Accused cannot claim default bail on ground that charge sheet filed : SC

Obtaining sanction for prosecution from competent authorities is not part of the investigation and an accused cannot claim an indefeasible right of being released on default bail due to lack of such approval if the charge sheet has been filed within the allowed period, the Supreme Court ruled on Monday.

A bench of Chief Justice DY Chandrachud and Justice JB Pardiwala said whether the sanction is required or not under a statute is a question that has to be considered at the time of taking cognisance of the offence and not during inquiry or investigation.

In case the sanctioning authority takes some time to accord sanction, that does not vitiate the final report filed by the investigating agency before the court, it said.

The apex court said it cannot be said that obtaining sanction from the competent authorities is part of the investigation.

"We find no merit in the principal argument canvassed on behalf of the appellants that a charge sheet filed without sanction is an incomplete charge sheet...

"Once the charge sheet has been filed within the stipulated time, the question of grant of statutory/default bail does not arise. Whether cognizance has been taken or not taken is not relevant for the purpose of compliance with Section 167 of the CrPC. The mere filing of the charge sheet is sufficient," the bench said.

According to section 167 of the Criminal Procedure Code (CrPC), an accused will be entitled to default bail if the investigating agency fails to file a charge sheet within 60 days from the date of remand. For certain categories of offences, the stipulated period can be extended to 90 days.

The top court said that according the sanction is the duty of the sanctioning authority which is not connected with the investigation at all.

"In case the sanctioning authority takes some time to accord sanction, that does not vitiate the final report filed by the investigating agency before the court.

"Therefore, once a final report has been filed, that is the proof of completion of investigation and if the final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of the accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing of sanction order," the bench said.

The judgement came on appeals by five accused charged with offences under Section 120B (criminal conspiracy) of the Indian Penal Code (IPC), various sections of the Unlawful Activities (Prevention) Act (UAPA) and sections 3 and 5 of the Explosive substances Act.

The accused had challenged the order passed by the Punjab and Haryana High Court which had declined to release them on default bail under Section 167(2) of the CrPC.

Senior advocate Colin Gonsalves, appearing for the accused, had argued that the charge sheet filed without sanction is incomplete and on the basis of such incomplete no cognisance can be taken.

The top court said an accused cannot claim any indefeasible right of being released on statutory/default bail under Section 167(2) of the CrPC on the ground that cognisance has not been taken before the expiry of the statutory time period to file the charge sheet.

The apex court also said if an investigating agency wants to seek an extension for the filing of a charge sheet, they must be careful that such an extension is not sought at the last moment.

"The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding the pendency of the bail application or subsequent filing of the charge sheet or a report seeking extension of time by the prosecution before the court.

"However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge sheet, or a report seeking extension of time is preferred before the magistrate or any other competent court, the right to default bail would be extinguished," the bench said.

It said the court would be at liberty to take cognisance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC.