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TMI Blog2023 (5) TMI 1302X X X X Extracts X X X X X X X X Extracts X X X X ..... c) the names of the persons who appear to be acquainted with the circumstances of the case;(d) whether any offence appears to have been committed and, if so, by whom(e) whether the Accused has been arrested;(f) whether he had been released on his bond and, if so, whether with or without sureties; and(g) whether he has been forwarded in custody Under Section 170 - In fact, the report Under Section 173(2) of the Code of Criminal Procedure purports to be an opinion of the Investigating Officer that as far as he is concerned he has been able to procure sufficient material for the trial of the Accused by the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5) of the Code of Criminal Procedure. Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the Accused at a later stage i.e., in the course of the trial of the case by adducing acceptable evidence. It is very much necessary that the evidence collected by the investigating agency in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Mitra, Rooh-e-hina Dua, AORs and Sangram Saron, Adv. For Respondents: Sanjay Jain, A.S.G., Annam Venkatesh, Rahul Mishra, Deepabali Dutta, Padmesh Mishra, Samar Singh Kachhwaha, Advs. and Arvind Kumar Sharma, AOR JUDGMENT J.B. Pardiwala, J. 1. As the issues raised in both the captioned appeals are common and the challenge is also to the self-same order passed by the High Court, those were taken up for hearing analogously and are being disposed of by this common judgment and order. 2. These appeals by special leave are at the instance of five under trial Accused charged with having committed offences punishable Under Section 120B of the Indian Penal Code, 1860(for short, 'the Indian Penal Code'), Sections 17, 18, 18B and 20 respectively of the Unlawful Activities(Prevention) Act, 1967(for short, 'the UAPA') and Sections 4 and 5 respectively of the Explosive Substances Act, 1908(for short, 'the 1908 Act') and are directed against the order passed by the High Court of Punjab and Haryana at Chandigarh dated 26.04.2022 in CRA-D No. 47 of 2021(O&M) by which, the High Court dismissed the appeal and thereby declined to release the Accused persons on default b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the Sessions or designated Court would by itself entitle the Accused to seek default bail under the provisions of Section 167(2) of the Code of Criminal Procedure? 4. For the purpose of answering the aforesaid issues, it is very much essential to take notice of the following chronology of dates and events: (a) On 02.06.2019 at around 04:50 in the morning, a team of police officers was patrolling. The vehicles passing through the Harsh Cheena, Kukkarwal bus stop in Raja Sansi, District Amritsar, State of Punjab, were being checked. At that point of time two boys belonging to the Sikh community were noticed to have been travelling on a motorcycle without a number plate. On being asked to stop, they fled away. In the process of running away, one blue coloured bag which was in the hands of the pillion rider fell down. A mobile phone and two hand grenades were recovered from the bag. In such circumstances, FIR No. 90 came to be registered at the Police Station Raja Sansi, District Amritsar(Rural), Punjab, for the offences punishable under the 1908 Act. Thus, the FIR came to be registered on 02.06.2019. (b) On 05.06.2019, the Punjab Police added Sections 17, 18, 18B and 20 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days post-arrest, and in the case of the Accused No. 5 who was arrested on 11.09.2019, it was filed within 66 days of his arrest. Thus, the chargesheet was filed within the extended period of 180 days so far as Appellant Nos. 1 and 2 are concerned. (k) On 16.11.2019, the SDJM, Ajnala adjourned the proceedings of all the Accused persons. (l) On 20.11.2019, the SDJM, Ajnala further adjourned the proceedings to 25.11.2019. (m) On 25.11.2019, the SDJM, Ajnala committed the case to the Court of Sessions under the provisions of Section 209 of the Code of Criminal Procedure, as the offences were exclusively triable by the Court of Sessions. The next date fixed was 06.12.2019. (n) On 06.12.2019, the Additional Sessions Judge, Amritsar, simply registered the case without cognizance being taken. (o) On 22.02.2020, the NIA, New Delhi re-registered the instant case as RC-07/2020/NIA/DLI Under Sections 17, 18, 18B and 20 respectively of the UAPA in compliance with the Government of India, Ministry of Home Affairs, CTCR Division Order No. 11011/22/2020/NIA dated 20.02.2020 in the FIR No. 90 of 2019. (p) On 09.03.2020, the Special Judge, CBI Punjab, SAS Nagar, Mohali, received the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22, the High Court of Punjab and Haryana dismissed the appeal filed by the Appellants against the order of the Special Court rejecting the plea of default bail. 5. To make it more explicit and clear, we trim down the aforesaid chronology of dates and events as under: (i) 02.06.2019 - FIR was registered; (ii) 08.06.2019 - arrest of the first and second Appellants; (iii) 18.08.2019 - arrest of the third and fourth Appellants; (iv) 11.09.2019 - arrest of Taranbir Singh(Appellant of Crl. A. No. 1012 of 2023) (v) 17.09.2019 - extension of the period of investigation from 90 to 180 days; (vi) 15.11.2019 - chargesheet presented; (vii) 14.12.2020 - application for default bail; (viii) 16.12.2020 - sanction order dated 26.10.2020 under the 1908 Act filed; (ix) 06.01.2021 - sanction order was issued under the UAPA; (x) 17.03.2021 - sanction by the Ministry of Home Affairs Under Section 45(1), UAPA following the transfer of investigation to NIA; and (xi) 22.03.2021 - supplementary chargesheet has been presented by NIA. 6. In such circumstances referred to above, the Appellants(original Accused persons) are here before this Court with the present appeals. SUBMISSIONS O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f time from 90 to 180 days read together with Rules 3 and 4 respectively of the Rules 2008 referred to above, makes the grant of sanction mandatorily time bound. The same leads to only one conclusion that the sanction order must accompany for it to be considered a final report. 13. It was argued that since the chargesheet in the case on hand was filed on 15.11.2019, the material collected by the investigating agency should have been received by the competent authority on 15.11.2019 itself. The report of the competent authority should have been ready seven days thereafter, i.e., by 22.11.2019. In view of Rule 4, the sanction should have been granted by 29.11.2019. However, according to both the learned Counsel, the report was filed only on 12.03.2021 i.e., after a delay of one year and three months. The sanction was granted on 17.03.2021 i.e., beyond the period of 180 days which expired on 10.03.2020. The default bail application was instituted on 14.12.2020. 14. It was further argued that the NIA after taking over the investigation on 22.01.2020 was left with 49 days to file or place on record the appropriate sanction before the expiry of the limit of 180 days. The default bail a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code of Criminal Procedure accrues to an Accused only if the chargesheet is not filed within the time prescribed therein or within the time extended by a competent court under a special statute. He would submit that the right ceases to be available if the chargesheet is filed within the time indicated above or if the chargesheet is filed prior to preferring an application Under Section 167(2) of the Code of Criminal Procedure. Mr. Jain sought to fortify his submission by placing reliance on the Constitution Bench decision of this Court in the case of Sanjay Dutt v. State reported in :(1994) 5 SCC 410(paras 48 and 53(2)(b)) and in the case of Serious Fraud Investigation Office v. Rahul Modi and Ors. reported in (para 16). 19. Mr. Jain vehemently submitted that there is no merit in the submission canvassed on behalf of the Accused persons that a chargesheet without requisite sanction under the UAPA or the 1908 Act is incomplete. In other words, according to Mr. Jain, there is no merit in the contention canvassed on behalf of the Accused persons that although the chargesheet was filed within the period of 180 days, yet the same being without sanction, it could be said to be as g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted to the Court of Sessions and finally to the Special Court constituted for NIA/UAPA(after taking over of investigation by NIA on 22.02.2020 re-registered by NIA as RC-07/2020/NIA/DLI) and finally the cognizance was also taken by the Special Court only, after examining the prosecution sanctions. The sanction under the 1908 Act was received on 26.10.2020 by the District Magistrate, Amritsar, which was duly recorded by the Special Judge, NIA on 12.11.2020. The sanction under the UAPA by the Punjab Government was granted on 06.01.2021. The Special Court recorded the same on 07.01.2021. Further, the Government of India accorded the sanction Under Section 45(1) of UAPA on 17.03.2021. 24. In the last, Mr. Jain pointed out that the trial of all the Accused persons is in progress and twelve witnesses have been examined so far. The Accused persons are facing trial for very serious offences relating to National security. If the Accused persons have anything to say in regard to the legality and validity of the sanctions or the mode and manner in which the cognizance was taken then such issues could be raised before the trial court. According to Mr. Jain, there is no scope for the Accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ninety days, or sixty days, as the case may be, the Accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this Sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention of the Accused in custody of the police under this Section unless the Accused is produced before him in person for the first time and subsequently every time till the Accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the Accused either in person or through the medium of electronic video linkage; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. 28. A three-Judge Bench of this Court in Uday Mohanlal Acharya v. State of Maharashtra reported in (2001) 5 SCC 453, has noticed the object of enacting the provisions of Section 167 of the Code of Criminal Procedure. Section 57 of the Code of Criminal Procedure contains the embargo on the police officers to detain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a three-Judge Bench of this Court in Rakesh Kumar Paul v. State of Assam, reported in (2017) 15 SCC 67. This Court in the above case has traced the legislative history of the provision of Section 167. This Court in the above case emphasised that the debate on Section 167 must also be looked at from the perspective of expeditious conclusion of investigation and from the angle of personal liberty. This Court also held that the right of default bail is an indefeasible right which cannot be allowed to be frustrated by the prosecution. Following was laid down in paras 37, 38 and 39: 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 Acharya v. State of Maharashtra, (2001) 5 SCC 453: 2001 SCC(Cri) 760] and the conclusions arrived at in that decision. We are concerned with Conclusion(3) which reads as follows:(Uday Mohanlal Acharya case [Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453: 2001 SCC(Cri) 760], SCC p. 473, para 13) 13. ...