JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR & ORS. versus NATIONAL INVESTIGATION AGENCY

JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR& ORS.

NATIONAL INVESTIGATION AGENCY

(Criminal Appeal No. 1011 of 2023)

MAY 01, 2023

[DR. DHANANJAYA Y. CHANDRACHUD, CJI ANDJ. B. PARDIWALA, J.]

Code of Criminal Procedure, 1973:

ss. 167(2), 173 – Default Bail – Entitlement to, u/s. 167(2) –Though the chargesheet might have been filed within the statutorytime period as prescribed in law yet the chargesheet was without avalid order of sanction passed by competent authority – Held : Itcannot be said that chargesheet filed without sanction is anincomplete chargesheet which could be termed as not in consonancewith s. 173 – According sanction is the duty of the sanctioningauthority who is not connected with the investigation at all – Incase the sanctioning authority takes some time to accord sanction,that does not vitiate the final report filed by the investigating agencybefore the Court – s. 173 does not speak about the sanction orderat all – s. 167 also speaks only about investigation and not aboutcognizance by the Magistrate – Filing of chargesheet is sufficientcompliance with the provisions of s. 167 and that an accused cannotclaim any indefeasible right of being released on statutory/defaultbail u/s. 167(2) on the ground that cognizance has not been takenbefore the expiry of the statutory time period to file the chargesheet– Grant of sanction is nowhere contemplated u/s. 167.

Default bail – Entitlement to, u/s. 167(2) when error on thepart of the investigating agency to file chargesheet for the offenceenumerated, in the Court of Magistrate and not in the Sessions ordesignated Court – Held : Error on the part of the investigatingagency in filing chargesheet first before the Court of Magistratehas nothing to do with the right of the accused to seek statutory/default bail u/s. 167(2) – Committal proceedings are not warranted,when it comes to prosecution under the UAPA by the NIA by virtueof s. 16 of the NIA Act – This is because the Special Court acts, as

Aone of the original jurisdictions – By virtue of s. 16 of the NIA Act,the Court need not follow the requirements of Section 193 CrPC –On facts, the application seeking default bail u/s.167(2) r/w s. 43Dof the UAPA was filed before the Special Judge, NIA, on 14.12.2020and by that time, the chargesheet had already been filed and theproceedings were pending in the court of Special Judge, CBI –BNational Investigation Agency Act, 2008 – s.16 – Unlawful Activities(Prevention) Act,1967.

S. 167 – Investigation – Investigating agencies seekingextension of time to complete investigation – Advise to NIA as wellas the State investigating agency seeking extension of time, to beCcareful that such extension is not prayed for at the last moment –Right to be released on default bail continues to remain enforceableif the accused has applied for it, notwithstanding pendency of thebail application or subsequent filing of the chargesheet or reportseeking extension of time by the prosecution before the court –DHowever, where the accused fails to apply for default bail when theright accrues to him, and subsequently chargesheet, or reportseeking extension of time is preferred, the right to default bail wouldbe extinguished – Court would be at liberty to take cognizance ofthe case or grant further time for completion of the investigation,though the accused may still be released on bail under otherEprovisions of the CrPC.

Dismissing the appeals, the Court

HELD: 1.1 It cannot be said that chargesheet filedwithout sanction is an incomplete chargesheet which could beFtermed as not in consonance with sub section (5) of Section 173CrPC. Whether the sanction is required or not under statute,is question that has to be considered at the time of takingcognizance of the offence and not during inquiry or investigation.There is marked distinction in the stage of investigation andprosecution. The prosecution starts when the cognizance ofGoffence is taken. It is also to be kept in mind that cognizance istaken of the offence and not of the offender. It cannot be said thatobtaining sanction from the competent authorities or theauthorities concerned is part of investigation. Sanction is requiredonly to enable the court to take cognizance of the offence. TheHcourt may take cognizance of the offence after the sanction order

was produced before the court, but the moment, the final reportis filed along with the documents that may be relied on by theprosecution, then the investigation will be deemed to have beencompleted. Taking cognizance is entirely different fromcompleting the investigation. To complete the investigation andfile final report is duty of the investigating agency, but takingcognizance of the offence is the power of the court. The court ina given case, may not take cognizance of the offence for aparticular period of time even after filing of the final report. Insuch circumstance, the accused concerned cannot claim theirindefeasible right under Section 167(2) CrPC for being releasedon default bail. What is contemplated under Section 167(2) CrPCis that the Magistrate or designated Court (as the case may be)has no powers to order detention of the accused beyond the periodof 180 days or 90 days or 60 days as the case may be. If theinvestigation is concluded within the prescribed period, no rightaccrues to the accused concerned to be released on bail underthe proviso to Section 167(2) CrPC. [Para 43][32-C; D-H]

1.2. Once final report has been filed with all the documentson which the prosecution proposes to rely, the investigation shallbe deemed to have been completed. After completinginvestigation and submitting final report to the Court, theinvestigating officer can send copy of the final report along withthe evidence collected and other materials to the sanctioningauthority to enable the sanctioning authority to apply his mind toaccord sanction. According sanction is the duty of the sanctioningauthority who is not connected with the investigation at all. Incase the sanctioning authority takes some time to accord sanction,that does not vitiate the final report filed by the investigatingagency before the Court. Section 173 CrPC does not speak aboutthe sanction order at all. Section 167 of the CrPC also speaksonly about investigation and not about cognizance by theMagistrate. Therefore, once final report has been filed, that isthe proof of completion of investigation and if final report is filedwithin the period of 180 days or 90 days or 60 days from theinitial date of remand of accused concerned, he cannot claim thata right has accrued to him to be released on bail for want of filingof sanction order. [Para 44][33-A-D]

ABC

A1.3 It is evident that the order of sanction passed by thecompetent authority can be produced and placed on record evenafter the filing of the chargesheet. It may happen that theinordinate delay in placing the order of sanction before the SpecialCourt may lead to delay in trial because the competent court willnot be able to take cognizance of the offence without validBsanction on record. In such an eventuality, at the most, it may beopen for the accused to argue that his right to have speedy trialcould be said to have been infringed thereby violating Article 21of the Constitution. This may at the most entitle the accused topray for regular bail on the ground of delay in trial. But the sameCcannot be ground to pray for statutory/default bail under theprovisions of Section 167(2) CrPC. [Para 47][34-C-E]

1.4 The maximum period of 180 days which is being grantedto the investigating agency to complete the investigation in thecase wherein the prosecution is for the offence under the UAPADis not something in the form of package that everything has tobe completed including obtaining of sanction within this periodof 180 days. The investigating agency has nothing to do withsanction. Sanction is altogether different process. Sanction isaccorded, based on the materials collected by the investigatingagency which forms the part of the final report under Section 173ECrPC. The investigating agency gets full 180 days to completethe investigation. To say that obtaining of sanction and placingthe same along with the chargesheet should be done within theperiod of 180 days is something which is not only contrary to theprovisions of law discussed, but is inconceivable. [Para 49][35-FD-F]

1.5 It is very much necessary that the evidence collectedby the investigating agency in the form of chargesheet isthoroughly looked into and thereafter, the recommendations aremade. The investigating agency gets full 180 days to completeGthe investigation and file its report before the competent courtin accordance with Section 173(2) of the CrPC. The submissionthat the investigating agency may have to adjust the period ofinvestigation in such manner that within the period of 180 days,the sanction is also obtained and placed before the court isabsolutely unpalatable. [Para 53][37-E-G]H

1.6 Once the chargesheet has been filed within the stipulatedtime, the question of grant of statutory/default bail does not arise.Whether cognizance has been taken or not taken is not relevantfor the purpose of compliance of Section 167 CrPC. The merefiling of the chargesheet is sufficient. [Para 57][41-G]

1.7 Filing of chargesheet is sufficient compliance with theprovisions of Section 167 CrPC and that an accused cannot claimany indefeasible right of being released on statutory/default bailunder Section 167(2) CrPC on the ground that cognizance hasnot been taken before the expiry of the statutory time period tofile the chargesheet. Grant of sanction is nowhere contemplatedunder Section 167 CrPC. [Para 63][47-D-E]

Ritu Chhabaria v. Union of India and Others, WritPetition (Crl.) No. 60 of 2023 – distinguished.

Suresh Kumar Bhikamchand Jain v. State ofMaharashtra and Another (2013) 3 SCC 77 : [2013] 1SCR 1037; K. Veeraswami v. Union of India and Others(1991) 3 SCC 655 : [1991] 3 SCR 189 – relied on.

Dinesh Dalmia v. CBI (2007) 8 SCC 770 : [2007] 9SCR 1124; Central Bureau of Investigation v. AshokKumar Aggarwal (2014) 14 SCC 295 : [2013] 14 SCR983; Mohamed Iqbal Madar Sheikh and others v. Stateof Maharashtra (1996) 1 SCC 722 : [1996] 1 SCR183; M. Ravindran v. Intelligence Officer, Directorateof Revenue Intelligence (2021) 2 SCC 485 – referredto.

2.1 The scheme of both the Acts-NIA and UAPA Act makesit clear that once the investigation is completed, the report underSection 173 CrPC is to be filed in the Special Court constitutedunder the Act. Section 16 of the NIA Act leaves no room for anydoubt, as it empowers the Special Court to take cognizance ofany offence without the accused being committed to it, for trial,upon receiving complaint of facts that constitute such offenceor upon police report of such facts. Thus, by incorporatingSection 16 in the NIA Act the legislature has made the Special

ACourt as the court of original jurisdiction unlike the SessionsCourt, which is court of committal under the Criminal ProcedureCode. [Para 68][49-B-C]

2.2. The chargesheet could not have been filed in the Courtof the SDJM and the same should have been filed in the SpecialBCourt. Section 16 of the NIA Act empowers the Special Court totake cognizance of any offence without the accused beingcommitted to it for trial, upon receiving complaint of facts thatconstitute such an offence or upon police report of such facts.The error on the part of the investigating agency in filing thechargesheet in the Court of SDJM and thereafter, committingCthe case to the Court of Sessions has again nothing to do withSection 167 CrPC. The application seeking default bail underSection 167(2) CrPC read with Section 43D of the UAPA wasfiled before the Special Judge, NIA, Mohali, on 14.12.2020 andby that time, the chargesheet had already been filed and theDproceedings were pending in the court of Special Judge, CBI,Punjab, SAS Nagar, Mohali. It is not in dispute that at the timewhen the Special Court took cognizance of the offence thesanctions under the UAPA and the 1908 Act had already beengranted. [Para 72][51-D-E; F-H]

E2.3 The error on the part of the investigating agency infiling chargesheet first before the Court of Magistrate has nothingto do with the right of the accused to seek statutory/default bailunder Section 167(2) CrPC. The committal proceedings are notwarranted, when it comes to prosecution under the UAPA by theNIA by virtue of Section 16 NIA Act. This is because the SpecialFCourt acts, as one of the original jurisdictions. By virtue of Section16 NIA Act, the Court need not follow the requirements of Section193 CrPC. [Para 73][52-A-B]

Abdul Azeez P.V. and Others v. National InvestigationAgency (2014) 16 SCC 543; Fakhrey Alam v. State ofGUttar Pradesh 2021 SCC OnLine 532; ChitraRamkrishna v. Central Bureau of Investigation (2022)SCC OnLine Del 3124; Rambhai Nathabhai Gadhviand Others v. State of Gujarat (1997) 7 SCC 744 :[1997] 3 Suppl. SCR 356; Ashrafkhan v. State ofGujarat (2012) 11 SCC 606 : [2012] 12 SCR 1033;

JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIRv. NATIONAL INVESTIGATION AGENCY

Bikramjit Singh v. State of Punjab (2020) 10 SCC 616;Sanjay Dutt v. State (1994) 5 SCC 410 : [1994] 3 Suppl.SCR 263; Serious Fraud Investigation Office v. RahulModi and Others (2022) SCC OnLine 153; UdayMohanlal Acharya v. State of Maharashtra (2001) 5SCC 453 : [2001] 2 SCR 878; Rakesh Kumar Paul v.State of Assam (2017) 15 SCC 67 : [2017] 8 SCR 785;Achpal Alias Ramswaroop and Another v. State ofRajasthan (2019) 14 SCC 599 : [2018] 12 SCR 327;Central Bureau of Investigation v. R. S. Pai and Another(2002) 5 SCC 82 : [2002] 2 SCR 889; Narayan Rao v.State of A.P. AIR 1957 SC 737 : [1958] SCR 283 :1957 Cri LJ 1320; Satya Narain Musadi and Others v.State of Bihar (1980) 3 SCC 152; Satish Kumar v. Stateof Punjab and Another 2021 SCC OnLine P&H 786 –referred to.3.1 The final report under Section 173(2) of the CrPC wasfiled in the Court of SDJM on 15.11.2019, was the 161st dayfrom the date of arrest of two of the appellants. They were thefirst to be arrested on 08.06.2019. The Punjab Police applied tothe Court of the Additional Sessions Judge, Amritsar, forextension of time to complete the investigation invoking theproviso to Section 43D(2)(b) of the UAPA on 04.09.2019. Whenthis application for extension of time was filed only two days wereleft for 90 days to expire. This is suggestive of the fact that the91st day would have fallen on 07.09.2019. What is important tohighlight is that the Additional Sessions Judge, Amritsar, lookedinto the extension application dated 04.09.2019 filed by the PunjabPolice and ultimately, extended the time limit vide its order dated17.09.2019 i.e., on the 101st day. By the time, the AdditionalSessions Judge, Amritsar, passed an order extending the time,the period of 90 days had already expired. Indisputably, therewas no chargesheet before the Court on the 91st day i.e., on07.09.2019. The reason why this is said to be grey area isbecause what would have happened if the appellants had preferredan application seeking statutory/default bail under Section 167(2)CrPC on the 91st day i.e., on 07.09.2019. The application seekingextension of time was very much pending. The AdditionalSessions Judge could not have even allowed such application

Apromptly i.e., on or before the 90th day without giving notice tothe accused persons. [Para 76][52-F-H; 53-A-C]

3.2 An opportunity of hearing has to be given to the accusedpersons before the time is extended up to 180 days to completethe investigation. The only error or lapse on the part of theBappellants was that they failed to prefer an appropriate applicationseeking statutory/default bail on the 91st day. If such applicationwould have been filed, the court would have had no option but torelease them on statutory/default bail. The Court could not havesaid that since the extension application was pending, it shallpass an appropriate order only after the extension applicationCwas decided. That again would have been something contrary tothe well settled position of law. This litigation is an eye openerfor the NIA as well as the State investigating agency that if theywant to seek extension, they must be careful that such extensionis not prayed for at the last moment. [Para 76][53-C-E]

3.3 The right to be released on default bail continues toremain enforceable if the accused has applied for such bail,notwithstanding pendency of the bail application or subsequentfiling of the chargesheet or report seeking extension of time bythe prosecution before the court. However, where the accusedEfails to apply for default bail when the right accrues to him, andsubsequently chargesheet, or report seeking extension oftime is preferred before the Magistrate or any other competentcourt, the right to default bail would be extinguished. The courtwould be at liberty to take cognizance of the case or grant furthertime for completion of the investigation, as the case may be,Fthough the accused may still be released on bail under otherprovisions of the CrPC. [Para 77][53-F-G]

Jigar Alias Jimmy Pravinchandra Aditya v. State ofGujarat 2022 SCC OnLine SC 1290; Sayed Mohd.Ahmad Kazmi v. State (Government of NCT of Delhi)Gand Others (2012) 12 SCC 1 : [2012] 9 SCR 836 –referred to.

JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIRv. NATIONAL INVESTIGATION AGENCY

Case Law Reference

(2014) 16 SCC 543referred toPara 16[1997] 3 Suppl. SCR 356referred toPara 16[2012] 12 SCR 1033referred toPara 16(2020) 10 SCC 616referred toPara 16[1994] 3 Suppl. SCR 263referred toPara 18[2013] 1 SCR 1037relied onPara 57, 63[2001] 2 SCR 878referred toPara 28[2017] 8 SCR 785referred toPara 29[2018] 12 SCR 327referred toPara 30[2007] 9 SCR 1124referred toPara 31[2002] 2 SCR 889referred toPara 46[1958] SCR 283referred toPara 46(1980) 3 SCC 152referred toPara 48[1991] 3 SCR 189relied onPara 48[2013] 14 SCR 983referred toPara 51[1996] 1 SCR 183referred toPara 59(2021) 2 SCC 485referred toPara 59[2012] 9 SCR 836referred toPara 78

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1011 of 2023.

From the Judgment and Order dated 26.04.2022 of the High Courtof Punjab & Haryana at Chandigarh in CRAD No. 47 of 2021.

With

Criminal Appeal No. 1012 of 2023.

Colin Gonsalves, Sr. Adv., Sangram Saron, Ms. Rooh-e-hina Dua,Ms. Mugdha, Satya Mitra, Advs. for the Appellants.

ASanjay Jain, ASG, Ms. Deepabali Dutta, Annam Venkatesh, RahulMishra, Padmesh Mishra, Samar Singh Kachwaha, Arvind KumarSharma, Advs. for the Respondent.

The Judgment of the Court was delivered by

BJ. B. PARDIWALA, J.

1. As the issues raised in both the captioned appeals are commonand the challenge is also to the self-same order passed by the HighCourt, those were taken up for hearing analogously and are being disposedof by this common judgment and order.

C2. These appeals by special leave are at the instance of five undertrial accused charged with having committed offences punishable underSection 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 5respectively of the Explosive Substances Act, 1908 (for short, ‘the 1908DAct’) and are directed against the order passed by the High Court ofPunjab and Haryana at Chandigarh dated 26.04.2022 in CRA-D No. 47of 2021 (O&M) by which, the High Court dismissed the appeal andthereby declined to release the accused persons on default bail underSection 167(2) of the CrPC.

3. The seminal issues falling for the consideration of this Courtmay be formulated as under:-

(i) Whether an accused is entitled to seek default bail under theprovisions of Section 167(2) of the Code of Criminal Procedure, 1973(for short, ‘the CrPC’) on the ground that although the chargesheetFmight have been filed within the statutory time period as prescribed inlaw yet the chargesheet sans valid order of sanction passed by acompetent authority is no chargesheet in the eye of law and therefore, itis as good as saying that no chargesheet was filed by the investigatingagency within the statutory time period as prescribed in law? To put itGmore succinctly, whether the Court concerned is precluded in any mannerfor the purpose of Section 167 of the CrPC from taking notice of thechargesheet that might have been filed by the investigating agency inthe absence of valid order of sanction?

(ii) Whether cognizance of the chargesheet is necessary to preventHthe accused from seeking default bail or whether mere filing of the

chargesheet would suffice for the investigation to be deemed complete?To put it in different words, whether the grant of sanction is contemplatedunder Section of the 167 CrPC?

(iii) Special Court may not be in position to take cognizanceon account of failure on the part of the prosecution to obtain sanction toprosecute the accused under the UAPA and the 1908 Act, but doessuch failure amount to non-compliance with the provisions of Section167(2) of the CrPC so as to entitle the accused to seek default bail?

(iv) Whether filing of the chargesheet for the offences asenumerated above, in the Court of the Magistrate and the Magistratethereafter, committing the case to the Court of Sessions or designatedCourt would vitiate all subsequent proceedings on the ground that Section16 of the National Investigation Agency Act, 2008 (for short, ‘the NIAAct’) empowers the Special Court to take cognizance of any offencewithout the accused being committed to it for trial upon receiving policereport? To put it in other words, whether the error on the part of theinvestigating agency to file chargesheet for the offence enumerated above,in the Court of Magistrate and not in the Sessions or designated Courtwould by itself entitle the accused to seek default bail under the provisionsof Section 167(2) of the CrPC?

4. For the purpose of answering the aforesaid issues, it is verymuch essential to take notice of the following chronology of dates andevents:

(a) On 02.06.2019 at around 04:50 in the morning, team of policeofficers was patrolling. The vehicles passing through the Harsh Cheena,Kukkarwal bus stop in Raja Sansi, District Amritsar, State of Punjab,were being checked. At that point of time two boys belonging to the Sikhcommunity were noticed to have been travelling on motorcycle withouta number plate. On being asked to stop, they fled away. In the processof running away, one blue coloured bag which was in the hands of thepillion rider fell down. mobile phone and two hand grenades wererecovered from the bag. In such circumstances, FIR No. 90 came to beregistered at the Police Station Raja Sansi, District Amritsar (Rural),Punjab, for the offences punishable under the 1908 Act. Thus, the FIRcame to be registered on 02.06.2019.

(b) On 05.06.2019, the Punjab Police added Sections 17, 18, 18Band 20 of the UAPA.

A(c) On 08.06.2019, accused Jasbir Singh and Varinder Singh cameto be arrested by the Punjab Police.

(d) On 27.07.2019, Sukhpreet Singh alias Budda (Accused No.8) was arrayed as accused in the instant FIR and offence under Section120B of the IPC was added.B

(e) On 18.08.2019, the Appellant No. 3 Kulbir Singh alias Kulbirand Appellant No. 4 Manjit Kaur wife of Darshan Singh (Appellants ofCrl. A. No. 1011 of 2023) came to be arrested. It is the case of theprosecution that Kulbir Singh and Manjit Kaur at the relevant point oftime were residing at Cambodia. One Harmit Singh and Kulwinder SinghCwere also arrayed as accused.

(f) On 04.09.2019, the Punjab Police applied for extension of timefor completing the investigation under the proviso to Section 43D(2)(b)of the UAPA before the Additional Sessions Judge, Amritsar. It ispertinent to note that the application seeking extension was filed twoDdays prior to the expiry of 90 days from the date of arrest. Section43D(2)(b) of the UAPA empowers the competent court to extend theperiod of 90 days as contemplated under Section 167 of the CrPC up to180 days.

(g) On 07.09.2019, Taranbir Singh (Appellant of Crl. A. No. 1012Eof 2023) came to be arrayed as accused in the instant FIR. TaranbirSingh at the relevant point of time was residing in Malaysia.

(h) On 11.09.2019, Taranbir Singh was arrested.

(i) On 17.09.2019, the Additional Sessions Judge, Amritsar,extended the period of completion of investigation from 90 days to 180Fdays. It is pertinent to note at this stage that the extension was grantedby the Additional Sessions Judge after giving an opportunity of hearingto all the accused persons.

(j) On 15.11.2019, final report under Section 173(2) of the CrPCwas prepared by the investigating agency and presented before the CourtGof the Sub-Divisional Judicial Magistrate, Ajnala. This report(chargesheet) was filed in connection with the FIR No. 90 for the offenceenumerated above. common chargesheet was filed before the Courtof Magistrate on 15.11.2019. Since the accused Nos. 1 and 2 respectivelywere arrested on 08.06.2019, the chargesheet could be said to havebeen presented on the 161[st] day from the date of their formal arrest.H

The accused Nos. 3 & 4 were arrested on 18.08.2019; for them, thechargesheet was filed within 90 days post-arrest, and in the case of theaccused No. 5 who was arrested on 11.09.2019, it was filed within 66days of his arrest. Thus, the chargesheet was filed within the extendedperiod of 180 days so far as Appellant Nos. 1 and 2 are concerned.

(k) On 16.11.2019, the SDJM, Ajnala adjourned the proceedingsof all the accused persons.

(l) On 20.11.2019, the SDJM, Ajnala further adjourned theproceedings to 25.11.2019.

(m) On 25.11.2019, the SDJM, Ajnala committed the case to theCourt of Sessions under the provisions of Section 209 of the CrPC, asthe offences were exclusively triable by the Court of Sessions. The nextdate fixed was 06.12.2019.

(n) On 06.12.2019, the Additional Sessions Judge, Amritsar, simplyregistered the case without cognizance being taken.

(o) On 22.02.2020, the NIA, New Delhi re-registered the instantcase as RC-07/2020/NIA/DLI under Sections 17, 18, 18B and 20respectively of the UAPA in compliance with the Government of India,Ministry of Home Affairs, CTCR Division Order No. 11011/22/2020/NIA dated 20.02.2020 in the FIR No. 90 of 2019.

(p) On 09.03.2020, the Special Judge, CBI Punjab, SAS Nagar,Mohali, received the entire file from the Court of Additional SessionsJudge, Amritsar. In this manner, the prosecution ultimately stoodtransferred to the Special Court constituted under the NIA/UAPA.

(q) On 26.10.2020, the District Magistrate, Amritsar, accordedsanction for prosecution under the 1908 Act.

(r) On 12.11.2020, the Special Judge, NIA recorded that thesanction to prosecute the accused persons for the offences under the1908 Act had been accorded and the sanction under the UAPA wasbeing awaited.

(s) On 14.12.2020, an application for default bail under Section167(2) of the CrPC r/w Section 43D of the UAPA was filed before theSpecial Judge NIA, SAS Nagar, Mohali, essentially on the ground thatalthough the chargesheet had been filed within the extended period of180 days, yet the same could be termed as incomplete because of want

Aof sanction under the UAPA. In such circumstances, the position wasas if there was no chargesheet.

(t) On 16.12.2020, the prosecution produced the order of grant ofsanction issued by the District Magistrate, Amritsar, under the 1908 Actbefore the trial court.

(u) On 17.12.2020, the NIA filed its reply to the application filedby the accused persons seeking default bail.

(v) On 17.12.2020, the Special Court rejected the application filedby the accused persons seeking default bail on the ground that thechargesheet had already been filed.

(w) On 06.01.2021, the Government of Punjab accorded sanctionfor prosecution under the UAPA.

(x) On 07.01.2021, the Special Court acknowledged the receiptof the sanction under the UAPA from the Home Department of theDPunjab Government.

(y) On 18.01.2021, the appellants herein filed appeal before theHigh Court of Punjab and Haryana against the order dated 17.12.2020passed by the Special Court rejecting the default bail application.

(z) On 17.03.2021, the Government of India, accorded sanctionEunder Section 45(1) of the UAPA for prosecuting the Appellants.

(aa) On 22.03.2021, supplementary chargesheet was filed bythe NIA before the Special Judge, NIA, Punjab, along with the relevantsanctions for prosecution.

(ab) On 05.04.2021, the Special Court, NIA took cognizance ofFthe offences enumerated above and issued notices to the accused persons.

(ac) On 06.09.2021, the Special Court proceeded to frame chargeagainst the accused persons.

(ad) On 26.04.2022, the High Court of Punjab and HaryanaGdismissed the appeal filed by the Appellants against the order of theSpecial Court rejecting the plea of default bail.

5. To make it more explicit and clear, we trim down the aforesaidchronology of dates and events as under:

(i) 02.06.2019 – FIR was registered;

JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIRv. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]

(ii) 08.06.2019 – arrest of the first and second Appellants;

(iii) 18.08.2019 – arrest of the third and fourth Appellants;

(iv) 11.09.2019 – arrest of Taranbir Singh (Appellant of Crl. A.No. 1012 of 2023)

(v) 17.09.2019 – extension of the period of investigation from 90to 180 days;

(vi) 15.11.2019 – chargesheet presented;

(vii) 14.12.2020 – application for default bail;

(viii) 16.12.2020 – sanction order dated 26.10.2020 under the 1908Act filed;

(ix) 06.01.2021 – sanction order was issued under the UAPA;

(x) 17.03.2021 – sanction by the Ministry of Home Affairs underSection 45(1), UAPA following the transfer of investigation to NIA; and

(xi) 22.03.2021 – supplementary chargesheet has been presentedby NIA.

6. In such circumstances referred to above, the Appellants (originalaccused persons) are here before this Court with the present appeals.

SUBMISSIONS ON BEHALF OF THE ACCUSEDPERSONS

7. Mr. Colin Gonsalves, the learned Senior Counsel and Mr. SatyaMitra, the learned Counsel appearing for the respective appellantsvehemently submitted that the High Court committed serious error indeclining to grant the benefit of default bail to the appellants.

8. According to both the learned counsel, the chargesheet filedwithout sanction is an incomplete chargesheet and on the basis of suchincomplete chargesheet no cognizance can be taken. It was submittedthat the final report is filed so as to enable the court concerned to applyits mind as to whether cognizance of the offence should be taken or not.The sum and substance of the submission canvassed on behalf of theaccused persons is that there cannot be part chargesheet. chargesheetfiled without sanction is an incomplete chargesheet and does not meetthe requirement of police report within the meaning of Section 173(2)of the CrPC. Such chargesheet would also not be in consonance withsub section (5) of Section 173 of the CrPC.

A9. Such incomplete chargesheet cannot be used as tool or deviceby the police to defeat an application seeking statutory/default bail. Itwas argued that chargesheet filed under the UAPA must be completein all respects. The emphasis put by both the learned counsel was on thefact that the sanction order must accompany the chargesheet to enablethe court concerned to take cognizance.B

10. It was further argued that mere gathering of evidence by theinvestigating agency is not sufficient when it comes to comparing usualcriminal cases with the cases under the UAPA. The investigation cannotbe said to be complete until the facts gathered are scrutinised by theauthority appointed by the Central Government and such authority submitsCits report.

11. Our attention was drawn by both the learned counsel to Rules3 and 4 respectively of the Unlawful Activities (Prevention)(Recommendation and Sanction of Prosecution) Rules, 2008 (for short,‘Rules 2008’), which provide time limit for making recommendationDby the authority and time limit thereafter, for sanction of the prosecution.It was argued that the provisions of the UAPA and Rules 2008 framedthereunder make the grant of sanction, time bound.

12. It was vociferously submitted by both the learned Counselthat the extension of time from 90 to 180 days read together with RulesE3 and 4 respectively of the Rules 2008 referred to above, makes thegrant of sanction mandatorily time bound. The same leads to only oneconclusion that the sanction order must accompany for it to be considereda final report.

13. It was argued that since the chargesheet in the case on handFwas filed on 15.11.2019, the material collected by the investigating agencyshould have been received by the competent authority on 15.11.2019itself. The report of the competent authority should have been readyseven days thereafter, i.e., by 22.11.2019. In view of Rule 4, the sanctionshould have been granted by 29.11.2019. However, according to bothGthe learned counsel, the report was filed only on 12.03.2021 i.e., after adelay of one year and three months. The sanction was granted on17.03.2021 i.e., beyond the period of 180 days which expired on10.03.2020. The default bail application was instituted on 14.12.2020.

14. It was further argued that the NIA after taking over theinvestigation on 22.01.2020 was left with 49 days to file or place onH

record the appropriate sanction before the expiry of the limit of 180days. The default bail application was filed on 14.12.2020. The sanction,which was granted only on 17.03.2021, ought to have been granted on29.11.2019 in view of the time period prescribed by Rules 3 and 4respectively of the 2008 Rules referred to above. In such circumstances,both the learned counsel submitted that such delayed sanction even ifotherwise valid cannot defeat the indefeasible right of the accusedpersons to seek default bail.

15. The second limb of the submission canvassed by both thelearned counsel appearing for the accused persons is that the chargesheetcould not have been filed in the Court of SDJM, Ajnala as the proceedingsunder the NIA are to be conducted in the Special Court only notifiedunder Section 22 of the NIA Act. If there is no Special Court notifiedthen before the Sessions Judge. However, in any event, the chargesheetcould not have been filed before the Court of Magistrate. It was arguedthat in view of Section 16 of the NIA Act read with Section 22 of theNIA Act, the provisions of Section 193 of the CrPC would not come intoplay. It was argued that the error on the part of investigating agency infiling the chargesheet before the Court of Magistrate and the Magistratethereafter, committing the case to the Court of Sessions was absolutelycontrary to the provisions of the NIA Act and also the provisions of theUAPA, which rendered all subsequent proceedings to be withoutjurisdiction and hence, nullity.

16. In support of the aforesaid submissions, reliance has beenplaced on the following case law:

(i) Fakhrey Alam v. State of Uttar Pradesh, 2021 SCC OnLine532

(ii) Abdul Azeez P.V. and Others v. National InvestigationAgency, (2014) 16 SCC 543

(iii) Chitra Ramkrishna v. Central Bureau of Investigation,(2022) SCC OnLine Del 3124

(iv) Rambhai Nathabhai Gadhvi and Others v. State ofGujarat, (1997) 7 SCC 744

(v) Ashrafkhan v. State of Gujarat, (2012) 11 SCC 606

(vi) Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616

ABC

17. In such circumstances referred to above, both the learnedcounsel prayed that there being merit in their appeals, those may beallowed and the accused persons be ordered to be released on defaultbail.

SUBMISSIONS ON BEHALF OF THE NIA/UNION OF

BINDIA

18. Mr. Sanjay Jain, the learned ASG, on the other hand, whilevehemently opposing both the appeals submitted that it is settled lawthat the indefeasible right under Section 167(2) of the CrPC accrues toan accused only if the chargesheet is not filed within the time prescribedCtherein or within the time extended by competent court under specialstatute. He would submit that the right ceases to be available if thechargesheet is filed within the time indicated above or if the chargesheetis filed prior to preferring an application under Section 167(2) of theCrPC. Mr. Jain sought to fortify his submission by placing reliance onthe Constitution Bench decision of this Court in the case of Sanjay DuttDv. State reported in (1994) 5 SCC 410 (paras 48 and 53(2)(b)) and in thecase of Serious Fraud Investigation Office v. Rahul Modi and Othersreported in (2022) SCC OnLine 153 (para 16).

19. Mr. Jain vehemently submitted that there is no merit in thesubmission canvassed on behalf of the accused persons that chargesheetEwithout requisite sanction under the UAPA or the 1908 Act is incomplete.In other words, according to Mr. Jain, there is no merit in the contentioncanvassed on behalf of the accused persons that although thechargesheet was filed within the period of 180 days, yet the same beingwithout sanction, it could be said to be as good as not filing the chargesheetFwithin the statutory time period.

20. In the aforesaid context, Mr. Jain invited the attention of thisCourt to the following aspects:

a. The act of grant of sanction for prosecution, in several statutes,is entrusted upon an authority other than the Investigating Agency andGas such it is not within the domain of the Investigating Agency to grantsuch Sanction.

b. In the present case, at the time of filing of the first chargesheetby the State Investigating Agency (SIA), the SIA had already soughtsanction for prosecution from the appropriate Governments.

c. The cognizance of the offence was taken by the Special CourtNIA/UAPA on 05.04.2021, only after the sanctions under the 1908 Actand UAPA were granted by the appropriate governments andcommunicated to the Court, as is evident from the timeline indicatedabove.

d. The question of grant of sanction for prosecution is relevantonly at the stage of taking cognizance, which is altogether separatestage distinct from the stage of investigation. [Reliance is placed onSuresh Kumar Bhikamchand Jain v. State of Maharashtra andAnother, (2013) 3 SCC 77 @ Paras 17 – 19]

21. Mr. Jain submitted that as some of the accused persons weredeclared as absconders, the request for extension of time to filechargesheet was made by the investigating agency on 04.09.2019 (i.e.,within the period of 90 days), the said application was finally heard on17.09.2019 and the hearing was in conformity with the principles ofnatural justice as all the accused persons were duly represented andarguments on behalf of the accused as well as prosecution were heardon the application seeking extension of time22. Mr. Jain further submitted that the investigation was beingcarried out by the State Police and in view of the same, the State Policeproceeded with filing of the chargesheet on 15.11.2019 before the JMFC,where the accused persons were first produced at the time of theirarrest and in view thereof, the original chargesheet was presented beforethe Magistrate, which at the relevant time had the custody of the accusedpersons and thus, the same cannot be termed as non-compliance ofSection 167 of the CrPC. [Reliance: Suresh Kumar BhikamchandJain (Supra) @Paras 13 – 17 and Rahul Modi (supra) @ Para 16].

23. Mr. Jain further submitted that the case was eventuallycommitted to the Court of Sessions and finally to the Special Courtconstituted for NIA/UAPA (after taking over of investigation by NIAon 22.02.2020 re-registered by NIA as RC-07/2020/NIA/DLI) and finallythe cognizance was also taken by the Special Court only, after examiningthe prosecution sanctions. The sanction under the 1908 Act was receivedon 26.10.2020 by the District Magistrate, Amritsar, which was dulyrecorded by the Special Judge, NIA on 12.11.2020. The sanction underthe UAPA by the Punjab Government was granted on 06.01.2021. TheSpecial Court recorded the same on 07.01.2021. Further, the Government

Aof India accorded the sanction under Section 45(1) of UAPA on17.03.2021.

24. In the last, Mr. Jain pointed out that the trial of all the accusedpersons is in progress and twelve witnesses have been examined so far.The accused persons are facing trial for very serious offences relatingBto National security. If the accused persons have anything to say inregard to the legality and validity of the sanctions or the mode and mannerin which the cognizance was taken then such issues could be raisedbefore the trial court. According to Mr. Jain, there is no scope for theaccused persons at this point of time to say that they be released ondefault bail.

FEW RELEVANT STATUTORY PROVISIONS

25. Before adverting to the rival submissions canvassed on eitherside, we must look into the few relevant statutory provisions of the CrPC,the UAPA, the 1908 Act and the NIA Act.

26. In the earlier Code of Criminal Procedure, 1898 (for short,‘the CrPC, 1898’), Section 167 laid down the procedure to be followedin the event the investigation of an offence was not completed within 24hours. Section 167 in the CrPC, 1898, was premised on the conclusionof investigation within 24 hours or within 15 days on the outside, regardlessEof the nature of the offence or the punishment.

