Holding

Bail granted under proviso (a) to Section 167(2) is a statutory right that may be cancelled under Sections 437(5) or 439(2) of the Cr.P.C. when a charge‑sheet is filed for a serious offence, and the High Court’s exercise of this discretion was proper.

Summary

The petitioners were arrested in March 1988 for alleged narcotics offences and were remanded to jail. Because the charge-sheet was filed after the statutory 90‑day period, the Chief Metropolitan Magistrate released them on bail under proviso (a) to Section 167(2) of the Criminal Procedure Code. After the charge-sheet was filed, the prosecution sought cancellation of the bail, and the Delhi High Court, invoking Sections 437(5) and 439(2) of the Cr.P.C., ordered their re‑arrest. The petitioners challenged this cancellation before the Supreme Court, arguing that bail granted under Section 167(2) is absolute and cannot be revoked. The Court held that bail under the proviso is a statutory right but can be cancelled once the charge-sheet is filed if the offence is serious, and the High Court’s discretion was proper. Consequently, the Supreme Court dismissed the Special Leave Petitions, upholding the High Court’s order.

Issues considered

Whether the High Court’s cancellation of bail granted under proviso (a) to Section 167(2) Cr.P.C. was legally sustainable.
Whether an accused has a special right to remain on bail merely because bail was granted under Section 167(2) proviso (a).

Legislation cited

Code of Criminal Procedure, 1973s. 167(2) proviso (a), s. 437(5), s. 439(2), s. 482
Narcotic Drugs and Psychotropic Substances Act, 1985s. 21, s. 23, s. 29

Subjects

bailSection 167(2) provisocancellation of bailhigh court discretionnarcotics offencescriminal procedureorder-on-default

Judgment

RAJNIKANT JIVANLAL PATEL & ANOTHER A
v.
INTELLIGENCE OFFICER NARCOTIC CONTROL BUREAU
NEW DELHI.

JUNE 26, 1989
B
[K. JAGANNATHA SHETTY, J.)

Criminal Procedure Code, 1973: Sections 167(2) pro-
viso (a), 437, 439 and 482-Accused remanded to jail custody-Charge
sheet filed after ninety days-Magistrate releasing accused on bail-
High Court ordering re-arrest of accused by cancelling bail-Validity of C
High Court order.

Narcotics Drugs & Pyschotroic Substance Act, 1985: Sections
21, 23 and 29-Accused released on bail by Magistrate on ground
charge-sheet not filed within ninety days~High Court . cancell-
ing bail and ordering re-arrest of accused-Validity of High Court D
order.

The petitioners were arrested on March 23, 1988 and produced
before the Chief Metropolitan Magistrate, who remanded them to jail
custody. During the pendency of petitioner's application for bail, the
prosecution filed charge-sheet on June 23, 1988 for offences under Sec- E
tion 21, 23 and 29 of the Narcotic Drugs and Psychotropic Substances
• Act, 1985. Thereafter, on the petitioners' application for bail under
Section 167(2) Cr.P.C. on the ground that the charge-sheet was filed
after the expiry of ninety days of their arrest, the Magistrate enlarged
them on bail.
F
On an application, under sec. 439(2) read with Section 482 of the
Cr.P.C., filed by the prosecution for cancellation of the bail, stating
that since two of the accused were earlier absconding, the investigation
in the case could not be completed within the time frame, the High court
cancelled the bail order. Hence, the special leave applications by the
petitioners. G

On the question: whether the discretion exercised by the High
Court was legally sustainable and whether the accused had a special
right to remain on bail merely because they had been enlarged under
Proviso (a) to Section 167(2) of the Code,
H
377
378 SUPREME COURT REPORTS [1989) 3 S.C.R.

