Is Accused Entitled To Default Bail If Charge Sheet Found Defective & Returned For Curing Defects After Statutory Period? Kerala High Court Answers

The Kerala High Court recently considered whether in cases where final report is filed within the statutory time limit of investigation, accused person’s entitlement for bail under Section 167(2) CrPC would subsist, if the charge sheet is found defective, and returned for curing the defects after the statutory time limit is over. 

Single Judge Bench of Justice V.G. Arun observed, 

"when faced with the Public Prosecutor's application seeking extension, or that of the accused demanding statutory bail, the court's consideration should be whether the final report was filed after completing the investigation. If the final report is found to have been filed after completing the investigation in all respects, minor defects in the report, by itself, will not confer the accused with any right to be enlarged on default bail. On the other hand, if the final report is filed without completing the investigation, in order to stultify the mandate of Section 167(2) and later returned to the investigating officer for completing the investigation, that would definitely entitle the accused to demand that he be released on default bail, if the final report, after completing the investigation and curing the defects, is not re-submitted in court before the 180th day".

The petitioners herein were accused of offences punishable under Sections 20(b)(ii)C, 27A and 29 of the NDPS Act. The crime was registered on the allegation that the accused had conspired, and secured possession of 30.200 kg of Ganja by sending the contraband through courier from Andhra Pradesh. The first and second accused persons in the crime were caught while receiving the courier, and it was based on their statement that the 6th and 7th accused persons, who are the present petitioners, were implicated and arrested. The petitioners moved an application for bail under Section 167(2) Cr.P.C. since the investigation was not completed within the statutory time limit of 180 days. However, during the pendency of that application, the investigation was completed and the final report was filed on the 179th day. Pursuant to the same, the petitioners' application for bail was rejected. It is against the same that the petitioners have approached the High Court. 

It was contended by the counsels for the petitioner that the final report that had been filed was defective and had been kept pending in the Special Court for verification up to November 9, 2022. Prior to this, the petitioners had filed an application on November 4, 2022 for obtaining certified copy of the final report, which had been returned on November 15, 2022 on the ground that it was not available with the Court. It was pointed out by the counsels that as on the 180th day, only a defective final report was on record, which was not sufficient to curtail the petitioners' right to be enlarged on bail on the 181st day. It was added that the Sessions Judge had been alerted about the pendency of the final report without verification only on receiving the application seeking the copy, pursuant to which the final report was verified and finding it to be defective an order was passed directing the investigating officer to cure the defects and re-submit the final report within 15 days. It was thus, only resubmitted on November 18, 2022. 

It was argued by the counsels for the petitioners that unless a proper final report was filed in court, after completing investigation, the requirement of Section 167(2) would not be satisfied. "A truncated or defective report cannot result in the accused’s valuable right to bail being defeated," it was emphasized. The counsels also relied upon Annexure III Circular of the State Police Chief, which had stated the relevancy of filing time bound and defect free final reports for preventing grant of default bail to the accused.

On the other hand, the Public Prosecutor argued that since the final report had been filed before 180 days of petitioners' custody, their right to default bail was lost. "Delay in verification of the final report within the statutory time limit cannot result in default bail being granted to the accused," it was argued. 

The Court perused Section 167 Cr.P.C. and ascertained that the provision emphasized on completing the investigation at the earliest. It noted that Section 167(2) clearly stipulated that the period of custody, even if extended from time to time, could not exceed 60 days or 90 days as the case may be, and on expiry of the said period of 60 days/90 days, the accused ought to be released on bail if the investigation was not completed and final report not submitted before the Court. 

"Although, filing of final report would indicate completion of investigation, the thrust of Section 167(2) is on the investigation having been completed. This is also for the reason that as per the scheme of the Code, once a charge sheet is filed after completion of investigation, the court proceeds to the next stage, which is taking cognizance and trial," the Court observed. 

The Court noted that as per Section 36A(c) of the NDPS Act, the Special Court could exercise the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code. The Court further added that by virtue of Section 36A (4) of the Act, in respect of persons accused of offences punishable under Sections 19, 24, or 27A, or offences involving commercial quantity, the reference in Section 167(2) shall be construed as 180 days.

"Thus, the right to default bail of an accused in custody for the offences mentioned in Section 36A(4) of the Act would arise only if the investigation is not concluded and final report filed within 180 days," the Court noted.

It observed that in the present case, the final report was filed on September 12, 2020, before completion of 180 days of petitioner's custody.

"Indisputably, the final report was filed after completing the investigation. True, the final report was returned on 09.11.2022 for curing the defects and re-submitted on 18.11.2022. But, no investigation had to be conducted after the final report was returned, since the defects noted as follows: 1) Specimen Signature of A10 instead of Specimen Handwriting of A10, 2) Date is noted in Form 15 as 03.08.2022 instead of 04.08.2022, 3) Clarification in Form 15 regarding the Screenshot of a Mobile Phone".

The Court thus rejected the argument that a proper final report was not available in court as on the 180th day, and accordingly, dismissed the petition. 

Advocates D. Feroze, C.J. Jiyas, T.S. Krishnendu, and Preeti S. appeared on behalf of the petitioners. Public Prosecutor M.C. Ashi appeared on behalf of the respondents. 

Case Title: Vimal K. Mohanan & Anr. v. State of Kerala & Anr. 

Citation: 2023 LiveLaw (Ker) 110 

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