27. The Law Commission of India, in its Forty-first Report,recommended increasing the time-limit for completion of investigationto 60 days. The new CrPC gave effect to the recommendation of theLaw Commission. Section 167 as enacted provided for time-limit of 60Fdays regardless of the nature of offence or the punishment. In the year1978, Section 167 was amended. Section 167(2) which is relevant forthe present case existing as of now is to the following effect:

“167(2). The Magistrate to whom an accused person isforwarded under this section may, whether he has or has notjurisdiction to try the case, from time to time, authorise thedetention of the accused in such custody as such Magistratethinks fit, for term not exceeding fifteen days in the whole;and if he has no jurisdiction to try the case or commit it fortrial, and considers further detention unnecessary, he mayorder the accused to be forwarded to Magistrate havingsuch jurisdiction:

Provided that,—

(a) the Magistrate may authorise the detention of the accusedperson, otherwise than in the custody of the police, beyondthe period of fifteen days, if he is satisfied that adequategrounds exist for doing so, but no Magistrate shall authorisethe detention of the accused person in custody under thisparagraph for total period exceeding,—

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

(ii) sixty days, where the investigation relates to any otheroffence,

and, on the expiry of the said period of ninety days, or sixtydays, as the case may be, the accused person shall be releasedon bail if he is prepared to and does furnish bail, and everyperson released on bail under this sub-section shall be deemedto be so released under the provisions of Chapter XXXIII forthe purposes of that Chapter;

(b) no Magistrate shall authorise detention of the accused incustody of the police under this section unless the accused isproduced before him in person for the first time andsubsequently every time till the accused remains in the custodyof the police, but the Magistrate may extend further detentionin judicial custody on production of the accused either inperson or through the medium of electronic video linkage;

(c) no Magistrate of the second class, not specially empoweredin this behalf by the High Court, shall authorise detention inthe custody of the police.”

28. three-Judge Bench of this Court in Uday MohanlalAcharya v. State of Maharashtra reported in (2001) 5 SCC 453, hasnoticed the object of enacting the provisions of Section 167 of the CrPC.Section 57 of the CrPC contains the embargo on the police officers todetain in custody, person arrested beyond 24 hours. The object is thatthe accused should be brought before Magistrate without delay within24 hours, which provision is, in fact, in consonance with the constitutionalmandate engrafted under Article 22(2) of the Constitution. The provision

Aof Section 167 is supplementary to Section 57. The power under Section167 is given to detain person in custody while police goes on with theinvestigation. Section 167 is, therefore, provision which authorises theMagistrate permitting the detention of the accused in custody prescribingthe maximum period. In Uday Mohanlal Acharya (supra) this Courtwhile dealing with Section 167 laid down the following:

“5. …This provision of Section 167 is in fact supplementaryto Section 57, in consonance with the principle that theaccused is entitled to demand that justice is not delayed. Theobject of requiring the accused to be produced before aMagistrate is to enable the Magistrate to see that remand isCnecessary and also to enable the accused to make arepresentation which he may wish to make. The power underSection 167 is given to detain person in custody while thepolice goes on with the investigation and before the Magistratestarts the enquiry. Section 167, therefore, is the provisionDwhich authorises the Magistrate permitting detention of anaccused in custody and prescribing the maximum period forwhich such detention could be ordered. Having prescribedthe maximum period, as stated above, what would be theconsequences thereafter has been indicated in the proviso tosub-section (2) of Section 167. The proviso is unambiguousEand clear and stipulates that the accused shall be releasedon bail if he is prepared to and does furnish the bail whichhas been termed by judicial pronouncement to be “compulsivebail” and such bail would be deemed to be bail underChapter 33. The right of an accused to be released on bailFafter expiry of the maximum period of detention providedunder Section 167 can be denied only when an accused doesnot furnish bail, as is apparent from Explanation I to the saidsection. The proviso to sub-section (2) of Section 167 is abeneficial provision for curing the mischief of indefinitelyprolonging the investigation and thereby affecting the libertyGof citizen….”29. Again, there has been very detailed consideration of Section167 by three-Judge Bench of this Court in Rakesh Kumar Paul v. Stateof Assam, reported in (2017) 15 SCC 67. This Court in the above casehas traced the legislative history of the provision of Section 167. This

Court in the above case emphasised that the debate on Section 167 mustalso be looked at from the perspective of expeditious conclusion ofinvestigation and from the angle of personal liberty. This Court also heldthat the right of default bail is an indefeasible right which cannot beallowed to be frustrated by the prosecution. Following was laid down inparas 37, 38 and 39:

“37. This Court had occasion to review the entire case law onthe subject in Union of India v. Nirala Yadav [Union ofIndia v. Nirala Yadav, (2014) 9 SCC 457 : (2014) 5 SCC (Cri)212] . In that decision, reference was made to Uday MohanlalAcharya v. State of Maharashtra [Uday MohanlalAcharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001SCC (Cri) 760] and the conclusions arrived at in that decision.We are concerned with Conclusion (3) which reads as follows: (Uday Mohanlal Acharya case [Uday MohanlalAcharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001SCC (Cri) 760] , SCC p. 473, para 13)

“13. … (3) On the expiry of the said period of 90 days or60 days, as the case may be, an indefeasible right accruesin favour of the accused for being released on bail onaccount of default by the investigating agency in thecompletion of the investigation within the period prescribedand the accused is entitled to be released on bail, if he isprepared to and furnishes the bail as directed by theMagistrate.”

38. This Court also dealt with the decision rendered in SanjayDutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri)1433] and noted that the principle laid down by theConstitution Bench is to the effect that if the charge-sheet isnot filed and the right for “default bail” has ripened into thestatus of indefeasibility, it cannot be frustrated by theprosecution on any pretext. The accused can avail his libertyby filing an application stating that the statutory period forfiling the charge-sheet or challan has expired and the samehas not yet been filed and therefore the indefeasible righthas accrued in his or her favour and further the accused isprepared to furnish the bail bond.

A39. This Court also noted that apart from the possibility ofthe prosecution frustrating the indefeasible right, there areoccasions when even the court frustrates the indefeasibleright. Reference was made to Mohd. Iqbal MadarSheikh v. State of Maharashtra [Mohd. Iqbal MadarSheikh v. State of Maharashtra, (1996) 1 SCC 722 : 1996BSCC (Cri) 202] wherein it was observed that some courts keepthe application for “default bail” pending for some days sothat in the meantime charge-sheet is submitted. While sucha practice both on the part of the prosecution as well as somecourts must be very strongly and vehemently discouraged,Cwe reiterate that no subterfuge should be resorted to, to defeatthe indefeasible right of the accused for “default bail” duringthe interregnum when the statutory period for filing thecharge-sheet or challan expires and the submission of thecharge-sheet or challan in court.”

D30.One more judgment of this Court on Section 167 of the CrPCbe noticed i.e., Achpal alias Ramswaroop and Another v. State ofRajasthan, reported in (2019) 14 SCC 599. After referring to severalearlier judgments of this Court including the judgments of this Courtin Uday Mohanlal Acharya (supra) and Rakesh Kumar Paul (supra),this Court had laid down that the provisions of the CrPC do not empowerEanyone to extend the period within which the investigation must becompleted. This Court held that no court either directly or indirectly canextend such period. Following are the observations of this Court in para20 of Achpal (supra):“20. We now turn to the subsidiary issue, namely, whetherFthe High Court could have extended the period. The provisionsof the Code do not empower anyone to extend the periodwithin which the investigation must be completed nor does itadmit of any such eventuality. There are enactments such asthe Terrorist and Disruptive Activities (Prevention) Act, 1985Gand the Maharashtra Control of Organised Crime Act, 1999which clearly contemplate extension of period and to thatextent those enactments have modified the provisions of theCode including Section 167. In the absence of any suchsimilar provision empowering the Court to extend the period,no court could either directly or indirectly extend such period.

In any event of the matter all that the High Court had recordedin its order dated 3-7-2018 [Mahaveer v. State of Rajasthan,2018 SCC OnLine Raj 1] was the submission that theinvestigation would be completed within two months by agazetted police officer. The order does not indicate that itwas brought to the notice of the High Court that the periodfor completing the investigation was coming to an end. Mererecording of submission of the Public Prosecutor could notbe taken to be an order granting extension. We thus rejectthe submissions in that behalf advanced by the learned counselfor the State and the complainant.”

31. The scheme of the CrPC as noticed above clearly delineatesthat the provisions of Section 167 of the CrPC give due regard to thepersonal liberty of person. Without submission of chargesheet within60 days or 90 days as may be applicable, an accused cannot be detainedby the police. The provision gives due recognition to the personal liberty.However, as explained by this Court in Dinesh Dalmia v. CBI reportedin (2007) 8 SCC 770, such right of default bail although valuableright, yet the same is conditional one, the condition precedent beingpendency of the investigation. Therefore, once the investigation iscomplete with the filing of the police report, containing the details specifiedunder Section 173(2) of the CrPC, the question of claim or grant fordefault bail does not arise.

32. However, Section 43D of the UAPA operates as specialprovision vis vis the applicability of rights granted under Section167(2)(a) of the CrPC. Section 43D is reproduced hereinbelow:

“43D. Modified application of certain provisions of theCode.—(1) Notwithstanding anything contained in the Codeor any other law, every offence punishable under this Actshall be deemed to be cognizable offence within the meaningof clause (c) of section 2 of the Code, and “cognizable case”as defined in that clause shall be construed accordingly.

(2) Section 167 of the Code shall apply in relation to caseinvolving an offence punishable under this Act subject to themodification that in sub-section (2),—

(a) the references to “fifteen days”, “ninety days” and “sixtydays”, wherever they occur, shall be construed as references

[2023] 6 S.C.R.

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 theinvestigation within the said period of ninety days, the Courtmay if it is satisfied with the report of the Public Prosecutorindicating the progress of the investigation and the specificreasons for the detention of the accused beyond the saidperiod of ninety days, extend the said period up to one hundredand eighty days:

Provided also that if the police officer making the investigationunder this Act, requests, for the purposes of investigation,for police custody from judicial custody of any person injudicial custody, he shall file an affidavit stating the reasonsDfor doing so and shall also explain the delay, if any, forrequesting such police custody.

(3) Section 268 of the Code shall apply in relation to caseinvolving an offence punishable under this Act subject to themodification that—

(a) the reference in sub-section (1) thereof

(i) to “the State Government” shall be construed as referenceto “the Central Government or the State Government.”;

(ii) to “order of the State Government” shall be construed asa reference to “order of the Central Government or the StateFGovernment, as the case may be”; and

(b) the reference in sub-section (2) thereof, to “the StateGovernment” shall be construed as reference to “the CentralGovernment or the State Government, as the case may be”.

(4) Nothing in section 438 of the Code shall apply in relationto any case involving the arrest of any person accused ofhaving committed an offence punishable under this Act.

(5) Notwithstanding anything contained in the Code, no personaccused of an offence punishable under Chapters IV and VIof this Act shall, if in custody, be released on bail or on his

own bond unless the Public Prosecutor has been given anopportunity of being heard on the application for such release:

Provided that such accused person shall not be released onbail or on his own bond if the Court, on perusal of the casediary or the report made under section 173 of the Code is ofthe opinion that there are reasonable grounds for believingthat the accusation against such person is prima facie true.

(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code orany other law for the time being in force on granting of bail.

(7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to personaccused of an offence punishable under this Act, if he is notan Indian citizen and has entered the country unauthorisedlyor illegally except in very exceptional circumstances and forreasons to be recorded in writing.”

33. Thus, plain reading of the abovementioned provision of theUAPA makes it clear that the benefit of default bail shall be available tothe accused for the offences alleged to have been committed under theUAPA where the investigation has not concluded within 90 days of arrestof the accused irrespective of the punishment of the offences alleged tohave been committed by him. At the same time, the provision also givesright to the investigating agency to seek further period of 90 days tocomplete the investigation by filing report to the public prosecutorindicating the progress of investigation. Thus, by virtue of Section 43Dof the UAPA, the investigating agency gets 90+90 days = 180 days tocomplete the investigation.

34. We shall now look into Section 45 of the UAPA. Section 45 ofthe UAPA is with respect to cognizance of offences. Section 45 of theUAPA reads thus:

“45. Cognizance of offences.

(1) No court shall take cognizance of any offence—

(i) under Chapter III without the previous sanction of theCentral Government or any officer authorised by the CentralGovernment in this behalf;

(ii) under Chapter IV and VI without the previous sanction ofthe Central Government or, as the case may be, the StateGovernment, and if such offence is committed against theGovernment of foreign country without the previous sanctionof the Central Government.

B(2) Sanction for prosecution under sub-section (1) shall begiven within such time as may be prescribed only afterconsidering the report of such authority appointed by theCentral Government or, as the case may be, the StateGovernment which shall make an independent review of theevidence gathered in the course of investigation and make aCrecommendation, within such time as may be prescribed, tothe Central Government or, as the case may be, the StateGovernment.”

35. close look at Section 45 of the UAPA referred to abovewould indicate that sub section (1) deals with the authority who canDaccord sanction for the offence committed under the UAPA whereassub section (2) deals with the procedure to be followed by the authorityat the time of granting sanction. It is evident from Section 45(1) of theUAPA that if the offence falls under Chapter III of the UAPA, theCourt shall not take cognizance of the offence unless previous sanctionEis accorded either by the Central Government or by any other officerauthorised by the Central Government in this behalf. If the offence allegedto have been committed falls under Chapters IV and VI resply, the Courtshall not take cognizance of the offence unless previous sanction isgranted by the Central Government or the State Government as thecase may be. However, if the offence committed as alleged is againstFthe Government of foreign country, the Court shall not take cognizancewithout the previous sanction of the Central Government. It is pertinentto mention here that for the offence enumerated under Chapters IV andVI resply, only the Central or State Government, as the case may be,are authorised to grant sanction.

G36. We must read Section 45 of the UAPA referred to abovealong with the Rules 3 and 4 respectively of the 2008 Rules. We quoteRules 3 and 4 respectively as under:

“3. Time limit for making recommendation by theAuthority .—The Authority shall, under sub-section (2) of

section 45 of the Act, make its report containing therecommendations to the Central Government or, as the casemay be, the State Government within seven working days ofthe receipt of the evidence gathered by the investigating officerunder the Code.

4. Time limit for sanction of prosecution .—The CentralGovernment or, as the case may be, the StateGovernment shall, under sub-section (2) of section 45 of theAct, take decision regarding sanction for prosecution withinseven working days after receipt of the recommendations ofthe Authority.”

37. The Rules 2008 referred to above, would indicate that theauthority shall, under sub section (2) of Section 45 of the UAPA makeits report containing the recommendations to the Central Government(or as the case may be, the State Government) within 7 working days ofthe receipt of the evidence gathered by the investigating officer underthe CrPC. The Central Government (or as the case may be, the StateGovernment) is obliged under sub section (2) of Section 45 of the UAPAto take decision regarding sanction for prosecution within 7 workingdays after receipt of the recommendations of the authority.

38. In the aforesaid context, our attention was drawn by the learnedcounsel appearing for the appellants to the speech of the Hon’ble HomeMinister while moving the draft Bills in the Rajya Sabha and in his speech,the Hon’ble Home Minister clearly stated as under:

“Finally, Sir, we have incorporated very salutary provision.To the best of our knowledge-I don’t know, I may be correctedby the Law Minister or the Law Secretary later - it is the firsttime we are introducing this. In prosecution under the UAPA,now, it is the executive Government which registers the casethrough police officer. It is the executive Government whichinvestigates the case through an investigating agency, namely,the police department. It is the executive Govt. which sanctionsU/s.45. Therefore, there is fear that vindictive or wrongexecutive Govt. could register case, investigate and sanctionprosecution. There is fear. May be, it is not fear that isentirely justified but you cannot say that it is entirelyunjustified. So what are we doing? The executive Govt. can

Aregister the case because no one else can register case. Theexecutive Govt., through its agency, can investigate thecase. But, before sanction is granted under 45(1) we areinterposing an independent authority which will review theentire evidence, gathered in the investigation, and then makea recommendation whether this is fit case of prosecution.BSo, here, we are bringing filter, buffer, an independentauthority who has to review the entire evidence that is gatheredand, then, make recommendation to the State Govt. or theCentral Govt. as the case may be, fit case for sanction. Ithink, this is very salutary safeguard. All sections of theCHouse should welcome it. This is biggest buffer againstarbitrariness which many Members spoke about. Sir, theseare the features in the Bill.”

(Emphasis supplied)

39. We shall now proceed to look into the provisions of the NIADAct. Section 16 of the NIA Act relates to the procedure and powers ofSpecial Courts. Sub section (1) of Section 16 is relevant for our purpose.The same reads thus:

“16. Procedure and powers of Special Courts.—

E(1) Special Court may take cognizance of any offence,without the accused being committed to it for trial, uponreceiving complaint of facts that constitute such offence orupon police report of such facts.”

40. Section 18 of the NIA Act relates to sanction for prosecution.Section 18 reads thus:F

“18. Sanction for prosecution.—

No prosecution, suit or other legal proceedings shall beinstituted in any court of law, except with the previous sanctionof the Central Government, against any member of the AgencyGor any person acting on his behalf in respect of anythingdone or purported to be done in exercise of the powersconferred by this Act.”

41. Section 22 of the NIA Act is with respect to the power of theState Government to designate the Court of Sessions as Special Courts.HSection 22 of the NIA Act reads thus:

JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIRv. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]

“22. Power of State Government to designate Court of Sessionas Special Courts.— (1) The State Government may designateone or more Courts of Session as Special Courts for the trialof offences under any or all the enactments specified in theSchedule.

(2) The provisions of this Chapter shall apply to the SpecialCourts 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 sections11 and 15 shall be construed as references to StateGovernment;

(ii) reference to “Agency” in sub-section (1) of section 13shall be construed as reference to the “investigation agencyof 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”.

(3) The jurisdiction conferred by this Act on Special Courtshall, until Special Court is designated by the StateGovernment under sub-section (1) in the case of any offencepunishable under this Act, notwithstanding anythingcontained in the Code, be exercised by the Court of Sessionof the division in which such offence has been committed andit shall have all the powers and follow the procedure providedunder this Chapter.

(4) On and from the date when the Special Court is designatedby the State Government the trial of any offence investigatedby the State Government under the provisions of this Act,which would have been required to be held before the SpecialCourt, shall stand transferred to that Court on the date onwhich it is designated.”

42. We shall now look into the 1908 Act. Section 7 of the 1908Act imposes restriction on trial of offences under the 1908 Act exceptwith the consent of the District Magistrate. Section 7 reads thus:

“7. Restriction on trial of offences.—

No court shall proceed to the trial of any person for an offenceagainst this Act except with the consent of the DistrictMagistrate.”

FINAL ANALYSIS

Issue No. 1B

43. We find no merit in the principal argument canvassed on behalfof the appellants that chargesheet filed without sanction is anincomplete chargesheet which could be termed as not in consonancewith sub section (5) of Section 173 of the CrPC. It was conceded by thelearned counsel appearing for the appellants that the chargesheet wasCfiled well within the statutory time period i.e., 180 days, however, thecourt concerned could not have taken cognizance of such chargesheetin the absence of the orders of sanction not being part of suchchargesheet. Whether the sanction is required or not under statute, isa question that has to be considered at the time of taking cognizance ofDthe offence and not during inquiry or investigation. There is markeddistinction in the stage of investigation and prosecution. The prosecutionstarts when the cognizance of offence is taken. It is also to be kept inmind that cognizance is taken of the offence and not of the offender. Itcannot be said that obtaining sanction from the competent authorities orthe authorities concerned is part of investigation. Sanction is requiredEonly to enable the court to take cognizance of the offence. The courtmay take cognizance of the offence after the sanction order was producedbefore the court, but the moment, the final report is filed along with thedocuments that may be relied on by the prosecution, then the investigationwill be deemed to have been completed. Taking cognizance is entirelyFdifferent from completing the investigation. To complete the investigationand file final report is duty of the investigating agency, but takingcognizance of the offence is the power of the court. The court in givencase, may not take cognizance of the offence for particular period oftime even after filing of the final report. In such circumstance, the accusedconcerned cannot claim their indefeasible right under Section 167(2) ofGthe CrPC for being released on default bail. What is contemplated underSection 167(2) of the CrPC is that the Magistrate or designated Court(as the case may be) has no powers to order detention of the accusedbeyond the period of 180 days or 90 days or 60 days as the case may be.If the investigation is concluded within the prescribed period, no rightHaccrues to the accused concerned to be released on bail under the provisoto Section 167(2) of the CrPC.44. Once final report has been filed with all the documents onwhich the prosecution proposes to rely, the investigation shall be deemedto have been completed. After completing investigation and submitting afinal report to the Court, the investigating officer can send copy of thefinal report along with the evidence collected and other materials to thesanctioning authority to enable the sanctioning authority to apply his mindto accord sanction. According sanction is the duty of the sanctioningauthority who is not connected with the investigation at all. In case thesanctioning authority takes some time to accord sanction, that does notvitiate the final report filed by the investigating agency before the Court.Section 173 of the CrPC does not speak about the sanction order at all.Section 167 of the CrPC also speaks only about investigation and notabout cognizance by the Magistrate. Therefore, once final report hasbeen filed, that is the proof of completion of investigation and if finalreport is filed within the period of 180 days or 90 days or 60 days fromthe initial date of remand of accused concerned, he cannot claim that aright has accrued to him to be released on bail for want of filing ofsanction order.

45. Section 173(5) of the CrPC, of course, requires all thedocuments or the relevant extracts thereof on which the prosecutionproposes to rely on, to accompany the final report. Sanction order cannotbe brought within the category of those documents contemplated underclause (5) to Section 173 of the CrPC. The grant of sanction is altogethera different act to be performed by the Government concerned underSection 45 of the UAPA.

46. In the case of Central Bureau of Investigation v. R.S. Paiand Another reported in (2002) 5 SCC 82, it was observed by this Courtthat “…it cannot be held that the additional documents cannot beproduced subsequently. If some mistake is committed in not producingthe relevant documents at the time of submitting the report or thecharge-sheet, it is always open to the investigating officer to producethe same with the permission of the court.” It was further observedthat “….the word “shall” used in sub-section (5) cannot beinterpreted as mandatory, but as directory. Normally, the documentsgathered during the investigation upon which the prosecution wantsto rely are required to be forwarded to the Magistrate, but if there issome omission, it would not mean that the remaining documentscannot be produced subsequently. Analogous provision under

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ASection 173(4) of the Code of Criminal Procedure, 1898 wasconsidered by this Court in Narayan Rao v. State of A.P. [AIR 1957SC 737 : 1958 SCR 283 : 1957 Cri LJ 1320] (SCR at p. 293) and itwas held that the word “shall” occurring in sub-section (4) of Section173 and sub-section (3) of Section 207-A is not mandatory but onlydirectory. Further, the scheme of sub-section (8) of Section 173 alsoBmakes it abundantly clear that even after the charge-sheet issubmitted, further investigation, if called for, is not precluded. Iffurther investigation is not precluded then there is no question ofnot permitting the prosecution to produce additional documentswhich were gathered prior to or subsequent to the investigation. InCsuch cases, there cannot be any prejudice to the accused….”47. From the aforesaid, it is evident that the order of sanctionpassed by the competent authority can be produced and placed on recordeven after the filing of the chargesheet. It may happen that the inordinatedelay in placing the order of sanction before the Special Court may leadDto delay in trial because the competent court will not be able to takecognizance of the offence without valid sanction on record. In such aneventuality, at the most, it may be open for the accused to argue that hisright to have speedy trial could be said to have been infringed therebyviolating Article 21 of the Constitution. This may at the most entitle theaccused to pray for regular bail on the ground of delay in trial. But theEsame cannot be ground to pray for statutory/default bail under theprovisions of Section 167(2) of the CrPC.

48. The chargesheet is nothing but final report of police officerunder Section 173(2) of the CrPC. Section 173(2) of the CrPC providesthat on completion of the investigation, the police officer investigatingFinto cognizable offence shall submit report. The report must be in theform prescribed by the State Government, stating therein (a) the namesof the parties; (b) the nature of the information; (c) the names of thepersons who appear to be acquainted with the circumstances of thecase; (d) whether any offence appears to have been committed and, ifGso, by whom (e) whether the accused has been arrested; (f) whether hehad been released on his bond and, if so, whether with or without sureties;and (g) whether he has been forwarded in custody under Section 170.As observed by this Court in Satya Narain Musadi and Others v. Stateof Bihar reported in (1980) 3 SCC 152 at 157 that the statutoryrequirement of the report under Section 173(2) of the CrPC would beH

complied with if the various details prescribed therein are included in thereport. This report is an intimation to the magistrate that upon investigationinto cognizable offence the Investigating Officer has been able toprocure sufficient evidence for the court to inquire into the offence andthe necessary information is being sent to the court. In fact, the reportunder Section 173(2) of the CrPC purports to be an opinion of theInvestigating Officer that as far as he is concerned he has been able toprocure sufficient material for the trial of the accused by the court. Thereport is complete if it is accompanied with all the documents andstatements of witnesses as required by Section 175(5) of the CrPC.Nothing more need be stated in the report of the Investigating Officer. Itis also not necessary that all the details of the offence must be stated.The details of the offence are required to be proved to bring home theguilt to the accused at later stage i.e., in the course of the trial of thecase by adducing acceptable evidence. (See K. Veeraswami v. Unionof India and Others, (1991) 3 SCC 655.)

49. The maximum period of 180 days which is being granted tothe investigating agency to complete the investigation in the case whereinthe prosecution is for the offence under the UAPA is not something inthe form of package that everything has to be completed includingobtaining of sanction within this period of 180 days. As observed above,the investigating agency has nothing to do with sanction. Sanction isaltogether different process. Sanction is accorded, based on thematerials collected by the investigating agency which forms the part ofthe final report under Section 173 of the CrPC. The investigating agencygets full 180 days to complete the investigation. To say that obtaining ofsanction and placing the same along with the chargesheet should bedone within the period of 180 days is something which is not only contraryto the provisions of law discussed above, but is inconceivable.50. Let us test the aforesaid argument, keeping in mind the Rules2008. Rule 3 of the Rules 2008 makes it very clear that the authorityconcerned shall make its report under sub section (2) of Section 45 ofthe UAPA containing the recommendations to the Central Governmentfrom the State Government as the case may be within 7 working days ofthe receipt of the evidence gathered by the investigating officer underthe CrPC. We place emphasis on the expression “within 7 working daysof the receipt of the evidence gathered by the investigating officer underthe CrPC”. This evidence which Rule 3 of the Rules 2008 contemplates

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Ais the final report i.e., filed by the investigating agency under Section 173of the CrPC. How can one expect the authority under sub section (2) ofSection 45 to make its report containing the recommendations withoutlooking into the chargesheet thoroughly containing the evidence gatheredby the investigating officer. On the contrary, Rule 3 of the Rules 2008makes it explicitly clear that the authority under sub section (2) of SectionB45 of the UAPA is obliged in law to apply its mind thoroughly to theevidence gathered by the investigating officer and thereafter, prepare itsreport containing the recommendations to the Central Government orthe State government for the grant of sanction. The grant of sanction isnot an idle formality. The grant of sanction should reflect properCapplication of mind.51. This Court in Central Bureau of Investigation v. AshokKumar Aggarwal reported in (2014) 14 SCC 295, while deliberating onthe validity of sanction held as under:

“13.The prosecution has to satisfy the court that at the timeDof sending the matter for grant of sanction by the competentauthority, adequate material for such grant was madeavailable to the said authority. This may also be evident fromthe sanction order, in case it is extremely comprehensive, asall the facts and circumstances of the case may be spelt out inEthe sanction order. However, in every individual case, the courthas to find out whether there has been an application of mindon the part of the sanctioning authority concerned on thematerial placed before it. It is so necessary for the reasonthat there is an obligation on the sanctioning authority todischarge its duty to give or withhold sanction only afterFhaving full knowledge of the material facts of the case. Grantof sanction is not mere formality. Therefore, the provisionsin regard to the sanction must be observed with completestrictness keeping in mind the public interest and the protectionavailable to the accused against whom the sanction isGsought.”

52. While summarising the legal propositions in Ashok KumarAggarwal (supra) in para 16, this Court observed as under:

“16.1. The prosecution must send the entire relevant recordto the sanctioning authority including the FIR, disclosure

statements, statements of witnesses, recovery memos, draftcharge-sheet and all other relevant material. The record sosent should also contain the material/document, if any, whichmay tilt the balance in favour of the accused and on the basisof which, the competent authority may refuse sanction.

16.2. The authority itself has to do complete and consciousscrutiny of the whole record so produced by the prosecutionindependently applying its mind and taking into considerationall the relevant facts before grant of sanction whiledischarging its duty to give or withhold the sanction.

16.3. The power to grant sanction is to be exercised strictlykeeping in mind the public interest and the protection availableto the accused against whom the sanction is sought.

16.4. The order of sanction should make it evident that theauthority had been aware of all relevant facts/materials andhad applied its mind to all the relevant material.

16.5. In every individual case, the prosecution has to establishand satisfy the court by leading evidence that the entirerelevant facts had been placed before the sanctioning authorityand the authority had applied its mind on the same and thatthe sanction had been granted in accordance with law.”

53. It is, therefore, very much necessary that the evidence collectedby the investigating agency in the form of chargesheet is thoroughlylooked into and thereafter, the recommendations are made. Theinvestigating agency gets full 180 days to complete the investigation andfile its report before the competent court in accordance with Section173(2) of the CrPC. If we accept the argument canvassed on behalf ofthe appellants, it comes to this that the investigating agency may have toadjust the period of investigation in such manner that within the periodof 180 days, the sanction is also obtained and placed before the court.We find this argument absolutely unpalatable.

54. This Court in the case of Suresh Kumar Bhikamchand Jain(supra) had the occasion to consider in detail the question whethercognizance of the chargesheet was necessary to prevent the accusedfrom seeking default bail or whether mere filing of the chargesheet wouldsuffice for the investigation to be deemed complete. The petitioner in

Athe said case was arrested on 11.03.2012 on the allegation ofmisappropriation of amounts meant for development of slums in JalgaonCity. The petitioner therein was accused of committing offencespunishable under Sections 120B, 409, 411, 406, 408, 465, 466, 468, 471,177 and 109 read with Section 34, IPC and also under Sections 13(1)(c),13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. TheBcontention of the petitioner therein was that he could not have beenremanded to custody in view of cognizance not being taken for want ofsanction within the statutory period of 90 days. The scheme of theprovisions relating to remand of an accused first during the stageof investigation and thereafter, after cognizance is taken, indicates thatCthe legislature intended investigation of certain crimes to be completedwithin the period prescribed therein. This Court held that in the eventof investigation not being completed by the investigating authorities withinthe prescribed period, the accused acquires an indefeasible right to begranted bail, if he offers to furnish bail. This Court was of the firm viewthat if on either the 61[st] day or the 91[st] day, an accused makes anDapplication for being released on bail in default of chargesheet havingbeen filed, the court has no option but to release the accused on bail.However, once the chargesheet was filed within the stipulated period,the right of the accused to statutory/default bail came to an end and theaccused would be entitled to pray for regular bail on merits. It was heldEby this Court that the filing of chargesheet is sufficient compliance withthe provisions of proviso (a) to Section 167(2) of the CrPC and thattaking of cognizance is not material to Section 167 of the CrPC. Thescheme of CrPC is such that once the stage of investigation is completed,the court proceeds to the next stage, which is the taking of cognizanceand trial. During the period of investigation, the accused is under theFcustody of the Magistrate before whom he or she is first produced, withsuch Magistrate being vested with the power to remand the accused topolice custody and/or judicial custody, up to maximum period asprescribed under Section 167(2) of the CrPC. Acknowledging the factthat an accused has to remain in custody of some court, this CourtGconcluded that on filing of the chargesheet within the stipulated period,the accused continues to remain in the custody of the Magistrate tillsuch time as cognizance is taken by the court trying the offence, whenthe said court assumes custody of the accused for purposes of remandduring the trial in terms of Section 309 of the CrPC. This Court clarifiedthat the two stages are different, with one following the other so as toHmaintain continuity of the custody of the accused with court.

55. We refer to the relevant portions of Suresh KumarBhikamchand Jain (supra) judgment as under:

“16. At this juncture, we may refer to certain dates which arerelevant to the facts of this case, namely:

(a) 11-3-2012 — The petitioner arrested and remanded topolice custody;

(b) 25-4-2012 — First charge-sheet filed against the fouraccused;

(c) 1-6-2012 — Supplementary charge-sheet filed in whichthe petitioner is named;

(d) 30-7-2012 — The trial court rejected the petitioner’s prayerfor grant of bail;

(e) 13-9-2012 [Suresh v. State of Maharashtra, CriminalApplication No. 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) CrPCbefore the trial court;

(g) 5-10-2012 — The trial court rejected the application underSection 167(2) CrPC.

From the above dates, it would be evident that both the charge-sheet as also the supplementary charge-sheet were filed within90 days from the date of the petitioner’s arrest and remand topolice custody. It is true that cognizance was not taken by theSpecial Court on account of failure of the prosecution toobtain sanction to prosecute the accused under the provisionsof the PC Act, but does such failure amount to non-compliancewith the provisions of Section 167(2) CrPC is the questionwith which we are confronted.

17.In our view, grant of sanction is nowhere contemplatedunder Section 167 CrPC. What the said section contemplatesis the completion of investigation in respect of different typesof cases within stipulated period and the right of an accusedto be released on bail on the failure of the investigatingauthorities to do so. The scheme of the provisions relating toremand of an accused, first during the stage of investigation

Aand, thereafter, after cognizance is taken, indicates that thelegislature intended investigation of certain crimes to becompleted within 60 days and offences punishable with death,imprisonment for life or imprisonment for term of not lessthan 10 years, within 90 days. In the event, the investigationis not completed by the investigating authorities, the accusedBacquires an indefeasible right to be granted bail, if he offersto furnish bail. Accordingly, if on either the 61st day or the91st day, an accused makes an application for being released-on bail in default of chargesheet having been filed, the courthas no option but to release the accused on bail. The saidCprovision has been considered and interpreted in variouscases, such as the ones referred to hereinbefore. Both thedecisions in Natabar Parida case [(1975) 2 SCC 220 : 1975SCC (Cri) 484] and in Sanjay Dutt case [(1994) 5 SCC 410 :1994 SCC (Cri) 1433] were instances where the charge-sheetwas not filed within the period stipulated in Section 167(2)DCrPC and an application having been made for grant of bailprior to the filing of the charge-sheet, this Court held that theaccused enjoyed an indefeasible right to grant of bail, if suchan application was made before the filing of the charge-sheet,but once the charge-sheet was filed, such right came to anEend and the accused would be entitled to pray for regularbail on merits.

18. None of the said cases detract from the position that oncea charge-sheet is filed within the stipulated time, the questionof grant of default bail or statutory bail does not arise. Asindicated hereinabove, in our view, the filing of charge-sheetis sufficient compliance with the provisions of Section167(2)(a)(ii) in this case. Whether cognizance is taken or notis not material as far as Section 167 CrPC is concerned. The-right which may have accrued to the petitioner, had chargesheet not been filed, is not attracted to the facts of this case.Merely because sanction had not been obtained to prosecutethe accused and to proceed to the stage of Section 309 CrPC,it cannot be said that the accused is entitled to grant ofstatutory bail, as envisaged in Section 167 CrPC. The schemeof CrPC is such that once the investigation stage is completed,the court proceeds to the next stage, which is the taking of

cognizance and trial. An accused has to remain in custody ofsome court. During the period of investigation, the accusedis under the custody of the Magistrate before whom he or sheis first produced. During that stage, under Section 167(2)CrPC, the Magistrate is vested with authority to remand theaccused to custody, both police custody and/or judicialcustody, for 15 days at time, up to maximum period of 60days in cases of offences punishable for less than 10 yearsand 90 days where the offences are punishable for over 10years or even death sentence. In the event, an investigating-authority fails to file the chargesheet within the stipulatedperiod, the accused is entitled to be released on statutorybail. In such situation, the accused continues to remain inthe custody of the Magistrate till such time as cognizance istaken by the court trying the offence, when the said courtassumes custody of the accused for purposes of remand duringthe trial in terms of Section 309 CrPC. The two stages aredifferent, but one follows the other so as to maintain acontinuity of the custody of the accused with court.”

(Emphasis supplied)

56. It is clear from the decision of this Court in Suresh KumarBhikamchand Jain (supra) that filing of chargesheet is sufficientcompliance with the provisions of Section 167 of the CrPC and that anaccused cannot demand release on default bail under Section 167(2) ofthe CrPC on the ground that cognizance has not been taken before theexpiry of the statutory time period. The accused continues to be in thecustody of the Magistrate till such time cognizance is taken by the courttrying the offence, which assumes custody of the accused for the purposeof remand after cognizance is taken.

57. The aforesaid decision of this Court makes the position of lawvery clear that once the chargesheet has been filed within the stipulatedtime, the question of grant of statutory/default bail does not arise. Whethercognizance has been taken or not taken is not relevant for the purposeof compliance of Section 167 of the CrPC. The mere filing of thechargesheet is sufficient.

58. The decision of Suresh Kumar Bhikamchand Jain (supra)has been referred to and relied upon by this Court in the case of Serious

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AFraud Investigation Office (supra). In the said decision, the very samepoint fell for the consideration of the Court, whether the accused isentitled for statutory/default bail under Section 167(2) of the CrPC onthe ground that cognizance had not been taken before the expiry of 60days or 90 days from the date of remand?

