2019 (11) TMI 1507 - HC - Indian Laws

Cancellation of Bail granted - NDPS Act - it had been stressed that on the date when the bail was granted, an application had been filed on behalf of this accused under Section 167(2) Cr.P.C., seeking to release the said accused on bail - HELD THAT - A perusal of the order of the Learned Special Judge, shows that he was primarily concerned with the fact that the prosecution had not filed any petition seeking extension of time to file final report. However, the Learned Judge had completely overlooked to examine the contents of the additional complaint filed by the prosecution. No discussion had been made on the effect of the additional complaint, since two further accused had been included and whether process is to be served on them or not and whether additional documents can be taken into consideration or not. The Learned Judge only examined the petition under Section 167(2) of Cr.P.C., which itself was filed only on the 181st day and stating that an indefeasible right had accrued to the respondent/A11, the Learned Judge had granted bail. Thus the Court of Sessions conducts work from the time it sits till the time it rises. No specific advantage, can be taken that a petition filed at 10.30 a.m. should be taken into consideration first and a complaint filed at 04.25 p.m. should be rejected, only because it was filed later in the evening. The entire reasoning cannot stand scrutiny - since the prosecution had filed an additional complaint, on the same date when the accused had also availed of his remedy under Section 167(2) Cr.P.C., implicating two further accused, enclosing further documents and further statements and also stating that the mobile phones had been recovered which have been forwarded to forensic the indefeasible right which had accrued to the accused, the Learned Judge was wrong in granting bail. The bail granted is cancelled - Petition allowed.

Summary

Issues Involved:
1. Maintainability of the petition under Section 439(2) Cr.P.C.
2. Examination of the grounds for cancellation of bail.
3. Indefeasible right to bail under Section 167(2) Cr.P.C.
4. Timing and filing of the additional complaint by the prosecution.
5. Interpretation of "availed of" in the context of bail rights.

Detailed Analysis:

1. Maintainability of the petition under Section 439(2) Cr.P.C.:
The court examined whether it could exercise jurisdiction under Section 439(2) Cr.P.C. to cancel bail granted under Section 167(2) Cr.P.C. The court concluded that it could indeed exercise this jurisdiction, referencing several precedents including Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau, New Delhi, and others.

2. Examination of the grounds for cancellation of bail:
The court noted that the Special Judge had granted bail primarily because the prosecution had not filed a petition for an extension of time to submit the final report. However, the Special Judge failed to consider the additional complaint filed by the prosecution, which included further accused and additional documents. This oversight was deemed significant by the High Court.

3. Indefeasible right to bail under Section 167(2) Cr.P.C.:
The court discussed the concept of "indefeasible right" to bail, which accrues if the investigation is not completed within the prescribed period. The court referred to the Supreme Court's ruling in Sanjay Dutt v. The State, through C.B.I. Bombay, which held that this right does not survive once a charge-sheet is filed if it has not been availed of. The court emphasized that the right must be enforced before the filing of the charge-sheet.

4. Timing and filing of the additional complaint by the prosecution:
The court addressed the argument that the bail application was filed in the morning, while the additional complaint by the prosecution was filed later in the evening. The court clarified that the timing within the same court day should not be a basis for granting bail. The court's hours of sitting extend throughout the day, and both submissions should be considered in their entirety.

5. Interpretation of "availed of" in the context of bail rights:
The court examined the term "availed of" as interpreted in Uday Mohanlal Acharya v. State of Maharashtra. The court concluded that the right to bail is availed when the accused files an application and offers to furnish bail. If the application is erroneously rejected and a charge-sheet is filed during the pendency of an appeal, the right to bail does not extinguish.

Conclusion:
The court found that the Special Judge erred in granting bail by not considering the additional complaint filed by the prosecution. The High Court emphasized that the indefeasible right to bail was not applicable as the prosecution had filed an additional complaint on the same day. Consequently, the bail granted was canceled, and the Investigating Officer was directed to take the accused into custody forthwith.