BIKRAMJIT SINGH versus THE STATE OF PUNJAB on 12 October 2020

[2020] 12 S.C.R. 875

BIKRAMJIT SINGH

v.

THE STATE OF PUNJAB

(Criminal Appeal No. 667 of 2020)

OCTOBER 12, 2020

[R. F. NARIMAN, NAVIN SINHA AND K. M. JOSEPH, JJ.]

Code of Criminal Procedure, 1973 – s. 167 – Penal Code,1860 – ss. 302, 307, 452, 427, 341, 34 – Arms Act, 1959 – s.25 –Explosive Substances Act, 1908 – ss. 3,4,5,6 – Unlawful Activities(Prevention) Act, 1967 – s. 13 – Default Bail – A hand grenade wasthrown on the stage of a public gathering – 22 persons were injuredseriously, out of which 3 persons died – An FIR was registered underthe provisions of IPC, Arms Act, Explosive Substances Act andUnlawful Activities (Prevention) Act, 1967 – Pursuant to this FIR,the appellant was apprehended and remanded to custody bySub-Divisional Magistrate – After 90 days in custody, which expiredon 21.02.2019, an application for default bail was made to theSub-Divisional Judicial Magistrate – This application was dismissedon 25.02.2019 on the ground that the Sub-Divisional JudicialMagistrate had, by an order dated 13.02.2019, already extendedtime from 90 days to 180 days u/s. 167 Cr.P.C. as amended by theUnlawful Activities (Prevention) Act, 1967 – Revision petition byappellant – The Special Court allowed the revision petition andheld that the Special designated Court was competent to pass anorder on any application moved u/s.45(D)(2) Unlawful Activities(Prevention) Act, 1967 – The Magistrate was not competent to passany order on any such application – On 26.03.2019, a charge-sheet was filed before the Special Judge, in which ss. 302, 307,452, 427, 341, 34 of IPC r/w. s.25 of the Arms Act, 1959, ss. 3,4,5,6of the Explosive Substances Act, 1908 and ss. 13, 16, 18, 18-B and20 of the Unlawful Activities (Prevention) Act, 1967 were invokedfor offences – The Special Judge refused to grant default bail u/s.167(2) Cr. P.C. – Later, another application for default bail wasfiled on 08.04.2019 and it was also dismissed – The High Courtheld that once the challan was presented by the prosecution on25.03.2019, as the application was filed next day i.e. 26.03.2019,the petitioner was not entitled to default bail – On appeal, held:

A

B

CDEFG

H

AThe High Court got the dates all wrong – The application that wasmade for default bail was made on or before 25.02.2019 and not26.03.2019 – The charge-sheet was filed on 26.03.2019 and not25.03.2019 – The fact that this application was wrongly dismissedon 25.02.2019 would make no difference and ought to have beencorrected in revision – The sole ground for dismissing the applicationBwas that the time of 90 days was extended by Sub- DivisionalMagistrate by order dated 13.02.2019 – This order was correctlyset aside by the Special Court by its judgment dated 25.03.2019,holding that under the UAPA read with the NIA Act, the SpecialCourt alone had jurisdiction to extend time to 180 days under theCfirst proviso in Section 43-D(2)(b) – The fact that another applicationwas filed for default bail on 08.04.2019, would not mean that it willwipe out the effect of earlier application, which was wronglydismissed – The right to default bail are not mere statutory rightsunder first proviso to s.167(2) of the Code, but is part of theprocedure established by law u/Art. 21 of the Constitution – ThisDbeing the case, the judgment of the High Court is set aside – Theappellant entitled to be released on ‘default bail’ u/s. 167 (2) of theCode, as amended by s. 43-D of the UAPA.

Allowing the appeal, the Court

Allowing the appeal, the Court

EHELD: 1. A conspectus of the various Supreme Courtdecisions would show that so long as an application for grant ofdefault bail is made on expiry of the period of 90 days (whichapplication need not even be in writing) before a charge sheet isfiled, the right to default bail becomes complete. It is of no momentthat the Criminal Court in question either does not dispose ofFsuch application before the charge sheet is filed or disposes ofsuch application wrongly before such charge sheet is filed. Solong as an application has been made for default bail on expiry ofthe stated period before time is further extended to the maximumperiod of 180 days, default bail, being an indefeasible right of theGaccused under the first proviso to Section 167(2), kicks in andmust be granted. [Para 28][913-A-C]

2. On the facts of the present case, the High Court waswholly incorrect in stating that once the challan was presented bythe prosecution on 25.03.2019 as an application was filed by theHAppellant on 26.03.2019, the Appellant is not entitled to default bail. First and foremost, the High Court has got the dates allwrong. The application that was made for default bail was madeon or before 25.02.2019 and not 26.03.2019. The charge sheetwas filed on 26.03.2019 and not 25.03.2019. The fact that thisapplication was wrongly dismissed on 25.02.2019 would make nodifference and ought to have been corrected in revision. The soleground for dismissing the application was that the time of 90 dayshad already been extended by the Sub-Divisional JudicialMagistrate by his order dated 13.02.2019. This Order wascorrectly set aside by the Special Court by its judgment dated25.03.2019, holding that under the UAPA read with the NIA Act,the Special Court alone had jurisdiction to extend time to 180days under the first proviso in Section 43-D(2)(b). The fact thatthe Appellant filed yet another application for default bail on08.04.2019, would not mean that this application would wipe outthe effect of the earlier application that had been wrongly decided.One must not forget that one is dealing with the personal libertyof an accused under a statute which imposes drastic punishments.The right to default bail, as has been correctly held by thejudgments of this Court, are not mere statutory rights under thefirst proviso to Section 167(2) of the Code, but is part of theprocedure established by law under Article 21 of the Constitutionof India, which is, therefore, a fundamental right granted to anaccused person to be released on bail once the conditions of thefirst proviso to Section 167(2) are fulfilled. This being the case,the judgment of the High Court is set aside. The Appellant willnow be entitled to be released on “default bail” under Section167(2) of the Code, as amended by Section 43-D of the UAPA.[Para 29][913-C-H; 914-A]

Sanjay Dutt v. State through CBI (1994) 5 SCC 410 :[1994] 3 Suppl. SCR 263 – followed.

Hitendra Vishnu Thakur v. State of Maharashtra (1994)4 SCC 602 : [1994] 1 Suppl. SCR 360; Uday MohanlalAcharya v. State of Maharashtra (2001) 5 SCC 453 :[2001] 2 SCR 878; Union of India v. Nirala Yadav(2014) 9 SCC 457 : [2014] 6 SCR 148; Rakesh KumarPaul v. State of Assam (2017) 15 SCC 67 : [2017] 8SCR 785; Syed Mohd. Ahmad Kazmi v. State (Govt. of AB

C

DE

F

G

H

878SUPREME COURT REPORTS

[2020] 12 S.C.R.

ANCT of Delhi (2012) 12 SCC 1 : [2012] 9 SCR 836 –relied on.

Pragya Singh Thakur v. State of Maharashtra (2011)10 SCC 445 : [2011] 14 SCR 617 – referred to.

CaseLawReference

B

DCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.667 of 2020.

From the Judgment and Order dated 30.10.2019 of the High Courtof Punjab and Haryana in CRM-M-19259-2019 (O&M).

Colin Gonsalves, Sr. Adv., Ms. Olivia Bang, R. Gopal, Satya Mitra,EMs. Jaspreet Gogia, Karanvir Gogia, Advs. for the appearing parties.

The Judgment of the Court was delivered by

R. F. NARIMAN, J.

1. Leave granted.F2. In an F.I.R dated 18.11.2018, involving Sections 302, 307, 452,427, 341, 34 of the Indian Penal Code read with Section 25 of the ArmsAct, 1959, Sections 3, 4, 5, 6 of the Explosive Substances Act, 1908 andSection 13 of the Unlawful Activities (Prevention) Act, 1967, it wasstated as follows:G

“I am a resident of above address and doing the business offurniture at Nehru Complex, Amritsar. I do my religious servicesin the Nirankari Bhawan at Rajasansi every Sunday. Today, i.e,on 18.11.2018, Satsang was going on at Satsang Bhawan, whereabout 200 Satsangis were present. At about 11.30 a.m., I alongHwith my companion Gagandeep Singh son of Balwinder Singh, resident of Gumtala, was doing the duty of a Security Guard onthe main gate, when two young boys came there on a PulsarMotor Cycle without number of Black shade. Out of them, onehad worn Jean and Jacket and was having turban on his head andhe has muffled his face with a cloth of check. He went inside andthe other young boy, who was wearing Kurta, Pyjama and Jacketand had muffled his face with a handkerchief, took out a Pistolfrom the fold of his Pyjama and made us to stand together nearthe Bathroom. The young boy who had gone inside the SatsangHall threw a Hand Grenade on the stage with his right hand. Anexplosion took place and the above-said young boy took out aPistol and ran towards the gate. Both the young men ran towardsVillage Adliwal on their Pulsar Motor Cycle. Due to Grenadeexplosion, about 22 persons from the Sangat sustained seriousinjuries. The other persons arranged conveyance and carried theinjured to IVY Hospital, Amritsar and Guru Nanak Dev Hospital,Amritsar, where Sukhdev Kumar son of Kans Raj, resident ofKohali, now resident of Mirankot, aged about 45 years, KuldeepSingh son of Joginder Singh, resident of Bagga and Sandeep Singhson of Amarjit Singh, resident of Ward No. 7, Rajasansi died inIVY Hospital, Amritsar. The above young men by throwing aHand Grenade on the Sangat, have injured 22 persons seriously,out of which three persons have died. Deterrent action be takenagainst the above-mentioned accused. I have heard my statement.It is correct.”

3. Pursuant to this F.I.R, the Punjab State Police apprehended theAppellant, one Bikramjit Singh, aged 26 years, on 22.11.2018, on whichdate he was remanded to custody by the learned Sub-DivisionalMagistrate. After 90 days in custody, which expired on 21.02.2019, anapplication for default bail was made to the Sub-Divisional JudicialMagistrate, Ajnala. This application was dismissed on 25.02.2019 on theground that the learned Sub-Divisional Judicial Magistrate had, by anorder dated 13.02.2019, already extended time from 90 days to 180 daysunder Section 167 of the Code of Criminal Procedure, 1973 (hereinafterreferred to as “the Code”) as amended by the Unlawful Activities(Prevention) Act, 1967 (hereinafter referred to as “UAPA”) – SeeSection 43-D(2). However, this Order was challenged by way of arevision petition by the Appellant and his co-accused, which revisionsucceeded by an order dated 25.03.2019, by which the learned Additional AB

C

D

E

F

G

H

ASessions Judge being the Special Court set up under the NationalInvestigation Agency Act, 2008 (hereinafter referred to as the “NIAAct”) held as follows:

“6. After hearing the Ld Counsel for revision petitioner and LdPP for State, I am of the view that since Ld PP has not controvertedBthe proposition of law, wherein it is provided that Ilaqa Magistratehas no jurisdiction to entertain any application for extension theperiod of investigation or granting bail u/s 167 (2) Cr.P.C in defaultof presentation of Challan u/s 45 D (2) Unlawful Activities(Prevention Act 1967) and in view of the Notification supra passedby Government of Punjab, to deal with the cases of unlawfulCactivities act, court of session or court of Additional Session Judge,in every district has been designated to try the said cases, so theapplication for seeking extension of time for filing challan was notmaintainable before Ilaqa magistrate.

7. Therefore, in view of the said notification as well as the caseDlaws referred by the Ld Counsel for revision petitioner, only thiscourt being special designated court was competent to pass anorder on any application moved u/s 45(D) (2) UnlawfulActivities(Prevention) Act 1967. It means, Ilaqa Magistrate wasnot competent to pass any order on any such application. In caseEthe same has been filed and passed i.e. without its jurisdiction. Sobecause of the said reason order passed by Ilaqa magistrate isnot sustainable in the eyes of law and the same is liable to be setaside by way of acceptance of this revision petition. Accordinglythis revision is allowed and order of Ilaqa magistrate dated13.02.2019 is set aside. Trial court record along with copy of thisForder be sent back to the Trial Court and file of this court beconsigned to record room.”

4. One day later, on 26.03.2019, a charge sheet was filed beforethe learned Special Judge after police investigation, in which Sections302, 307, 452, 427, 341, 34 of the Indian Penal Code read with SectionG25 of the Arms Act, 1959, Sections 3, 4, 5, 6 of the Explosive SubstancesAct, 1908 and Sections 13, 16, 18, 18-B and 20 of the Unlawful Activities(Prevention) Act, 1967 were invoked for offences that were committedpursuant to investigation of the FIR lodged on 18.11.2018. Meanwhile, arevision petition that was filed against the order dated 25.02.2019, wasHdismissed by the Special Judge on 11.04.2019 who, after noticing the order dated 25.03.2019 allowing the revision petition against the orderdated 13.02.2019 of the Judicial Magistrate, yet refused to grant defaultbail as follows:

“10. No doubt, vide gazette notification issued by Government ofPunjab on 10.06.2014, the Session Judge and first Additional SessionJudge at each District Head Quarters in the State are designatedas special court for the trial of offences of unlawful activities act.However, as per the local arrangement, all the cases pertaining tounlawful activities act are dealt in this court. So, being a specialcourt, this court is competent to directly receive the challan orpolice report under section 173 Cr PC. Since the challan has alreadybeen presented and in the judgement title das Abdul Aziz PV andOther vs National Investigation Agency 2015 (1) RCR (Criminal)239, it has been held that merely because certain facets of thematter called for further investigation, it does not deem such reportanything other than a final report, revisionist are not entitled tostatutory bail under section 167 (2)Cr PC.

xxx xxxxxx

12. Since Challan has already been presented, so revision petitionerhave lost their right for bail by way of default under section 167(2)Cr PC. Therefore there is no reason to interfere in the order ofIlaqa Magistrate passed under section 167 (2) Cr PC so this revisionpetition fails and is dismissed. Consign file to the record room.”

5. On the same day i.e. 11.04.2019, an application for default baildated 08.04.2019 was also dismissed. By the impugned judgment dated30.10.2019, the High Court, after setting out Section 167 of the Code ofCriminal Procedure, 1973 and some of the provisions of the UAPA andNIA Act, then arrived at the following conclusion:

“A joint interpretation of Section 167 (2) Cr.P.C. read with Section43 (d) UAP Act, Section 6, 13 & 22 of NIA Act would show thatin case the investigation is being carried out by the State police,the Magistrate will have power under Section 167 (2) Cr.P.C.read with Section 43 (a) of UAP Act to extend the period ofinvestigation upto 180 days and then, commit the case to the Courtof Sessions as per provisions of Section 209 Cr.P.C., whereas incase the investigation is conducted by the agency under the NIA

AB

C

D

E

F

G

H

AAct, the power shall be exercised by the Special Court and challanwill be presented by the agency before the Special Court.

xxx xxxxxx

It is not case of the petitioner that the investigation was conductedby the agency under Section 6 of the NIA Act and till committalBof the case to the Court of Sessions, as per Section 22 (3) of NIAAct, it cannot be said that the Magistrate has no power andtherefore, the order dated 25.03.2019 suffers from illegal infirmity.

The arguments raised by learned senior counsel for the petitionerthat the petitioner is entitled to default bail under Section 167 (2)CCr.P.C., in view of judgment of the Hon’ble Supreme Court inSanjay Dutt’s case(supra), is not available, once the challan waspresented by the prosecution on 25.03.2019, as the applicationwas filed by the petitioner on the next day i.e. 26.03.2019

The Judge, Exclusive Court has recorded a well reasoned findingDthat mere fact that sanction has not been granted so far, is noground to grant concession of bail, as it is rightly held that besidesthe offence committed under the UAP Act, the accused is alsofacing the trial for committing the offence under Sections 302,307, 452, 341, 427, 34 IPC read with Section 25/54/59 of ArmsEAct and Sections 3, 4, 5, & 6 of Explosive Act, for which nosanction is required to prosecute the petitioner.

For the reasons recorded above and in view of judgment of theHon’ble Supreme Court in Hitendra Vishnu Thakur vs. State ofMaharashtra, 1994 (3) RCR (Crl.) 156, finding no merit in theFpresent petition, the same is dismissed.”

6. Shri Colin Gonsalves, learned Senior Advocate appearing onbehalf of the Appellant, referred to both the enactments as aforesaid incopious detail and stressed the fact that once the Special Court hadbeen set up as an exclusive Court to try all offences under the UAPA,such offences being scheduled offences relatable to the NIA Act, it wasGthe Special Court alone which had exclusive jurisdiction to extend theperiod of 90 days to 180 days under Section 43-D (2)(b) of the UAPA.This being the case, on an application having been made prior to thefiling of the charge sheet for default bail, his contention was that theindefeasible right to default bail arose immediately after 21.02.2019, whenHthe 90 day period was over. An order that is passed without jurisdiction

by the learned Sub-Divisional Judicial Magistrate dated 13.02.2019, hadbeen corrected by the learned Additional Sessions Judge/Special Courtvide the order dated 25.03.2019, as a result of which his right to defaultbail sprung into action before filing of the charge sheet dated 26.03.2019.He, therefore, assailed the High Court judgment on both counts – Firstly,that the exclusive jurisdiction to extend time vested only in the SpecialCourt and not in the Ilaqa Magistrate, despite the fact that it was theState Police Agency that investigated these offences. Secondly, he alsoargued, relying upon a number of judgments, that the Appellant’s right todefault bail was not extinguished by the filing of the charge sheet dated26.03.2019, as was incorrectly held by the High Court.

7. Smt. Jaspreet Gogia, learned Advocate who appeared on behalfof the State of Punjab, also took us through the provisions of both theaforesaid enactments. She stressed in particular Section 10 of the NIAAct, stating that nothing in the said Act would affect the powers of theState Government to investigate and prosecute any scheduled offence.She also stressed the fact that the entire investigation was done only bythe State Police and not by the National Investigation Agency. This beingthe case, she argued that the Ilaqa Magistrate had jurisdiction to extendtime, and having so extended time on 13.02.2019, any application fordefault bail after the 90 day period was over i.e. after 21.02.2019 hadnecessarily to be dismissed. She also argued that the first application fordefault bail which was filed on or before 25.03.2019, had spent its force,having been dismissed, and that the application dated 08.04.2019 filedfor default bail was clearly after 26.03.2019, when the charge sheetwas filed and, therefore, was correctly dismissed by the order of thelearned Special Judge dated 11.04.2019.

8. Having heard learned counsel for the parties, it is important atthis stage to set out all the relevant provisions of the three enactmentsthat we are directly concerned with – the Code, UAPA and NIA Act.

9. It is important to note that the expression “Court” is not definedby the Code. On the other hand, Section 6 of the Code refers toclasses of Criminal Courts as follows:

“6. Classes of Criminal Courts.

Besides the High Courts and the Courts constituted under anylaw, other than this Code, there shall be, in every State, thefollowing classes of Criminal Courts, namely:

AB

C

D

E

F

G

H

A(i) Courts of Session;

(ii) Judicial Magistrates of the first class and, in any metropolitanarea, Metropolitan Magistrates;

(iii) Judicial Magistrates of the second class; and B(iv) Executive Magistrates.”

The Court of Sessions is then referred to as a Court that isestablished by the State Government under Section 9(1) of theCode for every Sessions Division.

10. Section 26 of the Code refers to Courts by which offencesCare triable. We are concerned directly with Section 26(b) which statesas follows:

“26. Courts by which offences are triable.

Subject to the other provisions of this Code, Dxxx xxxxxx (b) any offence under any other law shall, when any Court ismentioned in this behalf in such law, be tried by such Court andwhen no Court is so mentioned, may be tried by—

(i) the High Court, or

E

(ii) any other Court by which such offence is shown in theFirst Schedule to be triable.”

11. Section 167 of the Code makes it clear that whenever a personis arrested and detained in custody, the time for investigation relating toFan offence punishable with death, imprisonment for life or imprisonmentfor a term of not less than 10 years, cannot ordinarily be beyond theperiod of 15 days, but is extendable, on the Magistrate being satisfiedthat adequate grounds exist for so doing, to a maximum period of 90days – See first proviso (a)(i) to Section 167(2) of the Code. The saidproviso goes on to state that the accused person shallbe released on bailGif he is prepared to and does furnish bail on expiry of the maximumperiod of 90 days, and every person so released on bail be deemed to beso released under the provisions of Chapter XXXIII for the purposes ofthat Chapter.

