These appeals by special leave are at the instance of five under trial accused charged with having committed offences punishable under Section 120B of the Indian Penal Code, 1860 (for short, ‘the IPC’), Sections 17, 18, 18B and 20 respectively of the Unlawful Activities (Prevention) Act, 1967 (for short, ‘ the UAPA ’ ) and Sections 4 and 5 respectively of the Explosive Substances Act, 1908 (for short, ‘the 1908 Act’) and are directed against the order passed by the High Court of Punjab and Haryana at Chandigarh dated 26.04.2022 in CRA-D No 47 of 2021 (O&M) by which, the High Court dismissed the appeal and thereby declined to release the accused persons on default bail under Section 167(2) of the CrPC. Whether an accused is entitled to seek default bail under the provisions of Section 167(2) of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) on the ground that although the chargesheet might have been filed within the statutory time period as prescribed in law yet the chargesheet sans a valid order of sanction passed by a competent authority is no chargesheet in the eye of law and therefore, it is as good as saying that no chargesheet was filed by the investigating agency within the statutory time period as prescribed in law? To put it in other words, whether the error on the part of the investigating agency to file chargesheet for the offence enumerated above, in the Court of Magistrate and not in the Sessions or designated Court would by itself entitle the accused to seek default bail under the provisions of Section 167(2) of the CrPC? In such circumstances, FIR No 90 came to be registered at the Police Station Raja Sansi, District Amritsar (Rural), Punjab, for the offences punishable under the 1908 Act. (f) On 04.09.2019, the Punjab Police applied for extension of time for completing the investigation under the proviso to Section 43D(2)(b) of the UAPA before the Additional Sessions Judge, Amritsar. (j) On 15.11.2019, a final report under Section 173(2) of the CrPC was prepared by the investigating agency and presented before the Court of the Sub- Divisional Judicial Magistrate, Ajnala. 3 & 4 were arrested on 18.08.2019; for them, the chargesheet was filed within 90 days post-arrest, and in the case of the accused No 5 who was arrested on 11.09.2019, it was filed within 66 days of his arrest. (r) On 12.11.2020, the Special Judge, NIA recorded that the sanction to prosecute the accused persons for the offences under the 1908 Act had been accorded and the sanction under the UAPA was being awaited. (v) On 17.12.2020, the Special Court rejected the application filed by the accused persons seeking default bail on the ground that the chargesheet had already been filed. (ad) On 26.04.2022, the High Court of Punjab and Haryana dismissed the appeal filed by the Appellants against the order of the Special Court rejecting the plea of default bail. Satya Mitra, the learned Counsel appearing for the respective appellants vehemently submitted that the High Court committed a serious error in declining to grant the benefit of default bail to the appellants. A chargesheet filed without sanction is an incomplete chargesheet and does not meet the requirement of a police report within the meaning of Section 173(2) of the CrPC. Our attention was drawn by both the learned counsel to Rules 3 and 4 respectively of the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 (for short, ‘Rules 2008’), which provide a time limit for making recommendation by the authority and a time limit thereafter, for sanction of the prosecution. The sanction was granted on 17.03.2021 i.e., beyond the period of 180 days which expired on 10.03.2020. The second limb of the submission canvassed by both the learned counsel appearing for the accused persons is that the chargesheet could not have been filed in the Court of SDJM, Ajnala as the proceedings under the NIA are to be conducted in the Special Court only notified under Section 22 of the NIA Act. Central Bureau of Investigation, (2022) SCC OnLine Del 3124 (iv) Rambhai Nathabhai Gadhvi and Others v. Sanjay Jain, the learned ASG, on the other hand, while vehemently opposing both the appeals submitted that it is settled law that the indefeasible right under Section 167(2) of the CrPC accrues to an accused only if the chargesheet is not filed within the time prescribed therein or within the time extended by a competent court under a special statute. In the present case, at the time of filing of the first chargesheet by the State Investigating Agency (SIA), the SIA had already sought sanction for prosecution from the appropriate Governments. Jain submitted that as some of the accused persons were declared as absconders, the request for extension of time to file chargesheet was made by the investigating agency on 04.09.2019 (i.e., within the period of 90 days), the said application was finally heard on 17.09.2019 and the hearing was in conformity with the principles of natural justice as all the accused persons were duly represented and arguments on behalf of the accused as well as prosecution were heard on the application seeking extension of time 22.
The sanction under the UAPA by the Punjab Government was granted on 06.01.2021. The Special Court recorded the same on 07.01.2021. Section 167 in the CrPC, 1898, was premised on the conclusion of investigation within 24 hours or within 15 days on the outside, regardless of the nature of the offence or the punishment. 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 the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does Section 57 of the CrPC contains the embargo on the police officers to detain in custody, a person arrested beyond 24 hours.
Section 167, therefore, is the provision which authorises the Magistrate permitting detention of an accused in custody and prescribing the maximum period for which such detention could be ordered. This Court in the above case emphasised that the debate on Section 167 must also be looked at from the perspective of expeditious conclusion of investigation and from the angle of personal liberty.
State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760] and the conclusions arrived at in that decision. This Court also noted that apart from the possibility of the prosecution frustrating the indefeasible right, there are occasions when even the court frustrates the indefeasible right. While such a practice both on the part of the prosecution as well as some courts must be very strongly and vehemently discouraged, we reiterate that no subterfuge should be resorted to, to defeat the indefeasible right of the accused for “default bail” during the interregnum when the statutory period for filing the charge-sheet or challan expires and the submission of the charge- sheet or challan in court.” One more judgment of this Court on Section 167 of the CrPC be noticed i.e., Achpal alias Ramswaroop and Another v. In the absence of any such similar provision empowering the Court to extend the period, no court could either directly or indirectly extend such period. State of Rajasthan, 2018 SCC OnLine Raj 1] was the submission that the investigation would be completed within two months by a gazetted police officer. (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2), — (a) the references to “fifteen days”, “ninety days” and “sixty days”, wherever they occur, shall be construed as references to “thirty days”, “ninety days” and “ninety days” respectively; and (b) after the proviso, the following provisos shall be inserted, namely: — “Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days: Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody. (3) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that — (a) the reference in sub-section (1) thereof (i) to “the State Government” shall be construed as a reference to “the Central Government or the State Government.
” Thus, a plain reading of the abovementioned provision of the UAPA makes it clear that the benefit of default bail shall be available to the accused for the offences alleged to have been committed under the UAPA where the investigation has not concluded within 90 days of arrest of the accused irrespective of the punishment of the alleged offences to have been committed by him. (2) Sanction for prosecution under sub-section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation, within such time as may be prescribed, to the Central Government or, as the case may be, the State Government.” It is evident from Section 45(1) of the UAPA that if the offence falls under Chapter III of the UAPA, the Court shall not take cognizance of the offence unless previous sanction is accorded either by the Central Government or by any other officer authorised by the Central Government in this behalf.
— The Central Government or, as the case may be, the State Government shall, under sub-section (2) of section 45 of the Act, take a decision regarding sanction for prosecution within seven working days after receipt of the recommendations of the Authority. The Central Government (or as the case may be, the State Government) is obliged under sub section (2) of Section 45 of the UAPA to take a decision regarding sanction for prosecution within 7 working days after receipt of the recommendations of the authority. But, before sanction is granted under 45(1) we are interposing an independent authority which will review the entire evidence, gathered in the investigation, and then make a recommendation whether this is a fit case of prosecution. So, here, we are bringing a filter, a buffer, an independent authority who has to review the entire evidence that is gathered and, then, make a recommendation to the State Govt. Section 16 of the NIA Act relates to the procedure and powers of Special Courts. — No prosecution, suit or other legal proceedings shall be instituted in any court of law, except with the previous sanction of the Central Government, against any member of the Agency or any person acting on his behalf in respect of anything done or purported to be done in exercise of the powers conferred by this Act. (2) The provisions of this Chapter shall apply to the Special Courts designated by the State Government under sub-section (1) and shall have effect subject to the following modifications, namely — (i) references to “Central Government” in sections 11 and 15 shall be construed as references to State Government; (ii) reference to “Agency” in sub-section (1) of section 13 shall be construed as a reference to the “investigation agency of the State Government”; (iii) reference to “Attorney – General for India” in sub -section (3) of section 13 shall be construed as reference to “Advocate-General of the State”. (4) On and from the date when the Special Court is designated by the State Government the trial of any offence investigated by the State Government under the provisions of this Act, which would have been required to be held before the Special Court, shall stand transferred to that Court on the date on which it is designated. It was conceded by the learned counsel appearing for the appellants that the chargesheet was filed well within the statutory time period i.e., 180 days, however, the court concerned could not have taken cognizance of such chargesheet in the absence of the orders of sanction not being a part of such chargesheet. The court may take cognizance of the offence after the sanction order was produced before the court, but the moment, the final report is filed along with the documents that may be relied on by the prosecution, then the investigation will be deemed to have been completed. After completing investigation and submitting a final report to the Court, the investigating officer can send a copy of the final report along with the evidence collected and other materials to the sanctioning authority to enable the sanctioning authority to apply his mind to accord sanction. Therefore, once a final report has been filed, that is the proof of completion of investigation and if final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing of sanction order. 293) and it was held that the word “shall” occurring in sub -section (4) of Section 173 and sub- section (3) of Section 207-A is not mandatory but only directory. It may happen that the inordinate delay in placing the order of sanction before the Special Court may lead to delay in trial because the competent court will not be able to take cognizance of the offence without a valid sanction on record.
