Can Accused Seek Default Bail If Chargesheet Filed Is Incomplete? Supreme Court Seeks CBI's View

The Supreme Court recently faced an intriguing question as to whether an incomplete chargesheet would entitle an accused to default bail under Section 167(2) of the Code of Criminal Procedure and if cognisance could be taken based on it. This question arose in a case where although the chargesheet was filed within 60 days as per section 167 CrPC, the petitioner sought default bail contending that an incomplete charge sheet should not serve as the basis for taking cognizance. This contention was rejected by both the trial court and the High Court.

The HC had observed, “what is contemplated under the scheme of Sub-Section (2) of Section 167 Cr.P.C. is the completion of investigation relating to offence against the accused and not investigation of case or filing of charge sheet under Section 173 Cr.P.C. which would be material for the purpose for determining whether the accused is entitled to the grant of statutory bail or not.”

The Supreme Court issued notice to CBI(respondent) on a Special Leave Petition challenging this judgment :

The Court observed “Whether the aforesaid understanding of the High Court as reflected in para 27 of the impugned order is a correct statement of law, needs to be determined by this Court. Let notice be issued to the respondent-CBI, returnable after two weeks.”

The  bench comprising Justices J.B. Pardiwala and Justice Manoj Mishra was hearing an appeal against J&K HC which had declined the plea for default bail by the petitioner.

In the present case, the investigating agency filed the charge sheet on 12th November 2022, well within the statutory time limit of 60 days, as mandated by Section 167 of the Code of Criminal Procedure, 1973.

Before the Court of Magistrate, the petitioner argued although the charge sheet was filed within the prescribed timeframe, it was incomplete, and in the absence of a valid and legal charge sheet on record on the 61st day of their judicial custody, they were entitled to default bail. However, this argument was rejected.

Senior Advocate Devadatt Kamat appearing on behalf of the petitioner before the Supreme Court emphasized that cognizance cannot be taken on incomplete Charge Sheets.

He argued that sending a "police report" within the meaning of Section 173(2) is permissible only upon the conclusion of the investigation. Any attempt to send a report before the investigation's culmination would not qualify as a "police report" within the context of Section 173(2) read with Section 2(r) of the Cr.P.C.

He contended that it would be inappropriate for a Magistrate to take cognizance of an offense within the framework of Section 190(1)(b) of the Cr.P.C. based on an incomplete charge sheet.

The contentions put forth and the nuanced interpretation by the High Court prompted the Supreme Court to step in and assess the correctness of this understanding.

Supreme Court's judgment in 'Ritu Chhabaria'

In April this year, a 2-judge bench of the Supreme Court had ruled in Ritu Chhabaria v. Union of India And Ors that an incomplete chargesheet filed by the investigating agency without completing the investigation will not defeat the right of the accused for default bail.

However, the Directorate of Enforcement later filed an application seeking to recall Ritu Chhabaria. Acting on the ED's recall application, a bench comprising CJI DY Chandrachud and Justice JB Pardiwala ordered that courts should defer application seeking default bail on the basis of Ritu Chhabaria judgment.

Case title: Yatin Yadav v. UT of J&K

Citation: Special Leave to Appeal (Crl.) No(s). 10107/2023

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