IMPORTANT POINT
An accused has an indefeasible right to be released on bail if charge sheet is not filed within the prescribed period, but this right should be exercised before the investigating agency files charge sheet or seeks extension of time. If two applications, one for default bail and another for extension of custody period, are filed, no bail can be granted unless the prayer for extension of time is rejected.

ORDER :

The question to be answered in this writ petition is this :

Whether the application filed under Section 167 (2) of Cr.P.C by an accused claiming default bail takes priority over an application filed under Section 43D (2) (b) of the Unlawful Activities (Prevention) Act (for short ‘UAP Act’) whenever two applications are filed on the same day?

2. The petitioner is accused No.21 in Spl. C.C. No. 123/2023 on the file of XLIX Additional City Civil and Sessions Judge and Special Judge for NIA Cases, Bengaluru. Amongst several offences punishable under Indian Penal Code including the offence under Section 302 of IPC and the Arms Act, the NIA has invoked the offences punishable under Sections 16, 18, 19 and 20 of the UAP Act. The petitioner was arrested on 07.11.2022 and produced before the court on 08.11.2022. The NIA filed charge sheet against accused 1 to 20 on 20.01.2023 and sought permission under Section 173 (8) of Cr.P.C for further investigation. No charge sheet was filed against the petitioner on 20.01.2023. The initial period of ninety days from the date of production of the petitioner before the court expired on 06.02.2023. NIA did not file charge sheet against the petitioner on or before expiry of ninety days period. And when the case was called in the court on 07.02.2023, the petitioner did not exercise his right to be released on bail as the NIA did not file charge sheet within ninety days. When the case was called on 08.02.2023, if the Special Public Prosecutor for NIA filed an application under Section 43D (2) (b) of UAP Act seeking extension of time to file charge sheet, the petitioner filed an application under Section 167(2) of Cr.P.C claiming default bail. The NIA filed its application in the morning session and the petitioner filed his application in the afternoon session of the court. The trial court decided both the applications together and passed an order on 09.02.2023 allowing the application of the NIA and dismissing the petitioner’s application. The petitioner has challenged the order dated 09.02.2023.

3. We have heard the arguments of Smt. Haleema Ameen for the petitioner and Sri P. Prasanna Kumar for the respondent.

4. It is the argument of Smt. Haleema Ameen that it was the duty of the trial court to have informed the petitioner of his right to apply for bail soon after expiry of ninety days from the date of his production before the court once the respondent failed to submit the charge sheet. Instead the trial court remanded the petitioner to the custody on an oral submission made by an advocate not authorized to represent the respondent. This remand was bad in the eye of law. The first ninety days time expired on 06.02.2023. The respondent did not file the charge sheet either before or on that date. It was only on 08.02.2023, the respondent sought extension of time to file charge sheet, but on the same day the petitioner filed an application for bail under Section 167 (2) of Cr.P.C. Because the respondent failed to submit the charge sheet and failed to seek extension of time very soon after expiry of ninety days, the right accrued to the petitioner under Section 167 (2) of Cr.P.C could not have been denied. Though both the applications were filed on the same day, the petitioner’s right to be released on bail cannot be defeated. Moreover either on 06.02.2023 or on 07.02.2023 the respondent did not file extension application. Unless application was filed, the petitioner cannot be remanded to custody. In these set of circumstances, the petitioner was entitled to be released on bail. The trial court has failed to recognize the valuable right of the petitioner and its decision to dismiss the application for bail cannot be sustained and hence the impugned order is to be quashed. In support of her arguments she has placed reliance on a few decisions which will be adverted to later.

5. It was the argument of Sri P. Prasanna Kumar that on 07.02.2023 his colleague represented him and orally sought extension of