In a criminal revision against the Special Judge (NDPS), the High Court held that the indefeasible right to default bail was extinguished because the police filed the charge-sheet before the applicant filed the bail application under Section 167(2) Cr.P.C.
Criminal revision dismissed; application for default bail rejected on merits.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No. 394 of 2022
Siraj, S/o. Late Shri Noor Mohammad, aged about 40 years, R/o. Mominpara Parradand, Jilani Painter Street, P.S.-Kotwali, Ambikapur, Distt. - Surguja (C.G.)
---- Petitioner
Versus
State of Chhattisgarh, Through the District Magistrate, Ambikapur, Distt. Surguja (C.G.)
----Respondent.
For Petitioner : Mr. Sunil Sahu, Advocate. For Respondent : Mr. Lalit Jangde, Govt. Advocate.
Hon'ble Mr. Justice N.K. Chandravanshi
Order On Board
06-05-2022
Heard on admission.
2
psychotropic substance, namely, Maxcoff syrup from the illegal possession of the applicant. On the basis of above facts, FIR No. 0507 under Section 22(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth “NDPS Act”) was registered against the applicant and at about 2.10 at night he was arrested and on the same day i.e. on 22.9.2021, he was produced before the Special Judge, Sarguja at Ambikapur alongwith application for grant of judicial remand. On 22.9.2021 itself first remand was granted till 5.10.2021, subsequently, judicial remand was taken in several occasions. Lastly, the judicial remand was obtained up-till 21.03.2022. On 21.03.2022, again application for grant of judicial remand was filed but the same was dismissed by learned Special Judge, Ambikapur, Sarguja holding that 181 days of judicial remand of the applicant was completed on 21.03.2022, despite that charge-sheet was not filed and further remand for one day i.e. up till 22.3.2022 has been sought, but no report has been enclosed with the remand application as per proviso to Section 4 of Section 36(A) of the NDPS Act, which could demonstrate sufficient reasons for further detention of applicant and since extended period of filing final report i.e. 180 days has already been elapsed, therefore, learned Special Judge dismissed the application for grant of judicial remand.
3
23.3.2022, learned Special Judge dismissed the application for grant of default bail, hence this criminal revision.
4
Special Judge ought to have granted default bail to the applicant, hence, it is prayed that revision petition be allowed and default bail may be granted to the applicant. He placed reliance upon the judgments of the Supreme Courts in the matters of M. Ravindran v. 1 Intelligence Officer, Directorate of Revenue Intelligence , Uday Mohanlal Acharya v. State of Maharashtra 2 & Vinay Dubey & another v. State of C.G. 3 in support of his submissions.
1 (2021) 2 SCC 485
2 (2001) 5 SCC 453
3 2022 (1) CGLJ 193
5
6
of charge-sheet, application under Section 167 (2) of the Cr.P.C. for grant of default bail was filed by the applicant, therefore, his application for grant of default bail has been dismissed by the learned Special Judge (NDPS).
5 (2001) 5 SCC 453
7
“23. The Constitution Bench in the aforesaid judgment [Sanjay Dutt v. State through CBI6 ] has clearly laid down that the indefeasible right of the accused is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if not already availed of . [Emphasis added]. It has further laid down that custody of the accused after challan has been filed is not governed by the provisions of Section 167 of the Code, but different provisions of the Code. The right of the accused cannot be enforced after the challan is filed since it is extinguished the moment challan is filed . The case of Sanjay Dutt also referred to the views expressed by the three earlier Constitution Benches of this Court in connection with writ of habeas corpus on the ground that there was no valid order of remand passed by the court concerned. It has reiterated that a petition seeking writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused has to be dismissed if on the date of the return of the rule the custody or detention is on the basis of a valid order.”
“25.2 The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the charge-sheet or a report seeking extension of time by the prosecution
7 (2021) 2 SCC 485
6 (1994) 5 SCC 410
8
before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.
25.3 However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge-sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC.”
9
the same day, therefore, aforesaid submission made by counsel for the applicant is baseless. But order impugned clearly demonstrates that on 22.3.2022, earlier charge-sheet was filed by the police and, thereafter, applicant filed an application for default bail under Section 167 (2) of the Cr.P.C., therefore, in view of the law laid down by Hon'ble Supreme Court in the aforesaid cases (supra), applicant's right of default bail was extinguished. Thus, I do not find any infirmity or illegality in the order impugned rejecting the application for grant of default bail filed by the applicant.
D/-
10
3 issues framed by the court
Whether the right to default bail under Section 167(2) Cr.P.C. survives when the charge-sheet is filed on the same day as the bail application.
Whether the indefeasible right of default bail gets extinguished once the charge-sheet is filed prior to the bail application.
Whether the Special Judge committed any illegality in rejecting the default bail application where the challan was filed earlier than the application.
Colour shows how this judgement treated each authority
M. Ravindran v. Intelligence Officer, Directorate of Revenue IntelligenceFollowed¶7
M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence (2021) 2 SCC 485 · Who else cites this
Uday Mohanlal Acharya v. State of MaharashtraFollowed¶7
Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453 · Who else cites this
Vinay Dubey & another v. State of C.G.Followed¶24
Vinay Dubey & another v. State of C.G.
Central Bureau of Investigation v. Nazir Ahmed SheikhFollowed¶7
Central Bureau of Investigation v. Nazir Ahmed Sheikh
Sanjay Dutt v. State through CBIFollowed¶41
Sanjay Dutt v. State through CBI
3 provisions across 2 enactments
Siraj
State of Chhattisgarh
N.K. Chandravanshi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
