Summary
The first accused in the murder of former MP Y.S. Vivekananda Reddy got default bail under Section 167(2) CrPC after the State police failed to file a charge-sheet in time. The CBI later took over the investigation. The Andhra Pradesh High Court refused to cancel his bail, holding that default bail could not be cancelled on the merits. The Supreme Court disagreed. Default bail is not granted on the merits, and under Section 167(2) the accused is deemed released under Chapter XXXIII. Following Aslam Babalal Desai, filing a charge-sheet alone is not enough to cancel it. But such bail can be cancelled under Sections 437(5) and 439(2) where the charge-sheet makes out strong, special grounds of a non-bailable offence. The application was remitted to the Telangana High Court.
Issues
- Whether bail granted by default under the proviso to Section 167(2) CrPC can, after the charge-sheet is filed, be cancelled on merits under Sections 437(5) and 439(2) CrPC, and on what grounds.
Provisions considered
- Section 167(2) proviso, Code of Criminal Procedure, 1973Release for the investigating agency's failure to complete investigation in time is an order on default, not on merits; the deeming fiction places it under Chapter XXXIII without converting it into a merits order. (¶¶ 8.1, 9.3, 9.4)
- Sections 437(5) and 439(2), Code of Criminal Procedure, 1973Default bail may be cancelled under these provisions on the usual grounds of abuse of liberty and also where the charge-sheet discloses strong special grounds that a non-bailable offence was committed. (¶¶ 9.4, 9.5, 9.7, 9.8, 10)
Held
- Following Aslam Babalal Desai, Raghubir Singh and Abdul Basit, mere filing of a charge-sheet after default bail does not justify cancellation, but bail can be cancelled on merits where the charge-sheet makes out a strong case of a non-bailable crime and special reasons exist; Mohamed Iqbal Madar Sheikh is not to the contrary. (¶¶ 9, 9.4, 9.5, 9.6, 9.7, 10)
- There is no absolute bar to cancelling default bail on merits; holding otherwise would reward lethargic, negligent or collusive investigation, allowing even accused of grave offences to escape custody through a convenient investigating officer. (¶¶ 11, 12)
- Since the High Court did not consider the cancellation application on merits, the matter is remitted; as the trial had been transferred to the CBI Special Court, Hyderabad by the judgment of 29.11.2022, the application is transferred to the Telangana High Court for decision on merits. (¶¶ 3, 13, 14)
Result
Criminal Appeal No. 37 of 2023 allowed; the Andhra Pradesh High Court order dated 16.03.2022 in Criminal Petition No. 788 of 2022 quashed and the CBI's application under Section 439(2) CrPC remitted to the Telangana High Court for fresh decision on merits.