Karnataka High Court
Sunil S/O Hanumanth Kamble vs The State on 7 September, 2022
Author: P.N.Desai
Bench: P.N.Desai
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 07TH DAY OF SEPTEMBER, 2022
R
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL PETITION NO.200926/2022
BETWEEN:
SUNIL S/O HANUMANTH KAMBLE
AGE: 27 YEARS OCC: AUTO DRIVER
R/O: TAJSULTANPUR,
KALABURAGI-585 104.
...PETITIONER
(BY SRI. SHIVASHARANA REDDY, ADVOCATE)
AND:
THE STATE THROUGH MAHAGAON P.S.
TQ & DIST: KALABURAGI-585 316
(NOW PENDING BEFORE KALABURAGI RURAL PS)
(REPT. BY ADDL. SPP HIGH COURT OF KARNATAKA
AT: KALABURAGI BENCH)
...RESPONDENT
(BY SRI. VEERANAGOUDA MALIPATIL, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH THE ORDER
PASSED BY I ADDITIONAL CIVIL JUDGE AND JMFC AT KALABURAGI IN
CRIME NO.55/2021 DATED 20.12.2021 AND ORDER PASSED BY V
ADDITIONAL SESSIONS JUDGE AT KALABURAGI IN
CRL.R.P.NO.8/2022 DATED 03.03.2022 IN CONFIRMING THE ORDER OF
COURT BELOW BY ISSUING DIRECTIONS TO COURT BELOW TO ACCEPT
THE SURETY ON BAIL ORDER GRANTED IN CRIME NO.55/2021 ON
17.12.2021 AND ORDER FOR RELEASE OF PETITIONER.
THIS PETITION COMNG ON FOR ADMISSION THIS DAY, THE
COURT PASSED THE FOLLOWING:
2
ORDER
This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short), seeking to quash the order dated 20.12.2021 passed by I Additional Civil Judge and JMFC at Kalaburagi in Crime No.55/2021 for the offence punishable under Sections 302 and 201 of Indian Penal Code (for short 'IPC') and order passed by V Additional Sessions Judge at Kalaburagi in Crl.R.P.No.8/2022 dated 03.03.2022 in confirming the order of Trial Court, seeking for issuing directions to Trial Court to accept the surety in view of bail order passed in Crime No.55/2021 on 17.12.2021 and order for release of petitioner.
2. It is the case of the prosecution that the petitioner is accused No.1 in Crime No.55/2021 of Mahagoan Police Station. The complaint came to be lodged by one Ganesh stating that on 25.08.2021 at about 10.00 a.m, a dead body was found lying under Kurikota Bridge. Based on that information, the Mahagoan police went to the spot and recovered the dead body of a male person aged about 35-40 years with injuries over forehead, 3 neck and chest, caused by lethal weapons. It is also alleged that deceased might have been attacked and murdered at some place and his dead body was thrown from bridge in order to cause disappearance of evidence. Hence, a complaint came to be registered by Mahagoan police. Thereafter, the police took up the investigation. On 10.09.2021, this petitioner and another accused were arrested and produced before the Court and they were remanded to judicial custody and their judicial custody was extended from time to time.
3. It is further contended that after completion of 90 days of their judicial custody i.e., on 08.12.2021, as respondent-police failed to file charge sheet in Crime No.55/2021, the petitioner filed an application under Section 167 (2) Cr.P.C. seeking his release on bail on 17.12.2021. The Court ordered the concerned clerk to check about non-filing of the charge sheet and concerned official noted in the order sheet that no charge sheet is filed. After verifying the same, the Court ordered to release the petitioner on bail. The case was posted on 22.12.2021 for acceptance of surety for release of petitioner on bail. 4
4. Heard Sri. Shivasharana Reddy, the learned counsel for the petitioner and Sri. Veeranagouda Malipatil, the learned High Court Government Pleader for the respondent - State.
