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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 ..... 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 bail Under Section 167(2) of the Code of Criminal Procedure. 3. The seminal issues falling for the consideration of this Court may be formulated as under: (i) Whether an Accused is entitled to seek default bail under the provisions of Section 167(2) of the Code of Criminal Procedure, 1973(for short, 'the Code of Criminal Procedure') on the ground that although the chargesheet might have been filed within the statutory time period as prescribed in law yet the chargesheet sans a valid order of sanction passed by a competent authority is no chargesheet in the eye of law and therefore, it is as good as saying that no chargesheet was filed by the investigating agency within the statutory time period as prescribed in law? To put it more succinctly, whether the Court concerned is precluded in any manner for the purpose of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 the UAPA. (c) On 08.06.2019, Accused Jasbir Singh and Varinder Singh came to be arrested by the Punjab Police. (d) On 27.07.2019, Sukhpreet Singh alias Budda(Accused No. 8) was arrayed as Accused in the instant FIR and offence Under Section 120B of the Indian Penal Code was added. (e) On 18.08.2019, the Appellant No. 3 Kulbir Singh alias Kulbir and Appellant No. 4 Manjit Kaur wife of Darshan Singh(Appellants of Crl. A. No. 1011 of 2023) came to be arrested. It is the case of the prosecution that Kulbir Singh and Manjit Kaur at the relevant point of time were residing at Cambodia. One Harmit Singh and Kulwinder Singh were also arrayed as Accused. (f) On 04.09.2019, the Punjab Police applied for extension of time for completing the investigation under the proviso to Section 43D(2)(b) of the UAPA before the Additional Sessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 entire file from the Court of Additional Sessions Judge, Amritsar. In this manner, the prosecution ultimately stood transferred to the Special Court constituted under the NIA/UAPA. (q) On 26.10.2020, the District Magistrate, Amritsar, accorded sanction for prosecution under the 1908 Act. (r) On 12.11.2020, the Special Judge, NIA recorded that the sanction to prosecute the Accused persons for the offences under the 1908 Act had been accorded and the sanction under the UAPA was being awaited. (s) On 14.12.2020, an application for default bail Under Section 167(2) of the Code of Criminal Procedure r/w Section 43D of the UAPA was filed before the Special Judge NIA, SAS Nagar, Mohali, essentially on the ground that although the chargesheet had been filed within the extended period of 180 days, yet the same could be termed as inco ..... X X X X Extracts X X X X X X X X Extracts X X X 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 ON BEHALF OF THE ACCUSED PERSONS 7. Mr. Colin Gonsalves, the learned Senior Counsel and Mr. Satya Mitra, the learned Counsel appearing for the respective Appellants vehemently submitted that the High Court committed a serious error in declining to grant the benefit of default bail to the Appellants. 8. According to both the learned Counsel, the chargesheet filed without sanction is an incomplete chargesheet and on the basis of such incomplete chargesheet no cognizance can be taken. It was submitted that the final report is filed so as to enable the court concerned to apply its mind as to whether cognizance of the offence should be taken or not. The sum and substance of the submission canvassed on behalf of the Accused persons is that there cannot be a part chargesheet. A chargesheet filed without sanction is an incomplete charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.03.2021 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 application was filed on 14.12.2020. The sanction, which was granted only on 17.03.2021, ought to have been granted on 29.11.2019 in view of the time period prescribed by Rules 3 and 4 respectively of the 2008 Rules referred to above. In such circumstances, both the learned Counsel submitted that such a delayed sanction even if otherwise valid cannot defeat the indefeasible right of the Accused persons to seek default bail. 15. The second limb of the submission canvassed by both the learned Counsel appearing for the Accused persons is that the chargesheet could not have been filed in the Court of SDJM, Ajnala as the proceedings under the NIA are to be conducted in the Special Court only notified Under Section 22 of the NIA Act. If there is no Special Court notified then before the Sessions Judge. However, in any event, the charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused 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 good as not filing the chargesheet within the statutory time period. 20. In the aforesaid context, Mr. Jain invited the attention of this Court to the following aspects: a. The act of grant of sanction for prosecution, in several statutes, is entrusted upon an authority other than the Investigating Agency and as such it is not within the domain of the Investigating Agency to grant such Sanction. b. In the present case, at the time of filing of the first chargesheet by the State Investigating Agency(SIA), the SIA had already sought sanction for prosecution from the appropriate Governments. c. The cognizance of the offence was taken by the Special Court NIA/UAPA on 05.04.2021, only after the sanctions under the 1908 Act and UAPA were granted by the appropriate governments and communicated to the Court, as is evident from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused 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 persons at this point of time to say that they be released on default bail. FEW RELEVANT STATUTORY PROVISIONS 25. Before adverting to the rival submissions canvassed on either side, we must look into the few relevant statutory provisions of the Code of Criminal Procedure, the UAPA, the 1908 Act and the NIA Act. 26. In the earlier Code of Criminal Procedure, 1898(for short, 'the Code of Criminal Procedure, 1898'), Section 167 laid down the procedure to be followed in the event the investigation of an offence was not completed within 24 hours. Section 167 in the Code of Criminal Procedure, 1898, was premised on the conclusion of investigation within 24 hours or within 15 days on the outside, regardless of the nature of the offence or the punishment. 