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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Ali Mohd. Magrey, Sanjay Dhar, JJ.
Mohammad Amin Illahie and Ors. - Appellants
Vs.
Union Territory of J&K - Respondent
Crl. A. (D) No. 03/2020
Decided On : 09-09-2020
Criminal Procedure Code,1973 – Section 107 and 167(2) - National Investigation Agency Act – Section 21(3) – Ranbir Penal Code,1932 – Section 302 and 307 – Arms Act – Section 7/27 - ULA(P) Act – Section 13,16 and 18 - Claiming bail - This appeal under Section 21 (3) of the National Investigation Agency Act is directed against order passed by the learned Special Judge Designated under NIA Act, whereby petition of appellants/accused for grant of bail by default has been rejected - It is averred in appeal that appellant was arrested whereas appellants were taken into custody in connection with case FIR for offences under Section 302, 307 RPC, 7/27 Arms Act and Sections 13, 16, and 18 of ULA(P) Act, of Police Station - It is further averred that custody of appellants/accused was changed to FIR of Police Station, and at that time appellant had completed 177 days in custody whereas appellants had completed 170 days in custody in connection with investigation of FIR - Apart from claiming bail on merits, appellants/accused have, primarily, assailed order of Learned Special Judge on ground that said Court has not correctly appreciated their contentions and arguments with regard to their right to be enlarged on bail in default because of non-production of challan against them within the stipulated time - Whether by virtue of shifting of custody of accused/appellants from one FIR to another FIR and thereafter detaining them under preventive detention laws – Held, applying aforesaid ratio of law laid down by Supreme Court to the facts of the instant case, it becomes clear that the period of custody undergone by the appellants in FIR cannot be added to period of custody which they have undergone in FIR - Contention of learned counsel for appellants that after appellants were bailed out in FIR, their custody was again shifted to FIR, is not borne out from Case Diary and there is nothing in it to show that custody of the appellants was shifted back to said FIR - Record shows that even before the appellants were bailed out in FIR they were taken into preventive custody - For what has been discussed it becomes crystal clear that appellants/accused have not undergone custody of 180 days in case FIR - Therefore, their right to claim default bail in terms of Proviso (a) to Section 167(2) of Code of Criminal Procedure read with Section 43D of ULA(P) Act has not accrued to them - Thus the application for grant of bail, on this ground, was rightly declined by learned Special Judge and court do not find any illegality or infirmity in the impugned order - For the foregoing reasons appeal, being without any merit, is dismissed along with connected CM - However, the appellants are at liberty to approach the learned Special Judge to claim bail on merits of the case – Appeal dismissed.
JUDGMENT :
Sanjay Dhar, J.
1. This appeal under Section 21 (3) of the National Investigation Agency Act (for brevity NIA Act) is directed against the order dated 06.02.2020, passed by the learned Special Judge Designated under NIA Act, Srinagar, whereby petition of the appellants/accused for grant of bail by default has been rejected.
2. It is averred in the appeal that the appellant No. 1 was arrested on 08.03.2019 whereas appellants No. 2 and 3 were taken into custody on 15.03.2019 in connection with case FIR No. 229/2017 for offences under Section 302, 307 RPC, 7/27 Arms Act and Sections 13, 16, and 18 of ULA(P) Act, of Police Station, Budgam. It is further averred that on 02.09.2019, the custody of the appellants/accused was changed to FIR No. 69/2018 of Police Station, Budgam, and at that time, appellant No. 1 had completed 177 days in custody whereas appellants 2 and 3 had completed 170 days in custody in connection with investigation of FIR No. 229/2017.
3. It is also averred that on 16.09.2019, the appellants/accused were admitted to bail in case FIR No. 69/2018 but in spite of that, they were not released from the custody nor their custody was shifted to FIR No. 229/2017. It is further contended in the appeal that the appellants No. 1 and 3 were taken into preventive custody under Public Safety Act whereas appellant No. 2 was placed under preventive custody in terms of Section 107 of Cr.P.C.
4. With the aforesaid factual background, it appears that the appellants had moved an application for grant of default bail in their favour before the Court of learned Special Judge (Designated under NIA Act), Srinagar. Vide the impugned order, the learned Special Judge, after obtaining report from the Investigating Agency, declined to enlarge the appellants/accused on bail.
5. Apart from claiming bail on merits, the appellants/accused have, primarily, assailed the order of Learned Special Judge on the ground that the said Court has not correctly appreciated their contentions and arguments with regard to their right to be enlarged on bail in default because of non-production of challan against them within the stipulated time.
6. It is contented by the learned counsel for the appellants that mere shifting of custody of the appellants/accused from one case to another and thereafter detaining them under preventive detention laws, would not absolve the Investigating Agency of its duty to present the challan within 180 days of arrest of the appellants/accused. The ld. Counsel has relied upon the judgment of the Supreme Court in Manoj vs. State of Madhya Pradesh reported in (1999) 3 SCC 715.
7. We have heard learned counsel for the parties and perused the grounds of appeal and the impugned order. We have also gone through the record including the Case Diary.
8. At the very outset we would like to clarify that the learned counsel for appellants has, during the course of arguments, confined his challenge to the order passed by learned Special Judge to the issue pertaining to default bail. In fact, the impugned order is also confined to the aspect of default bail and it does not touch the merits of the case. The learned counsel for the appellants has not argued on merits of the prosecution case against the appellants and, therefore, we are confining this judgment to the aspect of the default bail only.
9. Briefly stated case of the prosecution against the appellants/accused is that on 03.10.2017, they had transported three militants from Rawalpora to the BSF Camp located at Gogoland and these three militants launched a suicide attack on the BSF Camp leading to death of ASI B. K. Yadav as also the death of three militants.
10. Since ld. Counsel for the appellants/accused has confined his argument to the aspect of default bail only, as such, we are not making any observation as to whether or not, the aforesaid allegations find support from the material collected by the Investigating Agency.
11. For the purpose of testing the arguments of ld. Counsel for
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