Case: Kamlesh Chaudhary v. State Of Rajasthan
Coram: Justices L. Nageswara Rao, Navin Sinha and Indu Malhotra
Citation: SLP (Crl.) No. 5715/2020
The Supreme Court held that an accused, who was released on default bail could not be re-arrested by police by filing a charge sheet.
In this given case, Kamlesh was accused of committing offences under Sections 406, 409, 420, 467, 468, 471, 477-A, 201, 120-B of IPC and Section 5 of the Prize Chits Money Circulation Scheme (Banning Act), 1978 and Section 65 of the Information and Technology Act.
The application for default bail under Section 167(2) of Cr.P.C, on the ground that the charge sheet was not filed within the prescribed period, was allowed by HC. While granting bail, the HC held that the accused can be re-arrested after the charge sheet is filed.
The accused approached the SC challenging the part of the HC order which directed re-arrest on filing of the charge sheet.
The contention was that the same is contrary to the law laid down by this Court in Bashir v. State of Haryana (1977 4 SCC 410) Where it has been held that, on the grounds known by law, it is open to the prosecution to file an application for cancellation of bail and the receipt of the charge sheet in Court does not, by itself, constitute a basis for cancellation of bail. Opposing his plea, the State contended that the HC has the power to impose any condition while granting bail under Section 437(3) and 439(2) of Cr.P.C.
While allowing the appeal the bench observed:
“It is clear from the judgment of this Court in Bashir’s case that filing of charge sheet by itself cannot be a ground for cancellation of bail. Bail granted under Section 167 Cr.P.C. can be cancelled on other grounds available in law to the prosecution. In view of the aforesaid discussion, the finding recorded in paragraph 17 of the judgment of the High Court is set aside.”
In Bashir case, the SC had observed that the power of the court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under section 437(1) or (2) and these provisions are applicable to a person who has been released under section 167 (2). “Under section 437(2) when a person is released pending inquiry on the ground that there are not sufficient grounds to believe that he had committed a non-bailable offence may be committed to custody by court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. As the provisions of section 437(1), (2), and (5) are applicable to a person who has been released under section 167(2) the mere fact that subsequent to his release a challan has been filed is not sufficient to commit him to custody.”, it was held by SC.
