Default Bail- 167(2) CrPC- Challan Incomplete- Absence of FSL Report- Incomplete Chargesheet

Title

Relevant Findings

PUNJAB AND HARYANA HIGH COURT

Before:- Karamjit Singh, J.

CRR-933 of 2022(O&M). D/d. 1.6.2022.

Rohtash @ Raju – Petitioner

Versus

State of Haryana – Respondent

Default Bail – Application seeking extension of time for filing of complete chargesheet should be supported by a report of public prosecutor, which indicates the progress of the investigation and further specify the compelling reasons for seeking detention of accused beyond period of 180 days.

A. Criminal Procedure Code, 1973 Section 167 Narcotic Drugs and Psychotropic Substances Act, 1985 Sections 22C, 27A and 37 Default Bail – Challan was presented without FSL report – Application submitted for extension of time was not accompanied by report of public prosecutor, thus same was not in accordance with law – Report of FSL goes to root of case and is a material document and as such, filing of challan without same is not to be treated as complete challan – Order rejecting default bail set aside.

[Para 6]

B. Criminal Procedure Code, 1973 Section 167 Default Bail – Extension of Time – Application seeking extension of time for filing of complete chargesheet should be supported by a report of public prosecutor, which indicates the progress of the investigation and further specify the compelling reasons for seeking detention of accused beyond period of 180 days.

PUNJAB AND HARYANA HIGH COURT

Before:- Arun Kumar Tyagi, J.

CRR No. 3294 of 2019 (O&M). D/d. 27.2.2020.

Raju Singh – Petitioner

Versus

State of Punjab – Respondent

NDPS – While considering default bail, the merits of the case could not be considered – Default bail can not be denied on the ground of rejection of his application for regular bail earlier and that he is habitual offender due to his involvement in other cases.

Narcotic Drugs and Psychotropic Substances Act, 1985 – Criminal Procedure Code, 1973, Sections 167, 173 and 401 – Default Bail – Application dismissed by Special Court, on the grounds that in the absence of FSL report, it could not ascertained whether the contraband recovered fell in the category of commercial quantity or non-commercial quantity and that the petitioner was involved in eight cases including six cases under the NDPS Act and his application for grant of regular bail had already been dismissed – Held that since even the total quantity of the contraband recovered did not fall in the category of commercial quantity, there was no justification to reject the application for grant of default bail on the ground of non-receipt of FSL report – Petitioner entitled to grant of default bail under Section 167(2) on the ground of not filing of report under Section 173(2) by the police within the period of sixty days.

DELHI HIGH COURT

Before:-Mr. Subramonium Prasad, J.

Bail Appln. 1168 of 2021 & Crl.M.(Bail) 369 of 2021. D/d. 5.7.2021.

In The Matter of: Saurabh Bali – Petitioner

Versus

State – Respondent

Even if FSL report is not filed, Magistrate, on basis of charge-sheet filed which was within stipulated time, could take cognizance of offence.

A. Criminal Procedure Code, 1973 Sections 167(2) and 173(2) Indian Penal Code, 1860 Sections 376, 377, 328, 323 and 506 Default bail – Entitlement – Whether the police had filed an incomplete charge-sheet and whether the Magistrate take cognizance on the basis of the report filed on 09.11.2020? – Allegations that accused committed rape with prosecutrix – A complete reading of the charge-sheet would show that only the report from the FSL were awaited and the same were to be filed once they were available – FSL report would be used only to corroborate the version of the prosecution and the prosecutrix – Even if FSL report not filed, Magistrate, on basis of charge-sheet filed on 09.11.2020 which was within stipulated time, could take cognizance of offence – Accused not entitled to default bail .

[Paras 8, 10 and 14]

B. Criminal Procedure Code, 1973 Section 439 Indian Penal Code, 1860 Sections 376, 377, 328, 323 and 506 Regular bail – Prosecutrix alleged that she had been raped by the accused – Present was not a case of promise of marriage or one where the petitioner and the prosecutrix were in any form of relationship with each other and the relationship going sour – Nothing to suggest that there was any reason for the prosecutrix to make false allegation against the petitioner or to falsely implicate him and that too for an offence of rape – Statement of the prosecutrix alone was sufficient for the trial to go on – There was no reason to disbelieve the prosecutrix – Prosecutrix stated that she was being threatened – Prosecutrix was a young student – Accused was aged 28 years and was a man of means – Accused was not entitled to be released on bail till the prosecutrix was examined – Investigation was complete, supplementary charge-sheets have been filed – Bail not granted.

