Absconding accused entitled to default bail, says HC

MUMBAI: The Bombay high court has ruled that an absconding accused is entitled to default bail even if a charge-sheet has been filed against other accused in the case prior to his arrest.

Article 21 of the Constitution is intrinsically linked to the history of enactment of section 167 (2) of the Code of Criminal Procedure (CrPC), which deals with the powers of a magistrate to detain an accused, the court observed. “The safeguard of default bail contained in the proviso is nothing but a legislative exposition of the constitutional safeguard that no person shall be denied his liberty except in accordance with the rule of law,” said the division bench of justices Revati Mohite Dere and Prithviraj Chavan.

The court was hearing a reference arising out of a petition filed by Sunil Vitthal Wagh, an alleged member of the notorious ‘Sirji Gang’ led by a certain Gopal Ankushrao from Pandharpur, and an accused the murder of former municipal councillor Sandeep Pawar on March 18, 2018.

In all, 26 persons were named as accused in the murder case and many of them were arrested by police, although Wagh was at large. A charge-sheet was filed against the arrested accused on September 15, 2018, while Wagh was arrested nearly three years later, on August 28, 2021.

On February 24, 2022, Wagh applied for bail on the grounds that the police had defaulted on completing the investigation and filing a charge-sheet against him within 180 days, as stipulated in Section 167 (2) of CrPC. The police filed a supplementary charge-sheet against him on the same day.

Wagh’s default bail plea was rejected a special MCOCA (Maharashtra Control of Organised Crime Act) court at Pandharpur on March 11, 2022, on grounds that the charge-sheet had already been filed and the supplementary charge-sheet had provided additional evidence against him and other accused, warranting further detention.

Wagh approached the high court thereafter. A single judge bench of justice NJ Jamadar dissented with a 2006 judgement by another single judge bench which held that an absconding accused could not claim default bail after arrest if a charge-sheet had been filed against other accused and the concerned court had taken cognisance of it. The matter was referred to a larger bench to settle the law on the point.

The division bench comprising justices Mohite Dere and Chavan concurred with the view taken by justice Jamadar and upheld the right of accused arrested to default bail.

“Indefeasible right of the petitioner will have to be viewed in context of the spirit and the legislative mandate upholding fundamental right to life and personal liberty enshrined in Article 21,” the bench said.

A single judge bench dealing with Wagh’s default bail plea will now pronounce an order based on the law laid down by the division bench.