A Dismissing the Special Leave Petitions,

HELD: An order for release on bail under proviso (a) to Section
167(2) of the Code of Civil Procedure may appropriately be termed as
on order-on-default. Indeed, it is a release on bail on the default of the
prosecution in tiling charge-sheet within the prescribed period. The
6 right to bail under the provision is absolute. It is a legislative command
and not Court's discretion. If the investing agency fails lo tile charge-
sheet before the expiry of 90/60 days, as the case may be, the accused in
custody should be released on bail. At that stage, merits of the case are
not to be examined. In fact, the Magistrate has no power to remand a
person beyond the Stipulatea period of 90/60 days. He must pass an
C order of bail and communicate the same to the accused to furnish the
requisite bail bonds. [38IE-GJ

The accused cannot claim any special right to remain on bail. If
the investigation reveals that the accused has committed a serious
offence and charge-sheet is tiled, the bail granted under proviso (a) lo
D Section 167(2) could be cancelled under Sections 437(5) or 439(2) of the
Code. [JSIHJ

In the instant case, the offences alleged are of serious nature and
the discretion exercised by the High Court does not call for any ,l__ .
interference. [382A) ·

Raghubir Singh v. State of Bihar, [1986) 3 SCR 802, referred to.
•
CRIMINAL APPELLATE JURISDICTION: Petitions for
Special Leave to Appeal (Criminal) Nos. 1090-91of1989.

f From the Judgment and Order dated 8.5.1989 of the Delhi High
Court in Misc. Appln. No. 106/89 & 107/1989.

U .R. Lalit, Tushar Shah and B. V. Desai for the Petitioners.

J.S. Arora and Salish Agarwala for the Respondent.
0
The Judgment of the Court was delivered by

K. JAGANNATHA SHETTY, J. The petitioners were released
on bail by the Enquiry Magistrate under proviso (a) to Section 167(2)
of the Code of Criminal Procedure. After filing of the charge-sheet the
H High Court ordered their re-arrest by cancelling the bail. The order of
R.J. PATEL v. INTELLIGENCE OFFICER [SHETTY, J.l 379

the High Court is now under challenge.
A
I do not find any merit in these petitions. But before dismissing, I
wish, however, to dr~w attention to some aspects of the question
raised.

The facts: B

On 23 March, 1988 the petitioners were arrested in Bombay by
officers of the Narcotic Control Bureau. They were ordered to be
produced before the competent Magistrate at New Delhi. They were
accordingly produced before the Additional Chief Metropolitan
Magistrate, New Delhi. On 29 March, 1988 they were remanded to jail
custody till 12 April, 1988. The remand order was subsequently c
renewed from time to time. On 10 May, 1988 the petitioners moved the
Chief Metropolitan Magistrate for bail. When that petition was
pending consideration, the prosecution submitted charge-sheet. The
charge-sheet was filed on 23 June, 1988 for offences under Sections 21,
23 and 29 of the Narcotic Drngs and Psychotropic Substances Act, D
1985. On July 22, 1988 the petitioners filed an application for bail
under Section 167(2) Cr. P.C. on the ground that the charge-sheet was
filed after the expiry of 90 days of their arrest. On 29 July, 1988 learned
Magistrate enlarged them on bail on their furnishing self bonds in the
sum of Rupees two lakhs each with two surety bonds in the sum of
Rs. l lakh each. E

The efforts of the prosecution to have the bail cancelled could
not succeed before learned Magistrate. So they moved the Delhi High
Court under Section 439(2) read with section 482 of the Cr.P.C. In that
application, the nature of the offence committed, the part played by
the accused, the gravity of the offence etc., were all set out. It was also F
stated that since two of the accused were earlier absconding, the
investigation in the case could not be completed within the time frame.

The High Court by following the decision of this Court in
Raghubir Singh v. State of Bihar, [1986) 3 SCR 802 and after consider-
ing the material on record cancelled the bail order. G
The High Court said:

"In the present cases, no doubt an order was passed grant-
ing bail because the· charge sheet was not filed within the
statutory period of 90 days but it was filed on 92 days. H
380 SUPREME COURT REPORTS [1989) 3 S.C.R.

