The filing of a charge-sheet against an absconding accused terminates the right to claim default bail under Section 167(2) Cr.P.C., irrespective of ongoing investigations.

Judgment

Mr. Sureshwar Thakur, J.

The National Investigation Agency becomes aggrieved from an order made on 05.12.2022, by the learned Special Judge, NIA, Punjab, SAS Nagar, Mohali, whereby in terms of the provisions as carried in Section 167 (2) of the Cr.P.C. read with Section 43 D under the Unlawful Activities (Prevention) Act, (hereinafter for short called as the ‘UAPA Act’), the learned Special Judge concerned, proceeded to enlarge the respondent herein, on default bail.

2. The reason which becomes assigned by the learned Special Judge concerned, to assign the benefit of the above provisions, to the respondent herein, ensued from the factum, that the respondent herein, became arrested on 25.08.2022, and, given the filing of a charge sheet against him, thus on 16.12.2021, but during the phase of his absconding, thereupon despite 90 days lapsing from the date of his arrest (supra), neither any regular charge-sheet nor any supplementary charge-sheet becoming filed against him. Resultantly, it was concluded that thereby the respondent concerned herein became entitled to claim the benefit of default bail as envisaged under Section 167 (2) of the Cr.P.C.

3. Furthermore, since the investigating agency, had filed a third supplementary challan against him on 16.12.2021, showing him, as an absconder, whereafters’ also the investigating agency was making further investigation(s) against him, yet when such further investigation(s) remained incomplete. Resultantly, it was concluded that since 90 days elapsed since his becoming arrested and the said further investigation(s) rather remained incomplete. Therefore, also the benefit of the default bail became granted to the respondent herein.

4. The legal conundrum, which is to be answered, by this Court, appertains to whether in the face of an absconding accused, as the respondent herein was, especially when the charge-sheet became filed during the phase his absconding, thus naming him to also commit an offence under the ‘UAPA Act’. Consequently, whether the date of filing of the said charge-sheet against the absconding respondent, is to be taken to be the relevant period, thus for computing whether therefroms the period of 90 days is to be reckoned, but irrespective of the accused becoming arrested on 25.08.2022, besides further investigations being underway, and, not becoming concluded within 90 days from his arrest.

5. Further, it has also to be determined, whether the filing of supplementary challan, besides the lack of completion of further investigation(s) into the petition FIR, did tantamount to there being, no necessity of the present respondent-accused being remanded, beyond the permissible period of 90 days in judicial custody, rather his in terms of the provisions of Sub Section (2) of Section 167 Cr.P.C., becoming entitled to be as such released on default bail. The provisions (supra) are extracted hereinafter.

“(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that-

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on th