(3) On t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court had laid down that the provisions of the Code of Criminal Procedure do not empower anyone to extend the period within which the investigation must be completed. This Court held that no court either directly or indirectly can extend such period. Following are the observations of this Court in para 20 of Achpal(supra): 20. We now turn to the subsidiary issue, namely, whether the High Court could have extended the period. The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality. There are enactments such as the Terrorist and Disruptive Activities(Prevention) Act, 1985 and the Maharashtra Control of Organised Crime Act, 1999 which clearly contemplate extension of period and to that extent those enactments have modified the provisions of the Code including Section 167. In the absence of any such similar provision empowering the Court to extend the period, no court could either directly or indirectly extend such period. In any event of the matter all that the High Court had recorded in its order dated 3-7-2018 [Mahaveer v. State of Rajasthan,] was the submission that the inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the 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. (3) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that- (a) the reference in Sub-section(1) thereof (i) to "the State Government" shall be construed as a reference to "the Central Government or the State Government."; (ii) to "order of the State Government" shall be construed as a reference to "order of the Central Government or the State G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 45 of the UAPA reads thus: 45. Cognizance of offences. (1) No court shall take cognizance of any offence- (i) under Chapter III without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf; (ii) under Chapter IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and if such offence is committed against the Government of a foreign country without the previous sanction of the Central Government. (2) Sanction for prosecution Under Sub-section(1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation, within such time as may be prescribed, to the Central Government or, as the case may be, the State Government. 35. A close look at Section 45 of the UAPA referred to above would indicate that Sub-section(1) deals with the authority who can accord sanction for the offence committed under the UAPA whereas Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within 7 working days after receipt of the recommendations of the authority. 38. In the aforesaid context, our attention was drawn by the learned Counsel appearing for the Appellants to the speech of the Hon'ble Home Minister while moving the draft Bills in the Rajya Sabha and in his speech, the Hon'ble Home Minister clearly stated as under: Finally, Sir, we have incorporated a very salutary provision. To the best of our knowledge-I don't know, I may be corrected by the Law Minister or the Law Secretary later - it is the first time we are introducing this. In a prosecution under the UAPA, now, it is the executive Government which registers the case through a police officer. It is the executive Government which investigates the case through an investigating agency, namely, the police department. It is the executive Govt. which sanctions Under Section 45. Therefore, there is a fear that a vindictive or a wrong executive Govt. could register a case, investigate and sanction prosecution. There is a fear. May be, it is not a fear that is entirely justified but you cannot say that it is entirely unjustified. So what are we doing? The executive Govt. can register the case b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government" in Sections 11 and 15 shall be construed as references to State Government; (ii) reference to "Agency" in Sub-section(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 designated 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 designated 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 designa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure for being released on default bail. What is contemplated Under Section 167(2) of the Code of Criminal Procedure is that the Magistrate or designated Court(as the case may be) has no powers to order detention of the Accused beyond the period of 180 days or 90 days or 60 days as the case may be. If the investigation is concluded within the prescribed period, no right accrues to the Accused concerned to be released on bail under the proviso to Section 167(2) of the Code of Criminal Procedure. 44. Once a final report has been filed with all the documents on which the prosecution proposes to rely, the investigation shall be deemed to have been completed. After completing investigation and submitting a final report to the Court, the investigating officer can send a copy of the final report along with the evidence collected and other materials to the sanctioning authority to enable the sanctioning authority to apply his mind to accord sanction. According sanction is the duty of the sanctioning authority who is not connected with the investigation at all. In case the sanctioning authority takes some time to accord sanction, that does not vitiate the final report filed by the investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the charge-sheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation. In such cases, there cannot be any prejudice to the Accused...." 