B59. However, one another issue that fell for the consideration ofthis Court, in Serious Fraud Investigation Office (supra) was whetherSuresh Kumar Bhikamchand Jain (supra) had taken different viewthan in the case of Sanjay Dutt (supra), Mohamed Iqbal Madar Sheikhand others v. State of Maharashtra reported in (1996) 1 SCC 722 andM. Ravindran v. Intelligence Officer, Directorate of RevenueCIntelligence reported in (2021) 2 SCC 485. This Court explained indetails as to why nothing contrary to Sanjay Dutt (supra), Iqbal Madar(supra) and M. Ravindran (supra) had been decided in Suresh KumarBhikamchand Jain (supra). We quote the relevant observations:

“12. The point that requires to be considered is whether thisDCourt has taken different view in SanjayDutt (supra), Madar Sheikh (supra) and M. Ravindran(supra). In Sanjay Dutt (supra), this Court held that theindefeasible right accruing to the accused is enforceable onlyprior to the filing of challan and it does not survive or remainEenforceable, on the challan being filed. It was made clearthat once the challan has been filed, the question of grant ofbail has to be considered and decided only with reference tothe merits of the case under the provisions relating to grantof bail to an accused after the filing of the challan. In light ofthe above findings, this Court held that the custody of theFaccused after the challan has been filed is not governed bySection 167(2) but different provisions of the CrPC.13. In Madar Sheikh (supra), which was relied upon by thelearned Senior Counsel appearing for Respondent Nos. 1 and2 and the Intervenor, the appellants therein were taken intocustody on 16.01.1993. The charge-sheet was submitted on30.08.1993. Though the appellants were entitled to be releasedin view of the charge-sheet not being filed within the statutoryperiod prescribed under Section 20(4)(b) of the Terrorist andDisruptive 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 ofthe investigation within the statutory period. After filing ofthe charge-sheet and cognizance having been taken, theycontinued to be in custody on the basis of orders of remandpassed under other provisions of the CrPC. Refusing to grantrelief of statutory bail in the said fact situation, this Courtheld that the right conferred on an accused under Section167(2) cannot be exercised after the charge-sheet has beensubmitted and cognizance has been taken. plain reading ofthe judgment in Madar Sheikh (supra) would show thatreference to the right of statutory bail becoming unenforceableafter cognizance having been taken is in view of the facts ofthe said case, where this Court denied statutory bail to theappellants therein on the ground that charge-sheet was filedand cognizance had also been taken, with orders of remandpassed under other provisions of the CrPC. Thereafter, theywere not entitled for bail under Section 167(2).

14. Application for bail under Section 167(2), CrPC fell forconsideration of this Court in M. Ravindran (supra). In thesaid case, the appellant was arrested and remanded to judicialcustody on 04.08.2018 for offences punishable under theNarcotics Drugs and Psychotropic Substances Act, 1985. On01.02.2019, the appellant therein filed an application for bailunder Section 167(2) on the ground that investigation wasnot complete and charge-sheet had not been filed within thestatutory period. The trial court granted bail under Section167(2), which was set aside by the High Court of Madras byjudgment dated 21.11.2019. Challenging the said judgmentof the High Court, the appellant approached this Court. Thecrucial fact in the said case is that the appellant therein filedan application on 01.02.2019 at 10.30 a.m. before the trialcourt and on the same day at 4.25 p.m., an additionalcomplaint was filed against the appellant, on the basis ofwhich dismissal of the bail application was sought. This Courtrestored the order of the trial court while setting aside thejudgment of the High Court, by holding that the accused isdeemed to have “availed of” or enforced his right to bereleased on default bail, once application for bail has beenfiled under Section 167(2) on expiry of the stipulated time

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period. Taking into account the fact that before the expiry of180 days, no charge-sheet had been submitted nor anyapplication filed seeking extension of time to investigate, thisCourt held that the appellant was entitled to be released onstatutory bail notwithstanding the subsequent filing of anadditional complaint. The point that was decided in the saidcase was that the filing of an additional complaint after theaccused has availed his right to be released on default bail,should not deter the courts from enforcing this indefeasibleright, if the charge-sheet was not filed before the expiry ofthe statutory period. Reference was made by this Courtto Madar Sheikh (supra) in M. Ravindran (supra). This Courtobserved that no prior application for bail was filed in MadarSheikh (supra) though the charge-sheet was submitted afterthe expiry of the statutory period. This Court repeated thefindings recorded in Madar Sheikh (supra) that the right tobail cannot be exercised once the charge-sheet has beensubmitted and cognizance has been taken. As stated above,the said conclusion in Madar Sheikh (supra) was arrived atwith reference to the facts of the case.15. The issue that arose for consideration before this Courtin Criminal Appeal Nos. 701-702 of 2020 relates to whetherthe date of remand is to be included in computation of theperiod of 60 days or 90 days, as contemplated under proviso(a) to Section 167(2), for considering the claim for defaultbail. Taking note of the divergence of opinions on the saidpoint, this Court felt the need for consideration of the issueby larger bench. The later order dated 12.03.2021 passedin SLP (Crl.) Nos. 2105-2106 of 2021 and SLP (Crl.) Nos.2111-2112 of 2021 is for tagging all those matters along withCriminal Appeal Nos. 701-702 of 2020. The submission madeon behalf of the petitioners therein and recorded in the saidorder relates to the filing of charge-sheet on the last daywithout list of witnesses and documents not amounting to aproper filing of charge-sheet. Mr. Rohatgi referred to the SLP(Crl.) No. 2111-2112 of 2021 and submitted that one of thepoints raised relates to cognizance being taken before theexpiry of the statutory period under Section 167, CrPC. It isclear that reference to larger bench pertains to the issue

of exclusion or inclusion of the date of remand forcomputation of the period prescribed under Section 167.Therefore, there is no requirement for referring this case to alarger bench.

16.A close scrutiny of the judgments in Sanjay Dutt (supra),Madar Sheikh (supra) and M. Ravindran (supra) would showthat there is nothing contrary to what has been decidedin Bhikamchand Jain (supra). In all the above judgmentswhich are relied upon by either side, this Court hadcategorically laid down that the indefeasible right of anaccused to seek statutory bail under Section 167(2), CrPC-arises only if the chargesheet has not been filed before theexpiry of the statutory period. Reference to cognizancein Madar Sheikh (supra) is in view of the fact situation wherethe application was filed after the charge-sheet was submittedand cognizance had been taken by the trial court. Suchreference cannot be construed as this Court introducing anadditional requirement of cognizance having to be takenwithin the period prescribed under proviso (a) to Section167(2), CrPC, failing which the accused would be entitled todefault bail, even after filing of the charge-sheet within thestatutory period. It is not necessary to repeat that inboth Madar Sheikh (supra) and M. Ravindran (supra), thisCourt expressed its view that non-filing of the charge-sheetwithin the statutory period is the ground for availing theindefeasible right to claim bail under Section 167(2), CrPC.The conundrum relating to the custody of the accused afterthe expiry of 60 days has also been dealt with by this Courtin Bhikamchand Jain (supra). It was made clear that theaccused remains in custody of the Magistrate till cognizanceis taken by the relevant court. As the issue that arises forconsideration in this case is squarely covered by the judgmentin Bhikamchand Jain (supra), the order passed by the HighCourt on 31.05.2019 is hereby set aside.”

(Emphasis supplied)

60. Our attention was drawn by the learned counsel appearingfor the accused to very recent pronouncement of this Court, in thecase of Ritu Chhabaria v. Union of India and Others, Writ Petition

A(Crl.) No. 60 of 2023 decided on 26.04.2023. This decision has beenrelied upon to fortify the submission that right of an accused to seekdefault bail cannot be defeated by filing incomplete chargesheet. RituChhabaria filed writ petition under Article 32 of the Constitution, seekingrelease of her husband on default bail. In the facts of the said case,three issues fell for the consideration of this Court:B

i. Can chargesheet or prosecution complaint be filed inpiecemeal without first completing the investigation of the case?

ii.Whether the filing of such chargesheet without completingthe investigation will extinguish the right of an accused for grantof default bail?

iii. Whether the remand of an accused can be continued by thetrial court during the pendency of investigation beyond the stipulatedtime as prescribed by the CrPC?

61. This Court, while allowing the petition observed in paras 24Dand 25 respectively, as under:

“24. This right of statutory bail, however, is extinguished, ifthe charge sheet is filed within the stipulated period. Thequestion of resorting to supplementary chargesheet u/s173(8) of the Cr.PC only arises after the main chargesheetEhas been filed, and as such, supplementary chargesheet,wherein it is explicitly stated that the investigation is stillpending, cannot under any circumstance, be used to scuttlethe right of default bail, for then, the entire purpose of defaultbail is defeated, and the filing of chargesheet or aFsupplementary chargesheet becomes mere formality, and atool, to ensue that the right of default bail is scuttled.

25. It is thus axiomatic that first investigation is to becompleted, and only then can chargesheet or complaintbe filed within the stipulated period, and failure to do so wouldtrigger the statutory right of default bail under Section 167(2)of Cr.PC. In the case of Union of India vs Thamisharasi &Ors. [(1995) 4 SCC 190] , which was case under theNarcotic Drugs and Psychotropic Substances Act, 1985, onfinding that the investigation was not complete and achargesheet was not filed within the prescribed period, denialof default bail was held to be in violation of Article 21 of the

Constitution of India, and it was further held that even thetwin limitation on grant of bail would not apply.”

62. Thus, in Ritu Chhabaria (supra), the facts were altogetherdifferent. In the said case, indisputably, the investigation was in progress,but as the statutory time period to file the chargesheet was coming to anend, the chargesheet was filed clarifying that the investigation was stillpending. In such circumstances, this Court took the view that there is noquestion of filing any supplementary chargesheet, taking the aid of subsection (8) of Section 173 of the CrPC, as sub section (8) of Section 173of the CrPC comes into play only after the investigation is completedand the chargesheet is laid. We are of the view that the aforesaid decisionof this Court is of no avail to the accused in the present case. In the caseon hand, the chargesheet was filed after the entire investigation wascompleted. This fact is not in dispute.

63. Thus, we answer Issue No. 1 holding that filing of chargesheetis sufficient compliance with the provisions of Section 167 of the CrPCand that an accused cannot claim any indefeasible right of being releasedon statutory/default bail under Section 167(2) of the CrPC on the groundthat cognizance has not been taken before the expiry of the statutorytime period to file the chargesheet. We once again, reiterate what thisCourt said in Suresh Kumar Bhikamchand Jain (supra) that grant ofsanction is nowhere contemplated under Section 167 of the CrPC.

Issue No. 2

64. We now proceed to discuss the second limb of the submissioncanvassed on behalf of the appellants that filing of the chargesheet inthe Court of SDJM, Ajnala instead of the Special Court as notified underSection 22 of the NIA Act and the Magistrate thereafter, committing thecase to the Court of Sessions under the provisions of Section 209 of theCrPC vitiated all further proceedings rendering the custody or furtherdetention of the appellants from the date of filing of the chargesheet inthe Court of Magistrate absolutely unlawful. To put it in other words, weneed to consider the submission that since the chargesheet was filed inthe Court of Magistrate on 15.11.2019, i.e., on the 161[st] day from thearrest of two of the appellants before us, the further detention thereafter,of the appellants could be termed as unlawful and the appellants wereentitled to be released on statutory/default bail under the provisions ofSection 167(2) of CrPC.

A65. Section 2(1)(d) of the UAPA reads as follows:

“2(1)(d). court means criminal court having jurisdiction,under the Code, to try offences under this Act and includes aSpecial Court constituted under section 11 or under section22 of the National Investigation Agency Act, 2008;”

66. The plain reading of the definition of “court” referred to aboveindicates that it includes the Special Court, constituted under Section 11or Section 22 of the NIA Act. Section 11 of the NIA Act confers powerupon the Central Government to designate the Court of Sessions as theSpecial Courts. Section 22 of the NIA Act confers power upon the StateCGovernment to designate the Court of Sessions, as the Special Courts.

67. perusal of Section 6 of the NIA Act enumerates about theinvestigation of the scheduled offences. The scheduled offences underthe UAPA are included at Sr. No. 2 in the Schedule of the NIA Act.Thereafter, Section 10 of the NIA Act prescribes about the power of theDState Government to investigate the scheduled offences. Section 11 ofthe NIA Act prescribes about the power of Central Government forconstituting the Special Court, whereas Section 22 of the NIA Actprescribes the power of the State Govt. for constituting the Special Courtfor trial of the scheduled offence. Section 13 of the NIA Act containsthe details of the jurisdiction of the Special Court. conjoint reading ofEthese provisions of both the Acts reveals the legislative mandate that theoffences under the UAPA Act fall under the scheduled offences havingbeen included in the Schedule of NIA Act. However, the scheme ofNIA Act prescribes the procedure for investigating the same either bythe NIA or by the concerned State Government, after following theFstatutory provisions meticulously. Section 10 of the NIA Act furtherclarifies that the State Government also has the power to investigate thescheduled offence in accordance with the procedure prescribed underthis Act. However, there is no ambiguity in the legislative mandate thatin both the situations, whether the investigation is carried out by the NIAor by the State Government, the trial of the scheduled offence would beGconducted only by the Special Court constituted under this Act. Section13 of the NIA Act is to be read with Section 11 of this Act when theinvestigation is carried out by the NIA and in the situation, investigationhaving been entrusted to the State Government, then Section 13 is to beread with 22 of the NIA Act. combined reading of both the sectionsHmakes it crystal clear that in the situation where the investigation has

been carried out by the State Government, in that situation as per Section22(2)(ii) the reference to Agency in sub section (1) of Section 13 of theNIA Act shall be construed as reference to “Investigating Agency ofthe State Government”.