27. The Law Commission of India, in its Forty-first Report, recommende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 in custody, a person arrested beyond 24 hours. The object is that the Accused should be brought before a Magistrate without delay within 24 hours, which provision is, in fact, in consonance with the constitutional mandate engrafted Under Article 22(2) of the Constitution. The provision of Section 167 is supplementary to Section 57. The power Under Section 167 is given to detain a person in custody while police goes on with the investigation. Section 167 is, therefore, a provision which authorises the Magistrate permitting the detention of the Accused in custody prescribing the maximum period. In Uday Mohanlal Acharya(supra) this Court while dealing with Section 167 laid down the following: 5. ...This provision of Section 167 is in fact supplementary to Section 57, in consonance with the principle that the Accused is entitled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... htra [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 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. 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 avail his liberty by filing an application s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 investigation would be completed within two months by a gazetted police officer. The order does not indicate that it was brought to the notice of the High Court that the period for completing the investigation was coming to an end. Mere recording of submission of the Public Prosecutor could not be taken to be an order granting extension. We thus reject the submissions in that behalf advanced by the learned Counsel for the State and the complainant. 31. The scheme of the Code of Criminal Procedure as noticed above clearly delineates that the provisions of Section 167 of the Code of Criminal Procedure give due regard to the personal liberty of a person. Without submission of chargesheet within 60 days or 90 days as may be applicable, an Accused cannot be detained by the police. The provision gives due recognition to the personal liberty. However, as explained by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Government, as the case may be"; and (b) the reference in Sub-section(2) thereof, to "the State Government" shall be construed as a reference to "the Central Government or the State Government, as the case may be". (4) Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person Accused of having committed an offence punishable under this Act. (5) Notwithstanding anything contained in the Code, no person Accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such Accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made Under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sub-section(2) deals with the procedure to be followed by the authority at the time of granting sanction. It is evident from Section 45(1) of the UAPA that if the offence falls under Chapter III of the UAPA, the Court shall not take cognizance of the offence unless previous sanction is accorded either by the Central Government or by any other officer authorised by the Central Government in this behalf. If the offence alleged to have been committed falls under Chapters IV and VI resply, the Court shall not take cognizance of the offence unless previous sanction is granted by the Central Government or the State Government as the case may be. However, if the offence committed as alleged is against the Government of a foreign country, the Court shall not take cognizance without the previous sanction of the Central Government. It is pertinent to mention here that for the offence enumerated under Chapters IV and VI resply, only the Central or State Government, as the case may be, are authorised to grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 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 because no one else can register a case. The executive Govt., through its agency, can investigate the case. But, before sanction is granted under 45(1) we are interposing an independent authority which will review the entire evidence, gathered in the investigation, and then make a recommendation whether this is a fit case of prosecution. So, here, we are bringing a filter, a buffer, an independent authority who has to review the entire evidence that is gathered and, then, make a recommendation to the State Govt. or the Central Govt. as the case may be, a fit case for sanction. I think, this is a very salutary safeguard. All Sections of the House should welcome it. This is a biggest buffer against arbitrariness which many Members spoke about. Sir, these are the features in the Bill. (Emphasis supplied) 39. We shall now proceed to look into the provisions of the NIA Act. Section 16 of the NIA Act relates to the procedure and powers of Special Courts. Sub-section(1) of Section 16 is relevant for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 designated. 42. We shall now look into the 1908 Act. Section 7 of the 1908 Act imposes restriction on trial of offences under the 1908 Act except with the consent of the District Magistrate. Section 7 reads thus: 7. Restriction on trial of offences.