The Punjab & Haryana High Court modified the order passed by ASJ to the extent that though the petitioner is admitted to default bail under Section 167(2) CrPC, but said bail can be cancelled in case prosecution is able to make out a strong case and show special reasons that accused has committed a non-bailable crime and by considering the grounds set out under Sections 437(5) and Section 439(2) CrPC.

The High Court held so while considering a petition filed under Section 482 CrPC, seeking to set aside the order passed by the Additional Sessions Judge, Jhajjar, whereby petitioner has been granted interim bail till filing of challan & FSL report on an application under Section 167(2) CrPC for grant of default bail, in a case arising out of FIR under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [NDPS Act] registered at Police Station Bahadurgarh, Jhajjar.

A Single Judge Bench of Justice Deepak Gupta observed that “though merely on filing of the charge-sheet, a default bail granted under Section 167(2) CrPC cannot be cancelled, but if based on the charge-sheet, a strong case is made out and on special reasons being made out from the charge-sheet that the accused has committed a non-bailable crime and considering the grounds set out in Section 437(5) and Section 439(2) CrPC, then his bail can be cancelled on merits and that Courts are not precluded from considering the application for cancellation of bail on merits”.

Senior Advocate Rakesh Nehra appeared for the Petitioner, whereas AAG Vipul Sherwal appeared for the Respondent.

The brief facts of the case were that as per the prosecution allegations, 21.54 gms of MDMA was recovered from the possession of petitioner by a police party based on a secret information. After the petitioner was arrested, the investigating agency failed to file the report under Section 173(2) CrPC within the stipulated time period. Hence, the petitioner applied for default bail under Section 167(2) CrPC after spending 196 days in judicial custody. Thereafter, the ASJ, Jhajjar granted interim bail to the petitioner till the FSL report was presented to the Court along with the challan.

After considering the submission, the Bench observed that if the investigating agency fails to file the final report/challan/charge-sheet within the prescribed period, the accused gets an indefeasible right to grant of default bail under Section 167(2) CrPC.

The Bench further observed that the said right cannot be defeated even if, after the moving of the application seeking default bail, the charge-sheet has been filed by the investigating agency.

However, the question is as to till when the tenure of the said default bail will extend; or whether the said default bail cannot be cancelled in any circumstances, added the Bench.

The High Court therefore granted bail, but made it clear that merely filing the FSL report along with the challan in itself will not be considered a reason for cancelling the default bail.

Cause Title: Bharat Kumar v. State of Haryana

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Punjab & Haryana High CourtJustice Deepak Gupta

Pankaj Bajpai