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Accused right for Default Bail doesn't extinguish on subsequent filing of Chargesheet - 167(2): SC



Bikramjit Singh vs. The State of Punjab, Criminal Appeal No. 667 OF 2020 (@ Special Leave Petition (Crl.) No. 2933 of 2020), October 12, 2020.


The present case was decided by the Supreme Court Bench comprising Hon’ble Justice R.F.Nariman, Hon’ble Justice Navin Sinha and Hon’ble Justice K.M Joseph. The case was in relation to the grant of default bail. There was a FIR dated 18.11.2018, involving Sections 302, 307, 452, 427, 341, 34 of the Indian Penal Code read with Section 25 of the Arms Act, 1959, Sections 3, 4, 5, 6 of the Explosive Substances Act, 1908 and Section 13 of the Unlawful Activities (Prevention) Act, 1967. An application for default bail dated 08.04.2019 was dismissed. By the impugned judgment dated 30.10.2019, the High Court, after setting out Section 167 of the Code of Criminal Procedure, 1973 and some of the provisions of the UAPA and NIA Act. With regards to the FIR, Bikramjit Singh was arrested on 22.11.2018, on which date he was remanded to custody by the learned Sub-Divisional Magistrate. After 90 days in custody, which expired on 21.02.2019, an application for default bail was made to the Sub-Divisional Judicial Magistrate, Ajnala. This application was dismissed on 25.02.2019 on the ground that the learned Sub-Divisional Judicial Magistrate had, by an order dated 13.02.2019, already extended time from 90 days to 180 days under Section 167 of the Code of Criminal Procedure, 1973 as amended by the Unlawful Activities (Prevention) Act, 1967.


Appellant Contention

The learned council for appellant referred to both the enactments as aforesaid in copious detail and stressed the fact that once the Special Court had been set up as an exclusive Court to try all offences under the UAPA, such offences being scheduled offences relatable to the NIA Act, it was the Special Court alone which had exclusive jurisdiction to extend the period of 90 days to 180 days under Section 43-D (2) (b) of the UAPA. The learned council argued that that the exclusive jurisdiction to extend time vested only in the Special Court and not in the Ilaqa Magistrate, despite the fact that it was the State Police Agency that investigated these offences. Secondly, the learned council also argued that the Appellant’s right to default bail was not extinguished by the filing of the charge sheet dated 26.03.2019, as was incorrectly held by the High Court.


Respondent Contention

The learned council for respondent argued that Section 10 of the NIA Act, stating that nothing in the said Act would affect the powers of the State Government to investigate and prosecute any scheduled offence. The learned council also stressed the fact that the entire investigation was done only by the State Police and not by the National Investigation Agency. The learned council also argued that the first application for default bail which was filed on or before 25.03.2019, had spent its force, having been dismissed, and that the application dated 08.04.2019 filed for default bail was clearly after 26.03.2019, when the charge sheet was filed and, therefore, was correctly dismissed by the order of the learned Special Judge dated 11.04.2019.


Court Observation

The Court relied on various cases like Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67, Syed Mohd. Ahmad Kazmi v. State (Govt. of NCT of Delhi) (2012) 12 SCC 1, Union of India v. Nirala Yadav (2014) 9 SCC 457, Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453, and Sanjay Dutt v. State through CBI (1994) 5 SCC 410.


The court held that,

The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled. This being the case, we set aside the judgment of the High Court. The Appellant will now be entitled to be released on “default bail” under Section 167(2) of the Code, as amended by Section 43-D of the UAPA. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the petitioner on cogent grounds, and upon arrest or re-arrest, the petitioner is entitled to petition for the grant of regular bail which application should be considered on its own merit.”(Para 29)

The appeal was allowed and the impugned judgment of the High Court was set aside.

Kamalini


View/ Download the Judgment: Bikramjit Singh vs. The State of Punjab

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