While ruling on a most significant topic pertaining to the legal right of the accused with regard to default bail, the Delhi High Court in a most pertinent, pragmatic and progressive judgment titled Sanjay Kumar Pundeer vs State of NCT of Delhi in Bail Appln. 2698/2023 and cited in Neutral Citation as 2023:DHC:6683 that was pronounced as recently as on September 15, 2023 has held that the right of the accused to default bail under Section 167 of the Criminal Procedure Code (CrPC) would arise in a case where the prosecution files preliminary or incomplete chargesheet. It deserves to be noted that the Delhi High Court held this while ruling on an application that had been filed by the accused under Sections 439 and 482 of CrPC in which bail was sought pertaining to the offences under Sections 302/34 of IPC read with Sections 25 and 27 of the Arms Act. It must be noted that the Court after perusing the facts and analyzing concluded that the chargesheet filed in this case was not complete. Resultantly, we see that the Delhi High Court thus so very rightly dismissed the bail application.

At the very outset, this learned, laudable, landmark and latest judgment authored by the Single Judge Bench comprising of Hon'ble Mr Justice Amit Sharma sets the ball in motion by first and foremost putting forth in para 1 that:
The present application under Section 439 read with Section 482 of the Code of Criminal Procedure, 1973 ('CrPC') seeks the following prayers:

1. Pass an order directing that the petitioner be granted default/statutory bail in FIR No. 747/2021 dated 07.09.2021, P.S. Dabri, registered u/s 302/34 IPC r/w 25 & 27 Arms Act, being tried as Session Case No. 174/2022 titled State Vs. Rajeev Gupta @ Ramu & Drs.‖ and subjudice before the court of Sh. Vipin Kharb, Ld. ASJ, South-West, Dwarka District Courts, New Delhi;
    
2. Set-aside the impugned order dated 07.06.2023 passed by the court of Sh. Vipin Kharb, Ld. ASJ, South-West, Dwarka District Courts, New Delhi in FIR No. 747/2021 dated 07.09.2021, P.S. Dabri, being tried as Session Case No. 174/2022 titled State Vs. Rajeev Gupta @ Ramu & Drs.
    
3. Pass any other order/orders which this Hon'ble Court may deem fit and proper in the present case.

Background
To put things in perspective, the Bench envisages in para 2 that:
Briefly stated, the facts of the present case are as under:

1. The present FIR was registered on 07.09.2021 at the instance of one Manoj Gupta who alleged while he and his friend Chaman ('the deceased') were sitting and talking, Rajeev Gupta @ Ramu and Sanjay Singh Pundeer @ Kaku ('the applicant') came. They were carrying a katta and a knife, respectively.
2. It was alleged that thereafter, the said persons, along with some other boys surrounded the complainant and the deceased. Ramu shot the deceased with a katta and thereafter, the applicant stabbed him with a knife multiple times.
3. The deceased was taken to the hospital. The MLC of the deceased reflected that he was 'declared brought dead'.
4. The present FIR was registered under Sections 302/34 of the Indian Penal Code, 1860 ('IPC') and Sections 25/27 of the Arms Act, 1959.
5. During the course of investigation, all the relevant exhibits were seized and sent to the Forensics Science Laboratory ('FSL') for further examination. The knife which is alleged to have been used by the applicant in commission of the offence was also seized and sent to FSL for examination.
6. The applicant and co-accused Kumar Pal Singh were arrested on 08.09.2021.
7. Co-accused Rajeev Gupta @ Ramu was arrested on 11.09.2021. One country made firearm pistol (desi katta) with one used cartridge and one live .315 bore cartridge was recovered from his possession.
8. On 08.09.2021, the applicant was remanded to police custody for two days, i.e., till 10.09.2021. Thereafter, the applicant was remanded to judicial custody on 10.09.2021.
9. Upon completion of investigation, the chargesheet in the present case was filed on 02.12.2021 qua the accused persons including the present applicant. The applicant and co-accused Rajeev Gupta @ Ramu were chargesheeted for offences under Sections 302/34/120B of the IPC and Sections 25/27 of the Arms Act. Co-accused Kumar Pal Singh was chargesheeted under Section 120B of the IPC.
10. The cause of death of the deceased was opined as haemorrhagic shock consequent upon firearm and stab injuries to multiple vital organs via injury no. 1 to 7, all of which are sufficient to cause death in the ordinary course of nature.
11. In the chargesheet that was filed in the present case, it was stated that the FSL report of all the exhibits was awaited and a supplementary report in terms of Section 173(8) of the CrPC would be filed placing the results on record.
12. On 06.12.2021, the learned Metropolitan Magistrate-02, Dwarka Courts, New Delhi took cognizance of offences under Sections 302/120B/34 of the IPC.
13. Vide order dated 03.03.2022, the learned Metropolitan Magistrate committed the matter to the Court of Sessions since the accused persons had been chargesheeted for offences under Sections 302/34/120B of the IPC and Sections 25/27 of the Arms Act, which were exclusively triable by the Court of Sessions.
14. On 14.03.2023, the first supplementary chargesheet was filed in the present case, by way of which the FSL report in relation to the pistol recovered from co-accused Rajeev Gupta @ Ramu, the bullet lead recovered from the place of incident, and the CCTV footage taken from the camera outside the office of co-accused Kumar Pal Singh was placed on record. A sanction order in terms of Section 39 of the Arms Act qua co-accused Rajeev Gupta @ Ramu for his prosecution under Section 25 of the Arms Act was also filed along with the supplementary chargesheet.
15. On 18.04.2023, the second supplementary chargesheet in the present case was filed, by way of which the report of the FSL in relation to DNA analysis of blood samples was placed on record.
16. On 17.05.2023, an application seeking default bail under Section 167 of the CrPC was filed on behalf of the applicant before the learned Trial Court. The said application was dismissed by the learned Additional Sessions Judge-04(SW), Dwarka vide order dated 07.06.2023, observing as under:

In the present case, investigation with respect to the offences mentioned in the FIR is complete in all respects and prosecution has given the opinion that accused persons are liable for the offences u/s. 302/120B IPC read with 25/27 Arms Act. Only investigation which was not within the control of the I0 and which depends upon the external factors like report from the external agencies was pending and only regarding those reports supplementary charge-sheets have been filed. As complete chargesheet has already been filed, therefore, right to statutory bail of the accused stands defeated. Accordingly the application in hand is disposed of as dismissed.‖ ‖

Most significantly, we see that the Bench then observes succinctly in para 12 that:
The fundamental right to personal life and liberty under Article 21 of the Constitution of India and its co-relation with 167(2) of the CrPC has been, over the years, clearly established by way of judicial precedents of the Hon'ble Supreme Court of India as well as various High Courts. The right of an accused to default bail under Section 167(2) of the CrPC would arise in a case where the chargesheet is not filed within the stipulated period. The other circumstance giving rise to the right to default bail would be in case where the prosecution files a preliminary or an incomplete chargesheet, within the period prescribed for offences mentioned therein and in that process, defeating the right of the accused to statutory bail.

Be it noted, the Bench notes in para 18 that:
In the present case, the investigation qua the applicant was complete at the time the first chargesheet was filed, as regards the offences mentioned in the FIR, on 02.12.2021. At the time of filing of the first chargesheet, there was sufficient material on record qua the applicant such as statements of eyewitnesses and other material evidence collected and placed on record. Mere non-filing of the FSL Report is not sufficient to conclude that the chargesheet filed in the present case was incomplete. The said report can be filed by way of a supplementary chargesheet. In any case, the case of the prosecution is primarily based on the eye witness account of the complainant.

The FSL report, if any, would be a corroborative piece of evidence. As pointed out hereinabove, even after the filing of the chargesheet, further investigation can continue under Section 173(8) of the CrPC. The opinion of the expert can always be filed before the learned Trial Court by way of supplementary chargesheet. It is further pertinent to note that in the present case, the learned Trial Court had taken the cognizance after the chargesheet was filed and the said order was not challenged by the petitioner.

As a corollary, the Bench then directs in para 22 that:
In the facts and circumstances of the case, the bail application is dismissed and disposed of accordingly.

Conclusion In sum, we thus see that the Delhi High Court most decisively dismisses the bail application after perusing the facts as it concluded rightly that the chargesheet filed in this case was not incomplete. In this judgment, we see that the important and relevant case laws mentioned are of Supreme Court in Judgebir Singh alias Jasbir Singh Samra alias Jasbir and Others v. National Investigation Agency, 2023 SCC OnLine SC 543 elaborated upon in para 17 and of Division Bench of Delhi High Court in Syed Maqbool v. N.I.A., 2014 SCC OnLine Del 3966 elaborated upon in para 19 of this notable judgment.

The Delhi High Court also clarifies in para 24 that:
The applicant is at liberty to approach the concerned learned Trial Court seeking bail on merits. It is also made absolutely clear in para 25 that the present application is limited to the issue of default bail and nothing stated hereinabove is an opinion on the merits of the case. It is thus made pretty clear by the Single Judge Bench of Hon'ble Mr Justice Amit Sharma of Delhi High Court in this notable judgment as illustrated best in para 12 that the right of accused to default bail would arise under Section 167(2) of CrPC when prosecution files preliminary or incomplete chargesheet.

It thus merits no reiteration that all the Courts must definitely pay heed in the paramount interest of justice and to protect the legal rights of the accused and also abide by the red lines drawn pertaining to the right of the accused to default bail to what the Delhi High Court has held so very clearly, cogently and convincingly in this leading case and rule accordingly in similar such cases. There can be just no denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh