory order and less than a final disposal. The reason for rendering such a finding is that the accused person loses his right of being let out on a statutory bail and that right is lost by virtue of the dismissal of the application. However, that does not mean that the accused person is going to be kept under detention forever. The accused person can always file an application seeking for a regular bail and the same will be considered on merits and the Court may be satisfied that the accused can be enlarged on bail pending the main case.”
It was also highlighted that the accused person's inalienable right to an extension of bail in the current instance was denied by the Court, which had an impact on his right to liberty protected by Article 21 of the Constitution. The court noted that even in the presence of an alternative remedy, it might still exercise its jurisdiction under Section 482 CrPC.
The Court further noted that Thiyagaraj was not an accused at the time the court took cognizance of the final report. Hence, the Special Judge erred in rejecting the statutory bail motion. The court determined that Thiyagaraj had an unassailable right to statutory bail as a result.
Further, “In the light of the settled law, the Court below was not right in rejecting the statutory bail application filed by the petitioner under Section 167(2) of Cr.P.C., since the petitioner was not an accused before the Court when the final report was filed and the cognizance was taken and the petitioner is now being added as an accused and arrested in the course of further investigation under Section 173(8) of Cr.P.C., before the supplementary charge sheet is filed. In view of the fact that the detention of the petitioner is continuing beyond 90 days and the supplementary charges sheet has not been filed, the petitioner is certainly entitled for the indefeasible right provided under Section 167(2) of Cr.P.C., and the petitioner must be enlarged on statutory bail if he is prepared to and does furnish bail”.