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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
SANJEEV KUMAR, RAJESH SEKHRI, JJ.
Syed Irfan Abdullah S/o Abdullah Geelani – Appellant
Versus
Union Territory of J&K – Respondent
Crl. A. (D) No. 17 of 2023, Crl. M. No. 378 of 2023
Decided On : 08-09-2023
NIA Act - Extension of Remand - Section 167 of Cr.P.C. read with Section 43-D of the UA(P) Act
Fact of the Case:
The appellant was arrested under the Unlawful Activities (Prevention) Act, 1967 and sought default bail after the remand was extended beyond 90 days. The prosecution completed the investigation within the extended period and presented the challan.
Finding of the Court:
The court found that the orders of remand were legal and in compliance with mandatory provisions of Section 167 of the Code of Criminal Procedure read with Section 43-D of the UA(P) Act. The appellant's right to default bail was dismissed as infructuous due to the completion of the investigation and presentation of the challan within the extended period of remand.
Issues: The appellant challenged the remand orders on grounds of legality and procedural irregularity, and sought default bail. The prosecution opposed the appeal, arguing that the appellant was involved in heinous offences and the investigation could not be completed within the statutory period of ninety days.
Ratio Decidendi: The court held that the extension of remand was in compliance with the law, and the right to default bail was lost upon the presentation of the charge sheet. The court emphasized the importance of completing the investigation within the prescribed period and the accused's right to oppose the application for extension of remand.
Final Decision: The appeal was dismissed as the orders did not suffer from any legal infirmity or procedural irregularity, and no right to default bail ever accrued to the appellant.
JUDGMENT :
SANJEEV KUMAR, J.
1. This appeal by the appellant filed under Section 21 of the National Investigation Agency Act, 2008 [“the NIA Act”] is directed against the orders dated 25.03.2023 and 11.04.2023 passed by the Court of Additional District and Sessions Judge (designated as NIA Court) Kupwara (hereinafter referred to as “NIA Court” for short).
2. Before we advert to the grounds of challenge urged by the learned counsel appearing for the appellant, we deem it appropriate to give brief resume of the factual antecedents leading upto the filing of this appeal.
3. The appellant was arrested on 11.01.2023 in FIR No. 06/23 registered in Police Station, Handwara under Section 13 and 39 of the Unlawful Activities (Prevention) Act, 1967 [“the UA(P) Act” hereafter]. The appellant was remanded to judicial custody from time to time. Vide order impugned dated 25.03.2023, the remand of the appellant was further extended upto 12.04.2023 by the NIA Court. On 11.04.2023, with the understanding that 90th day of remand was 11.04.2023, the appellant moved an application for default bail under Section 167 (2) Cr.P.C. read with Section 43-D of the UA (P) Act on 11.04.2023 at about 3.30 p.m.. The prosecution through its APP moved an application/report before the NIA Court on the same day i.e. 11.04.2023 seeking extension of the remand of the appellant for a further period of sixty days with effect from 12.04.2023. The report filed by the learned APP seeking extension of remand was taken up for consideration on 11.04.2023 and the NIA court vide impugned order dated 11.04.2023 remanded the appellant in judicial custody to be lodged in Sub Jail, Kupwara for a further period of six days w.e.f. 11.04.2023. Since the remand of the appellant had been extended by the NIA Court vide order dated 11.04.2023, as such, the application moved by the appellant for default bail was dismissed by the NIA Court as infructuous vide order dated 12.04.2023. It is, however, the admitted case of both the sides that the investigating agency completed the investigation within the extended period of remand and presented the challan before the NIA Court.
4. The appellant is aggrieved of and has assailed both the orders of remand passed by the NIA Court on 25.03.2023 and 11.04.2023, inter-alia, on the following grounds:
(ii) That the remand order dated 25-03-2023 was passed by the NIA Court without following the mandatory requirements of proviso to Section 43-D (2) (b) of the UA (P) Act.
(iii) That the remand order dated 11-04-2023 is also illegal and bad in law as the NIA Court has failed to give specific reasons for detention of the appellant beyond the period of ninety days and also that the appellant was not given a fair opportunity of being heard.
5. Apart from challenging the impugned orders on the grounds aforementioned the appellant also finds fault with the order dated 12-04-2023 passed by the NIA Court dismissing the application of the appellant for grant of default bail. To substantiate his submissions, learned counsel for the appellant relies upon the following case law:
(ii) Enforcement Director, Govt. of India vs. Kapil Wadhawan and Another, 2023 Live Law (SC) 249
(iii) Sunil Kumar Sharma vs. State (NCT of Delhi), 2005 SCC Online Del. 697
(iv) Judgebir Singh @ Jasbir Singh Samra @ Jasbir and Others vs. National Investigation Agency, 2023 SCC Online SC 543
(v) Jigar @ Jimmy Pravindchandra Adatiya vs. State of Gujarat, 2022 Live Law (SC) 794
6. The appeal is opposed by the respondent, who, in its status
The completion of investigation within the prescribed period and the loss of right to default bail upon presentation of the charge sheet.
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 court ruled that an extension of remand without production of the accused violates statutory rights, allowing for default bail under the Criminal Procedure Code.
In cases involving UAPA, a valid extension of investigation period negates the right to default bail, contingent on statutory compliance.
The main legal point established is that the extension of the investigation period without notifying the accused violates the principles of natural justice, and the accused is entitled to default bai....
The right to default bail stands extinguished after the filing of the final report, and compliance with legal provisions is essential.
An accused is entitled to default bail under Section 167(2) of Cr.P.C. if charges are not filed within the statutory period, emphasizing the fundamental right to personal liberty.
The right to default bail under Section 167(2) Cr.P.C. is extinguished once a charge-sheet is filed; extensions beyond 90 days must follow proper procedures and be conducted by appropriate judicial a....
The right to bail under Section 167(2) of the Cr.P.C. is contingent upon the completion of the investigation within the prescribed time frame, which is calculated from the date of judicial remand, no....
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