5. The learned counsel for the petitioner argued that on 20.12.2021, the office clerk put up a note by stating that in Crime No.55/2021, the police have sent a requisition for transfer of case in Crime No.55/2021 and requested for order of the Court and requisition was made on 09.12.2021 and received in the Court. It is further stated that as the said clerk was working for Lok-Adalath, he has kept the requisition of police for transfer of FIR crime with him, it was kept in the Section of Officer. The clerk sought apology from the Court for not bringing it to the notice of the Court. The requisition was not put up before passing of default bail order under Section 167(2) of Cr.P.C. It is further contended that learned I Addl. Civil Judge & JMFC, Kalaburagi on 20.12.2022 declined to accept the surety, though petitioner was already released on bail in view of transfer of FIR. Petitioner is in judicial custody in Crime No.55/2021 and not in Crime No.204/2021. No 5 requisition was given by the police to take the accused into custody in Crime No.204/2021 from Crime No.55/2021.
6. The petitioner filed a revision petition in Crl.R.P No.08/2022 before the Sessions Court, which came to be rejected on 03.03.2022, stating that mistake of clerk in not bringing to notice about filing of charge sheet on 08.12.2021 in transfer of Crime No.204/2021 will not benefit the accused for his release under Section 167(2) of Cr.P.C. The revisional Court not analyzed the facts and circumstances of the case. The prosecution has also not filed any appeal or application for cancellation for bail. Therefore, the petitioner is languishing in judicial custody for not accepting the surety. Hence, it is necessary to direct the Trial Court to take the surety and release the petitioner on bail and allow the petition as prayed.
7. Against this, learned High Court Government Pleader argued that the accused are taken in to custody on 10.09.2021. On the basis of the jurisdiction point, FIR was transferred to Rural Police Station, Kalaburagi and on transfer of the same, a fresh FIR is registered by giving 6 new crime number as Crime No.204/2021 for the same offences in respect of the same accused at Rural Police Station, Kalaburagi. Learned High Court Government Pleader further argued that the charge sheet was already filed on 08.12.2021 before V-Addl. Civil Judge & JMFC, Kalaburagi, where the Crime No.204/2021 is pending against all the accused. The said Court has got jurisdiction to commit the case. It is also stated that though requisition for transfer of case and FIR were given to I Addl. Civil Judge and JMFC Court on 09.12.2021, but the concerned clerk has not brought to the notice of the Court that the said FIR in Crime No.55/2021 is already transferred and re- numbered as Crime No.204/2021 and FIR is pending before V Addl. JMFC Court. If that was brought to the notice of the Court, the I Additional JMFC Court ought not have passed the bail order (default bail) as the said Court has no jurisdiction to pass the order. The case was no more pending before the said Court in Mahagoan Police Station Crime No.55/2021. Therefore, learned High Court Government Pleader prayed to reject the said petition and 7 contended that the revisional Court has considered all these aspects and has rightly dismissed the said revision petition.
8. Secured the records of the Trial Court, where the charge sheet is filed in Crime No.204/2021. Perused the order passed by learned I Additional Civil Judge and JMFC, Kalaburagi and the records of the case.
9. The FIR came to be filed on the basis of the complaint lodged in Cr.No.55/2021 of Mahagoan police station, Kalaburagi for the offences punishable under sections 302 and 201 IPC against the petitioner and other accused. The accused were produced before the Court on 10.09.2021. They were remanded to judicial custody. The period of judicial custody of 90 days lapsed on 08.12.2021. Then application under section 167(2) of Cr.P.C. for release of the petitioner on bail was filed on 17.12.2021. The learned Magistrate passed an order on 17.12.2021 for default bail and posted the matter for accepting the surety. At that point of time, it was not brought to the notice of the Court that already the FIR in said Crime No.55/2021 was transferred to Sub-Urban police station on jurisdictional 8 point and re-registered in Cr.No.204/2021 on 26.10.2021 and charge sheet is also filed on 08.12.2021 in that crime against accused before V Addl. JMFC Court, Kalaburagi. Therefore, the Court refused to accept the surety. Against that, this petition is preferred. Learned Sessions Judge by his order dated Crl.R.P.No.8/2022 dated 03.03.2022 dismissed the revision petition and at paras 8, 9, 10 and 11 observed as under:-
"8. The learned PP has canvassed that even though initially case was registered in Cr.No.55/2021 of Mahagaon P.S. against unknown persons, but admittedly petitioner and other accused were arrested and they have been taken into custody for the purpose of investigation, where it was revealed that offence is taken place within the jurisdiction of Grameena P.S. Kalaburagi. Therefore, other case in Cr.No.204/2021 was registered. Hence, Cr.No.55/2021 of Mahagaon P.S. was closed and even in the Cr.No.204/2021 of Grameen P.S. charge sheet was levelled within a period of 90 days. Because of mistake committed by the concerned Clerk and it was did not came to the notice of Court. Therefore, learned Magistrate did not committed any error in passing the impugned order. Hence, prays to dismiss the revision petition.
