2020 (10) TMI 1244 - SC - Indian Laws

Grant of Default Bail - time limitation - application for grant of default bail is made on expiry of the period of 90 days - Section 167(2) of Indian Penal Code - HELD THAT - 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 Judicial Magistrate Ajnala by his order dated 13.02.2019. This Order was correctly set aside by the Special Court by its judgment dated 25.03.2019 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.

Summary

Issues Involved:
1. Jurisdiction of the Ilaqa Magistrate to extend the investigation period under UAPA.
2. The right to default bail under Section 167(2) of the Code of Criminal Procedure.

Detailed Analysis:

1. Jurisdiction of the Ilaqa Magistrate to Extend the Investigation Period Under UAPA:
The case revolves around the interpretation of Section 167(2) of the Code of Criminal Procedure (CrPC) and Section 43-D(2) of the Unlawful Activities (Prevention) Act (UAPA). The FIR dated 18.11.2018 led to the arrest of the appellant on 22.11.2018. The appellant sought default bail after 90 days in custody, but the Sub-Divisional Judicial Magistrate extended the investigation period to 180 days. This extension was challenged and set aside by the Special Court, which held that only the Special Court had jurisdiction to extend the period under UAPA and NIA Act. The High Court's interpretation that the Magistrate had the power to extend the period if the investigation was conducted by the State police was incorrect. The Supreme Court clarified that the Special Court alone has exclusive jurisdiction to extend the investigation period under UAPA, as per Section 43-D(2) read with Section 22(2) and Section 13 of the NIA Act.

2. The Right to Default Bail Under Section 167(2) of the Code of Criminal Procedure:
The appellant's right to default bail was a central issue. The Supreme Court examined various judgments on the matter, including Hitendra Vishnu Thakur v. State of Maharashtra, Sanjay Dutt v. State through CBI, Uday Mohanlal Acharya v. State of Maharashtra, and Union of India v. Nirala Yadav. The Court reiterated that an indefeasible right to default bail arises once the statutory period for investigation (90 days or 180 days with extension) expires, provided the accused applies for bail before the charge sheet is filed. The High Court's dismissal of the appellant's bail application on the ground that the charge sheet was filed the next day was incorrect. The Supreme Court emphasized that the right to default bail is part of the procedure established by law under Article 21 of the Constitution, making it a fundamental right. The appellant's application for default bail, made before the charge sheet was filed, should have been granted.

Conclusion:
The Supreme Court set aside the High Court judgment, granting the appellant default bail under Section 167(2) of the CrPC, as amended by Section 43-D of the UAPA. The Court clarified that the Special Court has exclusive jurisdiction to extend the investigation period under UAPA and that the right to default bail is a fundamental right under Article 21 of the Constitution. The appellant's earlier application for default bail, wrongly dismissed, should have been considered valid. The Court allowed the appeal, emphasizing the importance of personal liberty and the procedural safeguards provided by law.