Order passed by Addl. Sessions Judge declining to grant default bail is final order, can’t be challenged with criminal miscellaneous petition: HC

Read Order: Rakesh alias Moni v. State of Haryana 

 LE Correspondent

Chandigarh, July 29, 2021: The Punjab and Haryana High Court has held that the order passed by the Additional Sessions Judge declining to grant default bail is a final order and, therefore, will have to be challenged in the high court by way of filing revision petition. 

The High Court thus dismissed a criminal miscellaneous petition seeking to challenge an ASJ order declining bail in a rape case.

The brief the facts are that the petitioner was nominated as an accused in an FIR dated 21.10.2020 under Section 328, 363, 366-A, 376, and 506 IPC read with Section 6 of the POCSO Act, 2012 (Sections 376-D , 420, and 201 IPC and Section 67-B of the Information Technology Act added later on) registered at the Women’s Police Station, Hansi in Haryana’s Hisar district.

It was alleged that the daughter of the complainant had been enticed away by two boys including the present petitioner in a car to an unknown place, where after consuming liquor she was raped. When she woke up, she found herself without any clothes. 

The incident complained of was 40 days prior to the date of filing of the FIR. In the FIR, it was alleged that both the boys were daily threatening the complainant’s  daughter as they had video and photos of her, apart from threatening to kill the victim’s younger brother if she failed to listen to them. As the prosecutrix was a minor, strict action was sought against the accused.

The petitioner’s counsel argued before the HC that since the police had filed an incomplete chargesheet admittedly without the Cyber Cell report, it was entitled for default bail, even as the state opposed it as frivolous.

Deciding the matter, the bench of Justice Jaishree Thakur stated that in the present petition, the relief argued for is two-fold, i.e. seeking default bail on the ground that an incomplete chargesheet was filed without the report of the Cyber Cell, and another prayer has been made for grant of regular bail as the statements of the prosecutrix given under Section 161 and 164 Cr.P.C with allegations of an offence of rape are not supported by the medical report.

“The petitioner herein had an option of challenging the order of lower court dated 04.06.2021 when his application for regular bail was denied by the Special Court, however he chose to file an application under Section 167 (2) Cr.P.C. instead that deals with grant with default bail to the accused,” the Bench said.

“The application seeking default bail was however dismissed by the additional sessions judge and the remedy for the petitioner herein would have been to challenge the same by filing a Criminal Revision Petition which has not been done. Instead he filed a Criminal Misc Petition with a prayer for default bail by invoking Section 439 Cr.P.C. and inherent powers of the Court under Section 482 Cr.P.C,” the bench stated. 

Framing the larger question, the bench added, “Now the foremost question that needs to be addressed is whether the instant Criminal Misc. Petition as filed under Section 439 Cr.P.C. read with Section 482 Cr.P.C. seeking to challenge the order dated 11.6.2021, dismissing the application for default bail under Section 167 (2) Cr.P.C. is maintainable.”

Placing its reliance on CRR No. 2087 of 2014 titled as Ranjit Singh @ Rana Versus State of Punjab before the Division Bench of this very High Court, the bench of Jaishree Thakur held that the order passed by the Addl. Sessions Judge declining to grant default bail to the petitioner herein is a final order and, therefore, will have to be challenged by way of filing revision petition. 

Therefore, the criminal miscellaneous petition seeking to challenge the said is held to be not maintainable, the Bench said.

“As far as the argument raised by the petitioner that he would be entitled to grant of regular bail as the statement of the prosecutrix under Section 164 Cr.P.C and the medical support do not support the allegation of rape, the same cannot be taken into consideration as the petitioner has not challenged the order of special court dated 4.6.2021,” held the court.