09. It is stated in the petition itself that learned JMFC after going to the proper verification allowed the petition filed U/Sec. 167 92) of Cr.P.C. and case was posted for furnishing surety, thereafter on 20.12.2021 9 learned Magistrate has came to know that, on the ground of jurisdiction another case was registered by Grameen P.S. Kalaburagi and charge sheet was filed on 08.12.2021 well within a time and concerned key clerk had not submitted requisition for transfer of said case that is Cr.No.55/2021 of Mahagaon P.S. to Grameena P.S. Hence, on this ground learned Magistrate has not accepted the surety by order dated 20.12.2021.
10. So it is within the knowledge of the learned counsel also that during the course of investigation, Grameen P.S. was registered case in Cr.No.204/2021 and completed the investigation and filed charge sheet within time. So, after taking to Police custody of the accused, the I.O. has realized that the accused had committed murder within the jurisdiction of Grameena P.S. therefore case was registered in Cr.No.204/2021 of Grameena P.S. and investigation of the case is completed and charge sheet was laid on 08.12.2021 that is within a period of 90 days. On the other hand, because of mistake of concerned clerk, by the time of invoking Sec.167(2) of Cr.P.C. application filed by this petitioner, the Court passed default bail order.
11. It is stated in the grounds of application that revision petition was not produced in Cr.No.204/2021 till the order passed U/Sec.167(2) of Cr.P.C. On the other hand, Sec.167(2) of Cr.P.C. is empowers concerned Magistrate to extend remand of the accused even beyond the period of 14 days, inspite of the fact that he is not having jurisdiction to try the case. Therefore, learned Magistrate rightly acted U/Sec. 167(2) of Cr.P.C. Under such circumstances even though case was not given transfer to the inter jurisdiction of Grameena P.S. by the respondent-P.S. that will not affect 10 the proceedings before the committal Court. It is further stated that learned Magistrate has no power to recall or cancel bail order granted earlier U/Sec.167(2) of Cr.P.C. but this Court feels that learned Magistrate has no such provisions to recall the bail granted earlier. On the other hand, only mistake committed by the concerned Clerk, the learned Magistrate could not notice the crime case already registered against this petitioner and others in Cr.No.204/2021 of Grameena P.S. So on 20.12.2021 when it was in the knowledge of learned-Magistrate that the charge sheet was already filed in this case, admittedly within a period of 90 days, so question of releasing the accused does not arise. Under such circumstances this Court feels that the learned Magistrate did not committed any mistake as contended by the learned counsel for the petitioner in this case on hand. Therefore, order passed by the learned Magistrate is liable to be confirmed."
10. It is evident from the above order, the learned Sessions Judge held that though the Magistrate is not having jurisdiction to try the case, but the remand is not illegal and it will not affect the proceedings before the committal Court. It is also settled law that once the order has been passed under section 167(2) Cr.P.C, then the court cannot recall or cancel the order under section 167 (2) of Cr.P.C. Such an order is passed without noticing the 11 transfer of FIR. Inadvertently or erroneously mistake is committed by the Court clerk.
11. In view of the above, the point that arises for my consideration is, "Whether this order of the 1st Addl. JMFC Court in Crime No.55/2021 granting default bail when the said Crime Number is transferred to another court and police station in Crime No.204/2021 on the file of V Addl. JMFC was not brought to his notice till passing of order on 17.12.2021, inadvertently and by mistake is enforceable.?"
