TMI Blog2020 (10) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.03.2019, holding that under the UAPA read with the NIA Act, the Special Court alone had jurisdiction to extend time to 180 days under the first proviso in Section 43-D(2)(b). The fact that the Appellant filed yet another application for default bail on 08.04.2019, would not mean that this application would wipe out the effect of the earlier application that had been wrongly decided. We must not forget that we are dealing with the personal liberty of an Accused under a statute which imposes drastic punishments. The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law Under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an Accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled. The Appellant will now be entitled to be released on default bail Under Section 167(2) of the Code, as amended by Section 43-D of the UAPA - Appeal allowed. - Criminal Appeal No. 667 of 2020 (Arising out of Special Leave Petition (Crl.) No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Police apprehended the Appellant, one Bikramjit Singh, aged 26 years, on 22.11.2018, on which date he was remanded to custody by the learned Sub-Divisional Magistrate. After 90 days in custody, which expired on 21.02.2019, an application for default bail was made to the Sub-Divisional Judicial Magistrate, Ajnala. This application was dismissed on 25.02.2019 on the ground that the learned Sub-Divisional Judicial Magistrate had, by an order dated 13.02.2019, already extended time from 90 days to 180 days Under Section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ) as amended by the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as UAPA )-See Section 43-D(2). However, this Order was challenged by way of a revision petition by the Appellant and his co-Accused, which revision succeeded by an order dated 25.03.2019, by which the learned Additional Sessions Judge being the Special Court set up under the National Investigation Agency Act, 2008 (hereinafter referred to as the NIA Act ) held as follows: 6. After hearing the Ld Counsel for revision Petitioner and Ld PP for State, I am of the view that since Ld PP has not controver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation issued by Government of Punjab on 10.06.2014, the Session Judge and first Additional Session Judge at each District Head Quarters in the State are designated as special court for the trial of offences of unlawful activities act. However, as per the local arrangement, all the cases pertaining to unlawful activities act are dealt in this Court. So, being a special court, this Court is competent to directly receive the challan or police report Under Section 173 Code of Criminal Procedure. Since the challan has already been presented and in the judgment titled as Abdul Aziz PV and Ors. v. National Investigation Agency 2015 (1) RCR (Criminal) 239, it has been held that merely because certain facets of the matter called for further investigation, it does not deem such report anything other than a final report, revisionist are not entitled to statutory bail Under Section 167(2) Code of Criminal Procedure. xxx xxx xxx 12. Since Challan has already been presented, so revision Petitioner have lost their right for bail by way of default Under Section 167(2) Code of Criminal Procedure. Therefore there is no reason to interfere in the order of Ilaqa Magistrate passed Under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the reasons recorded above and in view of judgment of the Hon'ble Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra, 1994 (3) RCR (Crl.) 156, finding no merit in the present petition, the same is dismissed. 6. Shri Colin Gonsalves, learned Senior Advocate appearing on behalf of the Appellant, referred to both the enactments as aforesaid in copious detail and stressed the fact that once the Special Court had been set up as an exclusive Court to try all offences under the UAPA, such offences being scheduled offences relatable to the NIA Act, it was the Special Court alone which had exclusive jurisdiction to extend the period of 90 days to 180 days Under Section 43-D(2)(b) of the UAPA. This being the case, on an application having been made prior to the filing of the charge sheet for default bail, his contention was that the indefeasible right to default bail arose immediately after 21.02.2019, when the 90 day period was over. An order that is passed without jurisdiction by the learned Sub-Divisional Judicial Magistrate dated 13.02.2019, had been corrected by the learned Additional Sessions Judge/Special Court vide the order dated 25.03.2019, as a result of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... politan area, Metropolitan Magistrates; (iii) Judicial Magistrates of the second class; and (iv) Executive Magistrates. The Court of Sessions is then referred to as a Court that is established by the State Government Under Section 9(1) of the Code for every Sessions Division. 10. Section 26 of the Code refers to Courts by which offences are triable. We are concerned directly with Section 26(b) which states as follows: 26. Courts by which offences are triable. Subject to the other provisions of this Code, xxx xxx xxx (b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by-- (i) the High Court, or (ii) any other Court by which such offence is shown in the First Schedule to be triable. 11. Section 167 of the Code makes it clear that whenever a person is arrested and detained in custody, the time for investigation relating to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, cannot ordinarily be beyond the period of 15 days, but is extendable, on the Magistrate being satisfied th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he specific reasons for the detention of the Accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days: Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody. 14. A cursory reading of these provisions would show that the offences under the UAPA Under Sections 16, 17, 18, 18-A, 18-B, 19, 20, 22-B, 22-C and 23, being offences which contain maximum sentences of over 7 years, would be exclusively triable by a Court of Sessions when read with Part II of the First Schedule to the Code. It is only after the NIA Act was enacted that the definition of Court was extended to include Special Courts that were set up Under Section 11 or Section 22 of the NIA Act. 15. When we come to the NIA Act, the Preamble of the said Act indicates the thrust of the provisions of that Act as follows: An Act to constitute an investigation agency at the national level to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Justice of the High Court for appointment of a Judge to preside over the Special Court. (5) On receipt of an application Under Sub-section (4), the Chief Justice shall, as soon as possible and not later than seven days, recommend the name of a judge for being appointed to preside over the Special Court. (6) The Central Government may, if required, appoint an additional judge or additional judges to the Special Court, on the recommendation of the Chief Justice of the High Court. (7) A person shall not be qualified for appointment as a judge or an additional judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge in any State. (8) For the removal of doubts, it is hereby provided that the attainment, by a person appointed as a judge or an additional judge of a Special Court, of the age of superannuation under the Rules applicable to him in the service to which he belongs shall not affect his continuance as such judge or additional judge and the Central Government may by order direct that he shall continue as judge until a specified date or until completion of the trial of the case or cases before hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommitted. (2) If, having regard to the exigencies of the situation prevailing in a State if,-- (a) it is not possible to have a fair, impartial or speedy trial; or (b) it is not feasible to have the trial without occasioning the breach of peace or grave risk to the safety of the Accused, the witnesses, the Public Prosecutor or a judge of the Special Court or any of them; or (c) it is not otherwise in the interests of justice, the Supreme Court may transfer any case pending before a Special Court to any other Special Court within that State or in any other State and the High Court may transfer any case pending before a Special Court situated in that State to any other Special Court within the State. (3) The Supreme Court or the High Court, as the case may be, may act under this Section either on the application of the Central Government or a party interested and any such application shall be made by motion, which shall, except when the Applicant is the Attorney-General for India, be supported by an affidavit or affirmation. Section 14 clarifies that Special Courts may also try offences other than the scheduled offences as follows: 14. Powers of Special Courts wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session. (4) Subject to the other provisions of this Act, every case transferred to a Special Court Under Sub-section (2) of Section 13 shall be dealt with as if such case had been transferred Under Section 406 of the Code to such Special Court. (5) Notwithstanding anything contained in the Code, but subject to the provisions of Section 299 of the Code, a Special Court may, if it thinks fit and for reasons to be recorded by it, proceed with the trial in the absence of the Accused or his pleader and record the evidence of any witness, subject to the right of the Accused to recall the witness for cross-examination. 17. The Scheme of the NIA Act is that offences under the enactments contained to the Schedule to the Act are now to be tried exclusively by Special Courts set up under that Act. These may be set up by the Central Government Under Section 11 or by the State Government Under Section 22 of the Act. On the facts of the present case, we are concerned with Section 22 as Special Courts have been set up within the State of Punjab by a notification dated 10.06.2014, which reads a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her, becomes crystal clear. Under the first proviso in Section 43-D(2)(b), the 90 day period indicated by the first proviso to Section 167(2) of the Code can be extended up to a maximum period of 180 days if the Court is satisfied with the report of the public prosecutor indicating progress of investigation and specific reasons for detention of the Accused beyond the period of 90 days. The Court , when read with the extended definition contained in Section 2(1)(d) of the UAPA, now speaks of the Special Court constituted Under Section 22 of the NIA Act. What becomes clear, therefore, from a reading of these provisions is that for all offences under the UAPA, the Special Court alone has exclusive jurisdiction to try such offences. This becomes even clearer on a reading of Section 16 of the NIA Act which makes it clear that the Special Court may take cognizance of an offence without the Accused being committed to it for trial upon receipt of a complaint of facts or upon a police report of such facts. What is equally clear from a reading of Section 16(2) of the NIA Act is that even though offences may be punishable with imprisonment for a term not exceeding 3 years, the Special Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Accused shall be released on bail, this being an indefeasible right granted by the Code. The extent of this indefeasible right has been the subject matter of a number of judgments. A beginning may be made with the judgment in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602, which spoke of default bail under the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA ) read with Section 167 of the Code as follows: 19. Section 20(4) of TADA makes Section 167 of Code of Criminal Procedure applicable in relation to case involving an offence punishable under TADA, subject to the modifications specified therein while Clause (b) provided that reference in Sub-section (2) of Section 167 to '15 days', '90 days' and '60 days' wherever they occur shall be construed as reference to '60 days', 'one year' and 'one year' respectively. This Section was amended in 1993 by the Amendment Act 43 of 1993 with effect from 22-5-1993 and the period of 'one year' and 'one year' in Clause (b) was reduced to '180 days' and '180 days' respectively, by mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays from the date of his arrest becomes entitled to bail irrespective of the nature of the offence with which he is charged where the prosecution fails to put up challan against him on completion of the investigation. With the amendment of Clause (b) of Sub-section (4) of Section 20 read with the proviso to Sub-section (2) of Section 167 of Code of Criminal Procedure an indefeasible right to be enlarged on bail accrues in favour of the Accused if the police fails to complete the investigation and put up a challan against him in accordance with law Under Section 173 Code of Criminal Procedure An obligation, in such a case, is cast upon the court, when after the expiry of the maximum period during which an Accused could be kept in custody, to decline the police request for further remand except in cases governed by Clause (bb) of Section 20(4). There is yet another obligation also which is cast on the court and that is to inform the Accused of his right of being released on bail and enable him to make an application in that behalf. (Hussainara Khatoon case [Hussainara Khatoon v. Home Secy., State of Bihar, (1980) 1 SCC 98 : 1980 SCC (Cri.) 40 : AIR 1979 SC 1369]). This legal position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period has actually not expired and thus resist the grant of bail on the alleged ground of 'default'. The issuance of notice would avoid the possibility of an Accused obtaining an order of bail under the 'default' Clause by either deliberately or inadvertently concealing certain facts and would avoid multiplicity of proceedings. It would, therefore, serve the ends of justice if both sides are heard on a petition for grant of bail on account of the prosecution's 'default'... No other condition like the gravity of the case, seriousness of the offence or character of the offender etc. can weigh with the court at that stage to refuse the grant of bail to an Accused Under Sub-section (4) of Section 20 TADA on account of the 'default' of the prosecution. 23. In the Constitution Bench judgment in Sanjay Dutt v. State through CBI (1994) 5 SCC 410, one of the questions to be decided by the Constitution Bench was the correct interpretation of Section 20(4)(bb) of TADA indicating the nature of right of an Accused to be released on default bail. The enigmatic expression if already not availed of is contained in paragraphs 48 of the aforesaid judgment as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i [1953 SCR 652 : AIR 1953 SC 277 : 1953 Cri. LJ 1113] and A.K. Gopalan v. Government of India [ (1966) 2 SCR 427 : AIR 1966 SC 816 : 1966 Cri. LJ 602].) xxx xxx xxx 53. As a result of the above discussion, our answers to the three questions of law referred for our decision are as under: xxx xxx xxx (2)(b) The indefeasible right of the Accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur [(1994) 4 SCC 602 : 1994 SCC (Cri.) 1087 : JT (1994) 4 SC 255] is a right which enures to, and is enforceable by the Accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the Accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The Accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the Accused could only move to the higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution files a charge-sheet then also the so-called right accruing to the Accused because of inaction on the part of the investigating agency would get frustrated. Since the legislature has given its mandate it would be the bounden duty of the court to enforce the same and it would not be in the interest of justice to negate the same by interpreting the expression if not availed of in a manner which is capable of being abused by the prosecution. A two-Judge Bench decision of this Court in State of M.P. v. Rustam [1995 Supp (3) SCC 221 : 1995 SCC (Cri.) 830] setting aside the order of grant of bail by the High Court on a conclusion that on the date of the order the prosecution had already submitted a police report and, therefore, the right stood extinguished, in our considered opinion, does not express the correct position in law of the expression if already not availed of , used by the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be frustrated on the off chance of the Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refuses to pass an order and the matter is moved to the higher forum and a challan is filed in interregnum. This is the only way how a balance can be struck between the so-called indefeasible right of the Accused on failure on the part of the prosecution to file a challan within the specified period and the interest of the society, at large, in lawfully preventing an Accused from being released on bail on account of inaction on the part of the prosecuting agency. On the aforesaid premises, we would record our conclusions as follows: xxx xxx xxx 3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the Accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the Accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate. xxx xxx xxx 6. The expression if not already availed of used by this Court in Sanjay Dutt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the judgment in Union of India v. Nirala Yadav (2014) 9 SCC 457, which exhaustively discussed the entire case law on the subject. In this judgment, a Two-Judge Bench of this Court referred to all the relevant authorities on the subject including the majority judgment of Uday Mohanlal Acharya (supra) and then concluded: 44. At this juncture, it is absolutely essential to delve into what were the precise principles stated in Uday Mohanlal Acharya case [ (2001) 5 SCC 453 : 2001 SCC (Cri.) 760] and how the two-Judge Bench has understood the same in Pragyna Singh Thakur [ (2011) 10 SCC 445 : (2012) 1 SCC (Cri.) 311]. We have already reproduced the paragraphs in extenso from Uday Mohanlal Acharya case [(2001) 5 SCC 453 : 2001 SCC (Cri.) 760] and the relevant paragraphs from Pragyna Singh Thakur [(2011) 10 SCC 445 : (2012) 1 SCC (Cri.) 311]. Pragyna Singh Thakur [ (2011) 10 SCC 445 : (2012) 1 SCC (Cri.) 311] has drawn support from Rustam [1995 Supp (3) SCC 221 : 1995 SCC (Cri.) 830] case to buttress the principle it has laid down though in Uday Mohanlal Acharya case [ (2001) 5 SCC 453 : 2001 SCC (Cri.) 760] the said decision has been held not to have stated the correct position o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing at Conclusion 6. According to me, the expression 'availed of' does not mean mere filing of application for bail expressing therein willingness of the Accused to furnish the bail bond. What will happen if on the 61st day an application for bail is filed for being released on bail on the ground of default by not filing the challan by the 60th day and on the 61st day the challan is also filed by the time the Magistrate is called upon to apply his mind to the challan as well as the petition for grant of bail? In view of the several decisions referred to above and the requirements prescribed by Clause (a)(ii) of the proviso read with Explanation I to Section 167(2) of the Code, as no bail bond has been furnished, such an application for bail has to be dismissed because the stage of proviso to Section 167(2) is over, as such right is extinguished the moment the challan is filed. 30. In this background, the expression 'availed of' does not mean mere filing of the application for bail expressing thereunder willingness to furnish bail bond, but the stage for actual furnishing of bail bond must reach. If the challan is filed before that, then there is no question of en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Additional Solicitor General Mr. Raval. There is no denying the fact that on 17-7-2012, when CR No. 86 of 2012 was allowed by the Additional Sessions Judge and the custody of the Appellant was held to be illegal and an application Under Section 167(2) Code of Criminal Procedure was made on behalf of the Appellant for grant of statutory bail which was listed for hearing. Instead of hearing the application, the Chief Metropolitan Magistrate adjourned the same till the next day when the Public Prosecutor filed an application for extension of the period of custody and investigation and on 20-7-2012 extended the time of investigation and the custody of the Appellant for a further period of 90 days with retrospective effect from 2-6-2012. Not only is the retrospectivity of the order of the Chief Metropolitan Magistrate untenable, it could not also defeat the statutory right which had accrued to the Appellant on the expiry of 90 days from the date when the Appellant was taken into custody. Such right, as has been commented upon by this Court in Sanjay Dutt [ (1994) 5 SCC 410 : 1994 SCC (Cri.) 1433] and the other cases cited by the learned Additional Solicitor General, could only be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Cri.) 760] and the conclusions arrived at in that decision. We are concerned with Conclusion (3) which reads as follows: (Nirala Yadav case [Union of India v. Nirala Yadav, (2014) 9 SCC 457 : (2014) 5 SCC (Cri.) 212], SCC p. 472, para 24) 13. (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the Accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the Accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.' (Uday Mohanlal case [Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri.) 760], SCC p. 473, para 13) 38. This Court also dealt with the decision rendered in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri.) 1433] and noted that the principle laid down by the Constitution Bench is to the effect that if the charge-sheet is not filed and the right for default bail has ripened into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext. The Accused can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the Accused makes a written application for default bail or an oral application for default bail is of no consequence. The court concerned must deal with such an application by considering the statutory requirements, namely, whether the statutory period for filing a charge-sheet or challan has expired, whether the charge-sheet or challan has been filed and whether the Accused is prepared to and does furnish bail. 41. We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court. xxx xxx xxx Application of the law to the Petitioner 45. On 11-1-2017 [Rakesh Kumar Paul v. State of Assam] when the High Court dismissed the application for bail filed by the Petitioner, he had an indefeasible right to the grant of def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail. xxx xxx xxx 49. The Petitioner is held entitled to the grant of default bail on the facts and in the circumstances of this case. The trial Judge should release the Petitioner on default bail on such terms and conditions as may be reasonable. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the Petitioner on cogent grounds in respect of the subject charge and upon arrest or re-arrest, the Petitioner is entitled to petition for grant of regular bail which application should be considered on its own merit. We also make it clear that this will not impact on the arrest of the Petitioner in any other case. 28. Deepak Gupta, J. in his concurring opinion agreed with Lokur, J. as follows: 82. The right to get default bail is a very important right. Ours is a country where millions of our countrymen are totally illiterate and not aware of their rights. A Constitution Bench of this Court in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri.) 1433] ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the Accused under the first proviso to Section 167(2), kicks in and must be granted. 29. On the facts of the present case, the High Court was wholly incorrect in stating that once the challan was presented by the prosecution on 25.03.2019 as an application was filed by the Appellant on 26.03.2019, the Appellant is not entitled to default bail. First and foremost, the High Court has got the dates all wrong. The application that was made for default bail was made on or before 25.02.2019 and not 26.03.2019. The charge sheet was filed on 26.03.2019 and not 25.03.2019. The fact that this application was wrongly dismissed on 25.02.2019 would make no difference and ought to have been corrected in revision. The sole ground for dismissing the application was that the time of 90 days had already been extended by the learned Sub-Divisional Judi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
