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SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, R. SUBHASH REDDY, JJ.
FAKHREY ALAM – Appellant(s)
VERSUS
THE STATE OF UTTAR PRADESH – Respondent(s)
CRIMINAL APPEAL NO. 319 OF 2021 (arising out of SLP(Crl.) No. 6181 of 2020)
Decided On : 15-03-2021
Criminal Procedure Code, 1973 – Section 167(2) – Unlawful Activities Prevention Act, 1967 – Section 18 – Constitution of India – Article 21 – Default bail – Default bail is a fundamental right and not merely a statutory right as it is, a procedure established by law under Article 21 of Constitution – A fundamental right is granted to accused person to be released on bail once conditions of first proviso to Section 167(2) of Cr.P.C. are fulfilled – An oral application for grant of default bail would suffice – Consequences of UAPA Act are drastic in punishment and in that context, it has been held not to be a mere statutory right but part of procedure established by law under Article 21 of Constitution of India – Appellant is entitled to default bail under Section 167(2) of Cr.P.C. in given facts of case on terms and conditions to satisfaction of trial Court. (Paras 14, 15 and 16)
Facts of the case:
FIR bearing No. 04/2017 has been registered against the appellant-accused under Section 420,467, 468, 471 and 120-B, IPC and 3/25/30 of the Arms Act and under Section 18 of the UAPA Act, 1967. The appellant was arrested on 08.03.2017 and on 03.06.2017, Court of Chief Judicial Magistrate, Lucknow granted a total of 180 days to the police for filing the charge sheet. The police filed charge sheet on 04.09.2017 under the aforesaid provisions, except under UAPA Act as it was mandatory to obtain prosecution sanction from the State Government which had not been forthcoming till the date of filing of the charge sheet.
Findings of Court:
What was envisaged by the Legislature was that investigation should be completed in 24 hours but practically that was never found feasible. It is in these circumstances that Section 167 of the Cr.P.C. provided for time period within which the investigation should be completed, depending upon the nature of offences. Since, liberty is a Constitutional right, time periods were specified in the default of which the accused will have a right to default bail, a valuable right.
Result : Appeal allowed.
ORDER
Leave granted.
2. An FIR bearing No. 04/2017 has been registered against the appellant-accused Fakhrey Alam under Section 420,467, 468, 471 and 120-B, IPC and 3/25/30 of the Arms Act and under Section 18 of the UAPA Act, 1967.
3. The appellant was arrested on 08.03.2017 and on 03.06.2017, learned Court of Chief Judicial Magistrate, Lucknow granted a total of 180 days to the police for filing the charge sheet. The police filed charge sheet on 04.09.2017 under the aforesaid provisions, except under the UAPA Act as it was mandatory to obtain prosecution sanction from the State Government which had not been forthcoming till the date of filing of the charge sheet. Thus, the charge sheet states as under :
4. Thereafter, a second charge sheet was filed after obtaining sanction of the State Government on 05.10.2017. We are concerned with the order passed by the Chief Judicial Magistrate, Lucknow dated 13.10.2017 on an application filed by the appellant on 03.10.2017 for default bail under Section 167 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Cr.P.C.”) two days prior to the charge sheet having been filed under the UAPA Act. The case set up by the appellant was that the charge sheet had been filed after 180 days and thus he was entitled to default bail. The Court, however, opined that what was stated to be a second charge sheet was really a supplementary charge sheet and thus default bail would not be admissible. The aforesaid view was given its imprimatur by the High Court in terms of the impugned order dated 03.11.2020 which has been assailed before us.
5. Learned senior counsel for the appellant has made a dual submissions before us:
6. Secondly, it was urged before us that even within the 180 days period, the charge sheet/supplementary charge sheet under the UAPA Act was not filed which gave a cause to the appellant to file the application for default bail on 03.10.2017 and it is only two days thereafter on 05.10.2017 after a lapse of 211 days that this charge sheet had been filed.
7. On the other hand, learned counsel for the State submits that the judgment of this Court in Bikramjit Singh’s case (supra) was in the given situation prevalent in the State of Punjab, but on the other hand in State of Uttar Pradesh the competent Court was of the special Chief Judicial Magistrate and it is only recently now about a month back that special Courts had been notified.
8. On the second aspect, it is urged that what is called as the second charge sheet is really a supplementary charge sheet as there is no restriction on the number of supplementary charge sheets which can be filed but there will be only one charge sheet in view of judgment of this Court in the case of Vinay Tyagi vs. Irshad Ali @ Deepak & Ors, (2013) 5 SCC 762.
9. We have examined the aforesaid pleas.
10. Insofar as the first aspect is concerned, suffice to say that the situation in the State of Uttar Pradesh is different and it is not as if there were any notified special courts in existence.
11. On the second aspect we cannot lose sight of the fact that wh
Default bail is a fundamental right and not merely a statutory right. An oral application for grant of default bail would suffice.
The fundamental right to default bail under Section 167(2) of Cr.P.C. is granted to an accused person once the conditions are fulfilled, and the lack of mandatory prosecution sanction for UAPA offens....
Default bail under Section 167(2) CrPC is only available before the filing of a chargesheet; once filed, the right to default bail ceases.
An accused's right to default bail under Section 167(2) Cr.P.C. is extinguished if the application is not filed before the completion of the charge-sheet process.
The right to default bail under Section 167(2) Cr.P.C. is extinguished once a charge-sheet is filed; extensions beyond 90 days must follow proper procedures and be conducted by appropriate judicial a....
The right to default bail is part of the procedure established by law under Article 21 of the Constitution of India, and the completeness of the charge-sheet, allowing for cognizance and framing of c....
The filing of a charge-sheet within the legally extended period of investigation, even if incomplete regarding specific offences requiring later sanction, effectively precludes the accused from claim....
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