1, was released on default bail under Section 167(2) Cr.P.C., thereafter it is not permissible to consider the case for cancellation of bail on merits, the Investigating Agency – C.B.I. On the very next day of lapsing of 90 days, respondent herein – original Accused No 1 filed a bail application for default bail under Section 167(2) of the Cr.P.C. filed the initial / first chargesheet on 26.10.2021 and named A1 to A4. That thereafter the CBI filed an application before the Special Court under Section 439(2) Cr.P.C. 2.5 By the impugned judgment and order, the High Court has rejected the said petition mainly on the ground that once the respondent No 1 – original Accused No 1 was released on default bail under Section 167(2) Cr.P.C., thereafter, the bail cannot be cancelled on merits. 6 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court refusing to cancel the bail under Section 439(2) Cr.P.C., the C.B.I. Therefore, the short question which is posed for the consideration of this Court is:- Whether after an accused is released on default bail under Section 167(2) Cr.P.C., under which circumstances, his bail can be cancelled and whether bail can be cancelled on merits having found committed non-bailable crime on conclusion of the investigation and filing the chargesheet?
It is submitted that therefore, though the bail is granted under proviso to sub-section (2) of Section 167 Cr.P.C., by virtue of deeming fiction, the same can be cancelled by the Court in terms of Section 437(5) and Section 439(2) Cr.P.C.
It is submitted that therefore, an order for release on bail under proviso to Section 167(2) Cr.P.C. State of Maharashtra, (1992) 4 SCC 272 in support of his submission that as observed and held by this Court on the special grounds being made out that the accused has committed very serious offences; committed non- bailable crimes and he deserves to be in custody, even in a case where the accused is released on default bail under Section 167(2) Cr.P.C., his bail can be cancelled. Relying upon the above observations made in the aforesaid paragraphs by the respective Hon’ble Judges, it is submitted that as observed and held by this Court, grant of default bail under the proviso to sub-section (2) of Section 167 Cr.P.C. Nataraj, learned ASG has further submitted that in the present case, even the case is made out under Section 439(2) Cr.P.C. Special Court, Kadapa, Andhra Pradesh to the C.B.I. 8 Making above submissions, it is prayed to allow the present appeal and cancel the bail granted in favour of the respondent herein – original Accused No 1 on merits considering the chargesheet and considering the seriousness of the offences alleged to have been committed by the accused and considering the gravity of the offences. 1 It is vehemently submitted by the learned senior counsel appearing on behalf of the respondent – original Accused No 1 that as per the settled position of law, mere subsequent filing of the chargesheet cannot be a ground to cancel the bail granted to the respondent under Section 167(2) Cr.P.C. It is submitted that therefore, mere subsequent filing of the chargesheet cannot be a ground to cancel the bail granted in favour of the respondent – original Accused No 1, once he was released on default bail on non-conclusion of the investigation and non-filing of the chargesheet within the stipulated time. Shri Siddhartha Dave, learned Senior Advocate appearing on behalf of the proposed impleader –daughter of the deceased has supported Shri Nataraj, learned ASG and has submitted that looking to the seriousness of the charges alleged against the respondent herein – original Accused No 1 and that looking to the gravity of the offence and in view of the post-bail conduct of the accused after he was released on bail, considered by this Court while deciding Writ Petition (Criminal) No. 1
At the outset, it is required to be noted and it cannot be disputed that when an accused is released on default bail under proviso to sub- section (2) of Section 167 Cr.P.C., he is released on furnishing the bail bond by him on the failure of the investigating agency to complete the investigation and file the chargesheet within the stipulated time mentioned therein.
Considering proviso to Section 167(2) Cr.P.C., it cannot be disputed that a person released on bail (default bail) is deemed to be released under provisions of Chapter XXXIII of the Cr.P.C., which includes Section 437 and 439 also.
