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TMI Blog2020 (10) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... r Cycle without number of Black shade. Out of them, one had worn Jean and Jacket and was having turban on his head and he has muffled his face with a cloth of check. He went inside and the other young boy, who was wearing Kurta, Pyjama and Jacket and had muffled his face with a handkerchief, took out a Pistol from the fold of his Pyjama and made us to stand together near the Bathroom. The young boy who had gone inside the Satsang Hall threw a Hand Grenade on the stage with his right hand. An explosion took place and the above-said young boy took out a Pistol and ran towards the gate. Both the young men ran towards Village Adliwal on their Pulsar Motor Cycle. Due to Grenade explosion, about 22 persons from the Sangat sustained serious injuries. The other persons arranged conveyance and carried the injured to IVY Hospital, Amritsar and Guru Nanak Dev Hospital, Amritsar, where Sukhdev Kumar son of Kans Raj, resident of Kohali, now resident of Mirankot, aged about 45 years, Kuldeep Singh son of Joginder Singh, resident of Bagga and Sandeep Singh son of Amarjit Singh, resident of Ward No. 7, Rajasansi died in IVY Hospital, Amritsar. The above young men by throwing a Hand Grenade on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1967. It means, Ilaqa Magistrate was not competent to pass any order on any such application. In case the same has been filed and passed i.e. without its jurisdiction. So because of the said reason order passed by Ilaqa magistrate is not sustainable in the eyes of law and the same is liable to be set aside by way of acceptance of this revision petition. Accordingly this revision is allowed and order of Ilaqa magistrate dated 13.02.2019 is set aside. Trial court record along with copy of this order be sent back to the Trial Court and file of this Court be consigned to record room. 4. One day later, on 26.03.2019, a charge sheet was filed before the learned Special Judge after police investigation, in which Sections 302, 307, 452, 427, 341, 34 of the Indian Penal Code read with Section 25 of the Arms Act, 1959, Sections 3, 4, 5, 6 of the Explosive Substances Act, 1908 and Sections 13, 16, 18, 18-B and 20 of the Unlawful Activities (Prevention) Act, 1967 were invoked for offences that were committed pursuant to investigation of the FIR lodged on 18.11.2018. Meanwhile, a revision petition that was filed against the order dated 25.02.2019, was dismissed by the Special Judge on 11.04.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency under the NIA Act, the power shall be exercised by the Special Court and challan will be presented by the agency before the Special Court. xxx xxx xxx It is not case of the Petitioner that the investigation was conducted by the agency Under Section 6 of the NIA Act and till committal of the case to the Court of Sessions, as per Section 22(3) of NIA Act, it cannot be said that the Magistrate has no power and therefore, the order dated 25.03.2019 suffers from illegal infirmity. The arguments raised by learned Senior Counsel for the Petitioner that the Petitioner is entitled to default bail Under Section 167(2) Code of Criminal Procedure, in view of judgment of the Hon'ble Supreme Court in Sanjay Dutt's case (supra), is not available, once the challan was presented by the prosecution on 25.03.2019, as the application was filed by the Petitioner on the next day i.e. 26.03.2019 The Judge, Exclusive Court has recorded a well reasoned finding that mere fact that sanction has not been granted so far, is no ground to grant concession of bail, as it is rightly held that besides the offence committed under the UAP Act, the Accused is also facing the trial for committing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire investigation was done only by the State Police and not by the National Investigation Agency. This being the case, she argued that the Ilaqa Magistrate had jurisdiction to extend time, and having so extended time on 13.02.2019, any application for default bail after the 90 day period was over i.e. after 21.02.2019 had necessarily to be dismissed. She also argued that the first application for default bail which was filed on or before 25.03.2019, had spent its force, having been dismissed, and that the application dated 08.04.2019 filed for default bail was clearly after 26.03.2019, when the charge sheet was filed and, therefore, was correctly dismissed by the order of the learned Special Judge dated 11.04.2019. 8. Having heard learned Counsel for the parties, it is important at this stage to set out all the relevant provisions of the three enactments that we are directly concerned with-the Code, UAPA and NIA Act. 9. It is important to note that the expression "Court" is not defined by the Code. On the other hand, Section 6 of the Code refers to classes of Criminal Courts as follows: 6. Classes of Criminal Courts. Besides the High Courts and the Courts constituted und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in offences which are than fleshed out under its provisions. What is important from our point of view in this case is the definition of "Court" in Section 2(1)(d) of UAPA which is as follows: 2. Definitions.-(1) In this Act, unless the context otherwise requires,- xxx xxx xxx (d) "court" means a criminal court having jurisdiction, under the Code, to try offences under this Act and includes a Special Court constituted Under Section 11 or Under Section 21 of the National Investigation Agency Act, 2008 Equally important is the provision contained in Section 43-D(2) of UAPA, which is set out as follows: 43-D. Modified application of certain provisions of the Code. xxx xxx xxx (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in Sub-section (2),- (a) the references to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days" respectively; and (b) after the proviso, the following provisos shall be inserted, namely: Provided further that if it is not possible to complete the investigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Government. It may be noted that the UAPA is Item 2 of the said Schedule. Section 10, upon which strong reliance is placed by the State, is as follows: 10. Power of State Government to investigate Scheduled Offences.--Save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offence or other offences under any law for the time being in force Sections 11 and 22 which speak of the power of the Central Government and the State Government respectively, to designate Courts of Sessions as Special Courts, are as follows: 11. Power of Central Government to constitute Special Courts.-- (1) The Central Government shall, by notification in the Official Gazette, for the trial of Scheduled Offences, constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification. (2) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the Central Government whose decision in the matter shall be final. (3) A Special Court shall be presided over by a judge to be appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of Section 13 shall be construed as a reference to the "investigation agency of the State Government"; (iii) reference to "Attorney-General for India" in Sub-section (3) of Section 13 shall be construed as reference to "Advocate-General of the State". (3) The jurisdiction conferred by this Act on a Special Court shall, until a Special Court is constituted by the State Government Under Sub-section (1) in the case of any offence punishable under this Act, notwithstanding anything contained in the Code, be exercised by the Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this Chapter. (4) On and from the date when the Special Court is constituted by the State Government the trial of any offence investigated by the State Government under the provisions of this Act, which would have been required to be held before the Special Court, shall stand transferred to that Court on the date on which it is constituted. Section 13 speaks of the jurisdiction of the Special Courts as follows: 13. Jurisdiction of Special Courts.-- (1) Notwithstanding anything contained in the Code, every S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth, the Special Court may, notwithstanding anything contained in Sub-section (1) of Section 260 or Section 262 of the Code, try the offence in a summary way in accordance with the procedure prescribed in the Code and the provisions of Sections 263 to 265 of the Code shall, so far as may be, apply to such trial: Provided that when, in the course of a summary trial under this Sub-section, it appears to the Special Court that the nature of the case is such that it is not desirable to try it in a summary way, the Special Court shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the Code for the trial of such offence and the said provisions shall apply to, and in relation to, a Special Court as they apply to and in relation to a Magistrate: Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding one year and with fine which may extend to five lakh rupees. (3) Subject to the other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference to the investigation agency of the State Government-namely, the State police in this case. Thereafter, what is important to note is that notwithstanding anything contained in the Code, the jurisdiction conferred on a Special Court shall, until a Special Court is designated by the State Government, be exercised only by the Court of Sessions of the Division in which such offence has been committed vide Sub-section (3) of Section 22; and by Sub-section (4) of Section 22, on and from the date on which the Special Court is designated by the State Government, the trial of any offence investigated by the State Government under the provisions of the NIA Act shall stand transferred to that Court on and from the date on which it is designated. 19. Section 13(1) of the NIA Act, which again begins with a non-obstante Clause which is notwithstanding anything contained in the Code, read with Section 22(2)(ii), states that every scheduled offence that is investigated by the investigation agency of the State Government is to be tried exclusively by the Special Court within whose local jurisdiction it was committed. 20. When these provisions are read along with Section 2(1)(d) and the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under that Act. In the absence of any designated Court by notification issued by either the Central Government or the State Government, the fall back is upon the Court of Sessions alone. Thus, under the aforesaid Scheme what becomes clear is that so far as all offences under the UAPA are concerned, the Magistrate's jurisdiction to extend time under the first proviso in Section 43-D(2)(b) is non-existent, "the Court" being either a Sessions Court, in the absence of a notification specifying a Special Court, or the Special Court itself. The impugned judgment in arriving at the contrary conclusion is incorrect as it has missed Section 22(2) read with Section 13 of the NIA Act. Also, the impugned judgment has missed Section 16(1) of the NIA Act which states that a Special Court may take cognizance of any offence without the Accused being committed to it for trial inter alia upon a police report of such facts. 22. The second vexed question which arises on the facts of this case is the question of grant of default bail. It has already been seen that once the maximum period for invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is prepared to and does furnish bail, the Magistrate shall release him on bail and such release shall be deemed to be grant of bail under Chapter XXXIII of the Code of Criminal Procedure...Section 167 read with Section 20(4) of TADA, thus, strictly speaking is not a provision for "grant of bail" but deals with the maximum period during which a person Accused of an offence may be kept in custody and detention to enable the investigating agency to complete the investigation and file the charge-sheet, if necessary, in the court. The proviso to Section 167(2) of the Code read with Section 20(4)(b) of TADA, therefore, creates an indefeasible right in an Accused person on account of the 'default' by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail. It is for this reason that an order for release on bail under proviso (a) of Section 167(2) of the Code read with Section 20(4) of TADA is generally termed as an "order-on-default" as it is granted on account of the default of the prosecution to complete the investigation and file the challan within the prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n granted by the Designated Court or the period of extension has also expired, the Accused person would be entitled to move an application for being admitted to bail Under Sub-section (4) of Section 20 TADA read with Section 167 of the Code and the Designated Court shall release him on bail, if the Accused seeks to be so released and furnishes the requisite bail. We are not impressed with the argument of the learned Counsel for the Appellant that on the expiry of the period during which investigation is required to be completed Under Section 20(4) TADA read with Section 167 of the Code, the court must release the Accused on bail on its own motion even without any application from an Accused person on his offering to furnish bail. In our opinion an Accused is required to make an application if he wishes to be released on bail on account of the 'default' of the investigating/prosecuting agency and once such an application is made, the court should issue a notice to the public prosecutor who may either show that the prosecution has obtained the order for extension for completion of investigation from the court under Clause (bb) or that the challan has been filed in the Designa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply. The Division Bench also indicated that if there be such an application of the Accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. 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 Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the Accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. State of Punjab [1952 SCR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered opinion it would be more in consonance with the legislative mandate to hold that an Accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression "availed of" to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the Accused and would defeat the very purpose of the proviso to Section 167(2) of the Code of Criminal Procedure and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the Accused is without any valid order of remand. That apart, when an Accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not. If the expression "availed of" is interpreted to mean that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at that stage will not take away the right of the Accused. Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated Under Article 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the Accused in custody up to a maximum period as indicated in the proviso to Sub-section (2) of Section 167, any further detention beyond the period without filing of a challan by the investigating agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Article 21 of the Constitution. There is no provision in the Code of Criminal Procedure authorising detention of an Accused in custody after the expiry of the period indicated in proviso to Sub-section (2) of Section 167 excepting the contingency indicated in Explanation I, namely, if the Accused does not furnish the bail...But so long as the Accused files an application and indicates in the application to offer bail on being released by appropriate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing 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 enforcing the right, howsoever valuable or indefeasible it may be, after filing of the challan because thereafter the right under default Clause cannot be exercised. 25. The law laid down by the majority judgment in this case was however not followed in Pragya Singh Thakur v. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven if an application for bail is filed on the ground that the charge-sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if the charge-sheet is filed the said right to be enlarged on bail is lost. This opinion is contrary to the earlier larger Bench decisions and also runs counter to the subsequent three-Judge Bench decision in Mustaq Ahmed Mohammed Isak case [(2009) 7 SCC 480 : (2009) 3 SCC (Cri.) 449]. We are disposed to think so, as the two-Judge Bench has used the words "before consideration of the same and before being released on bail", the said principle specifically strikes a discordant note with the proposition stated in the decisions rendered by the larger Benches. 46. At this juncture, it will be appropriate to refer to the dissenting opinion by B.N. Agarwal, J. in Uday Mohanlal Acharya case [ (2001) 5 SCC 453 : 2001 SCC (Cri.) 760]. The learned Judge dissented with the majority as far as interpretation of the expression "if not already availed of" by stating so: (SCC p. 481, paras 29-30) 29. My learned Brother has referred to the expression 'if not already availed of' referred to in the judgment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equent decision of a larger Bench that cannot be treated to be good law. Our view finds support from the decision in Union of India v. Arviva Industries India Ltd. [(2014) 3 SCC 159]. 