Tag: bail

-Report by Shagun Sharma

The Delhi High Court had observed in the case of SULEMAN v. THE STATE (NCT OF DELHI) that the object of default bail is inherently linked to Article 21 of the Constitution of India, laying emphasis on safeguarding the life and personal liberty of the accused against arbitrary detention. A revision Petition had been filed, to set aside the order passed by the Learned Trial Court, Delhi, wherein Default Bail of the Petitioner, under Section 167(2) Cr.P.C. was dismissed. The Coram consisted of the HON’BLE MS. JUSTICE SWARANA KANTA SHARMA.

FACTS

The Petitioner was in custody in the FIR registered under sec. 21 and 29 of the NDPS Act. On completion of the investigation, a charge sheet was filed on March 3, 2021, without the Forensic Science Laboratory (FSL) report. The charge sheet mentioned that the supplementary charge sheet would be filed on the receipt of the report from the forensic laboratory. The Petitioner was then arrested on March 4 last year, wherein he was found in possession of 300 gms of heroin and 06 gms of the heroin were recovered from the co-accused.

The Petitioner filed an application for bail in default under Section 167(2) of the Cr.P.C. before the learned Trial Court,
claiming that the complete charge sheet was not filed within the stipulated time frame under Section 36A (4) of the NDPS Act. The learned Trial Court observed that the accused would not be entitled to Default Bail as the charge sheet has been filed even though the FSL Report is not filed. In furtherance, it was observed by the learned Trial Court that the quantity recovered from the Petition would fall under the bar of commercial quantity. Thus, the onus would be upon the Petitioner to satisfy the learned Trial Court.

It was stated by the learned Counsel for the petitioner that the charge sheet is incomplete without FSL Report since the IO does not know whether the substance recovered is actually a banned substance under Sections 21 and 29 of the NDPS Act.

Ld. Counsel for the APP stated that the question of whether the charge sheet is incomplete without an FSL Report or
not, is yet to be decided by the Hon’ble Supreme Court and therefore the reliance should be placed on the law presently laid down by the Division Bench of this Court in Kishan Lal vs State 1989.

COURT’S DECISION

The High Court was of the view that the default bail under sec. 167 of CrPC can only be availed before the filing of the charge sheet and the period for the calculation of the number of days of detention would commence from the date of remand of the accused and not from the date of arrest.

The Court also said that at present, the settled law persists in the view that non-filing of the FSL Report with the charge sheet does not fall within the realms of Section 173(2) of the Cr. P.C so as to consider it as an “incomplete report”. In the present case although FSL Report has not been filed, however, the charge sheet was already filed on 3rd March 2021. Further, the quantity recovered from the accused is of commercial nature barring the accused from bail under Section 37 of the NDPS Act. Therefore, finding no infirmity in the impugned order, the court dismissed the plea.

BACKGROUND

On 2nd February 2021, Mandeep Punia, who is a freelance writer for THE CARAVAN was granted bail by Chief Metropolitan Magistrate, North District, Rohini Courts Delhi.
Punia was accused of allegedly obstructing the police personnel in the course of their duty, he was detained by the Delhi police on 30th January at the Singhu border between Delhi and Haryana where he was covering the on-going farmer’s protest.
Various journalists came in his support and claimed that he was arrested on account of one of his Facebook post a day before his arrest, in which Punia narrated the police personnel connivance when a group of fifty-sixty showered stones on the protestors.

Court Proceedings

Courts of Metropolitan Magistrate are at the second-lowest level of the Criminal Court structure in India. According to Section 16 of the Criminal Procedure Code, 1973 (CrPc) in every metropolitan area, there shall be established as many Courts of Metropolitan Magistrates, and at such places, as the State Government may, after consultation with the High Court, by notification, specify. Metropolitan Courts are to be established at such places in every metropolitan area having a population of ten lakh or more. It has jurisdiction throughout such metropolitan areas. The presiding officers of such courts shall be appointed by the High Court.
A Metropolitan Magistrate is a first-class magistrate under the general control of the District & Sessions Judge and is subordinate to the Chief Metropolitan Magistrate.

In the FIR Punia has been charged under the following IPC sections:
• Section 186, which deals with voluntarily obstructing public servant in discharge of public functions.
• Section 332, which deal with voluntarily causing hurt to deter public servant from his duty.
• Section 353, which covers assault or criminal force to deter public servant from discharge of his duty.

• Section 34, which covers acts done by several persons in furtherance of common intention.

Contentions

Advocate Sarim Naved, counsel appearing for Punia, contended before the Court that he is innocent and submitted that Punia had been peacefully carrying out his duties along with other journalists at the protest site. It was also highlighted that another journalist arrested by the police along with Punia was released later. On the other hand, Punia was not released because he didn’t possess an ID card, being a freelance journalist.
The State’s counsel, APP Banduraj Baghrawat opposing the grant of bail submitted that Punia stood accused of serious offenses of committing nuisance and instigating the protestors, and contended that he may indulge in instigating the protest in the future.

The Judgement

The court while analyzing the matter noted the 7 hours delay in Punia’s arrest and filing of FIR and also emphasized the very fact that the victims, witnesses, and the complainants were all police officials the Court concluded that there was no possibility of Punia influencing the course of the case if he were enlarged on bail.

“There is no possibility that the accused/ applicant can able to influence any of the police officials. Admittedly, the accused is a freelance journalist. Moreso, no recovery is to be effected by the accused person, and keeping the accused further in Judicial Custody would not serve any cogent purpose. It is well settled legal principle of law that ‘bail is a rule and jail is an exception’. Hence, considering the totality of facts and circumstances of the present case, submissions on behalf of both the parties as well as keeping in view the period of detention of the accused in judicial custody, he is admitted to bail”, reads the order
The court directed the release of Punia on bail for a bail bond of Rs. 25,000 subjected to other bail conditions.

Reported By – Anjali