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ORISSA HIGH COURT
R.K. Pattanaik, J.
Sk. Eimat @ Bidhia and Anr. – Petitioners
versus
State of Odisha – Opp. Party
CRLMC No.2033 of 2022 and CRLMC No.2428 of 2022
Decided on 12.10.2022
Criminal Procedure Code, 1973 – Sections 167(2) and 309(2) – Default bail – Incomplete preliminary charge-sheet – Preliminary charge-sheets have been filed before expiry of 180 days keeping investigation open as per Section 173(8) of Cr.P.C. – Once a charge-sheet is submitted and received and not refused, court shall have to consider bail of accused as per Section 309(2) Cr.P.C. and there accused cannot plead for default bail – If charge-sheet is not submitted within stipulated period and accused applies for default bail, such an invaluable and indefeasible right is not lost even after receipt of report under Section 173, Cr.P.C. unless he after having availed of right under Section 167(2) Cr.P.C. could not be able to furnish bail bond where in such situation right which had accrued shall stand extinguished – In present case, no permission was sought for in terms of Section 36A(4) of NDPS Act seeking extension of period for investigation – Petitioners would not be eligible to demand bail in terms of Section 167(2) Cr.P.C. for having preliminary charge-sheets filed which are final as against them and remedy which is left open is to plead for regular bail for having no conclusive proof of recovery of contraband substance, in absence of Chemical Examination Reports to substantiate it. (Paras 10, 11)
Result:Petitions dismissed.
Key Points: - Once a charge-sheet is submitted and received and not refused, the court must consider bail under Section 309(2) Cr.P.C., and the accused cannot plead for default bail (!) (!) . - Preliminary charge-sheets filed before expiry of 180 days keeping investigation open under Section 173(8) Cr.P.C. are treated as final for the accused (!) (!) . - If the charge-sheet is filed but lacks a Chemical Examination Report, the accused is not entitled to default bail but may apply for regular bail (!) (!) . - In the absence of conclusive proof such as Chemical Examination Reports for contraband substances, the accused may seek regular bail, and the court may direct release subject to conditions (!) . - The learned Special Judge, Balasore is directed to consider release on regular bail in light of the judgment and pass appropriate orders (!) .
JUDGMENT
Since a common question of law is involved, both the cases have been clubbed and taken up together for disposal.
2. CRLMC No.2033 of 2022: The petitioner herein was arrested in connection with an incident dated 10th September, 2021 towards recovery and seizure of 264 grams of contraband substance suspected to be Brown sugar which corresponds to Special Case No.235 of 2021 pending in the file of learned Special Judge, Balasore and was remanded to judicial custody and later chargesheeted, whereupon, the court took cognizance of an offence under the NDPS Act. The petitioner thereafter moved an application for bail under Section 167(2) Cr.P.C. on the ground that the preliminary chargesheet though filed but is incomplete, since it is not accompanied with a Chemical Examination Report and hence, he entitled to default bail. However, the learned Special Judge, Balasore rejected the plea of the petitioner by impugned order dated 15th July, 2021.
3. CRLMC No.2428 of 2022: In the instant case, the petitioner was alleged to be involved in possession of 325 grams of Brown sugar which was recovered from him and for that, he was forwarded in connection with Special Case No.34 of 2022 pending before the court of learned Special Judge, Balasore. Like the other case, the petitioner applied for default bail under Section 167(2) Cr.P.C. but the same was rejected.
4. The petitioners pleaded for release on a common ground that though the chargesheets have been submitted but without Chemical Examination Reports, hence, are incomplete and therefore, both are entitled to default bail.
5. The learned counsel for the petitioners contends that when there were no complete chargesheets, on expiry of the stipulated period of detention, the petitioners should have been granted bail in terms of Section 167(2) Cr.P.C. however the learned Special Judge, Balasore declined it on the ground that cognizance has already been taken of the offence, a decision which is legally not tenable and therefore, deserve to be interfered with. While contending so, Mr. Samantaray, the learned counsel for the petitioners cited the following decisions, such as, Ravinder Vrs. State of Haryana: MANU/PH/3829/2014; Sunil Vasantrao Phulbande and Others Vrs. State of Maharastra: MANU/MH/0356/2002; Tarlok and Others Vrs. State of Haryana: MANU/PH/0275/2019; and Achpal @ Ramswaroop and Others Vrs. State of Rajasthan: MANU/SC/1035/2018. The contention of Mr. Samantaray is made to suggest that the investigation cannot be said to be complete as the preliminary chargesheets were filed though within the stipulated period but not in confirmity with Section 173(5) Cr.P.C. and therefore, the petitioners are entitled to default bail which is inevitable being an indefeasible right statutorily mandated.
6. Mr. Mohapatra, learned ASC on the other hand submits that the learned Special Judge, Balasore rightly declined to release the petitioners for having already taken cognizance of the offence on the basis of the materials submitted along with the preliminary chargesheets and therefore, the impugned orders cannot be found fault with and hence, not to be disturbed.
7. It is not denied by the State that at the time of taking cognizance of the offence, there was any Chemical Examination Reports submitted with the preliminary chargesheets. Admittedly, the preliminary chargesheets were filed, whereafter, cognizance of the offence was taken against the petitioners, who thereafter moved the learned court below for release in terms of Section 167(2) Cr.P.C. but were denied. So the seminal question is, whether, in such a situation, the preliminary chargesheets are to be held as incomplete so as to enable the petitioners to claim default bail? Mr. Samantaray would contend that in view of the decisions (supra), the chargesheets could not be treated as complete despite being filed within the statutory period and therefore, the petitioners were bound to be released on bail on its expiry.
The main legal point established in the judgment is that once a chargesheet is filed, the accused cannot claim default bail, but may apply for regular bail based on the absence of conclusive proof of....
Default bail entitlement under Section 167(2) Cr.P.C. arises only when a chargesheet is not filed or is incomplete; timely filing of chargesheet suffices despite missing documents.
The absence of a chemical examination report in a chargesheet does not invalidate it, and does not automatically entitle the accused to default bail under Section 167(2) of the Cr.P.C.
The right to default bail under Section 167(2) Cr.P.C. is an indefeasible right that cannot be extinguished by the mere filing of an incomplete chargesheet.
The right to default bail under Section 167(2) of the Criminal Procedure Code is extinguished upon the filing of a supplementary charge-sheet with the required report and the Court taking cognizance.
A Charge-Sheet filed without a Chemical Analysis Report can be deemed valid, shifting the bail determination to merits rather than procedural deficiencies once filed within statutory limits.
Non-filing of the FSL report along with the Charge Sheet did not entitle the Applicant to default bail, as the Charge Sheet, filed within the statutory period, was not incomplete without the FSL repo....
The necessity of the FSL report in the challan under Section 173 Cr.P.C. for establishing a case under the NDPS Act and granting default bail.
The essential nature of the FSL report in establishing the nature of contraband and the inability to take cognizance of an offence under the NDPS Act without it.
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