Section 173(2) of the CrPC provides that on completion of the investigation, the police officer investigating into a cognizable offence shall submit a report. In fact, the report under Section 173(2) of the CrPC purports to be an opinion of the Investigating Officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the court. Union of India and Others, (1991) 3 SCC 655.)
The maximum period of 180 days which is being granted to the investigating agency to complete the investigation in the case wherein the prosecution is for the offence under the UAPA is not something in the form of a package that everything has to be completed including obtaining of sanction within this period of 180 days. Rule 3 of the Rules 2008 makes it very clear that the authority concerned shall make its report under sub section (2) of Section 45 of the UAPA containing the recommendations to the Central Government from the State Government as the case may be within 7 working days of the receipt of the evidence gathered by the investigating officer under the CrPC.
The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction. If we accept the argument canvassed on behalf of the appellants, it comes to this that the investigating agency may have to adjust the period of investigation in such a manner that within the period of 180 days, the sanction is also obtained and placed before the court. The scheme of the provisions relating to remand of an accused first during the stage of investigation and thereafter, after cognizance is taken, indicates that the legislature intended investigation of certain crimes to be completed within the period prescribed therein. It was held by this Court that the filing of chargesheet is sufficient compliance with the provisions of proviso (a) to Section 167(2) of the CrPC and that taking of cognizance is not material to Section 167 of the CrPC. At this juncture, we may refer to certain dates which are relevant to the facts of this case, namely: (a) 11-3-2012 — The petitioner arrested and remanded to police custody; (b) 25-4-2012 — First charge-sheet filed against the four accused; (c) 1-6-2012 — Supplementary charge-sheet filed in which the petitioner is named; (d) 30-7-2012 —
3568 of 2012, order dated 13-9-2012 (Bom)] — The High Court confirmed the order of the trial court; (f) 2-10-2012 — Application filed under Section 167(2)
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CrPC before the trial court; (g) 5-10-2012 — The trial court rejected the application under Section 167(2) CrPC.
In the event, the investigation is not completed by the investigating authorities, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. Both the decisions in Natabar Parida case [(1975) 2 SCC 220 : 1975 SCC (Cri) 484] and in Sanjay Dutt case [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] were instances where the charge- sheet was not filed within the period stipulated in Section 167(2) CrPC and an application having been made for grant of bail prior to the filing of the charge-sheet, this Court held that the accused enjoyed an indefeasible right to grant of bail, if such an application was made before the filing of the charge-sheet, but once the charge- sheet was filed, such right came to an end and the accused would be entitled to pray for regular bail on merits. During that stage, under Section 167(2) CrPC, the Magistrate is vested with authority to remand the accused to custody, both police custody and/or judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of punishable offences for less than 10 years and 90 days where the offences are punishable for over 10 years or even death sentence. It is clear from the decision of this Court in Suresh Kumar Bhikamchand Jain (supra) that filing of a chargesheet is sufficient compliance with the provisions of Section 167 of the CrPC and that an accused cannot demand release on default bail under Section 167(2) of the CrPC on the ground that cognizance has not been taken before the expiry of the statutory time period. In the said decision, the very same point fell for the consideration of the Court, whether the accused is entitled for statutory/default bail under Section 167(2) of the CrPC on the ground that cognizance had not been taken before the expiry of 60 days or 90 days from the date of remand? However, one another issue that fell for the consideration of this Court, in Serious Fraud Investigation Office (supra) was whether Suresh Kumar Bhikamchand Jain (supra) had taken a different view than in the case of Sanjay Dutt (supra), Mohamed Iqbal Madar Sheikh and others v. Though the appellants were entitled to be released in view of the charge-sheet not being filed within the statutory period prescribed under Section 20(4)(b) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 read with proviso (a) to Section 167(2), CrPC, they did not make an application for release on bail on the ground of default in completion of the investigation within the statutory period.
A plain reading of the judgment in Madar Sheikh (supra) would show that reference to the right of statutory bail becoming unenforceable after cognizance having been taken is in view of the facts of the said case, where this Court denied statutory bail to the appellants therein on the ground that charge-sheet was filed and cognizance had also been taken, with orders of remand passed under other provisions of the CrPC. This Court restored the order of the trial court while setting aside the judgment of the High Court, by holding that the accused is deemed to have “availed of” or enforced his right to be released on default bail, once application for bail has been filed under Section 167(2) on expiry of the stipulated time period. This Court observed that no prior application for bail was filed in Madar Sheikh (supra) though the charge-sheet was submitted after the expiry of the statutory period.