47. From the aforesaid, it is evident that the order of sanction passed by the competent authority can be produced and placed on record even after the filing of the chargesheet. It may happen that the inordinate delay in placing the order of sanction before the Special Court may lead to delay in trial because the competent court will not be able to take cognizance of the offence without a valid sanction on record. In such an eventuality, at the most, it may be open for the Accused to argue that his right to have a speedy trial could be said to have been infringed thereby violating Article 21 of the Constitution. This may at the most entitle the Accused to pray for regular bail on the ground of delay in trial. But the same cannot be a ground to pray for statutory/default bail under the provisions of Section 167(2) of the Code o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the UAPA is not something in the form of a package that everything has to be completed including obtaining of sanction within this period of 180 days. As observed above, the investigating agency has nothing to do with sanction. Sanction is altogether a different process. Sanction is accorded, based on the materials collected by the investigating agency which forms the part of the final report Under Section 173 of the Code of Criminal Procedure. The investigating agency gets full 180 days to complete the investigation. To say that obtaining of sanction and placing the same along with the chargesheet should be done within the period of 180 days is something which is not only contrary to the provisions of law discussed above, but is inconceivable. 50. Let us test the aforesaid argument, keeping in mind the Rules 2008. Rule 3 of the Rules 2008 makes it very clear that the authority concerned shall make its report Under Sub-section(2) of Section 45 of the UAPA containing the recommendations to the Central Government from the State Government as the case may be within 7 working days of the receipt of the evidence gathered by the investigating officer under the Code of Criminal Proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: 16.1. The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the Accused and on the basis of which, the competent authority may refuse sanction. 16.2. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction. 16.3. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the Accused against whom the sanction is sought. 16.4. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material. 16.5. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day, an Accused makes an application for being released on bail in default of chargesheet having been filed, the court has no option but to release the Accused on bail. However, once the chargesheet was filed within the stipulated period, the right of the Accused to statutory/default bail came to an end and the Accused would be entitled to pray for regular bail on merits. It was held by this Court that the filing of chargesheet is sufficient compliance with the provisions of proviso(a) to Section 167(2) of the Code of Criminal Procedure and that taking of cognizance is not material to Section 167 of the Code of Criminal Procedure. The scheme of Code of Criminal Procedure is such that once the stage of investigation is completed, the court proceeds to the next stage, which is the taking of cognizance and trial. During the period of investigation, the Accused is under the custody of the Magistrate before whom he or she is first produced, with such Magistrate being vested with the power to remand the Accused to police custody and/or judicial custody, up to a maximum period as prescribed Under Section 167(2) of the Code of Criminal Procedure. Acknowledging the fact that an Accused has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions relating to remand of an Accused, first during the stage of investigation and, thereafter, after cognizance is taken, indicates that the legislature intended investigation of certain crimes to be completed within 60 days and offences punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, within 90 days. In the event, the investigation is not completed by the investigating authorities, the Accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. Accordingly, if on either the 61st day or the 91st day, an Accused makes an application for being released on bail in default of charge- sheet having been filed, the court has no option but to release the Accused on bail. The said provision has been considered and interpreted in various cases, such as the ones referred to hereinbefore. Both the decisions in Natabar Parida case [(1975) 2 SCC 220: 1975 SCC(Cri) 484] and in Sanjay Dutt case [ (1994) 5 SCC 410: 1994 SCC(Cri) 1433] were instances where the charge- sheet was not filed within the period stipulated in Section 167(2) Code of Criminal Procedure and an application having been made for grant of bail pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are different, but one follows the other so as to maintain a continuity of the custody of the Accused with a court. (Emphasis supplied) 56. It is clear from the decision of this Court in Suresh Kumar Bhikamchand Jain(supra) that filing of a chargesheet is sufficient compliance with the provisions of Section 167 of the Code of Criminal Procedure and that an Accused cannot demand release on default bail Under Section 167(2) of the Code of Criminal Procedure on the ground that cognizance has not been taken before the expiry of the statutory time period. The Accused continues to be in the custody of the Magistrate till such time cognizance is taken by the court trying the offence, which assumes custody of the Accused for the purpose of remand after cognizance is taken. 