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Bail Granted u/s 167(2) CrPC erroneously after filing of charge sheet can be cancelled u/s 439(2):SC

The High Court in the impugned judgment noted that charge sheet having been filed on 06.07.2018, i.e., well within the stipulated period of 180 days, the accused could not have been granted the benefit under Section 167 Cr.P.C. (Para 9)


The complaint, which has been brought on the record gives the detailed facts including the journey and the interception of appellants at Hyderabad. The combined complaint having been filed on 06.07.2018, i.e., well within 180 days, the High Court did not commit any error in cancelling the default bail granted to the appellants on 12.07.2018. (Para 12)



Venkatesan Balasubramaniyan v. The Intelligence Officer, D.R.I. Bangalore.

Criminal Appeal No.801 Of 2020 (Arising Out Of SLP (Crl.) No.1452/2019)

with

Villayutham Nagu v. The Intelligence Officer, D.R.I. Bangalore.

Criminal Appeal No.802 Of 2020 (arising out of SLP (Crl.) No.1820/2019)

with

Vijaya Kumar L. v. The Intelligence Officer, D.R.I. Bangalore.

Criminal Appeal No.803 Of 2020 (arising out of SLP (Crl.) No.1443/2019)

20th November, 2020.


Counsel for Appellants: Shri M. Karpaga Vinayagam

Counsel for Respondents: Shri Vikramjit Banerjee (Additional Solicitor General)


The Hon'ble Supreme Court Justices Ashok Bhushan, R. Subhash Reddy And M.R. Shah in the appeal against the judgment of High Court, Hyderabad where the petition filed by respondent Under Sec. 439(2) Cr.P.C. has been allowed cancelling the bail granted to the appellants by the Sessions Judge, held that there is no ground for the Court to interfere with the impugned judgment of the High Court.


The facts and issues in these appeals are similar. The car in which the appellants were travelling was intercepted by the Directorate of Revenue Intelligence, Hyderabad at a toll plaza in Telangana. The Officers searched the car and found off-white coloured packets in the false casing attached to the walls of the boot. The appellants informed that the packets were narcotic drug which was loaded by a person at Maharashtra and was to be delivered to Chennai. The appellants were taken to the office of D.R.I. and the total quantity of packets (Methaqualone) was weighed to be 45.874 Kgs. The appellants were arrested under Section 42 of NDPS Act, 1985 and were produced before the Special Sessions Judge Court, D.R.I., Hyderabad. Remand of the appellants was extended from time to time. Thereafter, the 180 days for filing charge sheet had expired and the Learned Special Sessions Judge, Hyderabad granted bail to the appellants under Section 167(2) Cr.P.C. on their application. The Sessions Court, Hyderabad granted the custody of three accused to the D.R.I. who produced the appellants before Additional Sessions Judge, Omerga, Maharashtra. The Sessions Judge on knowing that the appellants have already been granted bail before which date charge sheet was already filed before the Omerga Court issued a show-cause notice for D.R.I. to give explanation, who applied for cancellation of bail under Section 439(2) Cr.P.C. in the High Court. The High Court cancelled the bail granted under Section 167(2) Cr.P.C. Aggrieved the appeals have been filed.


Learned senior counsel for the appellants submits that when the case was taken, neither any charge sheet was filed before the Special Court of Hyderabad nor was any information given to the Special Court that any charge sheet has been filed in Omerga Court, Maharashtra. The accused were entitled to default bail under Section 167(2) Cr.P.C. When the bail order was passed by the Special Court, the D.R.I. Bangalore ought to have informed the Special Court seeking the cancellation of the bail by explaining why the fact of filing a combined complaint was not informed to the Special Court. It is submitted that the recovery of contraband from accused by the D.R.I. Hyderabad is entirely different from the Omerga case, which is relating to the recovery of the contraband manufactured at the factory situated at Omerga and that the appellants are to be charged only for the offence of possession and the transport since they have no role to play concerning the manufacture of contraband in the factory at Omerga. It is further submitted that when the Special Court was not informed beforehand that any charge sheet has been filed, then no error was committed by Special Court in granting the default bail under Section 167(2) Cr.P.C.


Learned Additional Solicitor General contends that the appellant’s car was intercepted at Hyderabad on basis of specific and credible information that a huge quantity of NDPS substance being illegally manufactured in Omerga, which is being transported to Chennai. It is submitted that a combined charge sheet has been filed taking into consideration the entire sequence of events including the seizure of 45.874 Kgs. NDPS substance by D.R.I., Hyderabad in which present appellants are accused Nos. 5, 6, and 7. It was due to non-communication of information of combined complaint having been filed that the order was passed by the Special Court granting default bail whereas, on the same day, a letter was received by Special Court, Hyderabad where the Special Court, Omerga has asked for the custody of the accused. Upon fulfilling the conditions by one of the accused, Villayutham Nagu, the learned Omerga Court was pleased to release the said accused, and the rest of the two accused are still in Osmanabad Jail. The High Court rightly cancelled the bail, which was earlier granted by the learned Special Judge and the combined complaint having been filed, the appellants were not entitled to grant of default bail under Section 167(2) Cr.P.C.


The High Court in the impugned judgment noted that charge sheet having been filed on 06.07.2018, i.e., well within the stipulated period of 180 days, the accused could not have been granted the benefit under Section 167 Cr.P.C. (Para 9)

The High Court in the impugned judgment noted that the charge sheet having been filed well within the stipulated period of 180 days, the accused could not have been granted the benefit under Section 167 Cr.P.C. This Court in Pandit Dnyanu Khot v. State of Maharashtra and Ors., (2008) 17 SCC 745 while considering the case where bail granted under Section 167(2) Cr.P.C. was cancelled under Section 439(2) Cr.P.C. by learned Sessions Judge after noticing the facts, upheld the order under Section 439 Cr.P.C. cancelling the bail. It is not even submitted before this court that Omerga Court where a common complaint has been filed against the accused had no jurisdiction to inquire and try the offence. It was due to some miscommunication that at the time when Court passed the order, the factum of filing of the combined complaint was not brought into the notice of Special Court, Hyderabad. All these facts were brought before the High Court in an application filed under Section 439(2) Cr.P.C. and the High Court has rightly cancelled the bail order and this court finds no error in the same.


The court hence observed that

"We, thus, are of the view that there is no ground for interfering with the impugned judgment/order of the High Court. We have noted that regular bail application under Section 439 Cr.P.C. was filed before the Omerga Court by the appellants, which was withdrawn and we are of the view that it is open for the appellants to file regular bail application before Omerga Court under Section 439 Cr.P.C. afresh, which may be considered on merits without being influenced by any observations made by the order passed by the High Court in the impugned judgment or observations made by us. We further observe that bail application to be filed by the appellants under Section 439 Cr.P.C. be considered and decided expeditiously."(Para 13)

Hence, the appeal stands dismissed.



M. Maheswari


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