Mumbai: Bombay High Court has ruled that an absconding accused, who is arrested later, is also entitled to default bail. The High Court, in a Dec 19 judgment delivered by Justices Revati Mohite Dere and Prithviraj Chavan, resolved a controversy on the issue due to conflicting views taken by single judge benches earlier.
The issue was referred to a two-judge bench to resolve the legal point. After hearing senior counsel Aabad Ponda for petitioner Viithal Wagh and public prosecutor HS Venegaonkar, the bench held that the rights to default bail stem from the fundamental right to life and liberty and would apply to an absconding accused who was arrested later.
A default bail is one that is not based on merits. An accused is entitled to default bail in law if a chargesheet is not filed by police or probe agencies within the legally stipulated time.
Wagh, lodged at Kolhapur Central Prison as an undertrial, filed a petition in 2022. Earlier, Justice S C Dharmadhikari held that once a chargesheet is filed and the court takes cognizance, the subsequent arrest of an absconding accused will not entitle him to the benefit of default bail in law. Justice Dharmadhikari held that the indefeasible right to default bail stands extinguished once a chargesheet in a case is filed.
In a contrary view, Justice S B Shukre said that for the absconding accused, the clock starts on his arrest, and if the “supplementary chargesheet” is not tendered within the mandated deadline, he is entitled to default bail.
Ponda argued that police cannot, at one stroke, seek the police custody of such an accused and also say that he is chargesheeted (since it denotes the probe is over). The power to remand an accused to police custody is only during a pre-chargesheet stage, and denying the accused default bail would extinguish his fundamental right, Ponda pointed out.
The High Court bench held, “Even after cognizance is taken of an offence, the police has the power to investigate it further, and there is no reason whatsoever why the provisions of Section 167 thereof would not apply to a person who comes to be later arrested by the police in the course of such investigation.”
Wagh’s plea for bail will now be placed before the single judge bench for orders.
