Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Del) 1695

IN THE HIGH COURT OF DELHI AT NEW DELHI
Subramonium Prasad, J.
Suraj - Appellant
Versus
State Of Delhi Nct - Respondent
Bail Application No. 120 of 2022
Decided On : 15-03-2022

Advocates appeared:
Adit S. Pujari, Advocate, Chaitanya Sundriyal, Advocate, Meenakshi Dahiya, Advocate

Once chargesheet has been filed within the stipulated time, the question of grant of statutory bail or default does not arise.

Headnote:
Bail - Entitlement to Default Bail under Section 167(2) Cr.P.C. - IPC, POCSO - Section 167 Cr.P.C.
Fact of the Case:

The petitioner sought default bail under Section 167(2) Cr.P.C. as chargesheet had been filed but cognizance had not been taken by the court. The petitioner had been in custody since 20.08.2021 and the chargesheet was filed on 14.10.2021.
Finding of the Court:

The court found that once a chargesheet has been filed within the stipulated time, the question of grant of statutory bail or default does not arise. Whether cognizance has been taken or not taken is not relevant for compliance of Section 167 Cr.P.C., and mere filing of the chargesheet is sufficient.
Issues: The issue before the court was whether an accused is entitled to default bail under Section 167(2) Cr.P.C. when chargesheet has been filed, but cognizance has not been taken by the Court of the offences.
Ratio Decidendi: The court held that once chargesheet has been filed, albeit within the prescribed period, the statutory right to bail of the accused stands extinguished. The court relied on the judgments in Suresh Kumar Bhikamchand Jain v. State of Maharashtra and Serious Fraud Investigation Office v. Rahul Modi to support its decision.
Final Decision: The petition seeking default bail under Section 167(2) Cr.P.C. was dismissed by the court.

JUDGMENT

Subramonium Prasad, J. - This application has been filed under Section 439 Cr.P.C. read with Section 167 Cr.P.C. seeking bail in FIR No. 312/2021 dated 20.08.2021 registered at Police Station Kamla Market for offences under Sections 377/34 of the Indian Penal Code, 1860 (hereinafter, 'IPC') read with Section 6 of the Protection of Children from Sexual Offences act, 2012 (hereinafter, 'POCSO').

2. The facts, in brief, leading up to the filing of this petition are as follows:

a) On 19.08.2021, a call was received by the mother of the victim child by one Kiran who worked at the Child Welfare Committee that her son (the victim child), aged 13 years, had been sexually assaulted by 2-3 boys in the neighbourhood. When the mother asked the son about the said sexual assault, he revealed to her that about 2-3 months ago, when he was at the park, one Rahul, a resident of G-Block Central Government Officers Residential Complex, tried to entice him.

b) The son stated that this Rahul made him cut the wire of a cylinder kept in the basement of the parking lot and that this was seen by one Hanuman. He further stated that then one Ganesh and one Suraj (the Petitioner herein), found out about the cutting of the wire from Hanuman and blackmailed the son into having sexual intercourse with them at different points of time.

c) On learning about this, the father of the victim child filed a complaint, dictated his statement and an MLC of the victim child was conducted, and on the basis of this, FIR No. 312/2021 under Sections 377/34 IPC read with Section 6 POCSO act was registered on 20.08.2021

d) Both the accused, including the Petitioner herein, were arrested on 20.04.2021 and were remanded for 14 days to judicial custody by the Ld. Trial Court vide Order dated 21.08.2021. This judicial custody of the Petitioner was extended by the Ld. Trial Court vide Orders dated 04.09.2021 and 17.09.2021. Vide Order dated 29.09.2021, regular bail application of the Petitioner was dismissed.

e) a second bail application was filed under Section 167(2) Cr.P.C. on the ground that, despite chargesheet having been filed, as cognizance of the offences had not been taken by the Ld. Trial Court, the Petitioner was entitled to default bail under Section 167(2) Cr.P.C. This application was dismissed vide Order dated 20.12.2021.

f) The Petitioner has now approached this seeking default bail under Section 167(2) Cr.P.C.

3. Mr. adit S. Pujari, assisted by Mr. Chaitanya Sundriyal, learned Counsel for the Petitioner, submits that the Petitioner is a 22-year-old who has been in custody since 20.08.2021. He states that as per Section 167(2) Cr.P.C., if investigation is not complete within the prescribed period and chargesheet is not filed, then a statutory right to bail accrues to the accused. He submits that in the instant case, despite chargesheet having been filed on 14.10.2021, cognizance of the offences mentioned therein was not taken by the Ld. Trial Court.

4. Mr. Pujari submits that the chargesheet which was filed on 14.10.2021 was incomplete as the statement of the child victim under Section 164 Cr.P.C. mentioned the existence of a video recording, and this had prompted the Ld. Trial Court to merely issue notice in the matter without taking cognizance of the offences. He states that this illegal conduct of the investigating agency defeated the right of the Petitioner to seek default bail and could not be countenanced as per the observations of the Supreme Court in various judgements such as M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485, and Serious Fraud Investigation Office v. Rahul Modi and Ors., 2022 SCC OnLine SC 153. He states that as no cognizance has been taken by the Ld. Trial Court and the statutory period of 90 days had expired on 18.11.2021, therefore, the Petitioner had an indefeasible right to securing default bail. He further submits that on the pretext of filing a supplementary chargesheet containing an FSL r