Practise Of Keeping Default Bail Applications Pending Till Chargesheet Is Filed Must Be Strongly Discouraged: Calcutta High Court
The Calcutta High Court has held that the practice of keeping applications for "default bail" pending by trial courts till a chargesheet is submitted by investigating agencies must be strongly discouraged.A division bench Justices Arijit Banerjee and Apurba Sinha Ray held: "...Some courts keep the application for “default bail” pending for some days so that in the meantime a charge-sheet...
The Calcutta High Court has held that the practice of keeping applications for "default bail" pending by trial courts till a chargesheet is submitted by investigating agencies must be strongly discouraged.
A division bench Justices Arijit Banerjee and Apurba Sinha Ray held:
"...Some courts keep the application for “default bail” pending for some days so that in the meantime a charge-sheet is submitted. While such a practice both on the part of the prosecution as well as some courts must be very strongly and vehemently discouraged, we reiterate that no subterfuge should be resorted to, to defeat the indefeasible right of the accused for “default bail” during the interregnum when the statutory period for filing the charge-sheet or challan expires and the submission of the charge-sheet or challan in court.”
The petitioner was arrested on March 17, 2024, for alleged commission of offence under Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act').
On the 84th day after the arrest of the petitioner, the Investigating Agency filed the charge sheet but without the FSL report of the seized substance suspected to be a contraband item and on September 5, 2024, the 172nd day after the petitioner's arrest, his prayer for bail was rejected by the Trial Court.
On the 179th day after arrest, the petitioner approached the High Court seeking bail, and on the 200th day after the petitioner's arrest, the Investigating Officer filed a supplementary charge sheet with the FSL report which confirmed the presence of narcotics in the seized goods.
Advocate for the petitioner submitted that the petitioner's application for bail was pending before this Court when the supplementary charge sheet was filed along with the FSL report.
Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita 2023 (in short 'BNSS') stipulates that an accused person shall be released on bail on the expiry of 90 days or 60 days, and Section 187(9) of BNSS stipulates that the investigating officer has to satisfy the Court that there are special reasons for which further investigation beyond 6 months from the date of arrest of the accused person, is required, counsel submitted.
It was further submitted that irrespective of whether or not the petitioner filed his bail application before this Court after expiry of the statutory period of 180 days or prior thereto, upon expiry of 180 days, it was incumbent upon the Court to make it known to the petitioner that he is entitled to statutory bail if he is prepared to and in fact furnishes bail bond, but this was not done.
The petitioner's bail application was not taken up for hearing before December 19, 2024. In the meantime, on October 3, 2024, the Investigating Officer filed supplementary charge sheet along with the Chemical Report, it was argued,
Counsel for the state argued that the petitioner had approached the High Court for bail before the statutorily stipulated 180 days and that he had not exercised his right for default bail before the magistrate, and hence this plea was premature.
Courts verdict
The question raised by the court was whether an accused in judicial custody in connection with an NDPS case, files an application for bail prior to the expiry of 180 days from the date of his arrest and during the pendency of that application the period of 180 days (or one year as the case may be) expires, and charge-sheet is yet to be filed, should statutory bail be granted to the accused person on the basis of his pending application?
Court clarified that a charge sheet in an NDPS case should be understood to mean a charge sheet accompanied by the chemical report of the concerned forensic science laboratory in respect of the articles seized from the accused person.
In the present case, it is not in dispute that the chemical report was filed on October 3, 2024. In the meantime, on September 5, 2024, the petitioner had applied to the Trial Court for bail. Such prayer was rejected. On September 12, 2024, (i.e., the 179th day after the petitioner's arrest), the petitioner affirmed the present bail application before the Oath Commissioner, Calcutta High Court and thereafter filed the same, court noted.
Therefore, it observed that on the 181st day after the petitioner's arrest, there was no valid charge-sheet since the charge-sheet was filed without the chemical report. The question is, whether we should grant statutory bail to the petitioner treating this application as one for default bail, court asked.
It was noted that it is not as if the petitioner did not make any application for default bail – such an application was definitely made (if not in writing) then at least orally before the High Court.
In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for “default bail” or an oral application for “default bail” is of no consequence. The court concerned must deal with such an application by considering the statutory requirements, namely, whether the statutory period for filing a charge-sheet or challan has expired, whether the charge-sheet or challan has been filed and whether the accused is prepared to and does furnish bail, the bench held.
Accordingly, it allowed the plea and granted bail.
Case: Rajiv Mondal @ Rajib -Vs.- The State of West Bengal
Case No: CRM (NDPS) 1509 of 2024