57. The aforesaid decision of this Court makes the position of law very clear that once the chargesheet has been filed within the stipulated time, the question of grant of statutory/default bail does not arise. Whether cognizance has been taken or not taken is not relevant for the purpose of compliance of Section 167 of the Code of Criminal Procedure. The mere filing of the chargesheet is sufficient. 58. The decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Activities(Prevention) Act, 1987 read with proviso(a) to Section 167(2), Code of Criminal Procedure, they did not make an application for release on bail on the ground of default in completion of the investigation within the statutory period. After filing of the charge-sheet and cognizance having been taken, they continued to be in custody on the basis of orders of remand passed under other provisions of the Code of Criminal Procedure. Refusing to grant relief of statutory bail in the said fact situation, this Court held that the right conferred on an Accused Under Section 167(2) cannot be exercised after the charge-sheet has been submitted and cognizance has been taken. A plain reading of the judgment in Madar Sheikh(supra) would show that reference to the right of statutory bail becoming unenforceable after cognizance having been taken is in view of the facts of the said case, where this Court denied statutory bail to the Appellants therein on the ground that charge-sheet was filed and cognizance had also been taken, with orders of remand passed under other provisions of the Code of Criminal Procedure. Thereafter, they were not entitled for bail Under Section 167(2). 14. App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As stated above, the said conclusion in Madar Sheikh(supra) was arrived at with reference to the facts of the case. 15. The issue that arose for consideration before this Court in Criminal Appeal Nos. 701-702 of 2020 relates to whether the date of remand is to be included in computation of the period of 60 days or 90 days, as contemplated under proviso(a) to Section 167(2), for considering the claim for default bail. Taking note of the divergence of opinions on the said point, this Court felt the need for consideration of the issue by a larger bench. The later order dated 12.03.2021 passed in SLP(Crl.) Nos. 2105-2106 of 2021 and SLP(Crl.) Nos. 2111-2112 of 2021 is for tagging all those matters along with Criminal Appeal Nos. 701-702 of 2020. The submission made on behalf of the Petitioners therein and recorded in the said order relates to the filing of a charge-sheet on the last day without a list of witnesses and documents not amounting to a proper filing of charge- sheet. Mr. Rohatgi referred to the SLP(Crl.) No. 2111-2112 of 2021 and submitted that one of the points raised relates to cognizance being taken before the expiry of the statutory period Under Section 167, Code of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that right of an Accused to seek default bail cannot be defeated by filing incomplete chargesheet. Ritu Chhabaria filed a writ petition Under Article 32 of the Constitution, seeking release of her husband on default bail. In the facts of the said case, three issues fell for the consideration of this Court: i. Can a chargesheet or a prosecution complaint be filed in piecemeal without first completing the investigation of the case? ii. Whether the filing of such a chargesheet without completing the investigation will extinguish the right of an Accused for grant of default bail? iii. Whether the remand of an Accused can be continued by the trial court during the pendency of investigation beyond the stipulated time as prescribed by the Code of Criminal Procedure? 61. This Court, while allowing the petition observed in paras 24 and 25 respectively, as under: 24. This right of statutory bail, however, is extinguished, if the charge sheet is filed within the stipulated period. The question of resorting to a supplementary chargesheet Under Section 173(8) of the Code of Criminal Procedure only arises after the main chargesheet has been filed, and as such, a supplementary charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod to file the chargesheet. We once again, reiterate what this Court said in Suresh Kumar Bhikamchand Jain(supra) that grant of sanction is nowhere contemplated Under Section 167 of the Code of Criminal Procedure. Issue No. 2 64. We now proceed to discuss the second limb of the submission canvassed on behalf of the Appellants that filing of the chargesheet in the Court of SDJM, Ajnala instead of the Special Court as notified Under Section 22 of the NIA Act and the Magistrate thereafter, committing the case to the Court of Sessions under the provisions of Section 209 of the Code of Criminal Procedure vitiated all further proceedings rendering the custody or further detention of the Appellants from the date of filing of the chargesheet in the Court of Magistrate absolutely unlawful. To put it in other words, we need to consider the submission that since the chargesheet was filed in the Court of Magistrate on 15.11.2019, i.e., on the 161st day from the arrest of two of the Appellants before us, the further detention thereafter, of the Appellants could be termed as unlawful and the Appellants were entitled to be released on statutory/default bail under the provisions of Section 167( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the NIA and in the situation, investigation having been entrusted to the State Government, then Section 13 is to be read with 22 of the NIA Act. A combined reading of both the Sections makes it crystal clear that in the situation where the investigation has been carried out by the State Government, in that situation as per Section 22(2)(ii) the reference to Agency in Sub-section(1) of Section 13 of the NIA Act shall be construed as a reference to "Investigating Agency of the State Government". 