Point of Law: Criminal Conspiracy - Benefit of default bail - Expiry of period of 90 or 60 days, as case may be, an indefeasible right accrues in favour of accused for being released on bail on account of default by investigating agency in completion of investigation within period prescribed and accused is entitled to released on bail.

JUDGMENT :

Vinod Chatterji Koul, J.

(through video conference)

1. The Appeals on hand are directed against the composite Order dated 25th May 2019, passed by the court of Special Judge designated under NIA Act, Srinagar, (for short “Trial Court”), rejecting bail applications of appellants, on the grounds made mention of therein.

2. Heard and considered.

3. Appellants have been arrested in connection with case FIR No.85/2018 under Section 120-B RPC, 17, 18, 38, 39 and 40 ULA(P) Act registered in police station Panthachowk, Srinagar. They preferred applications before the Trial Court for grant of bail. The Trial Court by order impugned dismissed the applications.

4. According to learned counsels for appellants, impugned order is bad in law as right to personal liberty is a cherished right of every citizen as provided under Article 21 of the Constitution. It is contended that appellants have been falsely implicated in abovementioned FIR as they have never been involved in any criminal activity. They also state that there are great contradictions in the police story as one fails to understand as to what role has been played by appellants in the alleged activities. The investigating agency is stated to have given contradictory statements with regard to recovery of money from appellants and other co-accused.

Another submission of learned counsels for appellants is that police agency has to complete investigation of the case within a period of 90 days and after its expiry, accused has an indefeasible right of being released on bail. They also aver that there was no formal request from public prosecutor to extend period of detention.

The Trial Court is said to have extended the detention of accused/ appellants beyond the period of ninety days in terms of orders dated 28th February 2019, 7th March 2019, 27th March 2019 and 10th April 2019. It is vehemently averred that abovementioned orders have been passed by the Trial Court on the applications of Investigating Officer (I.O.) and there had been no application, as was required in law, to be filed by Public Prosecutor under and in terms of provisions of Section 43D(2)(b) of ULA(P) Act and therefore, appellants are entitled to default bail.

Mr. Shafqat Nazir, learned counsel for appellant in CR No.02/2019 has also vehemently stated that there is no report of public prosecutor indicating progress of investigation and specific reasons for detention of accused beyond the period of ninety days. It is also insisted by him that neither there is any report of public prosecutor nor any specific reason has been given by the Trial Court to extend detention of accused and therefore irrespective of the time having been extended by the trial Court, the appellant on expiry of ninety days is entitled to be released on bail on ground of default.

It is also contended that it was incumbent upon Trial Court to release appellants on bail in default of investigation being completed within the statutory period of ninety days.

5. Taking into account the submissions made by learned counsels for parties, it would be apt to go through the provisions of Section 43D of ULA(P) Act and for ready reference, Section 43D(2)(b) is imperative to be reproduced hereunder :

“43D. Modified application of certain provisions of the Code.–

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(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),

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(b) after the proviso, the following provisos shall be inserted, namely:-

“Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the 4 progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days:”

6. The provisions of Section 43D(2)(b), thus, envis