12. The order of bail for non-filing of charge sheet or not completing investigation within a stipulated period of either 60 days or 90 days as the case may be is popularly called as "default bail". It is dealt under Section 167 of Cr.P.C., which reads as under:
"167. Procedure when investigation cannot be completed in twenty-four hours.
(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-
four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge 12 of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may 13 be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) no Magistrate shall authorise detention of the accused in custody under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;];
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. 1 Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;].
Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linage, as the case may be.] 14 [Provided further that in case of a woman under eighteen years of age, the detention shall be authorized to be in the custody of a remand home or recognized social institution.] (2A) Notwithstanding anything contained in sub- section (1) or sub- section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub- inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub- section shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub- section (2).
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police 15 station or the police officer making the investigation, as the case may be.] (3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify."
13. Admittedly, in this case, the offence alleged is under Sections 302 and 201 of IPC. Therefore, as per the proviso to Section 167(2) of Cr.P.C, the investigation has to be completed within a period of 90 days. The accused in this 16 case are first produced and remanded to judicial custody on 10.09.2021. The period of 90 days falls on 08.12.2021. On 91st day, the accused are entitled to be enlarged on bail, if the investigation is not completed and charge sheet is not filed i.e. on or before 09.12.2021. Therefore, what is contemplated under the said section is, if the investigation is not completed and charge sheet is not filed in respect of said offence against accused, then the accused gets an indefeasible right to be released on bail. That means to attract the ingredients of the said section, the police ought not have completed the investigation in respect of the offence alleged against the accused and ought not have filed the charge sheet within the stipulated period under Section 167 (2) of Cr.P.C. against the accused for the offence alleged against them. Non-filing of charge sheet or not completing investigation is sine qua non for releasing the accused under "default bail".
14. In this case, the accused are initially produced in Crime No.55/2021 before Ist Addl. JMFC. But the records reveals that the Commissioner of Police on 20.10.2021 17 passed an order stating the place of occurrence of the alleged offence falls under territorial jurisdiction of Rural Police Station, Kalaburagi. Therefore, in view of the requisition made by the Mahagoan Police Station in Crime No.55/2021 the said Crime case and the records were ordered to be transferred to the Rural Police Station, Kalaburagi. Accordingly, Crime No.204/2021 i.e., a new Crime number was registered for the same offence against the same accused by the Rural Police Station, Kalaburagi on 26.10.2021. It is also evident that investigation was completed and charge sheet was ready on 07.12.2021 itself and the said charge sheet was submitted to the Court of V- Addl. JMFC, Kalaburagi on 08.12.2021 in Crime NO.204/2021.
15. I have also perused the original charge sheet, from the records secured from Trial Court. It shows that the learned JMFC had put his initial and date as 08.12.2021 i.e. date of receipt of charge sheet on the seal to check and put up. That indicates charge sheet was received after completion of investigation before the Court having 18 jurisdiction to take cognizance and to commit the case in respect of the petitioner and other accused.
16. Be that as it may. Even the Assistant Public Prosecutor (APP), who is in-charge of I-Addl. JMFC Court has also not brought to the notice of the Court regarding transfer of FIR against accused filing of the charge sheet in respect of same offence before Vth JMFC Court for the reasons best known to him. The Investigating Officer and the concerned Bench clerk also kept the Court in dark about transfer of such proceedings or transfer of said FIR in respect of said accused for the same offence on jurisdictional point. Therefore, without knowing inadvertently or due to misconception or may be bonafidely thinking that charge sheet is not filed within 90 days, the learned JMFC has passed an order. But when subsequently it was noticed by him, the Court has declined to take bail bonds.