- No court shall proceed to the trial of any person for an offence against this Act except with the consent of the District Magistrate. FINAL ANALYSIS Issue No. 1 43. We find no merit in the principal argument canvassed on behalf of the Appellants that a chargesheet filed without sanction is an incomplete chargesheet which could be termed as not in consonance with Sub-section(5) of Section 173 of the Code of Criminal Procedure. It was conceded by the learned Counsel appearing for the Appellants that the chargesheet was filed well within the statutory time period i.e., 180 days, however, the court concerned could not have taken cognizance of such chargesheet in the absence of the orders of sanction not being a part of such chargesheet. Whether the sanction is required or not under a statute, is a que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at all. In case the sanctioning authority takes some time to accord sanction, that does not vitiate the final report filed by the investigating agency before the Court. Section 173 of the Code of Criminal Procedure does not speak about the sanction order at all. Section 167 of the Code of Criminal Procedure also speaks only about investigation and not about cognizance by the Magistrate. Therefore, once a final report has been filed, that is the proof of completion of investigation and if final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of Accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing of sanction order. 45. Section 173(5) of the Code of Criminal Procedure, of course, requires all the documents or the relevant extracts thereof on which the prosecution proposes to rely on, to accompany the final report. Sanction order cannot be brought within the category of those documents contemplated under Clause(5) to Section 173 of the Code of Criminal Procedure. The grant of sanction is altogether a different act to be performed by the Government concerned Under Section 45 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be a ground to pray for statutory/default bail under the provisions of Section 167(2) of the Code of Criminal Procedure. 48. The chargesheet is nothing but a final report of police officer Under Section 173(2) of the Code of Criminal Procedure. Section 173(2) of the Code of Criminal Procedure provides that on completion of the investigation, the police officer investigating into a cognizable offence shall submit a report. The report must be in the form prescribed by the State Government, stating therein(a) the names of the parties;(b) the nature of the information;(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. As observed by this Court in Satya Narain Musadi and Ors. v. State of Bihar reported in :(1980) 3 SCC 152 at 157 that the statutory requirement of the report Under Section 173(2) of the Code of Criminal Procedure would be complied with if the various deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days of the receipt of the evidence gathered by the investigating officer under the Code of Criminal Procedure. We place emphasis on the expression "within 7 working days of the receipt of the evidence gathered by the investigating officer under the Code of Criminal Procedure". This evidence which Rule 3 of the Rules 2008 contemplates is the final report i.e., filed by the investigating agency Under Section 173 of the Code of Criminal Procedure. How can one expect the authority Under Sub-section(2) of Section 45 to make its report containing the recommendations without looking into the chargesheet thoroughly containing the evidence gathered by the investigating officer. On the contrary, Rule 3 of the Rules 2008 makes it explicitly clear that the authority Under Sub-section(2) of Section 45 of the UAPA is obliged in law to apply its mind thoroughly to the evidence gathered by the investigating officer and thereafter, prepare its report containing the recommendations to the Central Government or the State government for the grant of sanction. The grant of sanction is not an idle formality. The grant of sanction should reflect proper application of mind. 51. This Court in Central Bur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law. 53. It is, therefore, very much necessary that the evidence collected by the investigating agency in the form of chargesheet is thoroughly looked into and thereafter, the recommendations are made. The investigating agency gets full 180 days to complete the investigation and file its report before the competent court in accordance with Section 173(2) of the Code of Criminal Procedure. If we accept the argument canvassed on behalf of the Appellants, it comes to this that the investigating agency may have to adjust the period of investigation in such a manner that within the period of 180 days, the sanction is also obtained and placed before the court. We find this argument absolutely unpalatable. 54. This Court in the case of Suresh Kumar Bhikamchand Jain(supra) had the occasion to consider in detail the question whether cognizance of the chargesheet was necessary to prevent the Accused from seeking default bail or w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 167(2) of the Code of Criminal Procedure. Acknowledging the fact that an Accused has to remain in custody of some court, this Court concluded that on filing of the chargesheet within the stipulated period, the Accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the Accused for purposes of remand during the trial in terms of Section 309 of the Code of Criminal Procedure. This Court clarified that the two stages are different, with one following the other so as to maintain continuity of the custody of the Accused with a court. 