PUNJAB AND HARYANA HIGH COURT

Before:-Mr. Rajbir Sehrawat, J.

CRR No.766 of 2019 (O&M). D/d. 19.7.2019.

Sunil Kumar Gupta – Petitioner

Versus

State of Haryana – Respondent

Criminal Procedure Code, 1973 Section 167(2) Drugs and Cosmetics Act, 1940 Sections 18C, 18A, 17 and 26A Narcotic Drugs and Psychotropic Substances Act, 1985 Section 22 Default bail – Challan not filed by police in terms of and within period prescribed by Section 167 Criminal Procedure Code – Fact not disputed that FSL report was not filed along with the challan – Even if FSL report is filed subsequently, before release of petitioner, but after expiry of statutory prescribed under Section 167(2) Criminal Procedure Code then also accused would be entitled to default bail – Hence, decline of default bail – Impugned order set aside – Release of accused.

PUNJAB AND HARYANA HIGH COURT

Before:- Jaishree Thakur, J.

CRR-1286 of 2020 (O&M). D/d. 2.2.2021.

Devender – Petitioner

Versus

State of Haryana – Respondents

Criminal Procedure Code, 1973 Sections 167 and 439 Narcotic Drugs and Psychotropic Substances Act, 1985 Section 16 Default bail – Challan was presented without being accompanied by FSL report thus would be treated to be an incomplete challan – FSL report was submitted after expiry of stipulated period of 180 days – Hence, grant of default bail – Criminal Revision No. 4659 of 2015, Relied on.

PUNJAB AND HARYANA HIGH COURT

Before:- Arvind Singh Sangwan, J.

CRM-M No. 677 of 2019 (O&M), CRM-M No. 606 of 2019 (O&M). D/d. 3.5.2019.

Baltej Singh @ Chiri and another – Petitioners

Versus

State of Haryana and another – Respondents

Criminal Procedure Code, Section 167 – Indian Penal Code, 1860 Section 120B Narcotic Drugs and Psychotropic Substances Act, 1985 Sections 36A(4) and 15 Default Bail – Police submitted the report under Section 173 Cr.P.C. without the report of the Forensic Science Laboratory ( FSL ) – Therefore, incomplete challan was submitted – One of the co-accused already been granted regular bail – On account of default by the prosecution agency in not completing the investigation within the prescribed time an accused becomes entitled to bail irrespective of nature of offence for which he is charged – Petitioners held entitled to default bail .

PUNJAB AND HARYANA HIGH COURT

Before:- Suvir Sehgal, J.

CRR-432 of 2022. D/d. 19.04.2022.

Kulwinder Singh – Petitioner

Versus

State of Punjab – Respondent

Bail – Default Bail – POCSO – Non-submission of chemical examiner or FSL report would not amount to filing of an incomplete challan – Bail declined.

Criminal Procedure Code, 1973 Section 167 Protection of Children from Sexual Offences Act, 2012 Section 4 Default Bail – Rape with Minor – Plea of false implication due to civil dispute between the parties – Non-submission of chemical examiner or FSL report would not amount to filing of an incomplete challan entitling an accused to seek default bail – For an offence of sexual assault, the final report would be complete on the statement of the prosecutrix and FSL report can be used only to corroborate the version of the prosecution – Bail declined.

PUNJAB AND HARYANA HIGH COURT

Before:- Arvind Singh Sangwan, J.

CRR No. 168 of 2019 (O&M). D/d. 26.3.2019.

Tarlok and others – Petitioners

Versus

State of Haryana – Respondent

Default bail – Incomplete challan presented before trial Court – Petitioner entitled to bail under section 167(2) Cr.P.C. – Bail held granted.

Criminal Procedure Code, 1973 Section 167(2) Default bail – Grant – Accused petitioners caught with psychotropic substance – Incomplete challan presented in Court as FSL report was not submitted – Accused petitioners moved application for grant of default bail which was dismissed – Trial Court directed to release accused petitioners on bail subject to furnishing bail bonds to its satisfaction. 2018(4) RCR (Criminal) 433 Relied upon.

PUNJAB AND HARYANA HIGH COURT

Before:- Anupinder Singh Grewal, J.

CRR-1300 of 2021 (O&M). D/d. 28.10.2021.

Bhim Sain – Petitioner

Versus

State Of Haryana – Respondent

Offence under NDPS – Challan filed without FSL report, accused entitled for default bail.

