IMPORTANT POINTS
(1) Default bail – Courts have power to cancel bail and to examine merits of case in a case where accused is released on default bail and released not on merits earlier.
(2) Deeming fiction under Section 167(2) Cr.P.C. cannot be interpreted to length of converting order of bail not on merits as if passed on merits.

JUDGMENT :

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 16.03.2022 passed by the High Court of Andhra Pradesh at Amravati in Criminal Petition No. 788 of 2022 by which the High Court has dismissed the said petition preferred by the appellant - Central Bureau of Investigation (C.B.I.) filed under Section 439(2) of the Code of Criminal Procedure (Cr.P.C.), to cancel the bail that was granted to the respondent herein - original Accused No. 1 and wherein the High Court has held that once the respondent No. 1 - Accused No. 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. has preferred the present appeal.

2. While considering the issue involved in the present appeal, namely, whether in a case where the accused is released on default bail thereafter, cancellation of the bail application can be considered on merits, the chronological dates and events are required to be referred to, which are as under:-

2.1 The deceased Shri Y.S. Vivekananda Reddy, a former M.L.A.; former Member of Lok Sabha; former Member of A.P. Legislative Council; and holding other posts was found dead in his house on 15.03.2019. Initially a case under Section 174 Cr.P.C. was registered by the local police, i.e., Police Station, Pulivendula in Crime No.84 of 2019. Subsequently, a case under Section 302 read with Section 120-B of the Indian Penal Code (I.P.C.) was registered. Special Investigation Team (S.I.T.) was constituted by the State. The S.I.T. took over the investigation. During the course of investigation, the concerned State Police Agency arrested the respondent herein - original Accused No. 1 (A-1) on 28.03.2019 and he was remanded to judicial custody. The statutory period of 90 days lapsed on 26.06.2019. 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. The respondent herein was allowed the default bail by the learned JMFC, Pulivendula on 27.06.2019. The respondent herein - original accused No. 1 was released on bail as per the said order.

2.2 That subsequently and pursuant to the order passed by the High Court dated 11.03.2020 passed in Writ Petition No. 3144 of 2019 and Writ Petition No. 1639 of 2020, investigation in the above crime was entrusted to the appellant - C.B.I. The C.B.I. then took up the investigation in the said case. The C.B.I. filed the F.I.R. No. RC-04(S)/2020/SC-II/ND on 09.07.2020. The investigation revealed that a conspiracy was hatched up by A-1 to A-4 along with some other persons to kill the deceased and there were some influenced persons behind the said conspiracy.

2.3 The C.B.I. 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. for cancellation of the bail granted to the respondents, which came to be dismissed by the learned Trial Court vide order dated 30.11.2021.

2.4 That thereafter the C.B.I. filed a supplementary chargesheet against the accused D. Siva Shankar Reddy (A-5) under Sections 201 and 120-B read with 302 & 201 I.P.C. and also against the respondent herein - original Accused No. 1 under Sections 201, 506 and 120-B read with 201 I.P.C. That thereafter the C.B.I. conducted the further investigation and continued the investigation and recorded the statement of approver A-4. That thereafter the C.B.I. filed the Criminal Petition No. 788 of 2022 before the High Court under Section 439(2) Cr.P.C. for cancellation of bail granted to the respondent herein - Accused No. 1.

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