Default Bail Granted Can Be Cancelled By High Court U/s 439(2) CrPC: SC

 In a latest, landmark and laudable judgment titled Venkatesan Balasubramaniyan vs. The Intelligence Officer, D.R.I. Bangalore in Criminal Appeal No. 801 of 2020 (arising out of SLP(Crl.) No. 1820/2019 along with two other Criminal Appeals delivered most recently on November 20, 2020, the Apex Court has clearly, categorically and convincingly held that a ‘default bail’ granted under Section 167(2) CrPC can be cancelled under Section 439(2) CrPC. In this case, the High Court had allowed the petition filed under Section 439(2) CrPC by the Intelligence Officer, Directorate of Revenue Intelligence, Bangalore Zonal Unit, Bangalore, requesting to cancel the regular bail granted to accused under Section 167(2) Cr.P.C. The accused were being prosecuted for the offences under Section 8(c) read with Section 21(c), 22(c), 23(c), 28 and 29 read with Section 38 of the NDPS Act, 1985.

To start with, the ball is set rolling by first and foremost observing in para 1 of this noteworthy judgment authored by Justice Ashok Bhushan for himself, Justice Subhash Reddy and Justice MR Shah wherein it is put forth that, “Leave granted. These three appeals have been filed against the common judgment dated 30.11.2018 of the High Court of Judicature at Hyderabad in Criminal Petition No.10524 of 2018 filed by the respondent before the High Court. By the impugned judgment dated 30.11.2018, the petition filed by respondent Under Section 439(2) Cr.P.C. has been allowed cancelling the bail granted to the appellants by order dated 12.07.2018 by Metropolitan Sessions Judge, Hyderabad.”

While dwelling on the brief facts, it is then encapsulated in para 2 that, “The facts and issues in these appeals being similar, it shall be sufficient to refer to the pleadings in Criminal Appeal arising out SLP (Crl.) No.1452 of 2019- Venaktesan Balasubramaniyan Vs. The Intelligence Officer for deciding all these appeals, brief facts of which are as under:-

2.1 On 11.01.2018, car bearing No. KA 39 M 2117 was intercepted by Directorate of Revenue Intelligence (hereinafter referred to as “D.R.I.”), Hyderabad at toll plaza, Kamkole Village, Munnipalli Mandal, Sangareddy District, Telangana in which appellants (driver and two men) were travelling. The appellants along with other two persons introduced themselves on being asked as to whether they have secreted anything illegal in the car, the appellant’s replied in negative. The Officers searched the car and found false casing behind the rear seats on the side walls of the boot of the car with metal doors. The appellants’ opened the door and few transparent packets with off-white coloured packets were found in the casing attached to the walls of the boot. The appellants’ told that packets were of Narcotic drug, which were loaded in the car by a person named Suraj at Omerga, Osmanabad District Maharashtra, which were to be delivered at Chennai. The Officers in presence of Panchas and the appellants opened the packet and tested the materials in the packet. The appellants were taken to the office of D.R.I., Hyderabad. The total quantity of packets (Methaqualone) weighed to be 45.874 Kgs.

2.2 On 12.01.2018, the appellants were arrested in exercise of power conferred under Section 42 of NDPS Act, 1985 (hereinafter referred to as “Act, 1985”). The D.R.I. officers prepared a crime report against all the accused-appellants for commission of offence under Sections 22, 28 and 29 of NDPS Act and produced them before the VI Additional CMM, Hyderabad. The duty Magistrate on 12.01.2018 allowed the application for remand and the appellants were remanded till 25.01.2018. On 25.01.2018, the appellants-accused persons were produced before the Special Sessions Judge Court, D.R.I., Hyderabad. Remand of the appellants was extended from time to time. On 10.07.2018 the appellants were remanded only for two days since 180 days prescribed for filing charge sheet were coming to an end on 12.07.2018.

