Bail Granted Under Section 167(2) CrPC Can Be Cancelled Under Section 439(2) CrPC: Supreme Court

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The Supreme Court held that the right of default bail of the Accused can be cancelled under Section 439(2) of the Criminal Procedure Code.

Facts of the Case

The Appellants were caught transporting 46 kg of narcotic drugs in their car. They were arrested under Section 22, 28, and 29 of the NDPS Act, 1985 (“the Act, 1985”). The Special Court at Hyderabad granted them bail. However, the High Court cancelled the bail granted under Section 167(2) Cr.P.C. With an interim order, one of the three Appellants was granted bail.

Appellant’s Arguments

No charge sheet was filed. Nor any complaint under Section 36A(d) of the Act had been filed within the 180 days. So, the accused were entitled to default bail under Section 167(2) Cr.P.C.

When the bail order was passed, the Respondents ought to have informed the Special Court, Hyderabad as to the failure of filing a combined complaint.

The Appellants are to be charged only for the offence of possession and the transport of the above-stated contraband. They have no role to play regarding its manufacture of in the factory.

Respondent’s Arguments

The Appellant’s Car was seized with 46 kg of narcotic substance, illegally manufactured in Omerga, while on its route to Chennai. The Appellants have stated that started from Omerga for Chennai. A combined charge sheet has been filed taking into consideration the entire sequence of events.

It was due to non-communication of information of combined complaint, the order granting default bail was passed by the Special Court, Hyderabad. On the same day, a letter was received by the Special Court, Hyderabad where the Special Court, Omerga has asked for the custody of the Appellant. 

On fulfilling the conditions by one of the accused, the Omerga Court released him on bail. The rest of the two accused are still in jail. 

The High Court is right to cancel the bail, as they were not entitled to default bail under Section 167(2) Cr.P.C.

Court’s Observations

The Bench noted that the High Court has been correct to state that the charge sheet has been filed well within the stipulated period of 180 days. Hence, the Appellant could not have been granted the benefit under Section 167 Cr.P.C.

Further, in Pandit Dnyanu Khot Vs. State of Maharashtra and Ors., (2008) 17 SCC 745, the bail granted under Section 167(2) Cr.P.C. was cancelled under Section 439(2) Cr.P.C.

Further, the Special Court at Omerga had jurisdiction to try the offence stated. It was only miscommunication and absence of complete facts that led to the grant of bail to the Appellants by the Special Court at Hyderabad.

Court’s Decision

The Bench upheld the cancellation of default bail by the High Court. However, the Appellants can file a fresh bail application which will not be affected by this decision.

Click here to view the Judgement.


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