17. The learned Sessions Judge has rightly observed that the Court which has passed the "default bail"
order cannot cancel it on its own. The concerned 19 jurisdictional police ought to have filed an application for cancellation of bail, but they have not done so. As the said default bail order is not cancelled, such bail order cannot be upheld for the simple reason that the indefeasible right get released on such default bail will accrue to the accused if charge sheet is not filed within the statutory period prescribed under section 167(2) of Cr.P.C. Once the charge sheet is filed in respect of same offence against the same accused, that right does not survive and such right cannot be enforced simply because filing of charges is suppressed before JMFC Court. It is only under the provisions relating to grant of bail either under Section 437 or 439 Cr.P.C, the bail application has to be moved. Once the challen is filed, the remand will be not under Section 167 Cr.P.C, it will be under Section 309 of Cr.P.C. The power to remand under Section 167 of Cr.P.C. ends the moment when the charge sheet is filed.
18. The charge sheet may not have been filed before the Court where originally FIR was filed or accused were originally produced. But if charge sheet is filed before the Court, which has jurisdiction to enquire and commit the 20 case in respect of the same offence, against same accused, wherein the FIR was transferred to that Court on jurisdictional point and registered with new FIR number, then the accused indefeasible right to default bail ended on 08.12.2021 itself.
19. Simply because the said Vth JMFC Court has not taken cognizance, as on the date the charge sheet is filed, it does not entitle the accused to contend that the order which is passed by the Court having no jurisdiction is enforceable. It is settled principles of law that simply because the accused were produced and they were in custody in Crime No.55/2021, that will not entitle them to enforce the order passed without jurisdiction, as that custody already changed in view of filing of charge sheet in Crime No.204/2021 dated 08.02.2021. The crime No.204/2021 is not a different crime or it is different case for different offence or against different accused. It is the same case in Crime No.55/2021 for the same offence against the same accused. The transfer of FIR is re- registered as Crime No.204/2021. Except that there is no change at all.
21
20. What is essential is filing of the charge sheet in compliance with proviso to Section 167(2) of Cr.P.C. Taking cognizance by the Magistrate is a different aspect and is not material as held by the Hon'ble Supreme Court in Criminal Appeal Nos.185-186/2022 in the case of Serious Fraud Investigation Office Vs. Rahul Modi and others dated 07.02.2022.
21. The Hon'ble Supreme Court in the above decision at Para No.9 held that the scheme of the Cr.P.C. is such that once the investigation stage is completed, the Court has to proceed to the next stage which is the taking of cognizance and trial. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced, with such Magistrate being vested with power to remand the accused to police custody or judicial custody, upto a maximum period as prescribed under Section 167(2) of the Cr.P.C. Acknowledging the fact that an accused has to remain in custody of some Court, this Court concluded that on filing of the charge-sheet within the stipulated period, the 22 accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the Court trying the offence, when the said Court assumes custody of the accused for the purposes of remand during the trial in terms of Section 309 of Cr.P.C. The Court clarified that the two stages are different, with one following the other so as to maintain continuity of the custody of the accused with a Court.
22. Simply, because the case was transferred and registered in Crime No. 204/2021 and filed before V JMFC Court, Kalaburagi and accused still produced before the Court in Crime No.55/2021, that does not entitle the Magistrate to pass an default bail order. Such order is passed erroneously under misconception and not bringing to the notice of the Court, about transfer of the case, and filing of charge sheet.
23. The learned counsel for the petitioner has relied upon the decision of the Coordinate Bench of this Court in the case of Sri. Comanduru Parthasarathy Vs. State of Karnataka in Crl.P.No.2802/2022 dated 21.04.2022. 23 But the facts of the present case and the facts of that case are totally different.