Narcotic Drugs and Psychotropic Substances Act, 1985 Section 20(b) Criminal Procedure Code, 1973 Section 167(2) Default bail – Held, challan filed without FSL report, accused entitled to be released on default bail in terms of Section 167(2) Cr.P.C., 1973.

PUNJAB AND HARYANA HIGH COURT

Before:-Mr. Sureshwar Thakur, J.

CRR-1780 of 2021 (O&M). D/d. 27.07.2022.

Jaswinder Singh – Petitioner

Versus

State Of Haryana – Respondent

Default bail – More than 180 days have elapsed and investigations are not yet complete – Directions, both upon Secretary Home, Punjab, and, upon, DGP Punjab, and, also upon Secretary Home, Haryana, and, DGP Haryana, as well as upon, Administrator U.T. Chandigarh, besides, upon, DGP, U.T. Chandigarh to complete probe.

Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 22C and 27A – Criminal Procedure Code, 1973, Section 167 – Default bail – Recovery of 700 strips (containing 10 tablets each) of Tramadol Hydrochloride Tablets 100 mg. Clovidol-100 SR bearing batch No.TVD-20301, MFG-AUG-2020, EXP-JUL- 2023 (total 7000 tablets), hence weighing 3 kg 714 gram from petitioner and co-accused – Held, more than 180 days have elapsed and investigations are not yet complete – Directions, both upon Secretary Home, Punjab, and, upon, DGP Punjab, and, also upon Secretary Home, Haryana, and, DGP Haryana, as well as upon, Administrator U.T. Chandigarh, besides, upon, DGP, U.T. Chandigarh –

(i) They shall ensure that all investigating officers holding investigations into NDPS cases, hence ensure theirs making earliest, and, promptest, despatches of sealed sample cloth parcels, through validly drawn road certificate, to all FSLs concerned – FSLs concerned, to which sample cloth parcels are sent, be ensured to be adequately man powered, to deal with heavy docket, if any.

(ii) However, since surmisal reasons with respect to heaviness of dockets do emerge, and, hence lead to delayed reports being made, upon stuff inside sample cloth parcels, as sent to FSLs concerned – Therefore, Court deems fit, and, just, to hence constitute a Regulatory Mechanism rather imperatively for obviating emergence of above stated conundrum – Direction that Governments of Punjab, Haryana, and, also U.T. Chandigarh, to constitute in their respective States/Territories, a Steering Committee, headed by officer not less than rank of a Secretary, for not only drawing statistics, in respect of heaviness of dockets at FSLs concerned, but also to quarterly garner statistics, from their respective FSLs concerned, about the volume of work pending at the respective FSLs concerned, and, to ensure that promptest opinions, are made by the Chemical Analysts’, at the respective FSLs concerned, on the stuff sent to the FSLs ‘ concerned, for theirs’ making examinations, and, also opinion(s)’ thereons – Respectively constituted Steering Committees, shall also keep track of relevant despatches, rather through respective Superintendents of Police of police districts concerned, and, shall also keep track that with respect to seizures, investigating officers concerned, not later than two weeks since making of relevant seizure, depositing them, in malkhanas concerned, and, shall also ensure that within a week thereafter, sample parcels are sent for examinations, of stuff inside sample parcels, to respective FSLs concerned.

(iii) Data be shared with the prosecuting agency, and, if yet, it makes unfoldments, that despite sufficiency of manpower, load of stuff to be examined inside sample cloth parcels concerned, is immense, thereupon the prosecution may, within the ambit of the proviso underneath sub-Section 4 of Section 36A of NDPS Act, and, obviously on the above prima-facie credible, and, weighty reason, hence seek leave of Court, to grant extension, for filing of supplementary report, before jurisdictionally empowered Court, necessarily for ensuring appendings therewith, report of FSLs concerned.

PUNJAB AND HARYANA HIGH COURT

Before:-Mr. Gurvinder Singh Gill, J.

CRR-712 of 2021 (O&M). D/d. 14.10.2021.

Vinay Kumar @ Vicky – Petitioner

Versus

State of Haryana – Respondent

Offence under NDPS Act – Report of FSL forms foundation of case of prosecution and in case same is not there entire case of prosecution falls to ground – Accused entitled for default bail.

Criminal Procedure Code, 1973, Sections 167(2) and 173 – Default bail – Offence under NDPS Act – Report of FSL forms foundation of case of prosecution and in case same is not there entire case of prosecution falls to ground – Petitioner entitled for default bail .