A There is no doubt that the charge against the respondents is
very serious in nature because they are alleged to have
entered into a conspiracy to export heroin out of India. The
minimum punishment prescribed in such offence is a sen-
tence of 10 years rigorous imprisonment, and a fine of
Rupees one lakh. I am, therefore, of the view that the
B
authority referred above is fully applicable to the facts of
the present case. Respondents are further alleged to have
procured services of one H.S. Gala and a lady carrier
Man ju la Ben who carried 3 Kg. heroin from India to USA
in November 1987. Therefore it was on the basis of the
statements made by those persons in USA that the respon-
c dents were arrested in India.

I am, therefore, of the view that it is a fit case where -{~
order of bail should be cancelled."

The question is whether the discretion exerdsed by the High
D
Court is legally sustainable? Whether the accused have a special right
to remain on bail merely because they have been enlarged under pro-
viso (a) to Section 167(2) of the Code?

It is not disputed and indeed cannot be disputed that when an
accused is granted bail, whether under proviso (a) to Section 167(2) or
E
under the general provisions of Chapter XXXIII, the only method by
which the bail may be cancelled is to proceed under Section 437(5) or
Section 439(2). That is because the person released on bail under the
proviso to Section 167(2) shall be deemed to be so released under the
provisions of Chapter XXXIII of the Code.
F
Sub-section (5) of Section 437 provides: -~
)
(
"Any Court which has released a person on bail under l
sub-section (I) or sub-section (2) may, if it considers it (
necessary so to do, direct that such person be arrested and
commit him to custody."
G
i\.
Sub-section (2) of Section 439 provides:

"A High Court or Court of Session may direct that any
person who has been released on bail under this Chapter be
arrested and commit him to custody."
H
R.J. PATEL v. INTELLIGENCE OFFICER [SHETTY, J.) 381

Under sub-section (5) of Section 437, the Court if it considers it
A
necessary," direct that the person on bail be arrested and committed to
custody. The bail may be cancelled by the Court if it comes to the
conclusion that there are sufficient grounds that the accused has com-
mitted a non-bailable offence and that it is necessary that he should be
arrested and committed to custody. This is what this Court observed in
Raghubir Singh v. State of Bihar, [1986] 3 SCR 802. It was said B.
(at 826):

"Where bail has been granted under the proviso to section
167(2) for the default of the prosecution in not completing
the investigation in sixty days, after the defect is cured by
the filing of a charge-sheet, the prosecution may seek to C
have the bail cancelled on the ground that. the accused has
committed a non-bailable offence and that it is necessary to
arrest him and commit him to custody, In the last men-
tioned case, one would expect very strong grounds
irideed."
D
And said:

"The order for release on bail was not an order on merits
but was what one may call an order-on-defauli, and or_der
that could be rectified for special reasons after the defect
was cured." E

An order for release on bail under proviso (a) to Section 167(2)
may appropriately be termed as an order-on-default. Indeed, it is a
release on bail on the default of the prosecution in filing charge-she·et
within the prescribed period. The right to bail under Section 167(2)
proviso (a) thereto is absolute. It is a legislative command and not F
Court's discretion. If the investigating agency fails to file charge-sheet
before the expiry of 90/60 days, as the case may be, the accused in
custody should be released on bail. But at that stage, merits of the case
are not to be examined. Not at all. In fact, the Magistrate has no power
to remand a person beyond the stipulated period of 90/60 days. He
must pass an order of bail and communicate the same to the accused to G
furnish the requisite bail bonds.

The accused cannot, therefore, claim any special right to remain
on bail. If the investigation reveals that the accused has committed a
serious offence and charge-sheet is filed, the bail granted under pro-
viso (a) to Section 167(2) could be cancelled. · H1
382 SUPREME COURT REPORTS [1989] 3 S.C.R.

A I examined the material on record. The offences alleged are of
serious nature. I-am of the opinion that the discretion exercised by the
High Court does not call for any interference. The Petitions, are,
therefore, rejected.

B N.P.V. Petitions dismissed.