12. The First Schedule to the Code then sets out at the fag end, inHPart II thereof, classification of offences against other laws as follows:

BIKRAMJIT SINGH v. THE STATE OF PUNJAB

[R. F. NARIMAN, J. ]

THE FIRST SCHEDULE

A

CLASSIFICATION OF OFFENCES

II.—CLASSIFICATION OF OFFENCES AGAINST OTHER

LAWS

13. The UAPA deals with “unlawful activity” and “unlawfulassociation”, and interdicts both unlawful activity and unlawful associationas defined under Sections 2(o) and 2(p). It further defines what areterrorist acts, terrorist gangs and terrorists organisations under Section2(k), 2(l) and 2(m) and proscribes each of these in offences which arethan fleshed out under its provisions. What is important from our point ofview in this case is the definition of “Court” in Section 2(1)(d) of UAPAwhich is as follows:

E

F

xxx xxxxxx

(d) “court” means a criminal court having jurisdiction, under theCode, to try offences under this Act and includes a Special Courtconstituted under section 11 or under section 21 of the NationalInvestigation Agency Act, 2008"

G

Equally important is the provision contained in Section 43-D(2) ofUAPA, which is set out as follows:

H

A

“43-D. Modified application of certain provisions of theCode.

xxx xxxxxx

(2) Section 167 of the Code shall apply in relation to a case involvingan offence punishable under this Act subject to the modificationBthat in sub-section (2),- (a) the references to “fifteen days”, “ninety days” and “sixtydays”, wherever they occur, shall be construed as referencesto “thirty days”, “ninety days” and “ninety days” respectively;and C

(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 CourtDmay 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 onehundred and eighty days:

Provided also that if the police officer making theinvestigation under this Act, requests, for the purposes ofinvestigation, for police custody from judicial custody ofany person in judicial custody, he shall file an affidavit statingthe reasons for doing so and shall also explain the delay, if E

any, for requesting such police custody.””F

14. A cursory reading of these provisions would show that theoffences under the UAPA under Sections 16, 17, 18, 18-A, 18-B, 19, 20,22-B, 22-C and 23, being offences which contain maximum sentencesof over 7 years, would be exclusively triable by a Court of Sessionswhen read with Part II of the First Schedule to the Code. It is only afterGthe NIA Act was enacted that the definition of “Court” was extended toinclude Special Courts that were set up under Section 11 or Section 22of the NIA Act.

15. When we come to the NIA Act, the Preamble of the said Actindicates the thrust of the provisions of that Act as follows:

H

“An Act to constitute an investigation agency at the nationallevel to investigate and prosecute offences affecting thesovereignty, security and integrity of India, security of State,friendly relations with foreign States and offences under Actsenacted to implement international treaties, agreements,conventions and resolutions of the United Nations, its agenciesand other international organisations and for matters connectedtherewith or incidental thereto.”

Under Section 2(g) “Scheduled Offence” is defined as follows:

xxx xxxxxx

(g) “Scheduled Offence” means an offence specified in theSchedule””

Section 2(h) defines “Special Court” as follows:

“2. Definitions.-(1) In this Act, unless the context otherwiserequires,-

xxx xxxxxx

(h) “Special Court” means a Special Court constituted undersection 11 or, as the case may be, under section 22"

16. Section 3 constitutes a National Investigation Agency whichis a special agency set up for prosecution of offences under the Actsspecified in the Schedule by the Central Government. It may be notedthat the UAPA is Item 2 of the said Schedule. Section 10, upon whichstrong reliance is placed by the State, is as follows:

“10. Power of State Government to investigate ScheduledOffences.—Save as otherwise provided in this Act, nothingcontained in this Act shall affect the powers of the StateGovernment to investigate and prosecute any Scheduled Offenceor other offences under any law for the time being in force”

Sections 11 and 22 which speak of the power of the CentralGovernment and the State Government respectively, to designate Courtsof Sessions as Special Courts, are as follows:

A

B

C

D

E

F

G

H

A“11. Power of Central Government to constitute SpecialCourts.—

(1) The Central Government shall, by notification in the OfficialGazette, for the trial of Scheduled Offences, constitute one ormore Special Courts for such area or areas, or for such case orBclass or group of cases, as may be specified in the notification.

(2) Where any question arises as to the jurisdiction of any SpecialCourt, it shall be referred to the Central Government whosedecision in the matter shall be final.

(3) A Special Court shall be presided over by a judge to be appointedCby the Central Government on the recommendation of the ChiefJustice of the High Court.

(4) The Agency may make an application to the Chief Justice ofthe High Court for appointment of a Judge to preside over theSpecial Court.

D

(5) On receipt of an application under sub-section (4), the ChiefJustice shall, as soon as possible and not later than seven days,recommend the name of a judge for being appointed to presideover the Special Court.

(6) The Central Government may, if required, appoint an additionalEjudge or additional judges to the Special Court, on therecommendation of the Chief Justice of the High Court.

(7) A person shall not be qualified for appointment as a judge oran additional judge of a Special Court unless he is, immediatelybefore such appointment, a Sessions Judge or an AdditionalFSessions Judge in any State.

(8) For the removal of doubts, it is hereby provided that theattainment, by a person appointed as a judge or an additional judgeof a Special Court, of the age of superannuation under the rulesapplicable to him in the service to which he belongs shall not affectGhis continuance as such judge or additional judge and the CentralGovernment may by order direct that he shall continue as judgeuntil a specified date or until completion of the trial of the case orcases before him as may be specified in that order.

H

(9) Where any additional judge or additional judges is or areappointed in a Special Court, the judge of the Special Court may,from time to time, by general or special order, in writing, providefor the distribution of business of the Special Court among alljudges including himself and the additional judge or additional judgesand also for the disposal of urgent business in the event of hisabsence or the absence of any additional judge.

22. Power of State Government to constitute SpecialCourts.—

(1) The State Government may constitute one or more SpecialCourts for the trial of offences under any or all the enactmentsspecified in the Schedule.

(2) The provisions of this Chapter shall apply to the Special Courtsconstituted by the State Government under sub-section (1) andshall have effect subject to the following modifications, namely—

(i) references to “Central Government” in sections 11 and 15 shallbe construed as references to State Government;

(ii) reference to “Agency” in sub-section (1) of section 13 shallbe construed as a reference to the “investigation agency of theState Government”;

(iii) reference to “Attorney-General for India” in sub-section (3)of section 13 shall be construed as reference to “Advocate-Generalof the State”.

(3) The jurisdiction conferred by this Act on a Special Court shall,until a Special Court is constituted by the State Government undersub-section (1) in the case of any offence punishable under thisAct, notwithstanding anything contained in the Code, be exercisedby the Court of Session of the division in which such offence hasbeen committed and it shall have all the powers and follow theprocedure provided under this Chapter.

(4) On and from the date when the Special Court is constituted bythe State Government the trial of any offence investigated by theState Government under the provisions of this Act, which wouldhave been required to be held before the Special Court, shall standtransferred to that Court on the date on which it is constituted.”

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

Section 13 speaks of the jurisdiction of the Special Courts asfollows:

“13. Jurisdiction of Special Courts.—

(1) Notwithstanding anything contained in the Code, everyScheduled Offence investigated by the Agency shall be triedonly by the Special Court within whose local jurisdiction it wascommitted.

(2) If, having regard to the exigencies of the situation prevailingin a State if,—

(a) it is not possible to have a fair, impartial or speedy trial; or (b) it is not feasible to have the trial without occasioning thebreach of peace or grave risk to the safety of the accused, thewitnesses, the Public Prosecutor or a judge of the Special Courtor any of them; or

(c) it is not otherwise in the interests of justice, the SupremeCourt may transfer any case pending before a Special Courtto any other Special Court within that State or in any otherState and the High Court may transfer any case pending beforea Special Court situated in that State to any other Special Courtwithin the State.

(3) The Supreme Court or the High Court, as the case may be,may act under this section either on the application of the CentralGovernment or a party interested and any such applicationshall be made by motion, which shall, except when the applicantis the Attorney-General for India, be supported by an affidavitor affirmation.”

Section 14 clarifies that Special Courts may also try offencesother than the scheduled offences as follows:

“14. Powers of Special Courts with respect to otheroffences.—

(1) When trying any offence, a Special Court may also try anyother offence with which the accused may, under the Code becharged, at the same trial if the offence is connected withsuch other offence.

(2) If, in the course of any trial under this Act of any offence,it is found that the accused person has committed any otheroffence under this Act or under any other law, the SpecialCourt may convict such person of such other offence and passany sentence or award punishment authorised by this Act or,as the case may be, under such other law.”

Section 16 is important and sets out the procedure and powers ofSpecial Courts as follows:

“—16. Procedure and powers of Special Courts.

(1) A Special Court may take cognizance of any offence, withoutthe accused being committed to it for trial, upon receiving acomplaint of facts that constitute such offence or upon a policereport of such facts.

(2) Where an offence triable by a Special Court is punishablewith imprisonment for a term not exceeding three years or withfine or with both, the Special Court may, notwithstanding anythingcontained in sub-section (1) of section 260 or section 262 of theCode, try the offence in a summary way in accordance with theprocedure prescribed in the Code and the provisions of sections263 to 265 of the Code shall, so far as may be, apply to such trial:

Provided that when, in the course of a summary trial under thissub-section, it appears to the Special Court that the nature of thecase is such that it is not desirable to try it in a summary way, theSpecial Court shall recall any witnesses who may have beenexamined and proceed to re-hear the case in the manner providedby the provisions of the Code for the trial of such offence and thesaid provisions shall apply to, and in relation to, a Special Court asthey apply to and in relation to a Magistrate:

Provided further that in the case of any conviction in a summarytrial under this section, it shall be lawful for a Special Court topass a sentence of imprisonment for a term not exceeding oneyear and with fine which may extend to five lakh rupees.

(3) Subject to the other provisions of this Act, a Special Courtshall, for the purpose of trial of any offence, have all the powersof a Court of Session and shall try such offence as if it were aCourt of Session so far as may be in accordance with the procedureprescribed in the Code for the trial before a Court of Session.

A

B

C

D

E

F

G

H

A(4) Subject to the other provisions of this Act, every case transferredto a Special Court under sub-section (2) of section 13 shall bedealt with as if such case had been transferred under section 406of the Code to such Special Court.

(5) Notwithstanding anything contained in the Code, but subjectBto the provisions of section 299 of the Code, a Special Court may,if it thinks fit and for reasons to be recorded by it, proceed withthe trial in the absence of the accused or his pleader and recordthe evidence of any witness, subject to the right of the accused torecall the witness for cross-examination.”

C17. The Scheme of the NIA Act is that offences under theenactments contained to the Schedule to the Act are now to be triedexclusively by Special Courts set up under that Act. These may be setup by the Central Government under Section 11 or by the StateGovernment under Section 22 of the Act. On the facts of the presentcase, we are concerned with Section 22 as Special Courts have beenDset up within the State of Punjab by a notification dated 10.06.2014,which reads as follows:

“PART III

GOVERNMENT OF PUNJAB

EDEPARTMENT OF HOME AFFAIRS AND JUSTICE

(JUDICIAL-1 BRANCH)

NOTIFICATION

The 10th June, 2014

F

No. S.O. 141/C.A.34/2008/S.22/2014.-In exercise of thepowers conferred under sub-section(1) of section 22 of theNational Investigation Agency Act, 2008 (Central Act No. 34 of2008), and all other powers enablinghim in this behalf, the Governorof Punjab, with the concurrence of Hon’ble Chief Justice of theGHigh Court 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 be theSpecial Courts, for the trial of offences as specified in the Scheduleappended to the aforesaid Act, which are investigated by the StateHpolice.”

18. It will be seen that the aforesaid notification has been issuedunder Section 22(1) of the NIA Act. What is important to note is thatunder Section 22(2)(ii), reference to the Central Agency in Section 13(1)is to be construed as a reference to the investigation agency of the StateGovernment – namely, the State police in this case. Thereafter, what isimportant to note is that notwithstanding anything contained in the Code,the jurisdiction conferred on a Special Court shall, until a Special Courtis designated by the State Government, be exercised only by the Courtof Sessions of the Division in which such offence has been committedvide sub-section (3) of Section 22; and by sub-section (4) of Section 22,on and from the date on which the Special Court is designated by theState Government, the trial of any offence investigated by the StateGovernment under the provisions of the NIA Act shall stand transferredto that Court on and from the date on which it is designated.

19. Section 13(1) of the NIA Act, which again begins with a non-obstante clause which is notwithstanding anything contained in the Code,read with Section 22(2)(ii), states that every scheduled offence that isinvestigated by the investigation agency of the State Government is tobe tried exclusively by the Special Court within whose local jurisdictionit was committed.

20. When these provisions are read along with Section 2(1)(d)and the provisos in 43-D(2) of the UAPA, the Scheme of the two Acts,which are to be read together, becomes crystal clear. Under the firstproviso in Section 43-D(2)(b), the 90 day period indicated by the firstproviso to Section 167(2) of the Code can be extended up to a maximumperiod of 180 days if “the Court” is satisfied with the report of the publicprosecutor indicating progress of investigation and specific reasons fordetention of the accused beyond the period of 90 days. “The Court”,when read with the extended definition contained in Section 2(1)(d) ofthe UAPA, now speaks of the Special Court constituted under Section22 of the NIA Act. What becomes clear, therefore, from a reading ofthese provisions is that for alloffences under the UAPA, the SpecialCourt alone has exclusive jurisdiction to try such offences. This becomeseven clearer on a reading of Section 16 of the NIA Act which makes itclear that the Special Court may take cognizance of an offence withoutthe accused being committed to it for trial upon receipt of a complaint offacts or upon a police report of such facts. What is equally clear from areading of Section 16(2) of the NIA Act is that even though offences AB

C

D

EF

G

H

Amay be punishable with imprisonment for a term not exceeding 3 years,the Special Court alone is to try such offence – albeit in a summary wayif it thinks it fit to do so. On a conspectus of the abovementionedprovisions, Section 13 read with Section 22(2)(ii) of the NIA Act, inparticular, the argument of the learned counsel appearing on behalf ofthe State of Punjab based on Section 10 of the said Act has no legs toBstand on since the Special Court has exclusive jurisdiction over everyScheduled Offence investigated by the investigating agency of the State.21. Before the NIA Act was enacted, offences under the UAPAwere of two kinds – those with a maximum imprisonment of over 7years, and those with a maximum imprisonment of 7 years and under.CUnder the Code as applicable to offences against other laws, offenceshaving a maximum sentence of 7 years and under are triable by theMagistrate’s Courts, whereas offences having a maximum sentence ofabove 7 years are triable by Courts of Sessions. This Scheme has beencompletely done away with by the 2008 Act as allscheduled offencesDi.e. all offences under the UAPA, whether investigated by the NationalInvestigation Agency or by the investigating agencies of the StateGovernment, are to be tried exclusively by Special Courts set up underthat Act. In the absence of any designated Court by notification issuedby either the Central Government or the State Government, the fall backis upon the Court of Sessions alone. Thus, under the aforesaid SchemeEwhat becomes clear is that so far as all offences under the UAPA areconcerned, the Magistrate’s jurisdiction to extend time under the firstproviso in Section 43-D(2)(b) is non-existent, “the Court” being either aSessions Court, in the absence of a notification specifying a SpecialCourt, or the Special Court itself. The impugned judgment in arriving at Fthe contrary conclusion is incorrect as it has missed Section 22(2) readwith Section 13 of the NIA Act. Also, the impugned judgement hasmissed Section 16(1) of the NIA Act which states that a Special Courtmay take cognizance of any offence without the accused being committedto it for trial inter alia upon a police report of such facts.

G22. The second vexed question which arises on the facts of thiscase is the question of grant of default bail. It has already been seen thatonce the maximum period for investigation of an offence is over, underthe first proviso (a) to Section 167(2), the accused shallbe released onbail, this being an indefeasible right granted by the Code. The extent ofthis indefeasible right has been the subject matter of a number ofH

judgments. A beginning may be made with the judgment in HitendraVishnu Thakur v. State of Maharashtra (1994) 4 SCC 602, whichspoke of “default bail” under the provisions of the Terrorist and DisruptiveActivities (Prevention) Act, 1987 (hereinafter referred to as “TADA”)read with Section 167 of the Code as follows:

“19. Section 20(4) of TADA makes Section 167 of CrPC applicablein relation to case involving an offence punishable under TADA,subject to the modifications specified therein…while clause (b)provided that reference in sub-section (2) of Section 167 to ‘15days’, ‘90 days’ and ‘60 days’ wherever they occur shall beconstrued as reference to ‘60 days’, ‘one year’ and ‘one year’respectively. This section was amended in 1993 by the AmendmentAct 43 of 1993 with effect from 22-5-1993 and the period of ‘oneyear’ and ‘one year’ in clause (b) was reduced to ‘180 days’ and‘180 days’ respectively, by modification of sub-section (2) ofSection 167. After clause (b) of sub-section (4) of Section 20 ofTADA, another clause (bb) was inserted which reads:

“(bb) in sub-section (2), after the proviso, the following provisoshall be inserted, namely:—

‘Provided further that, if it is not possible to complete theinvestigation within the said period of one hundred and eighty days,the Designated Court shall extend the said period up to one year,on the report of the Public Prosecutor indicating the progress ofthe investigation and the specific reasons for the detention of theaccused beyond the said period of one hundred and eighty days;and’ ’’

20. …Sub-section (2) of Section 167 of the Code lays down thatthe Magistrate to whom the accused is forwarded may authorisehis detention in such custody, as he may think fit, for a termspecified in that section. The proviso to sub-section (2) fixes theouter limit within which the investigation must be completed andin case the same is not completed within the said prescribed period,the accused would acquire a right to seek to be released on bailand if he is prepared to and does furnish bail, the Magistrateshall release him on bail and such release shall be deemed to begrant of bail under Chapter XXXIII of the Code of CriminalProcedure…Section 167 read with Section 20(4) of TADA, thus, A

BC

D

E

F

G

H

A

B

C

D

E

F

G

H

A

BC

D

E

F

G

H

A

B

C

D

E

F

G

H

strictly speaking is not a provision for “grant of bail” but dealswith the maximum period during which a person accused of anoffence may be kept in custody and detention to enable theinvestigating agency to complete the investigation and file thecharge-sheet, if necessary, in the court. The proviso to Section167(2) of the Code read with Section 20(4)(b) of TADA, therefore,creates an indefeasible right in an accused person on account ofthe ‘default’ by the investigating agency in the completion of theinvestigation within the maximum period prescribed or extended,as the case may be, to seek an order for his release on bail. It isfor this reason that an order for release on bail under proviso (a)of Section 167(2) of the Code read with Section 20(4) of TADAis generally termed as an “order-on-default” as it is granted onaccount of the default of the prosecution to complete theinvestigation and file the challan within the prescribed period. Asa consequence of the amendment, an accused after the expiry of180 days from the date of his arrest becomes entitled to bailirrespective of the nature of the offence with which he is chargedwhere the prosecution fails to put up challan against him oncompletion of the investigation. With the amendment of clause(b) of sub-section (4) of Section 20 read with the proviso to sub-section (2) of Section 167 of CrPC an indefeasible right to beenlarged on bail accrues in favour of the accused if the policefails to complete the investigation and put up a challan against himin accordance with law under Section 173 CrPC. An obligation, insuch a case, is cast upon the court, when after the expiry of themaximum period during which an accused could be kept in custody,to decline the police request for further remand except in casesgoverned by clause (bb) of Section 20(4). There is yet anotherobligation also which is cast on the court and that is to inform theaccused of his right of being released on bail and enable him tomake an application in that behalf. (Hussainara Khatooncase [Hussainara Khatoon v. Home Secy., State of Bihar,(1980) 1 SCC 98 : 1980 SCC (Cri) 40 : AIR 1979 SC 1369] ). Thislegal position has been very ably stated in Aslam BabalalDesai v. State of Maharashtra [(1992) 4 SCC 272 : 1992 SCC(Cri) 870 : AIR 1993 SC 1] where speaking for the majority,Ahmadi, J. referred with approval to the law laid downin Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau, New Delhi [(1989) 3 SCC 532 : 1989 SCC (Cri)612 : AIR 1990 SC 71] wherein it was held that : (SCC p. 288,para 9)

“The right to bail under Section 167(2) proviso (a) thereto isabsolute. It is a legislative command and not court’s discretion.If the investigating agency fails to file charge-sheet before theexpiry of 90/60 days, as the case may be, the accused in custodyshould be released on bail. But at that stage, merits of the caseare not to be examined. Not at all. In fact, the Magistrate hasno power to remand a person beyond the stipulated period of90/60 days. He must pass an order of bail and communicatethe same to the accused to furnish the requisite bail bonds.”

21. Thus, we find that once the period for filing the charge-sheethas expired and either no extension under clause (bb) has beengranted by the Designated Court or the period of extension hasalso expired, the accused person would be entitled to move anapplication for being admitted to bail under sub-section (4) ofSection 20 TADA read with Section 167 of the Code and theDesignated Court shall release him on bail, if the accused seeksto be so released and furnishes the requisite bail. We are notimpressed with the argument of the learned counsel for theappellant that on the expiry of the period during which investigationis required to be completed under Section 20(4) TADA read withSection 167 of the Code, the court must release the accused onbail on its own motion even without any application from anaccused person on his offering to furnish bail. In our opinion anaccused is required to make an application if he wishes to bereleased on bail on account of the ‘default’ of the investigating/prosecuting agency and once such an application is made, thecourt should issue a notice to the public prosecutor who may eithershow that the prosecution has obtained the order for extensionfor completion of investigation from the court under clause (bb)or that the challan has been filed in the Designated Court beforethe expiry of the prescribed period or even that the prescribedperiod has actually not expired and thus resist the grant of bail onthe alleged ground of ‘default’. The issuance of notice would avoidthe possibility of an accused obtaining an order of bail under the‘default’ clause by either deliberately or inadvertently concealing AB

C

D

E

F

G

H

A

Acertain facts and would avoid multiplicity of proceedings. It would,therefore, serve the ends of justice if both sides are heard on apetition for grant of bail on account of the prosecution’s ‘default’…No other condition like the gravity of the case, seriousness of theoffence or character of the offender etc. can weigh with the courtat that stage to refuse the grant of bail to an accused under sub-Bsection (4) of Section 20 TADA on account of the ‘default’ of theprosecution.”

23. In the Constitution Bench judgment in Sanjay Dutt v. Statethrough CBI (1994) 5 SCC 410, one of the questions to be decided bythe Constitution Bench was the correct interpretation of Section 20(4)(bb)Cof TADA indicating the nature of right of an accused to be released ondefault bail. The enigmatic expression “if already not availed of” iscontained in paragraphs 48 of the aforesaid judgment as follows:

“48. We have no doubt that the common stance before us of thenature of indefeasible right of the accused to be released on bailDby virtue of Section 20(4)(bb) is based on a correct reading of theprinciple indicated in that decision. The indefeasible right accruingto the accused in such a situation is enforceable only prior to thefiling of the challan and it does not survive or remain enforceableon the challan being filed, if already not availed of. Once the challanEhas been filed, the question of grant of bail has to be consideredand decided only with reference to the merits of the case underthe provisions relating to grant of bail to an accused after thefiling of the challan. The custody of the accused after the challanhas been filed is not governed by Section 167 but differentprovisions of the Code of Criminal Procedure. If that right hadFaccrued to the accused but it remained unenforced till the filing ofthe challan, then there is no question of its enforcement thereaftersince it is extinguished the moment challan is filed because Section167 CrPC ceases to apply. The Division Bench also indicatedthat if there be such an application of the accused for release onGbail and also a prayer for extension of time to complete theinvestigation according to the proviso in Section 20(4)(bb), bothof them should be considered together. It is obvious that no bailcan be given even in such a case unless the prayer for extensionof the period is rejected. In short, the grant of bail in such a situationis also subject to refusal of the prayer for extension of time, ifH

such a prayer is made. If the accused applies for bail under thisprovision on expiry of the period of 180 days or the extendedperiod, as the case may be, then he has to be released on bailforthwith. The accused, so released on bail may be arrested andcommitted to custody according to the provisions of the Code ofCriminal Procedure. It is settled by Constitution Bench decisionsthat a petition seeking the writ of habeas corpus on the groundof absence of a valid order of remand or detention of the accused,has to be dismissed, if on the date of return of the rule, the custodyor detention is on the basis of a valid order. (See Naranjan SinghNathawan v. State of Punjab [1952 SCR 395 : AIR 1952 SC106 : 1952 Cri LJ 656] ; Ram Narayan Singh v. State ofDelhi [1953 SCR 652 : AIR 1953 SC 277 : 1953 Cri LJ 1113]and A.K. Gopalan v. Government of India [(1966) 2 SCR 427 :AIR 1966 SC 816 : 1966 Cri LJ 602].)

xxx xxxxxx

53. As a result of the above discussion, our answers to the threequestions of law referred for our decision are as under:

xxx xxxxxx

(2) (b) The “indefeasible right” of the accused to be released onbail in accordance with Section 20(4)(bb) of the TADA Act readwith Section 167(2) of the Code of Criminal Procedure in defaultof completion of the investigation and filing of the challan withinthe time allowed, as held in Hitendra Vishnu Thakur [(1994) 4SCC 602 : 1994 SCC (Cri) 1087 : JT (1994) 4 SC 255] is a rightwhich enures to, and is enforceable by the accused only from thetime of default till the filing of the challan and it does not surviveor remain enforceable on the challan being filed. If the accusedapplies for bail under this provision on expiry of the period of 180days or the extended period, as the case may be, then he has tobe released on bail forthwith. The accused, so released on bailmay be arrested and committed to custody according to theprovisions of the Code of Criminal Procedure. The right of theaccused to be released on bail after filing of the challan,notwithstanding the default in filing it within the time allowed, isgoverned from the time of filing of the challan only by theprovisions relating to the grant of bail applicable at that stage.”