68. Thus, the scheme of both the Acts makes it clear that oncethe investigation is completed, the report under Section 173 of the CrPCis to be filed in the Special Court constituted under the Act. Section 16 ofthe NIA Act leaves no room for any doubt, as it empowers the SpecialCourt to take cognizance of any offence without the accused beingcommitted to it, for trial, upon receiving complaint of facts that constitutesuch offence or upon police report of such facts. Thus, by incorporatingSection 16 in the NIA Act the legislature has made the Special Court asthe court of original jurisdiction unlike the Sessions Court, which is acourt of committal under the Criminal Procedure Code. (See SatishKumar v. State of Punjab and Another, 2021 SCC OnLine P&H 786)

69. In Satish Kumar (supra), the High Court of Punjab andHaryana at Chandigarh has referred to notification issued by theGovernment of Punjab dated 10.6.2014 wherein the Special Courts areconstituted by the State Government for the trial of offence as specifiedin the schedule appended to the NIA Act which are investigated by theState Police. The aforesaid notification is reproduced as under:

“NOTIFICATION The 10[th] June, 2014 No. S.O.141/C.A.34/2008/S.22/2014- In exercise of the powers conferred undersub section (1) of section 22 of the National InvestigationAgency Act, 2008 (Central Act No. 34 of 2008) and all otherpowers enabling him in this behalf, the Governor of Punjabwith the concurrence of Hon’ble Chief Justice of the HighCourt of Punjab and Haryana, Chandigarh is pleased toconstitute the courts of Sessions Judge and the first AdditionalSessions Judge (for the area falling within their respectivejurisdiction), at each district headquarter in the State, to bethe Special Courts, for the trial of offences as specified inthe Scheduled appended to the aforesaid Act, which areinvestigated by the State Police.”

70. The learned counsel appearing for the appellants placed strongreliance on the decision of this Court in Bikramjit Singh (supra) whereinthis Court held that all offences under the UAPA whether investigatedby the NIA or by the investigating agency of the State Government are

Ato be tried exclusively by the Special Court set up under that Act and inthe absence of any Special Court, set up by notifications issued either bythe Central Government or the State Government, then the Court ofSessions alone. This Court held as under:

“26. Before the NIA Act was enacted, offences under the UAPABwere of two kinds — those with maximum imprisonment ofover 7 years, and those with maximum imprisonment of 7years and under. Under the Code as applicable to offencesagainst other laws, offences having maximum sentence of 7years and under are triable by the Magistrate’s courts,whereas offences having maximum sentence of above 7 yearsCare triable by Courts of Session. This scheme has beencompletely done away with by the NIA Act, 2008as all Scheduled Offences i.e. all offences under the UAPA,whether investigated by the National Investigation Agencyor by the investigating agencies of the State Government, areDto be tried exclusively by Special Courts set up under thatAct. In the absence of any designated court by notificationissued by either the Central Government or the StateGovernment, the fallback is upon the Court of Session alone.Thus, under the aforesaid scheme what becomes clear is thatso far as all offences under the UAPA are concerned, theEMagistrate’s jurisdiction to extend time under the first provisoin Section 43-D(2)(b) is non-existent, “the Court” being eithera Sessions Court, in the absence of notification specifyinga Special Court, or the Special Court itself. The impugnedjudgment in arriving at the contrary conclusion is incorrectFas it has missed Section 22(2) read with Section 13 of the NIAAct. Also, the impugned judgment has missed Section 16(1)of the NIA Act which states that Special Court may takecognizance of any offence without the accused beingcommitted to it for trial, inter alia, upon police report ofsuch facts.

27. xxx

xxx xxx

“…The right to bail under Section 167(2) proviso (a) theretois absolute. It is legislative command and not court’sdiscretion. If the investigating agency fails to file charge-sheetbefore the expiry of 90/60 days, as the case may be, the

accused in custody should be released on bail. But at thatstage, merits of the case are not to be examined. Not at all. Infact, the Magistrate has no power to remand person beyondthe stipulated period of 90/60 days. He must pass an order ofbail and communicate the same to the accused to furnish therequisite bail bonds.””

71. The reply to the aforesaid at the end of the learned ASG isthat since the investigation was being carried out by the State Police, itproceeded to file the first report on 15.11.2019 before the SDJM, Ajnalawhere the appellants were first produced after their arrest. This accordingto the learned ASG has nothing to do with Section 167 of the CrPC. Thelearned ASG further pointed out that eventually the case was committedto the Court of Sessions and finally transferred to the Special Courtconstituted for NIA/UAPA. According to the learned ASG, it is not indispute that the cognizance was finally taken by the Special Court afterlooking into the sanctions accorded by the competent authorities.72. We do agree that the chargesheet could not have been filed inthe Court of the SDJM and the same should have been filed in theSpecial Court. Section 16 of the NIA Act empowers the Special Courtto take cognizance of any offence without the accused being committedto it for trial, upon receiving complaint of facts that constitute such anoffence or upon police report of such facts. However, the pristinequestion to consider is whether the unnecessary committal proceedingsby itself vitiated all further proceedings and thereby creating anindefeasible right in favour of the appellants to seek statutory/defaultbail under Section 167 of the CrPC? We are of the view that the erroron the part of the investigating agency in filing the chargesheet in theCourt of SDJM and thereafter, committing the case to the Court ofSessions has again nothing to do with Section 167 of the CrPC. Thisentire argument canvassed on behalf of the appellants can be put to restsolely on the ground that the application seeking default bail under Section167(2) of the CrPC read with Section 43D of the UAPA was filed beforethe Special Judge, NIA, Mohali, on 14.12.2020 and by that time, thechargesheet had already been filed and the proceedings were pending inthe court of Special Judge, CBI, Punjab, SAS Nagar, Mohali. It is not indispute that at the time when the Special Court took cognizance of theoffence the sanctions under the UAPA and the 1908 Act had alreadybeen granted.

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A73. Thus, we answer Issue No.2 holding that the error on the partof the investigating agency in filing chargesheet first before the Court ofMagistrate has nothing to do with the right of the accused to seek statutory/default bail under Section 167(2) of the CrPC. The committal proceedingsare not warranted, when it comes to prosecution under the UAPA bythe NIA by virtue of Section 16 of the NIA Act. This is because theBSpecial Court acts, as one of the original jurisdictions. By virtue of Section16 of the NIA Act, the Court need not follow the requirements of Section193 of the CrPC.

74. We have also looked into the case law relied upon by thelearned counsel appearing for the respective appellants in support ofCtheir submissions. However, it is not necessary for us to discuss eachone of the decisions relied upon as none of the decisions are of any availto the appellant. Each of the decisions are in the peculiar facts of thecase.

75. In view of the aforesaid discussion, both the appeals are liableDto be dismissed. However, before we proceed to pass the final order,there is one grey area in this litigation which we must look into and saysomething in that regard. Of course, this grey area has not been venturedinto by the learned counsel appearing for the appellants, but as highestCourt of the Country, we should not shut our eyes to the same.

EAN EYE-OPENER LITIGATION FOR THE NIA/STATEPOLICE

76. As is evident from the chronology of dates and events referredto in the earlier part of our judgment, the final report under Section 173(2)of the CrPC was filed in the Court of SDJM, Ajnala on 15.11.2019.F15.11.2019 was the 161[st] day from the date of arrest of two of theappellants before us, namely, Jasbir Singh and Varinder Singh. Theywere the first to be arrested on 08.06.2019. The Punjab Police appliedto the Court of the Additional Sessions Judge, Amritsar, for extension oftime to complete the investigation invoking the proviso to SectionG43D(2)(b) of the UAPA on 04.09.2019. When this application forextension of time was filed only two days were left for 90 days to expire.This is suggestive of the fact that the 91[st] day would have fallen on07.09.2019. What is important to highlight is that the Additional SessionsJudge, Amritsar, looked into the extension application dated 04.09.2019filed by the Punjab Police and ultimately, extended the time limit vide itsHorder dated 17.09.2019 i.e., on the 101[st] day. By the time, the AdditionalSessions Judge, Amritsar, passed an order extending the time, the periodof 90 days had already expired. Indisputably, there was no chargesheetbefore the Court on the 91[st] day i.e., on 07.09.2019. The reason why wesay that this is grey area is because what would have happened if theappellants Jasbir Singh and Varinder Singh had preferred an applicationseeking statutory/default bail under Section 167(2) of the CrPC on the91[st] day i.e., on 07.09.2019. The application seeking extension of timewas very much pending. The Additional Sessions Judge could not haveeven allowed such application promptly i.e., on or before the 90[th] daywithout giving notice to the accused persons. The law is now well settledin view of the decision of this Court in the case of Jigar alias JimmyPravinchandra Aditya v. State of Gujarat reported in 2022 SCC OnLineSC 1290 that an opportunity of hearing has to be given to the accusedpersons before the time is extended up to 180 days to complete theinvestigation. The only error or lapse on the part of the appellants Jasbirand Varinder Singh was that they failed to prefer an appropriateapplication seeking statutory/default bail on the 91[st] day. If such applicationwould have been filed, the court would have had no option but to releasethem on statutory/default bail. The Court could not have said that sincethe extension application was pending, it shall pass an appropriate orderonly after the extension application was decided. That again would havebeen something contrary to the well settled position of law. This litigationis an eye opener for the NIA as well as the State investigating agencythat if they want to seek extension, they must be careful that suchextension is not prayed for at the last moment.

77. The right to be released on default bail continues to remainenforceable if the accused has applied for such bail, notwithstandingpendency of the bail application or subsequent filing of the chargesheetor report seeking extension of time by the prosecution before the court.However, where the accused fails to apply for default bail when theright accrues to him, and subsequently chargesheet, or report seekingextension of time is preferred before the Magistrate or any othercompetent court, the right to default bail would be extinguished. Thecourt would be at liberty to take cognizance of the case or grant furthertime for completion of the investigation, as the case may be, though theaccused may still be released on bail under other provisions of the CrPC.

78. Our observations in paras 76 and 77 respectively as aboveare keeping in mind the decision of this Court rendered by three-Judge

ABC

ABench in the case of Sayed Mohd. Ahmad Kazmi v. State (Governmentof NCT of Delhi) and Others reported in (2012) 12 SCC 1, wherein inparas 25, 26 and 27 respectively, this Court observed as under:

“25. Having carefully considered the submissions made onbehalf of the respective parties, the relevant provisions ofBlaw and the decision cited, we are unable to accept thesubmissions advanced on behalf of the State by the learnedAdditional Solicitor General Mr Raval. There is no denyingthe fact that on 17-7-2012, when CR No. 86 of 2012 wasallowed by the Additional Sessions Judge and the custody ofthe appellant was held to be illegal and an application underCSection 167(2) CrPC was made on behalf of the appellantfor grant of statutory bail which was listed for hearing.Instead of hearing the application, the Chief MetropolitanMagistrate adjourned the same till the next day when thePublic Prosecutor filed an application for extension of theDperiod of custody and investigation and on 20-7-2012extended the time of investigation and the custody of theappellant for further period of 90 days with retrospectiveeffect from 2-6-2012. Not only is the retrospectivity of theorder of the Chief Metropolitan Magistrate untenable, it couldnot also defeat the statutory right which had accrued to theEappellant on the expiry of 90 days from the date when theappellant was taken into custody.Such right, as has beencommented upon by this Court in Sanjay Dutt [(1994) 5 SCC410 : 1994 SCC (Cri) 1433] and the other cases cited by thelearned Additional Solicitor General, could only beFdistinguished (sic extinguished) once the charge-sheet hadbeen filed in the case and no application has been made priorthereto for grant of statutory bail. It is well-established that ifan accused does not exercise his right to grant of statutory-bail before the chargesheet is filed, he loses his right to such-benefit once such chargesheet is filed and can, thereafter,Gonly apply for regular bail.

26. The circumstances in this case, however, are different inthat the appellant had exercised his right to statutory bail onthe very same day on which his custody was held to be illegaland such an application was left undecided by the Chief

Metropolitan Magistrate till after the application filed by theprosecution for extension of time to complete investigationwas taken up and orders were passed thereupon.

27. We are unable to appreciate the procedure adopted bythe Chief Metropolitan Magistrate, which has been endorsedby the High Court and we are of the view that the appellantacquired the right for grant of statutory bail on 17-7-2012,when his custody was held to be illegal by the AdditionalSessions Judge since his application for statutory bail waspending at the time when the application for extension oftime for continuing the investigation was filed by theprosecution. In our view, the right of the appellant to grantof statutory bail remained unaffected by the subsequentapplication and both the Chief Metropolitan Magistrate andthe High Court erred in holding otherwise.”

(Emphasis supplied)

79. In view of the aforesaid discussion, both the appeals fail andare hereby dismissed.

80. Pending application(s), if any, shall stand disposed of.

Nidhi Jain(Assisted by : Tamana, LCRA)

Appeals dismissed.