Tirath Ram vs Union Territory Of J&K

Dhiraj Singh Thakur, J

Petitioner is facing trial for offences under Section 8/15 of the NDPS Act before the Principal Sessions Judge, Ramban in connection with FIR No. 21/2020 registered with Police Station, Banihal.

As per the prosecution story, on 12.02.2020 the police party at Police Station, Banihal intercepted a truck bearing Registration No. HP71-4052 at about 17.30 hours and upon its search 02 plastic bags weighing approximately 25 kg each was recovered from the possession of the driver Tirath Ram- petitioner herein and the conductor. Both these bags are alleged to have contained Poppy Straw.

A challan was presented in the Court on 22.06.2020 i.e. beyond the period of 60 days, as prescribed under Section 167(2)(a)(ii) of the Code of Criminal Procedure. It thus becomes clear that the petitioner was arrested on 12.02.2020 and the period of 60 days in terms of Section 167(2)(a)(ii) above was to expire on 12.04.2020. Having failed to present the challan within 60 days period, which ultimately was presented on 22.06.2020, an application was filed by the petitioner before the Sessions' Court at Ramban bearing File No. 46/ Bail, seeking bail on account of the failure of the investigating authority to file the chargesheet within the time prescribed. This prayer was, however, rejected by the Court below primarily on the ground that the challan had since been filed and considering the seriousness of the accusation against the petitioner, it would be against the interest of the society to grant such a bail.

Learned counsel for the petitioner states that the Court below had totally mis-applied itself to the issues which it ought to have considered in law in regard to 'default bails'. It was stated that while rejecting the prayer for grant of bail, the Court below had applied the general principles for grant of bail which it ought not to have done, as failure to present the challan within the time prescribed under Section 167(2)(a)(ii) above would entitle the petitioner to grant of bail as a matter of right.

The issue with regard to grant of default bail is no longer res integra. In Sanjay Dutt Vs State through C.B.I. Bombay reported in (1994)5 SCC 410 it was held thus:-

"...........The "'indefeasible right" of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the CrPC in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur vs. State of Maharashtra [(1994) 4 SCC 602], is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the CrPC. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage..."

The Apex Court in Union of India vs. Nirala Yadav (2014) 9 SCC 457 had an occasion to review the entire judgments on the subject and crystallized the same in conclusion No. 3, which reads as under:

"(3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.‟

The aforesaid view was further reiterated in Rakesh Kumar Paul vs. State of Assam 2018 CRI. L. J. 155. This was a case in which chargesheet had not been presented within the time prescribed under Section 167(2) of the CrPC and the applicant had applied for bail on failure of such presentation of the chargesheet. The Apex court in those circumstances held thus:

"46. It was submitted that as of today, a charge sheet having been filed against the petitioner, he is not entitled to "default bail‟ but must apply for regular bail - the "default bail‟ chapter being now closed. We cannot agree for the simple reason that we are concerned with the interregnum between 4th January, 2017 and 24th January, 2017 when no charge sheet had been filed, during which period he had availed of his indefeasible right of "default bail‟. It would have been another matter altogether if the petitioner had not applied for "default bail‟ for whatever reason during this interregnum. There could be a situation (however rare) where an accused is not prepared to be bailed out perhaps for his personal security since he or she might be facing some threat outside the correction home or for any other reason. But then in such an event, the accused voluntarily gives up the indefeasible right for default bail and having forfeited that right the accused cannot, after the charge sheet or challan has been filed, claim a resuscitation of the indefeasible right. But that is not the case insofar as the petitioner is concerned, since he did not give up his indefeasible right for "default bail‟ during the interregnum between 4th January, 2017 and 24th January, 2017 as is evident from the decision of the High Court rendered on 11th January, 2017. On the contrary, he had availed of his right to "default bail‟ which could not have been defeated on 11th January, 2017 and which we are today compelled to acknowledge and enforce.

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The petitioner is held entitled to the grant of "default bail‟ on the facts and in the circumstances of this case. The Trial Judge should release the petitioner on "default bail‟ on such terms and conditions as may be reasonable. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the petitioner on cogent grounds in respect of the subject charge and upon arrest or re-arrest, the petitioner is entitled to petition for grant of regular bail which application should be considered on its own merit. We also make it clear that this will not impact on the arrest of the petitioner in any other case.‟

In the present case, the Court below infact has not at all dealt with the right of the petitioner for grant of default bail, even when the application filed by him had specifically mentioned it so. It is also not denied that the challan was filed beyond the period of 60 days and, therefore, in those circumstances, notwithstanding the subsequent filing of the challan, the petitioner could not have been deprived of his right to the benefit of default bail.

Be that as it may, this application is allowed. The petitioner is held entitled to bail in the aforementioned FIR, which is pending trial in the Court of learned Principal Sessions Judge, Ramban subject to his furnishing personal bond to the tune of Rs.50,000/- with two sureties each of the like amount to the satisfaction of the learned Presiding Officer, subject to the following conditions:-

a. that the petitioner shall make himself available before the Court on each and every date of hearing and if prevented by any reason to do so shall seek exemption from appearance by filing an appropriate application;

b. that he shall not tamper with the prosecution evidence nor induce or threaten any of the witnesses in the case.

It is, however, made clear that this would not prohibit or otherwise prevent the arrest or re-arrest of the petitioner on cogent grounds in respect of the subject charge and upon arrest or re-arrest, the petitioner would be entitled to apply for grant of regular bail, which should be considered on its own merits.

Bail application is, accordingly, disposed of.