The issue that arose for consideration before this Court in Criminal Appeal Nos. In all the above judgments which are relied upon by either side, this Court had categorically laid down that the indefeasible right of an accused to seek statutory bail under Section 167(2), CrPC arises only if the charge-sheet has not been filed before the expiry of the statutory period. Reference to cognizance in Madar Sheikh (supra) is in view of the fact situation where the application was filed after the charge-sheet was submitted and cognizance had been taken by the trial court. Such reference cannot be construed as this Court introducing an additional requirement of cognizance having to be taken within the period prescribed under proviso (a) to Section 167(2), CrPC, failing which the accused would be entitled to default bail, even after filing of the charge-sheet within the statutory period. Whether the filing of such a chargesheet without completing the investigation will extinguish the right of an accused for grant of default bail?
It is thus axiomatic that first investigation is to be completed, and only then can a chargesheet or a complaint be filed within the stipulated period, and failure to do so would trigger the statutory right of default bail under Section 167(2) of Cr.PC. In the said case, indisputably, the investigation was in progress, but as the statutory time period to file the chargesheet was coming to an end, the chargesheet was filed clarifying that the investigation was still pending. We now proceed to discuss the second limb of the submission canvassed on behalf of the appellants that filing of the chargesheet in the Court of SDJM, Ajnala instead of the Special Court as notified under Section 22 of the NIA Act and the Magistrate thereafter, committing the case to the Court of Sessions under the provisions of Section 209 of the CrPC vitiated all further proceedings rendering the custody or further detention of the appellants from the date of filing of the chargesheet in the Court of Magistrate absolutely unlawful.
court means a criminal court having jurisdiction, under the Code, to try offences under this Act and includes a Special Court constituted under section 11 or under section 22 of the National Investigation Agency Act, 2008;” 66. Section 11 of the NIA Act prescribes about the power of Central Government for constituting the Special Court, whereas Section 22 of the NIA Act prescribes the power of the State Govt. Section 13 of the NIA Act is to be read with Section 11 of this Act when the investigation is carried out by the NIA and in the situation, investigation having been entrusted to the State Government, then Section 13 is to be read with 22 of the NIA Act. In Satish Kumar (supra), the High Court of Punjab and Haryana at Chandigarh has referred to a notification issued by the Government of Punjab dated 10.6.2014 wherein the Special Courts are constituted by the State Government for the trial of offence as specified in the schedule appended to the NIA Act which are investigated by the State Police. S.O.141/C.A.34/2008/S.22/2014-
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In exercise of the powers conferred under sub section (1) of section 22 of the National Investigation Agency Act, 2008 (Central Act No 34 of 2008) and all other powers enabling him in this behalf, the Governor of Punjab with the concurrence of Hon’ble Chief Justice of the High Court of Punjab and Haryana, Chandigarh is pleased to constitute the courts of Sessions Judge and the first Additional Sessions Judge (for the area falling within their respective jurisdiction), at each district headquarter in the State, to be the Special Courts, for the trial of offences as specified in the Scheduled appended to the aforesaid Act, which are investigated by the State Police.” The learned counsel appearing for the appellants placed strong reliance on the decision of this Court in Bikramjit Singh (supra) wherein this Court held that all offences under the UAPA whether investigated by the NIA or by the investigating agency of the State Government are to be tried exclusively by the Special Court set up under that Act and in the absence of any Special Court, set up by notifications issued either by the Central Government or the State Government, then the Court of Sessions alone. Under the Code as applicable to offences against other laws, offences having a maximum sentence of 7 years and under are triable by the Magistrate’s courts, whereas offences having a maximum sentence of above 7 years are triable by Courts of Session. Also, the impugned judgment has missed Section 16(1) of the NIA Act which states that a Special Court may take cognizance of any offence without the accused being committed to it for trial, inter alia, upon a police report of such facts. The learned ASG further pointed out that eventually the case was committed to the Court of Sessions and finally transferred to the Special Court constituted for NIA/UAPA.
This entire argument canvassed on behalf of the appellants can be put to rest solely on the ground that the application seeking default bail under Section 167(2) of the CrPC read with Section 43D of the UAPA was filed before the Special Judge, NIA, Mohali, on 14.12.2020 and by that time, the chargesheet had already been filed and the proceedings were pending in the court of Special Judge, CBI, Punjab, SAS Nagar, Mohali.
Case Title: JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR Vs. NATIONAL INVESTIGATION AGENCY (2023 INSC 472)
Case Number: Crl.A. No.-001011-001011 / 2023