24. The Hon'ble Supreme Court dealt with the effect of bail order passed inadvertently, erroneously and certain facts were not brought to the notice of the Court in the case of Venkatesan Balasubramaniyan vs. The Intelligence Officer, D.R.I. Bangalore in Criminal Appeal No.801/2020 dated: 20.11.2020. In that case, since 180 days had lapsed, the learned Special Sessions Judge, Hyderabad granted "default bail". Then he received a requisition to produce the accused in other crime at DRI Bangalore. Accordingly, he handed over them and accused were granted custody to the DRI Bangalore and DRI Bangalore produced the accused before Addl. Sessions Judge, Omerga, Maharashtra and an application was filed to transfer the records in the Hyderabad case to Omerga Sessions Court. Accordingly, Special Sessions Judge Hyderabad transferred the records to Omerga Court. Then the learned Sessions Judge at Omerga came to know that the accused were already granted default bail before 24 Sessions Judge, Hyderabad where charge sheet was already filed. The Omerga Court, then issued show-cause notice to DRI Bangalore to give explanation. At that stage, DRI Bangalore filed an application for cancellation of bail under Section 439(2) of Cr.P.C. in the High Court. The High Court cancelled the bail granted under Section 167(2) of Cr.P.C. Aggrieved by that, the appeals were filed. In that case the accused were intercepted at Hyderabad and narcotic substance was recovered at Hyderabad and after investigation they came to know that accused started from Omerga to Chennai in a car and narcotic substance was transported and recovery was also made at Omerga factory and on a complaint submitted by Intelligence Officer, a case was registered at Omerga Police Station also.
25. The Hon'ble Supreme Court in the above referred decision held at paras 9 and 10 as under:
"9. The High Court in the impugned judgment noted that charge sheet having been filed on 06.07.2018, i.e., well within the stipulated period of 180 days, the accused could not have been granted the benefit under Section 167 Cr.P.C. In paragraph 8, following has been observed by the High Court:-25
"8. ...................It can be culled out from the record that filing of the single charge sheet on 06.07.2018 before the Additional Sessions Court, Omerga, was not brought to the notice of the Metropolitan Sessions Court, Hyderabad for whatever reason may be. Since the factual aspect remains that the charge sheet was filed on 06.07.2018 i.e., well within the stipulated period of 180 days, the respondents-accused are not entitled for the benefit under Section 167(2) Cr.P.C. Under these circumstances, the respondents- accused are entitled for bail in accordance with the provisions laid down under the NDPS Act read with Sections 437 and 439 Cr.P.C. and accordingly they are entitled to work out the remedies under the said provisions."
10. It is true that the bail granted under Section 167(2) Cr.P.c. could have been cancelled under Section 439(2) Cr.P.C.. This Court in Pandit Dnyanu Khot Vs. State of Maharashtra and Ors., (2008) 17 SCC 745 while considering the case where bail granted under Section 167(2) Cr.P.C. was cancelled under Section 439(2) Cr.P.C. by learned Sessions Judge after noticing the facts upheld the order under Section 439 Cr.P.C. cancelling the bail. Paragraphs 7, 8 and 9 of the judgment are as follows:-
"7. In the present case, against the accused, FIR for the offences punishable under Sections 302, 307, 147, 148, 149, 324 and 323 IPC and Section 27 of the Arms Act was registered. The accused were arrested 26 on 28-10-2000 and were produced before the Judicial Magistrate. They filed an application under Section 167(2) CrPC on 25-1-2001 for releasing them on bail on the ground that charge-sheet was not submitted within the stipulated time and the court released them on bail on the same date by exercising jurisdiction under Section 167(2) CrPC. The State filed an application on 31-1-2001 under Section 437(5) and Section 439(2) CrPC before the Sessions Judge, Kolhapur for cancellation of bail. Before the said application could be finally disposed of, the accused preferred an application Ext. 8 submitting that an application under Sections 437(5) and 439(2) was not maintainable before the Sessions Court and the State ought to have approached the learned Magistrate for cancellation of the bail. That application was rejected by the learned Additional Sessions Judge by order dated 3-3-
2001. Thereafter, the learned Additional Sessions Judge by judgment and order dated 2-5-2001 allowed the said application and set aside the order passed by the Judicial Magistrate on the ground that the accused were released on the 89th day, that is, before expiry of 90 days.
8. In our view, it appears that the High Court has committed basic error in not referring to the provisions of Section 439(2) CrPC which specifically empower the High Court or the Court of Session to cancel such bail. Section 439(2) reads as under:27
"439. Special powers of High Court or Court of Session regarding bail.--
(1)*** (2) 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."