2.3 On 12.07.2018, since 180 days had expired, the appellants filed bail application. Learned Special Sessions Judge, Hyderabad granted bail to the appellants under Section 167(2) Cr.P.C. On 12.07.2018, a letter was received from the Additional Sessions Judge, Omerga, Maharashtra asking to handover the custody of appellants to D.R.I., Bangalore as they were required to appear before the Additional Sessions Judge, Omerga, Maharashtra in Special Case (NDPS) No.17 of 2018. The Sessions Court, Hyderabad granted the custody of three accused on 13.07.2018 to the D.R.I., Bangalore. D.R.I., Bangalore produced the appellants before Additional Sessions Judge, Omerga, Maharashtra on 14.07.2018 where they were remanded till 27.07.2018.

2.4 On 02.08.2018, D.R.I., Bangalore filed application before the Special Court, Hyderabad to transfer the records in the Hyderabad case to Omerga Sessions Court. On 24.08.2018, the Special Sessions Judge, Hyderabad transferred the records to the Omerga Court. When Special Court, Omerga, Maharashtra came to know that the appellants-accused have already been granted bail on 12.07.2018 before which date charge sheet was already filed before the Omerga Court on 06.07.2018 which was taken on file on 11.07.2018 A show cause notice was issued to D.R.I., Bangalore to give explanation. The D.R.I., Bangalore filed an application for cancellation of bail under Section 439(2) Cr.P.C. in the High Court by filing Criminal Petition No. 10524 of 2018. The High Court by the impugned order dated 30.11.2018 cancelled the bail granted under Section 167(2) Cr.P.C. dated 12.07.2018. Aggrieved against the order dated 30.11.2018, these appeals have been filed by the three accused-appellants.”

In hindsight, it is then put across in para 3 that, “This Court on 22.02.2019 noticed that only one of the appellants, i.e., Villayutham Nagu, has been released in pursuance of the bail order dated 12.07.2018, interim order was passed in the special leave petition filed by Villayutham Nagu alone and other two appellants being still under custody, notices were issued in all the matters.”

Needless to say, the key point of para 10 is that, “It is true that the bail granted under Section 167(2) Cr.P.C. could have been cancelled under Section 439(2) Cr.P.C. This Court in Pandit Dnyanu Khot Vs. State of Maharashtra and Ors., (2008) 17 SCC 745 while considering the case where bail granted under Section 167(2) Cr.P.C. was cancelled under Section 439(2) Cr.P.C. by learned Sessions Judge after noticing the facts upheld the order under Section 439 Cr.P.C. cancelling the bail.”

Truth be told, it is then conceded in para 11 that, “It is not even submitted before us that Omerga Court where common complaint has been filed against the accused had no jurisdiction to inquire and try the offence. It was due to some miscommunication that at the time when Court passed the order on 12.07.2018, the factum of filing of combined complaint dated 06.07.2018 was not brought into the notice of Special Court, Hyderabad. Although, 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 order dated 12.07.2018.”

While continuing in a similar vein, it is then envisaged in para 12 that, “It is true that two offences, one at Hyderabad being at the instance of D.R.I., Hyderabad namely D.R.I. 48 of 2018 was registered and another case Special NDPS No. 17 of 2018 by the D.R.I., Bangalore, Zonal Unit. A combined complaint taking care of both the offences was filed before the Special Court, Omerga as noted above wherein offences committed by the accused were also inquired and dealt with. 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 complaint, which has been brought on the record gives the detailed facts including the journey and the interception of appellants at Hyderabad. The combined complaint having been filed on 06.07.2018, i.e., well within 180 days, the High Court did not commit any error in cancelling the default bail granted to the appellants on 12.07.2018.”

Finally, it is then held in the last para 13 that, “We, thus, are of the view that there is no ground for interfering with the impugned judgment /order of the High Court. 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. The order dated 12.07.2018 having been set aside by the High Court, which order having been confirmed by this Court, the appellant, Villayutham Nagu is to surrender before the Special Court, Omerga. All the appeals are dismissed subject to liberty granted to the appellants as above.”

To summarise, the three-Judge Bench of Apex Court comprising of Justice Ashok Bhushan, Justice Subhash Reddy and Justice MR Reddy has clearly, convincingly and cogently held that default bail granted can be cancelled under Section 439(2) of Cr.P.C. There is nothing wrong in doing so. Very rightly so! No denying or disputing it!

Sanjeev Sirohi

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