Point of Law : Request of an IO for extension of time is not a substitute for the report of the public prosecutor but since we find that there has been, as per the comparison of the two documents, an application of mind by the public prosecutor as well as an endorsement by him, the infirmities in the form should not entitle the respondents to the benefit of a default bail when in substance there has been an application of mind.

JUDGMENT :

1. Appellants have filed the instant appeal under Section 21 of the National Investigation Act, 2008, challenging judgment and order dated 19.07.2020 passed by Special Court for Trial of offences under Unlawful Activities (Prevention) Act, Baramulla (hereinafter referred to as the Special Court), whereby application of appellants for grant of bail in FIR No.21/2021 for offences under Section 13, 18 and 38 ULA(P) of P/S Sogam, has been dismissed.

2. Before coming to the grounds of challenge, it would be apt to give a brief background of the facts leading to the filing of this appeal.

3. On 06.05.2021, while last rites of one Mohammad Ashraf Khan alias Sehrai were being performed at Village Tekipora Tulkhan within the jurisdiction of Police Station, Sogam, some unknown persons raised anti-national slogans against the sovereignty and integrity of the nation and they also prepared video of the said incident. Police upon receipt of this information registered FIR No.21/2021for offence under Section 13 ULA(P) Act and set the investigation into motion. During investigation of the case, involvement of the appellants in commission of offences under Section 13, 18 and 38 of ULA(P) Act was disclosed and they were taken into custody on 16.05.2021. During the investigation of the case, the appellants moved the Special Court for grant of bail. The application came to be dismissed by the Special Court vide the impugned order dated 19.07.2021. While dismissing the bail application of the appellants, the Special Court observed that the bar to grant of bail contained in Section 43-D of ULA(P) Act is attracted to the facts of the case and that investigation of the case is not complete. It is this order, which is under challenge before us in the instant appeal.

4. Appellants have challenged the impugned order on the grounds that there was no material on record before the learned Special Court to hold that an offence under Section 18 of the ULA(P) Act is made out against the appellants. It is further contended that at the time when the learned Special Court granted extension in period of investigation and detention of appellants/accused beyond 90 days, the appellants/accused had already spent more than 90 days in custody and, as such, they were entitled to grant of default bail. It is further contended that once the period of 90 days had already expired, it was not open to the learned Special Court to even entertain application for extension of period of investigation and detention of accused. It is also urged that extension of period of investigation granted in terms of order dated 14.08.2021 passed by learned Special Court is not in accordance with law, inasmuch as the application for extension of period of investigation has been made by the investigating officer and not by the Public Prosecutor and that there were no reasons, much-less cogent reasons, for granting the extension. Thus, according to the appellants, the grant of extension in period of investigation beyond 90 days in the instant case is without jurisdiction and, as such, the same entitles the appellants to grant of default bail.

5. We have heard learned counsel for the parties and perused the record of the case.

6. During the pendency of the instant appeal, the investigation of the case has been completed and the charge sheet has been filed before the Special Court. Learned Senior counsel appearing for the appellants has submitted that he would like to confine this appeal to the question of grant of bail on the ground of default in filing the charge sheet within 90 days and so far as merits of the bail application are concerned, the same would be urged before the learned Special Court, if required.

7. In view of the aforesaid submission of the learned Senior counsel, we are only called upon to consider the question as to whether appellants were entitled to grant of default bail on the ground that charge sheet was not filed by the investigation agency within the prescribed perio