High Court under Section 439 of Cr.P.C can cancel erroneously granted default bail : Supreme Court

Any default bail granted after the usual expiration of 180 days by a High Court under section Section 167 (2) Cr.P.C, by error can be cancelled by it later under section 439. This remarkable judgement was passed by the bench consisting of Justice Ashok Bhushan, Justice R. Subhash Reddy and Justice M.R Shah of the Supreme Court in the matter of Venkatesan Balasubramaniyan v The Intelligence Officer, D.R.I. Bangalore, [CRIMINAL APPEAL NO. 590 of 2015].

Around 45kgs of Methaqualone was found in a car, which is a psychotropic drug under the NDPS Act, 1985 for which the appellants were arrested under section 22, 28 and 29 of the said Act. The appellants alleged that before the Special Judge, Hyderabad when the case was taken, neither any charge sheet was filed before the Special Court Hyderabad nor any information was given to the Special Court that any charge sheet has been filed in Omerga Court, Maharashtra. Further, no complaint under Section 36A(d) of NDPS Act having been filed on the date which period, 180 days had lapsed, the learned Special Court had granted default bail on 12.07.2018 to all the appellants.

Two offences were committed, one at Hyderabad being at the instance of D.R.I., Hyderabad namely and the other under the NDPS Act by the D.R.I., Bangalore, Zonal Unit. Thus, a combined complaint taking care of both the offences was filed before the Special Court, Omerga, Maharashtra. There is ample material in the complaint that the transportation of narcotic substance started from Omerga, Maharashtra and was being allegedly to be taken to Chennai and intercepted at Hyderabad. The appellants are to be charged only for the offence of possession and the transport. The appellants have no role to play with reference to the manufacture of contraband in the factory at Omerga.

The counsel for the appellant submitted that instead of filing an application for cancellation of the bail before the Special Court under Section 439(2) Cr.P.C., the respondent approached before the High Court under Section 439(2) Cr.P.C. When the bail order was passed by the Special Court, D.R.I., Bangalore ought to have informed the Special Court seeking the cancellation of the bail by giving explanation as to why the fact of filing combined complaint was not informed to the Special Court.The appellants by way of their collective petitions prayed for default bail since the duration of 180 days has expired under section 167(2) of the Cr.P.C. Further, the additional sessions judge demanded for the custody of the accused from Maharashtra to Bangalore. The sessions court of Hyderabad passed on the custody Directorate of Revenue Intelligence(DRI), Bangalore.

The apex court held, “The High Court in the impugned judgment noted that charge sheet having been filed on 06.07.2018, i.e., well within the stipulated period of 180 days, the accused could not have been granted the benefit under Section 167 Cr.P.C. Letter of the same date 12.07.2018 was received by Special Court, Hyderabad from Special Court, Omerga praying for custody of the appellants, which custody was also granted by the Special Court, Hyderabad on the next day, i.e., 13.07.2018. All these facts were brought before the High Court in application filed under Section 439(2) Cr.P.C. and the High Court has rightly cancelled the bail order dated 12.07.2018. We do not find any error in the order of the High Court cancelling the bail. We have noted above that regular bail application under Section 439 Cr.P.C. was filed before the Omerga Court by the appellants, which was withdrawn on 25.09.2018, we are of the view that it is open for the appellants to file regular bail application before Omerga Court under Section 439 Cr.P.C. afresh, which may be considered on merits without being influenced by any observations made by the order passed by the High Court in the impugned judgment or observations made by us. We further observe that bail application to be filed by the appellants under Section 439 Cr.P.C. be considered and decided expeditiously”.

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