9. The proviso to Section 167 itself clarifies that every person released on bail under Section 167(2) shall be deemed to be so released under Chapter XXXIII. Therefore, if a person is illegally or erroneously released on bail under Section 167(2), his bail can be cancelled by passing appropriate order under Section 439(2) CrPC. This Court in Puran v. Rambilas [(2001) 6 SCC 338] has also clarified that the concept of setting aside an unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation."
26. Therefore, in view of principles stated in the above decision, it is evident that if any such order i.e., default bail order is passed due to misconception or miscommunication or not bringing to the notice of the Court about transfer of the FIR to some other Court and filing of 28 charge sheet within stipulated period and if the concerned Investigating Officer, Police or the Prosecutor or the Bench clerk does not bring it to the notice of the Court about filing of charge sheet in respect of same offences against same accused and if the "default bail" order came to be passed, that order becomes an order passed without jurisdiction. When an order is passed without any jurisdiction it is a nullity and not enforceable.
27. The learned High Court Government Pleader brought to the notice of the Court that accused No.3 - Srinivas who is also accused in Crime No.55/2021 has filed an application under Section 439 of Cr.P.C. in Crime No.204/2021, which was rejected by the Sessions Court on 07.01.2022 in Crl.Misc.No.2378/2021.
28. That shows before passing of default bail on 17.12.2021 by the Trial Court, the accused very well knew about the filing of charge sheet, and transfer of case to Crime No.204/2021 before the V Additional JMFC Court, Kalaburagi and that was suppressed by the Investigating 29 Officer, the APP and the Court clerk before the Ist JMFC Court in Crime No.55/2021.
29. It is to be stated here that APP or Investigating Officer of this case are not vigilant in informing the Court, about filing of charge sheet and transfer of FIR, which resulted in miscarriage of justice which has given rise to multiplicity of the proceedings. Therefore, it is necessary to state that before passing any such order, the Trial Court must ensure from the Investigating Officer and concerned prosecutor about filing of the charge sheet. It is also necessary that whenever the FIR is transferred subsequently to another police station on point of jurisdiction and submitted to other jurisdictional Court the same shall be immediately brought to the notice of the Court. Where the First FIR is filed and pending. Further, when the charge sheet is submitted to any Court, the Court shall ensure that charge sheet is initialed and dated by presiding officer and direct CMO to check and put up the note in the order sheet as per the provisions of Criminal Rules of Practice.
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30. Therefore, viewed from any angle when such transfer of FIR crime No.55/2021 is not brought to the notice of the Court, and the charge sheet is filed within 90 days, the petitioners are not entitled for bail under Section 167 (2) of Cr.P.C. Petitioner can seek regular bail under Section 439 of Cr.P.C. if he is advised so. The Petitioner deserves to be dismissed.
31. It is necessary to mention that the concerned police authority shall issue guidelines to the Investigating Officer to bring to the notice of the Court whenever transfer of FIR takes place from one police station to another police station on jurisdictional point and FIR is registered and submitted to Jurisdictional Court, so as to avoid these types of situations. When a FIR came to be transferred, the Assistant Public Prosecutor must take instructions from Investigating Officer and submit to the Court about filing of the charge-sheet before the Court where the FIR is transferred. This Court cannot now direct the Magistrate to take bail bond and release the petitioner, as stated above once the charge-sheet is filed in respect of same Crime 31 number against the same accused in new FIR Crime number, the right to get "default bail" under Section 167 (2) of Cr.P.C. get extinguished on 08.12.2021.
32. The Registry of this Court is directed to forward the copy of this order to the Home Secretary, Government of Karnataka, Director General of Police, Karnataka and Director of Prosecution, Bengaluru, through Additional Registrar General of this Court for their reference and issuance of direction to the prosecutors and investigating officers working in their respective departments to strictly follow the observations made in this order regarding immediately bringing to the notice of the Court about the subsequent transfer of FIR from one Court to another Court on territorial jurisdiction or otherwise and also about ascertaining filing of charge sheet in any such Court within statutory period.
Accordingly, the petition is disposed of.
SD/-
JUDGE KJJ/Sdu/*mn/-