Recall of Recent Ruling on Right to Default Bail Will Adversely Affect Petitioners in Pending Cases

On May 1, the Supreme Court’s bench of Justices A.S. Bopanna and Hima Kohli granted bail to a petitioner, who claimed to have acquired a right to seek default bail, since the chargesheet filed under the NDPS Act is without FSL report.

New Delhi: On May 4, a three-judge bench is likely to hear the Union government’s plea to recall the judgment in Ritu Chhabaria vs Union of India, a landmark verdict pronounced by Justices Krishna Murari and C.T. Ravi Kumar on April 26, declaring the right of an accused to default bail as a fundamental right. The court held in this case that the accused has a fundamental right to default bail which cannot be scuttled by the prosecution by filing supplementary and incomplete chargesheets before completing investigation.

On May 1, another bench of the Supreme Court, comprising Justices A.S. Bopanna and Hima Kohli, unaware of the brief hearing in the court of Chief Justice of India D.Y. Chandrachud and Justice J.B. Pardiwala, in which the court agreed to hear the Recall Application of the Government in Ritu Chhabaria, moved to grant bail to an accused in Narcotic Drugs and Psychotropic Substances Act.

Case under the NDPS Act

In Divyas Bardewa vs Narcotics Control Bureau, the accused claimed to have acquired a right to seek default bail, since the charge-sheet filed is without the Forensic Science Laboratory (FSL) report. Justices Bopanna and Hima Kohli, who heard this case, decided not to go into this issue as the same is pending consideration in a batch of petitions which would take some time for hearing and this petition is also to be considered along with those petitions. The bench, however, noted that even in the other pending cases before the court, without reference to the default bail, the court had directed grant of bail to the petitioners, who have been in custody for some time and their trial would take some more time to conclude.

Therefore, the Bopanna-Hima Kohli bench directed the release of the petitioner in Divyas Bardewa on bail subject to the petitioner diligently participating in the trial. “All contentions are however, left open to be considered with regard to the issue relating to the default bail,” the order uploaded in this case noted.

The Wire’s research has shown that the practice of filing charge-sheets by the prosecution without the FSL Report before the expiry of the mandatory period in order to deny the right to default bail of the accused, has been challenged by several accused before the Supreme Court. These appellants, who would otherwise be hoping to rely on the recent judgment of the court in Ritu Chhabaria in their favour, would be at a terrible disadvantage, if the court agrees to the government’s plea to recall it, notwithstanding the pendency of their appeals for the past three years.

The CrPC. does not empower continued remand to custody beyond 60 days if the investigation is still in progress.  In Ritu Chhabaria, the Court made it clear that a supplementary chargesheet, wherein it is explicitly stated that the investigation is still pending, cannot  under any circumstance, be used to scuttle the right of default bail.  However, the question that would arise is that whether the prosecution can file an incomplete charge-sheet, and claim that the investigation is over before the expiry of the mandatory period, in order to scuttle the right of default bail.  The adjudication of the question whether in the absence of FSL report, a charge-sheet under the NDPS Act, could be said to be complete acquires significance, in the light of Ritu Chhabaria.

On May 1, the CJI-led bench held in another judgment that the charge-sheet, if filed without the mandatory sanction required, is not incomplete, and therefore, an accused cannot claim the right to default bail on that ground.   The CJI-led bench which also included Justice Pardiwala, who authored that judgment, made it a point to distinguish it from Ritu Chhabaria, saying the facts in the two cases are different.  The petitioners in the pending NDPS cases, however, are likely to argue that the reasoning in Ritu Chhabaria is in their favour.

The DoE case behind the Recall Application

The Government’s application to recall the  judgment in Ritu Chhabaria stems from the Delhi high court’s recent order in Manpreet Singh Talwar vs Directorate of Enforcement (DoE), on April 28.  In this case, the Justice Jasmeet Singh relied on Ritu Chhabaria to grant default bail to an accused in Prevention of Money Laundering Act (PMLA) case, as the DoE did not conclude its investigation and file a charge sheet within the mandatory period of 60 days after the arrest of the accused.

On the last day of the expiry of the 60-day period, the prosecution complaint which is akin to filing of a charge sheet was filed in Manpreet Singh Talwar. However, Justice Jasmeet Singh found that the investigation was not complete in the case, and therefore, released the accused on default bail, applying the test laid down in Ritu Chhabaria by the Supreme Court.  The DoE has appealed against this order of the Delhi High Court in the recall proceedings before the Supreme Court.

Similar NDPS cases

On May 1, the bench of Justices Bopanna and Kohli tagged Divyas Bardewa with other similar pending cases before the Court, for hearing in due course.  In these pending cases too, the petitioners challenged the rejection of their applications for grant of default bail under Section 167(2) of the CrPC by the lower courts.

The petitioners claim in these cases that they are entitled to bail in default because the investigating agency has failed to file a police report under Section 173(2) of the CrPC within the stipulated period of 180 days.  Although they did not dispute that a report was filed within that period, they contend that the said report was incomplete as it was not accompanied by the report of the Chemical Examiner.

The petitioners in these cases are being prosecuted for committing an offence under Section 21 and 29 of the NDPS Act.  They claim that it cannot be asserted that the substance allegedly recovered from them was a narcotic drug or psychotropic substance without a Chemical Examiner’s report indicating the same.  This being the foundation of the allegation against the petitioners, a police report not accompanied by a Chemical Examiner’s report cannot be considered as a report under Section 173(2) of the CrPC, they contend.

Interestingly, the Chemical Examiner’s report was furnished before the Special Court on the same date when the applications filed by the petitioners for default bail were taken up for consideration.  Nonetheless, they claimed that they were entitled to bail in default as their respective applications seeking the same were filed prior to the Public Prosecutor placing the FSL Report before the Special Court.  However, the Special Court dismissed their applications by a common order dated August 20, 2019.   The Special Court reasoned that their right to default bail ceased as soon as the FSL Report was filed simultaneously to the production of the petitioners in Court.

The petitioners had argued in their appeal before the Delhi High Court that in a case relating to an offence punishable under the NDPS Act, which is founded on the basis of recovery of contraband, a Chemical Examiner’s report would be necessary as the Court would not be in a position to take cognizance of the said offence without the same.  The Delhi High Court, however, rejected their contention.

However, the Delhi High Court held that the impugned order issued by the Special Court that the Court would have to consider the question of default bail at the point when the application is taken up for consideration (rather than the filing) as unsustainable.   Citing a Supreme Court ruling, the Delhi High Court held in this case that once such an application is filed, it is obligatory on the part of the court to verify from the records as well as the public prosecutor whether the time has expired and the charge-sheet is filed or not.

The court is only required to examine whether at that point the petitioner is entitled to bail in default, the High Court held.  Any subsequent acts done on behalf of the prosecution  would not be relevant for the purposes of determining whether the accused had validly exercised his rights, the High Court reasoned.

Ironically, Justice Vibhu Bakhru of the Delhi High Court declined relief to the petitioners, even while finding the decision of the Special Court erroneous because a final report under Section 173(2) CrPC had been filed within the stipulated period. (Mohd. Arbaz vs State of NCT of Delhi)

The long pendency of the appeals against the Delhi high court verdict in this case in the Supreme Court had led to denial of grant of bail by the High Court in Divyas Bardewa, which was rectified by the Bopanna-Kohli bench of the Supreme Court on May 1.  The  outcome of the Government’s Recall Application in Ritu Chhabaria is likely to have a bearing on how long these appellants have to wait for justice, if at all.