Accused Has Right To Default Bail Where Prosecution Files Preliminary Or Incomplete Chargesheet: Delhi High Court

The Delhi High Court has ruled that an accused has a right to be released on default bail where the prosecution files a preliminary or incomplete chargesheet within the statutory period.

Justice Amit Sharma said the fundamental right to personal life and liberty under Article 21 of the Constitution and its co-relation with 167(2) of the CrPC has been clearly established by way of judicial precedents over the years.

“The right of an accused to default bail under Section 167(2) of the CrPC would arise in a case where the chargesheet is not filed within the stipulated period. The other circumstance giving rise to the right to default bail would be in case where the prosecution files a preliminary or incomplete chargesheet, within the period prescribed for offences mentioned therein and in that process, defeating the right of the accused to statutory bail,” the court said.

The court made the observations while denying default bail to an accused in a murder case. The FIR was registered in 2021 for the offences under Section 302 and 34 of Indian Penal Code, 1860 and Section 25 and 27 of the Arms Act.

The accused was arrested on September 08, 2021. He was remanded to two days of policy custody after which he was sent to judicial custody. Upon completion of investigation, the chargesheet was filed on December 02, 2021.

On March 14, the first supplementary chargesheet was filed vide which the FSL report in relation to the pistol recovered from a co-accused. A second supplementary chargesheet was filed on April 18 vide which the FSL report in relation to the DNA analysis of blood samples was placed on record.

The sessions court in June dismissed accused's application seeking default bail under Section 167 of CrPC observing that as complete chargesheet was already filed, the right to statutory bail of the accused stood defeated. The trial court said that the only investigation which remained pending was not within the IO’s control and depended on external factors like report from the external agencies.

It was accused's case that although the chargesheet was filed within the stipulated period of time, it was incomplete and therefore, he was entitled to default bail. He stated that the main chargesheet and supplementary chargesheets were incomplete on account of non-filing of certain documents.

On the other hand, the prosecution contended that the investigation qua the accused was complete and that there was sufficient evidence against him which was placed on record alongwith the main chargesheet, including the statements of eye-witnesses.

Rejecting the plea, the court said the investigation qua accused was complete at the time the first chargesheet was filed and that there was sufficient material on record against him.

“Mere non-filing of the FSL Report is not sufficient to conclude that the chargesheet filed in the present case was incomplete. The said report can be filed by way of a supplementary chargesheet. In any case, the case of the prosecution is primarily based on the eye witness account of the complainant,” the court said.

Furthermore, Justice Sharma said that even after the filing of the chargesheet, further investigation can continue under Section 173(8) of the CrPC.

“The opinion of the expert can always be filed before the learned Trial Court by way of supplementary chargesheet. is further pertinent to note that in the present case, the learned Trial Court had taken the cognizance after the chargesheet was filed and the said order was not challenged by the petitioner,” the court said.

Justice Sharma however granted liberty to the accused to approach the Trial Court seeking bail on merits. The court clarified that the application before it was limited to the issue of default bail and nothing in the order was an opinion on the merits of the case.

Advocates Dhruv Gupta & Anubhav Garg appeared for the petitioner.

APP Aman Usman appeared for the State.

Title: Sanjay Kumar Pundeer v. State

Citation: 2023 LiveLaw (Del) 838