An Accused Who Was Released On Default Bail Cannot Be Re-arrested On Filing Of Charge Sheet: Supreme Court

The Supreme Court has held that an accused who was released on default bail cannot be re-arrested on filing of charge-sheet by police

In this case, Kamlesh was accused of committing offences under Sections 406, 409, 420, 467, 468, 471, 477-A, 201, 120-B of Indian Penal Code and Section 5 of the Prize Chits Money Circulation Scheme (Banning Act), 1978 and Section 65 of the Information and Technology Act. His application for default bail under Section 167(2) of the Code of Criminal Procedure on the ground that charge sheet was not filed within the prescribed period, was allowed by the High Court. While granting bail, the High Court held that the accused can be re-arrested after the charge sheet is filed.

The accused approached the Apex Court challenging the part of the High Court order which directed re-arrest on filing of the charge sheet. The contention was that the same is contrary to the law laid down by this Court in Bashir v. State of Haryana [(1977) 4 SCC 410] wherein it was held that it is open to the prosecution to file an application for cancellation of bail on the grounds known to law and the receipt of the charge sheet in Court can by itself be no ground for cancellation of bail. Opposing his plea, the state contended that the High Court has the power to impose any condition while granting bail under Section 437(3) and 439(2) of Cr.P.C.

While allowing the appeal, the bench comprising Justices L. Nageswara Rao, Navin Sinha and Indu Malhotra observed thus:

It is clear from the judgment of this Court in Bashir's case (supra) that filing of charge sheet by itself cannot be a ground for cancellation of bail. Bail granted under Section 167 Cr.P.C. can be cancelled on other grounds available in law to the prosecution. In view of the aforesaid discussion, the finding recorded in paragraph 17 of the judgment of the High Court is set aside.

In Bashir (Supra), the Supreme Court had observed that the power of the court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under section 437(1) or (2) and these provisions are applicable to a person who has been released under section 167(2). "Under section 437(2) when a person is released pending inquiry on the ground that there are not sufficient grounds to believe that he had committed a non-bailable offence may be committed to custody by court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. As the provisions of section 437(1), (2) and (5) are applicable to a person who has been released under section 167(2) the mere fact that subsequent to his release a challan has been filed is not sufficient to commit him to custody.", it was held.

Case: Kamlesh Chaudhary vs State Of Rajasthan [SLP (Crl.) No. 5715/2020]
Coram: Justices L. Nageswara Rao, Navin Sinha and Indu Malhotra
Counsel: Adv S. Hari Haran, AAG Ashish Kumar

Citation: LL 2021 SC 8

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