Also Read: https://newslaw.in/case-type/civil/acquisition-of-land-and-deemed-lapse-under-the-act-2013/
We sum up as under: The provisions of the Code, in particular Sections 57 and 167, manifest the legislative anxiety that once a persons’s liberty has been interfered with by the police arresting him without a court’s order or a warrant, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by the proviso ( a ) to Section 167(2) of the Code. Therefore, the prosecuting agency must realise that if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a charge-sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed to that effect under Section 167(2) would be an order under Section 437(1) or (2) or Section 439(1) of the Code. We are, therefore, of the view that once an accused is released on bail under Section 167(2) he cannot be taken back in custody merely on the filing of a charge- sheet but there must exist special reasons for so doing besides the fact that the charge-sheet reveals the commission of a non-bailable crime.
We are, therefore, of the view that unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of the charge- sheet. Undoubtedly, by operation of the proviso to Section 167(2) of the Code, the accused is entitled to bail due to default by the investigating officer in completing the investigation and laying the charge-sheet within the prescribed period of 90/60 days and not on merits. The doubtful procedure of seeking further detention on securing order of remand under Section 344 of the old Code and Section 309 of the present Code was to be put to an end to, while preserving the power to the court to cancel the bail, if circumstances warrant to take the accused into custody. Undue emphasis on either would impede harmony and hamper public good as well as disturb social weal and peace. As emphasised by this Court in Bashir
[(1977) 4 SCC 410] and Raghubir [(1986) 4 SCC 481] cases, on curing the defect by filing the charge-sheet (challan) if the prosecution seeks to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest and commit him into custody, prima facie at that stage, strong grounds indeed are necessary. I also agree that merits brought out in the charge-sheet and attending circumstances are relevant, as the bail was granted due to default of the investigating officer without court’s adverting to the merits but strong grounds are necessary to cancel the bail. With respect I agree with brother Ahmadi’s emphasis that filing the charge-sheet (challan) itself is not sufficient. However, thereafter has agreed with the view that the merits brought out in the chargesheet and attending circumstances are relevant, as the bail was granted due to default of the investigating officer without Court’s adverting to the merits but strong grounds are necessary to cancel the bail and mere filing of the chargesheet itself is not sufficient. It is on the thrust of such inclusion that cancellation under Section 437(5) can be attempted as if fictionally the bail order had been passed under sub-sections (1) and (2) of Section 437 but not on considerations as if the bail order was on merit.
But a deemed bail under Chapter XXXIII, under the thrust of Section 167(2), appears to me on a different footing, permitting cancellation of bail not only on the well-known grounds for cancellation of bail but also on the special singular ground on the Court’s entertaining the view that there are sufficient grounds that the accused had committed a non-bailable offence and that it was necessary that he should be arrested and committed to custody. And even if this aspect is ignored, Bashir case [(1977) 4 SCC 410] goes on to add a singular and special ground for cancellation of bail granted under Section 167(2) over and above the other well-known grounds for cancellation of bail granted under sub-sections (1) and (2) of Section 437 of the Code. 502, para 22)
“Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in 60 days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody.
Also Read: https://newslaw.in/case-type/civil/taxation-of-engineering-design-drawings-goods-or-services/
536, paras 13 and 14) “An order for release on bail under proviso ( a ) to Section 167(2) may appropriately be termed as an order-on-default. On analysis of the case law above discussed I have rather come to the conclusion that a compulsive bail order made by a court under Section 167(2) of the Code being one not on merit, when required to be cancelled after the filing of the challan, would not involve any review of a decision made on merit.
I would rather loathe for such an interpretation as that would frustrate justice, and would on the other hand let the court have the power to cancel bail, for once examining the merits of the case in such a situation.” shall be deemed to be so released under the provisions of Chapter XXXIII Cr.P.C., which includes Sections 437(5) and 439(2); (iii) That the bail in favour of a person, who is released on default bail under Section 167(2) Cr.P.C. However, an order for release on bail under proviso ( a ) to Section 167(2) is not an order on merits but an order-on-default of the prosecuting agency. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non- bailable offence and that it is necessary to arrest him and commit him to custody. State of Bihar [(1986) 4 SCC 481.)”
Case Title: THE STATE THROUGH CENTRAL BUREAU OF INVESTIGATION Vs. T. GANGI REDDY @ YERRA GANGI REDDY (2023 INSC 44)
Case Number: Crl.A. No.-000037-000037 / 2023