26. Also, in Syed Mohd. Ahmad Kazmi v. State (Govt. of NCT of Delhi) (2012) 12 SCC 1, Section 43-D of the UAPA came up for consideration before the Court, in particular the proviso which extends the period for investigation beyond 90 days up to a period of 180 days. An application for default bail had been made on 17.07.2012, as no charge sheet was filed within a period of 90 days of the Appellant's custody. The charge sheet in the aforesaid case was filed thereafter on 31.07.2012. Despite the fact that this application was not taken up for hearing before the filing of the charge sheet, this Court held that this since an application for default bail had been filed prior to the filing of the charge sheet the "indefeasible right" spoken of earlier had sprung into action, as a result of which default bail had to be granted. The Court held: 25. Having carefully considered the submissions made on behalf of the respective parties, the relevant provisions of law and the decision cited, we are unable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since his application for statutory bail was pending at the time when the application for extension of time for continuing the investigation was filed by the prosecution. In our view, the right of the Appellant to grant of statutory bail remained unaffected by the subsequent application and both the Chief Metropolitan Magistrate and the High Court erred in holding otherwise. 27. In a fairly recent judgment reported as Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67, a Three-Judge Bench of this Court referred to the earlier decisions of this Court and went one step further. It was held by the majority judgment of Madan B. Lokur, J. and Deepak Gupta, J. that even an oral application for grant of default bail would suffice, and so long as such application is made before the charge sheet is filed by the police, default bail must be granted. This was stated in Lokur, J.'s judgment as follows: 37. This Court had occasion to review the entire case law on the subject in Union of India v. Nirala Yadav [Union of India v. Nirala Yadav, (2014) 9 SCC 457 : (2014) 5 SCC (Cri.) 212]. In that decision, reference was made to Uday Mohanlal Acharya v. State of Maharashtra [Uday Mohanlal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lan expires and the submission of the charge-sheet or challan in court. Procedure for obtaining default bail 40. In the present case, it was also argued by the learned Counsel for the State that the Petitioner did not apply for "default bail" on or after 4-1-2017 till 24-1-2017 on which date his indefeasible right got extinguished on the filing of the charge-sheet. Strictly speaking, this is correct since the Petitioner applied for regular bail on 11-1-2017 in the Gauhati High Court--he made no specific application for grant of "default bail". However, the application for regular bail filed by the Accused on 11-1-2017 did advert to the statutory period for filing a charge-sheet having expired and that perhaps no charge-sheet had in fact being filed. In any event, this issue was argued by the learned Counsel for the Petitioner in the High Court and it was considered but not accepted by the High Court. The High Court did not reject the submission on the ground of maintainability but on merits. Therefore it is not as if the Petitioner did not make any application for default bail--such an application was definitely made (if not in writing) then at least orally before the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here an Accused is not prepared to be bailed out perhaps for his personal security since he or she might be facing some threat outside the correction home or for any other reason. But then in such an event, the Accused voluntarily gives up the indefeasible right for default bail and having forfeited that right the Accused cannot, after the charge-sheet or challan has been filed, claim a resuscitation of the indefeasible right. But that is not the case insofar as the Petitioner is concerned, since he did not give up his indefeasible right for "default bail" during the interregnum between 4-1-2017 and 24-1-2017 as is evident from the decision of the High Court rendered on 11-1-2017 [Rakesh Kumar Paul v. State of Assam]. On the contrary, he had availed of his right to "default bail" which could not have been defeated on 11-1-2017 and which we are today compelled to acknowledge and enforce. 47. Consequently, we are of the opinion that the Petitioner had satisfied all the requirements of obtaining "default bail" which is that on 11-1-2017 he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet after the Accused has offered to furnish bail. xxx xxx xxx 86. I agree and concur with the conclusions drawn and directions given by learned Brother Lokur, J. in paras 49 to 51 of his judgment. P.C. Pant, J., however, dissented holding: 113. The law laid down as above shows that the requirement of an application claiming the statutory right Under Section 167(2) of the Code is a prerequisite for the grant of bail on default. In my opinion, such application has to be made before the Magistrate for enforcement of the statutory right. In the cases under the Prevention of Corruption Act or other Acts where Special Courts are constituted by excluding the jurisdiction of the Magistrate, it has to be made before such Special Court. In the present case, for the reasons discussed, since the Appellant never sought default bail before the court concerned, as such is not entitled to the same. A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete. It is of no moment t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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