IMPORTANT POINT
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.

JUDGMENT :

Mohd. Faiz Alam Khan, J.

1. Heard Shri Sheeran Mohiuddin Alavi & Shri Harsh Vardhan Kediya, learned counsels appearing for the appellant and Shri Shiv Nath Tilhari, learned Additional Government Advocate for respondents and perused the record.

2. The instant criminal appeal under Section 21(4) of the N.I.A. Act, 2008 has been filed by the appellant- Kamal K.P. against the impugned order dated 26.06.2023 passed by the Additional District and Sessions Judge-5/Special Judge, NIA/ATS, Lucknow, in Bail Application No. 5048 of 2023, arising out of Case Crime No. 199 of 2020, under Sections 153-A, 295-A, 124-A, 120-B I.P.C. & Section 17 and 18 of the Unlawful Activities (Prevention) Act, 1967 [here-in-after referred to as ‘UAPA’ and Section 65 & 72 of the I.T. (Amendment) Act, 2008, Police Station Manth, District Mathura, Uttar Pradesh, whereby his application for default bail moved under Section 167(2) of the Code of Criminal Procedure, 1973 (hereafter referred as 'Cr.P.C.') read with Section 43-D(2) of the UAPA has been rejected.

3. Learned counsel for the appellant submits that appellant was arrested on 03.03.2023 and was produced before the learned Magistrate at Kerala on 04.03.2023 whereon his transit remand was granted and thereafter he was produced before the Special Judge, (NIA/ATS), at Lucknow on 06.03.2023 and was remanded to judicial custody for 14 days.

4. It is further submitted that appellant was also taken on Police Custody Remand (P.C.R.) for three days from 02.04.2023 to 04.04.2023 where after he was again remanded to judicial custody.

5. It is further submitted that the investigation of the case remained pending even after completion of 90 days and in this regard the appellant preferred an application under Section 167 (2) Cr.P.C. on 02.06.2023 for his release on statutory bail and the same was fixed for 05.06.2023 and the same was ultimately rejected vide impugned order dated 26.06.2023 on the ground that the period of investigation has already been extended by means of order dated 05.06.2023 and the charge-sheet has already been filed within 180 days of first remand of the appellant.

6. It is vehemently submitted that the reasoning given by the Special Court in rejecting the prayer of default bail of the appellant is not tenable in the eyes of law as the period of investigation was extended on 05.06.2023 after expiry of 90 days while the application under Section 167 (2) Cr.P.C. for grant of default bail had already been moved on 02.06.2023, thus an indefeasible right had accrued in favour of appellant, which could not be defeated by filing the charge-sheet subsequently.

7. It is further submitted that the Special Court has committed manifest illegality in rejecting the default bail application of the appellant as the appellant had become entitled to the default bail when the period of extension of investigation period was extended only on 05.06.2023 while the same had expired in the midnight of 01/02.06.2023.

8. It is further submitted that since an indefeasible right to be released on bail had accrued in favour of the appellant by non-filing of charge-sheet by the Investigating Agency within 90 days and as the period of 90 days had expired on 02.06.2023 and the period of extension of investigation has been enlarged on 05.06.2023 and the application for statutory bail was moved on 02.06.2023, the appellant should have been released on default bail and, thus, the Special Court has committed patent illegality in rejecting the bail application of applicant, therefore, the impugned order passed by the Special Court is required to be set-aside and the appellant is entitled to be released on default bail.

9. Learned counsel for the appellant has relied on the following case laws:-

(i) Enforcement Directorate, Government of India Vs. Kapil Wadhwan and Another reported in 2023 SCC OnLine SC 972

(ii) Gautam Navlakha Vs. National Investigation Agency reported in (2022) 13 SCC 542; and

(iii) Judgebir Singh alias Jasbir Singh