Code of Criminal Procedure, 1973 : s. 167(2) – Default bail – Cancellation of, on merits – On facts, accused-respondent arrested in connection with the murder of a former MLA, released on default bail u/s 167(2) – CBI concluded the investigation, filed chargesheet and then filed for cancellation of bail of the respondent – However, the High Court rejected the said petition on the ground that default bail granted u/s. 167(2) cannot be cancelled on merits – On appeal, held: Order of release on bail under proviso to s. 167(2) cannot be called as an order on merits – Purpose of proviso to s.167(2) is to press expeditious investigation within the prescribed time limit – Accused is released on bail under proviso to s.167(2) on the failure of the prosecuting agency –Mere filing of the chargesheet subsequent to a person is released on default bail u/s. 167(2) cannot be a ground to cancel the bail of a person, who is released on default bail – No absolute bar that once a person is released on default bail u/s.167(2), his bail cannot be cancelled on merits – On filing of the chargesheet on conclusion of the investigation, if a strong case is made out and on merits, it is found that he has committed a non-bailable offence/crime, on the special reasons/grounds and considering ss. 437(5) and 439(2), over and above other grounds on which the bail to a person, who is released on bail can be cancelled on merits – Therefore, the courts are not precluded from considering the application for cancellation of the bail on merits –Order of the High Court set aside – ss. 174, 437(5), 439(2) – Penal Code, 1860 – ss. 120-B, 201, 302, 506.
Allowing the appeal, the Court
HELD: 1.1 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. The proviso to sub-section (2) of Section 167 fixes the outer limit within which the investigation must be completed and if the same is not completed within the period prescribed therein, the accused has a right to be released on bail if he is prepared to and does furnish bail. 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. The object and purpose of proviso to Section 167(2) Cr.P.C. is to impress upon the need for expeditious investigation within the prescribed time limit and to prevent laxity in that behalf. The object is to inculcate a sense of its urgency and on default the Magistrate shall release the accused if he is ready and does furnish bail. Thus, it cannot be said that order of release on bail under proviso to Section 167(2) Cr.P.C. is an order on merits. An accused is released on bail under proviso to Section 167(2) Cr.P.C. on the failure of the prosecuting agency. Therefore, the deeming fiction under Section 167(2) Cr.P.C. cannot be interpreted to the length of converting the order of bail not on merits as if passed on merits . [Para 8.1][750-H; 751-A-E]
1.2. When special reasons/grounds are being made out from the chargesheet and the chargesheet reveals the commission of a non- bailable crime, the bail in favour of a person, who has been released on default bail under Section 167(2) Cr.P.C. can be cancelled considering Section 437(5) and Section 439(2) Cr.P.C. The law, which emerges is that mere filing of the chargesheet subsequent to a person is released on default bail under Section 167(2) Cr.P.C. cannot be a ground to cancel the bail of a person, who is released on default bail. However, on filing of the chargesheet on conclusion of the investigation, if a strong case is made out and on merits, it is found that he has committed a non-bailable offence/crime, on the special reasons/grounds and considering Section 437(5) and Section 439(2) Cr.P.C, over and above other grounds on which the bail to a person, who is released on bail can be cancelled on merits. Therefore, there is no absolute bar as held by the High Court in the impugned judgment and order that once a person is released on default bail under Section 167(2) Cr.P.C., his bail cannot be cancelled on merits and his bail can be cancelled on other general grounds like tampering with the evidence/witnesses; not cooperating with the investigating agency and/or not cooperating with the concerned trial court etc. [Para 9.7, 10, 11][761-F; 762G-H; 763-A-B]
1.3 The impugned judgment and order passed by the High Court dismissing the application for cancellation of the bail filed by the C.B.I. under Section 439(2) Cr.P.C. is quashed and set aside. [Para 13][763-H; 764-A]
1.4 As the High Court has not at all considered on merits the application for cancellation of the bail, the matter is to be remitted to the High Court for considering the said application afresh in accordance with law and on merits and in light of the observations made. As pursuant to the earlier judgment and order passed by this Court dated 29.11.2022 in Writ Petition (Criminal) No. 169 of 2022, the trial of the F.I.R. in the present case has been ordered to be transferred to the C.B.I. Special Court, Hyderabad, the proceedings of the cancellation of the bail application, which was earlier filed before the High Court of Andhra Pradesh are ordered to be transferred to the High Court of Telangana at Hyderabad and now the High Court of Telangana to consider, decide and dispose of the application for cancellation of the bail on merits and in light of the observations made. [Para 14][764-D-F]
Aslam Babalal Desai Vs. State of Maharashtra (1992)
4 SCC 272 : [1992] 1 Suppl. SCR 545; Abdul Basit Alias Raju and Ors. Vs. Mohd. Abdul Kadir Chaudhary and Anr (2014) 10 SCC 754 : [2014] 10 SCR 571; Raghubir Singh and Ors. Vs. State of Bihar (1986) 4 SCC 481 : [1986] 3 SCR 802 – relied on.
Mohamed Iqbal Madar Sheikh and Ors. Vs. State of Maharashtra (1996) 1 SCC 722 : [1996] 1 SCR 183, Rajnikant Jivanlal and Anr. Vs. Intelligence Officer, NCB, New Delhi, (1989) 3 SCC 532 : [1989] 3 SCR 377, Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 : [2017] 8 SCR 785 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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