68. Thus, the scheme of both the Acts makes it clear that once the investigation is completed, the report Under Section 173 of the Code of Criminal Procedure is to be filed in the Special Court constituted under the Act. Section 16 of the NIA Act leaves no room for any doubt, as it empowers the Special Court to take cognizance of any offence without the Accused being committed to it, for trial, upon receiving a complaint of facts that constitute such offence or upon a police report of such facts. Thus, by incorporating Section 16 in the NIA Act the legislature has made the Special Court as the court of original jurisdiction unlike the Sessions Court, which is a court of committal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or by the 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 fallback is upon the Court of Session 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. 27. xxx xxx xxx ...The right to bail Under Section 167(2) proviso(a) thereto is absolute. It is a legislative command and not court's discretion. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2020 and by that time, the chargesheet had already been filed and the proceedings were pending in the court of Special Judge, CBI, Punjab, SAS Nagar, Mohali. It is not in dispute that at the time when the Special Court took cognizance of the offence the sanctions under the UAPA and the 1908 Act had already been granted. 73. Thus, we answer Issue No. 2 holding that the error on the part of the investigating agency in filing chargesheet first before the Court of Magistrate has nothing to do with the right of the Accused to seek statutory/default bail Under Section 167(2) of the Code of Criminal Procedure. The committal proceedings are not warranted, when it comes to prosecution under the UAPA by the NIA by virtue of Section 16 of the NIA Act. This is because the Special Court acts, as one of the original jurisdictions. By virtue of Section 16 of the NIA Act, the Court need not follow the requirements of Section 193 of the Code of Criminal Procedure. 74. We have also looked into the case law relied upon by the learned Counsel appearing for the respective Appellants in support of their submissions. However, it is not necessary for us to discuss each one of the decisions relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w is now well settled in view of the decision of this Court in the case of Jigar alias Jimmy Pravinchandra Aditya v. State of Gujarat reported in that an opportunity of hearing has to be given to the Accused persons before the time is extended up to 180 days to complete the investigation. The only error or lapse on the part of the Appellants Jasbir and Varinder Singh was that they failed to prefer an appropriate application seeking statutory/default bail on the 91st day. If such application would have been filed, the court would have had no option but to release them on statutory/default bail. The Court could not have said that since the extension application was pending, it shall pass an appropriate order only after the extension application was decided. That again would have been something contrary to the well settled position of law. This litigation is an eye opener for the NIA as well as the State investigating agency that if they want to seek extension, they must be careful that such extension is not prayed for at the last moment. 77. The right to be released on default bail continues to remain enforceable if the Accused has applied for such bail, notwithstanding pendency of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould only be distinguished(sic extinguished) once the charge-sheet had been filed in the case and no application has been made prior thereto for grant of statutory bail. It is well-established that if an Accused does not exercise his right to grant of statutory bail before the charge-sheet is filed, he loses his right to such benefit once such charge-sheet is filed and can, thereafter, only apply for regular bail. 26. The circumstances in this case, however, are different in that the Appellant had exercised his right to statutory bail on the very same day on which his custody was held to be illegal and such an application was left undecided by the Chief Metropolitan Magistrate till after the application filed by the prosecution for extension of time to complete investigation was taken up and orders were passed thereupon. 27. We are unable to appreciate the procedure adopted by the Chief Metropolitan Magistrate, which has been endorsed by the High Court and we are of the view that the Appellant acquired the right for grant of statutory bail on 17-7-2012, when his custody was held to be illegal by the Additional Sessions Judge since his application for statutory bail was pending ..... X X X X Extracts X X X X X X X X Extracts X X X X
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