55. We refer to the relevant portions of Suresh Kumar Bhikamchand Jain(supra) judgment as under: 16. At this juncture, we may refer to certain dates which are relevant to the facts of this case, namely: (a) 11-3-2012 - The Petitioner arrested and remanded to police custody; (b) 25-4-2012 - First charge-sheet filed against the four Accused; (c) 1-6-2012 - Supplementary charge-sheet filed in which the Petitioner is named; (d) 30-7-2012 - The trial court rejected the Petitioner's prayer for grant of bail; (e) 13-9-2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 167(2) Code of Criminal Procedure and an application having been made for grant of bail prior to the filing of the charge-sheet, this Court held that the Accused enjoyed an indefeasible right to grant of bail, if such an application was made before the filing of the charge-sheet, but once the charge- sheet was filed, such right came to an end and the Accused would be entitled to pray for regular bail on merits. 18. None of the said cases detract from the position that once a charge-sheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise. As indicated hereinabove, in our view, the filing of charge-sheet is sufficient compliance with the provisions of Section 167(2)(a)(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 Code of Criminal Procedure is concerned. The right which may have accrued to the Petitioner, had charge-sheet not been filed, is not attracted to the facts of this case. Merely because sanction had not been obtained to prosecute the Accused and to proceed to the stage of Section 309 Code of Criminal Procedure, it cannot be said that the Accused is entitled to grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Code of Criminal Procedure. The mere filing of the chargesheet is sufficient. 58. The decision of Suresh Kumar Bhikamchand Jain(supra) has been referred to and relied upon by this Court in the case of Serious Fraud Investigation Office(supra). In the said decision, the very same point fell for the consideration of the Court, whether the Accused is entitled for statutory/default bail Under Section 167(2) of the Code of Criminal Procedure on the ground that cognizance had not been taken before the expiry of 60 days or 90 days from the date of remand? 59. However, one another issue that fell for the consideration of this Court, in Serious Fraud Investigation Office(supra) was whether Suresh Kumar Bhikamchand Jain(supra) had taken a different view than in the case of Sanjay Dutt(supra), Mohamed Iqbal Madar Sheikh and Ors. v. State of Maharashtra reported in (1996) 1 SCC 722 and M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence reported in (2021) 2 SCC 485. This Court explained in details as to why nothing contrary to Sanjay Dutt(supra), Iqbal Madar(supra) and M. Ravindran(supra) had been decided in Suresh Kumar Bhikamchand Jain(supra). We quote the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Procedure. Thereafter, they were not entitled for bail Under Section 167(2). 14. Application for bail Under Section 167(2), Code of Criminal Procedure fell for consideration of this Court in M. Ravindran(supra). In the said case, the Appellant was arrested and remanded to judicial custody on 04.08.2018 for offences punishable under the Narcotics Drugs and Psychotropic Substances Act, 1985. On 01.02.2019, the Appellant therein filed an application for bail Under Section 167(2) on the ground that investigation was not complete and charge-sheet had not been filed within the statutory period. The trial court granted bail Under Section 167(2), which was set aside by the High Court of Madras by judgment dated 21.11.2019. Challenging the said judgment of the High Court, the Appellant approached this Court. The crucial fact in the said case is that the Appellant therein filed an application on 01.02.2019 at 10.30 a.m. before the trial court and on the same day at 4.25 p.m., an additional complaint was filed against the Appellant, on the basis of which dismissal of the bail application was sought. This Court restored the order of the trial court while setting aside the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce being taken before the expiry of the statutory period Under Section 167, Code of Criminal Procedure. It is clear that a reference to a larger bench pertains to the issue of exclusion or inclusion of the date of remand for computation of the period prescribed Under Section 167. Therefore, there is no requirement for referring this case to a larger bench. 16. A close scrutiny of the judgments in Sanjay Dutt(supra), Madar Sheikh(supra) and M. Ravindran(supra) would show that there is nothing contrary to what has been decided in Bhikamchand Jain(supra). In all the above judgments which are relied upon by either side, this Court had categorically laid down that the indefeasible right of an Accused to seek statutory bail Under Section 167(2), Code of Criminal Procedure arises only if the charge-sheet has not been filed before the expiry of the statutory period. Reference to cognizance in Madar Sheikh(supra) is in view of the fact situation where the application was filed after the charge-sheet was submitted and cognizance had been taken by the trial court. Such reference cannot be construed as this Court introducing an additional requirement of cognizance having to be taken within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arises after the main chargesheet has been filed, and as such, a supplementary chargesheet, wherein it is explicitly stated that the investigation is still pending, cannot under any circumstance, be used to scuttle the right of default bail, for then, the entire purpose of default bail is defeated, and the filing of a chargesheet or a supplementary chargesheet becomes a mere formality, and a tool, to ensure that the right of default bail is scuttled. 25. It is thus axiomatic that first investigation is to be completed, and only then can a chargesheet or a complaint be filed within the stipulated period, and failure to do so would trigger the statutory right of default bail Under Section 167(2) of Code of Criminal Procedure. In the case of Union of India v. Thamisharasi and Ors. [:(1995) 4 SCC 190], which was a case under the Narcotic Drugs and Psychotropic Substances Act, 1985, on finding that the investigation was not complete and a chargesheet was not filed within the prescribed period, denial of default bail was held to be in violation of Article 21 of the Constitution of India, and it was further held that even the twin limitation on grant of bail would not apply. 62. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to be released on statutory/default bail under the provisions of Section 167(2) of Code of Criminal Procedure. 65. Section 2(1)(d) of the UAPA reads as follows: 2(1)(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 22 of the National Investigation Agency Act, 2008; 66. The plain reading of the definition of "court" referred to above indicates that it includes the Special Court, constituted Under Section 11 or Section 22 of the NIA Act. Section 11 of the NIA Act confers power upon the Central Government to designate the Court of Sessions as the Special Courts. Section 22 of the NIA Act confers power upon the State Government to designate the Court of Sessions, as the Special Courts. 67. A perusal of Section 6 of the NIA Act enumerates about the investigation of the scheduled offences. The scheduled offences under the UAPA are included at Sr. No. 2 in the Schedule of the NIA Act. Thereafter, Section 10 of the NIA Act prescribes about the power of the State Government to investigate the scheduled offences. Section 11 of the NIA Act prescribes abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction unlike the Sessions Court, which is a court of committal under the Code of Criminal Procedure.(See Satish Kumar v. State of Punjab and Anr. 69. In Satish Kumar(supra), the High Court of Punjab and Haryana at Chandigarh has referred to a notification issued by the Government of Punjab dated 10.6.2014 wherein the Special Courts are constituted by the State Government for the trial of offence as specified in the Schedule appended to the NIA Act which are investigated by the State Police. The aforesaid notification is reproduced as under: NOTIFICATION The 10th June, 2014 No. S.O.141/C.A.34/2008/S.22/2014- In exercise of the powers conferred Under Sub-section(1) of Section 22 of the National Investigation Agency Act, 2008(Central Act No. 34 of 2008) and all other powers enabling him in this behalf, the Governor of Punjab with the concurrence of Hon'ble Chief Justice of the High Court of Punjab and Haryana, Chandigarh is pleased to constitute the courts of Sessions Judge and the first Additional Sessions Judge(for the area falling within their respective jurisdiction), at each district headquarter in the State, to be the Special Courts, for the trial of offences as specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a legislative command and not court's discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the Accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the Accused to furnish the requisite bail bonds. 71. The reply to the aforesaid at the end of the learned ASG is that since the investigation was being carried out by the State Police, it proceeded to file the first report on 15.11.2019 before the SDJM, Ajnala where the Appellants were first produced after their arrest. This according to the learned ASG has nothing to do with Section 167 of the Code of Criminal Procedure. The learned ASG further pointed out that eventually the case was committed to the Court of Sessions and finally transferred to the Special Court constituted for NIA/UAPA. According to the learned ASG, it is not in dispute that the cognizance was finally taken by the Special Court after looking into the sanctions accorded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for us to discuss each one of the decisions relied upon as none of the decisions are of any avail to the Appellant. Each of the decisions are in the peculiar facts of the case. 75. In view of the aforesaid discussion, both the appeals are liable to be dismissed. However, before we proceed to pass the final order, there is one grey area in this litigation which we must look into and say something in that regard. Of course, this grey area has not been ventured into by the learned Counsel appearing for the Appellants, but as a highest Court of the Country, we should not shut our eyes to the same. AN EYE-OPENER LITIGATION FOR THE NIA/STATE POLICE 76. As is evident from the chronology of dates and events referred to in the earlier part of our judgment, the final report Under Section 173(2) of the Code of Criminal Procedure was filed in the Court of SDJM, Ajnala on 15.11.2019. 15.11.2019 was the 161st day from the date of arrest of two of the Appellants before us, namely, Jasbir Singh and Varinder Singh. They were the first to be arrested on 08.06.2019. The Punjab Police applied to the Court of the Additional Sessions Judge, Amritsar, for extension of time to complete the investigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has applied for such bail, notwithstanding pendency of the bail application or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the court. However, where the Accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, or a report seeking extension of time is preferred before the Magistrate or any other competent court, the right to default bail would be extinguished. The court would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the Accused may still be released on bail under other provisions of the Code of Criminal Procedure. 78. Our observations in paras 76 and 77 respectively as above are keeping in mind the decision of this Court rendered by a three-Judge Bench in the case of Sayed Mohd. Ahmad Kazmi v. State(Government of NCT of Delhi) and Ors. reported in (2012) 12 SCC 1, wherein in paras 25, 26 and 27 respectively, this Court observed as under: 25. Having carefully considered the submissions made on behalf of the respective parties, the relevant provisions of law and the decision cited, we are un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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