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SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, CJI., J.B. PARDIWALA, J.
Judgebir Singh @ Jasbir Singh Samra @ Jasbir & Ors. – Appellant
Versus
National Investigation Agency – Respondents
Criminal Appeal No. 1011-1012 of 2023
Decided on : 01-05-2023
(A) Unlawful Activities (Prevention) Act, 1967 – Section 43D – Criminal Procedure Code, 1973 – Section 167(2) – National Investigation Agency Act, 2008 – Section 18 – Default bail – Benefit of default bail shall be available to accused for offences alleged to have been committed under UAPA where investigation has not concluded within 90 days of arrest of accused irrespective of punishment of offences alleged to have been committed by him – By virtue of Section 43D of UAPA, investigating agency gets 90+90 days = 180 days to complete investigation – Order of sanction passed by competent authority can be produced and placed on record even after filing of charge-sheet – Inordinate delay in placing order of sanction before Special Court may lead to delay in trial because competent court will not be able to take cognizance of offence without a valid sanction on record – In such eventuality, at the most, it may be open for accused to argue that his right to have a speedy trial could be said to have been infringed thereby violating Article 21 of Constitution – This may at the most entitle accused to pray for regular bail on the ground of delay in trial – But same cannot be a ground to pray for statutory/default bail under provisions of Section 167(2) of Cr.P.C. – Statutory requirement of report under Section 173(2) of Cr.P.C. would be complied with if various details prescribed therein are included in the report – Details of offence are required to be proved to bring home guilt to accused at a later stage, in course of trial of case by adducing acceptable evidence. (Paras 33, 47 and 48)
(B) Criminal Procedure Code, 1973 – Section 167(2) – Unlawful Activities (Prevention) Act, 1967 – Section 43D – National Investigation Agency Act, 2008 – Section 16 – Default bail – Maximum period of 180 days which is being granted to investigating agency to complete investigation in the case wherein prosecution is for offence under 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 – Investigating agency has nothing to do with sanction – Sanction is altogether a different process – Sanction is accorded, based on materials collected by investigating agency which forms part of final report under Section 173 of Cr.P.C. – Investigating agency gets full 180 days to complete investigation – To say that obtaining of sanction and placing the same along with charge-sheet should be done within period of 180 days is something which is not only contrary to provisions of law but is inconceivable – Filing of charge-sheet is sufficient compliance with provisions of Section 167 of Cr.P.C. and accused cannot claim any indefeasible right of being released on statutory/default bail under Section 167(2) of Cr.P.C. on the ground that cognizance has not been taken before expiry of statutory time period to file charge-sheet – Error on part of investigating agency in filing charge-sheet first before Court of Magistrate has nothing to do with right of accused to seek statutory/default bail under Section 167(2) of Cr.P.C. – Committal proceedings are not warranted, when it comes to prosecution under UAPA by NIA by virtue of Section 16 of NIA Act. (Paras 49, 57, 63 and 73)
(C) National Investigation Agency Act, 2008 – Section 16 – Criminal Procedure Code, 1973 – Section 190 – Cognizance of offence – Once investigation is completed, report under Section 173 of Cr.P.C. is to be filed in Special Court constituted under the Act – Section 16 of NIA Act empowers Special Court to take cognizance of any offence without 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 – By incorporating Section 16 in NIA Act Legislature has made Special Court as court of original jurisdiction unlike Sessions Court which is a court of committal under Cr.P.C. (Paras 68)
(D) Criminal Procedure Code, 1973 – Section 167(2) – Default bail – Right to be released on default bail continues to remain enforceable if accused has applied for such bail, notwithstanding pendency of bail application or subsequent filing of charge-sheet or a report seeking extension of time by prosecution before court – However, where accused fails to apply for default bail when right accrues to him, and subsequently a charge-sheet, or a report seeking extension of time is preferred before Magistrate or any other competent court, right to default bail would be extinguished – Court would be at liberty to take cognizance of case or grant further time for completion of investigation, as the case may be, though accused may still be released on bail under other provisions of Cr.P.C. (Para 77)
Facts of the case:
(i) Whether an accused is entitled to seek default bail under the provisions of Section 167(2) of the Code of Criminal Procedure, 1973 on the ground that although the charge-sheet might have been filed within the statutory time period as prescribed in law yet the charge-sheet sans a valid order of sanction passed by a competent authority is no charge-sheet in the eye of law and therefore, it is as good as saying that no charge-sheet 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 Section 167 of the CrPC from taking notice of the charge-sheet that might have been filed by the investigating agency in the absence of a valid order of sanction?
(ii) Whether the grant of sanction is contemplated under Section of the 167 Cr.P.C.?
Findings of Court:
Once investigation is completed, the report under Section 173 of Cr.P.C. 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 under the Criminal Procedure Code.
Result : Appeals dismissed.
The judgment notes that the Additional Sessions Judge, Amritsar, granted extension of investigation time from 90 to 180 days after giving an opportunity of hearing to all accused persons. (!)
It records that on 05.04.2021, after taking cognizance, the Special Court issued notices to the accused persons. (!)
It observes that the hearing on the prosecution's extension application conformed to natural justice principles, as accused persons were represented and arguments heard. (!)
In the context of extension applications under the proviso to Section 43D(2)(b) of UAPA, it states that opportunity of hearing must be given to accused persons before extending time up to 180 days. (!)
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 IPC’), 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 bail under Section 167(2) of the CrPC.
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 CrPC’) 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 Section 167 of the CrPC from taking notice of the chargesheet that might have been filed by the investigating agency in the absence of a valid order of sanction?
(ii) Whether cognizance of the chargesheet is necessary to prevent the accused from seeking default bail or whether mere filing of the chargesheet would suffice for the investigation to be deemed complete? To put it in different words, whether the grant of sanction is contemplated under Section of the 167 CrPC?
(iii) A Special Court may not be in a position to take cognizance on account of failure on the part of the prosecution to obtain sanction to prosecute the accused under the UAPA and the 1908 Act, but does such failure amount to non-compliance with the provisions of Section 167(2) of the CrPC so as to entitle the accused to seek default bail?
(iv) Whether filing of the chargesheet for the offences as enumerated above, in the Court of the Magistrate and the Magistrate thereafter, committing the case to the Court of Sessions or designated Court would vitiate all subsequent proceedings on the ground that Section 16 of the National Investigation Agency Act, 2008 (for short, ‘the NIA Act’) empowers the Special Court to take cognizance of any offence without the accused being committed to it for trial upon receiving a police report? To put it in other words, whether the error on the part of the investigating agency to file chargesheet for the offence enumerated above, in the Court of Magistrate and not 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 CrPC?
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 r
(1) Inordinate delay in placing order of sanction before Special Court cannot be a ground to pray for statutory/default bail under provisions of Section 167(2) of Cr.P.C.(2) Default bail – Right to b....
Point of law : The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filin....
The right to default bail under Section 167(2) accrues upon non-filing of the charge-sheet within the stipulated time, and cannot be extinguished by subsequent extensions or filings.
The main legal point established is that the accused has an indefeasible right to default bail under Section 167(2) Cr.P.C., and the court must take prompt action to enforce this right, restricting t....
The court affirmed that both Magistrates and Sessions Courts possess the authority to grant default bail, even in the pendency of regular bail petitions.
The main legal point established is that the accused has an indefeasible right to default bail under Section 167(2) Cr.P.C. and the NDPS Act, and this right should not be denied due to delays or the ....
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