[Emphasis Supplied]

AB

C

D

EF

G

H

A

A24. The question as to whether default bail can be granted once acharge sheet is filed was authoritatively dealt with in a decision of aThree-Judge Bench of this Court in Uday Mohanlal Acharya v. Stateof Maharashtra (2001) 5 SCC 453. The majority judgment of G.B.Pattanaik, J. reviewed the decisions of this Court and in particular theenigmatic expression “if already not availed of” in Sanjay Dutt (supra).BThe Court then held:

“13.…The crucial question that arises for consideration, therefore,is what is the true meaning of the expression “if already not availedof”? Does it mean that an accused files an application for bail andoffers his willingness for being released on bail or does it meanthat a bail order must be passed, the accused must furnish the bailand get him released on bail? In our considered opinion it wouldbe more in consonance with the legislative mandate to hold thatan accused must be held to have availed of his indefeasible right,the moment he files an application for being released on bail andoffers to abide by the terms and conditions of bail. To interpret C

D

the expression “availed of” to mean actually being released onbail after furnishing the necessary bail required would cause greatinjustice to the accused and would defeat the very purpose of theproviso to Section 167(2) of the Criminal Procedure Code andfurther would make an illegal custody to be legal, inasmuch asEafter the expiry of the stipulated period the Magistrate had nofurther jurisdiction to remand and such custody of the accused iswithout any valid order of remand. That apart, when an accusedfiles an application for bail indicating his right to be released as nochallan had been filed within the specified period, there is noFdiscretion left in the Magistrate and the only thing he is requiredto find out is whether the specified period under the statute haselapsed or not, and whether a challan has been filed or not. If theexpression “availed of” is interpreted to mean that the accusedmust factually be released on bail, then in a given case where theMagistrate illegally refuses to pass an order notwithstanding theGmaximum period stipulated in Section 167 had expired, and yet nochallan had been filed then the accused could only move to thehigher forum and while the matter remains pending in the higherforum for consideration, if the prosecution files a charge-sheetthen also the so-called right accruing to the accused because ofHinaction on the part of the investigating agency would get frustrated.

H

H

Since the legislature has given its mandate it would be the boundenduty of the court to enforce the same and it would not be in theinterest of justice to negate the same by interpreting the expression“if not availed of” in a manner which is capable of being abusedby the prosecution. A two-Judge Bench decision of this Courtin State of M.P. v. Rustam [1995 Supp (3) SCC 221 : 1995 SCC(Cri) 830] setting aside the order of grant of bail by the HighCourt on a conclusion that on the date of the order the prosecutionhad already submitted a police report and, therefore, the rightstood extinguished, in our considered opinion, does not expressthe correct position in law of the expression “if already not availedof”, used by the Constitution Bench in Sanjay Dutt [(1994) 5 SCC410 : 1994 SCC (Cri) 1433]…In the aforesaid premises, we areof the considered opinion that an accused must be held to haveavailed of his right flowing from the legislative mandate engraftedin the proviso to sub-section (2) of Section 167 of the Code if hehas filed an application after the expiry of the stipulated periodalleging that no challan has been filed and he is prepared to offerthe bail that is ordered, and it is found as a fact that no challan hasbeen filed within the period prescribed from the date of the arrestof the accused. In our view, such interpretation would subservethe purpose and the object for which the provision in questionwas brought on to the statute-book. In such a case, therefore,even if the application for consideration of an order of beingreleased on bail is posted before the court after some length oftime, or even if the Magistrate refuses the application erroneouslyand the accused moves the higher forum for getting a formalorder of being released on bail in enforcement of his indefeasibleright, then filing of challan at that stage will not take away theright of the accused. Personal liberty is one of the cherished objectsof the Indian Constitution and deprivation of the same can only bein accordance with law and in conformity with the provisionsthereof, as stipulated under Article 21 of the Constitution. Whenthe law provides that the Magistrate could authorise the detentionof the accused in custody up to a maximum period as indicated inthe proviso to sub-section (2) of Section 167, any further detentionbeyond the period without filing of a challan by the investigatingagency would be a subterfuge and would not be in accordancewith law and in conformity with the provisions of the Criminal AB

C

D

E

F

G

H

A

B

C

D

E

F

G

H

Procedure Code, and as such, could be violative of Article 21 ofthe Constitution. There is no provision in the Criminal ProcedureCode authorising detention of an accused in custody after theexpiry of the period indicated in proviso to sub-section (2) of Section167 excepting the contingency indicated in Explanation I, namely,if the accused does not furnish the bail…But so long as the accusedfiles an application and indicates in the application to offer bail onbeing released by appropriate orders of the court then the right ofthe accused on being released on bail cannot be frustrated on theoff chance of the Magistrate not being available and the matternot being moved, or that the Magistrate erroneously refuses topass an order and the matter is moved to the higher forum and achallan is filed in interregnum. This is the only way how a balancecan be struck between the so-called indefeasible right of theaccused on failure on the part of the prosecution to file a challanwithin the specified period and the interest of the society, at large,in lawfully preventing an accused from being released on bail onaccount of inaction on the part of the prosecuting agency. On theaforesaid premises, we would record our conclusions as follows:

xxx xxxxxx

xxx xxxxxx

3. On the expiry of the said period of 90 days or 60 days, asthe case may be, an indefeasible right accrues in favour of theaccused for being released on bail on account of default by theinvestigating agency in the completion of the investigation withinthe period prescribed and the accused is entitled to be releasedon bail, if he is prepared to and furnishes the bail as directed bythe Magistrate.

xxx xxxxxx

6. The expression “if not already availed of” used by this Courtin Sanjay Dutt case [(1994) 5 SCC 410 : 1994 SCC (Cri)1433] must be understood to mean when the accused files anapplication and is prepared to offer bail on being directed. Inother words, on expiry of the period specified in para (a) ofthe proviso to sub-section (2) of Section 167 if the accusedfiles an application for bail and offers also to furnish the bail onbeing directed, then it has to be held that the accused has availedof his indefeasible right even though the court has notconsidered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished thesame.”

[Emphasis Supplied]

B.N. Agrawal J. dissented, holding:

“29. My learned brother has referred to the expression “if notalready availed of” referred to in the judgment in Sanjay Duttcase [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] for arriving atConclusion 6. According to me, the expression “availed of”does not mean mere filing of application for bail expressingtherein willingness of the accused to furnish the bail bond. Whatwill happen if on the 61st day an application for bail is filed forbeing released on bail on the ground of default by not filing thechallan by the 60th day and on the 61st day the challan is alsofiled by the time the Magistrate is called upon to apply his mindto the challan as well as the petition for grant of bail? In viewof the several decisions referred to above and the requirementsprescribed by clause (a)(ii) of the proviso read with ExplanationI to Section 167(2) of the Code, as no bail bond has beenfurnished, such an application for bail has to be dismissedbecause the stage of proviso to Section 167(2) is over, as suchright is extinguished the moment the challan is filed.

30. In this background, the expression “availed of” does notmean mere filing of the application for bail expressingthereunder willingness to furnish bail bond, but the stage foractual furnishing of bail bond must reach. If the challan is filedbefore that, then there is no question of enforcing the right,howsoever valuable or indefeasible it may be, after filing ofthe challan because thereafter the right under default clausecannot be exercised.”

25. The law laid down by the majority judgment in this case washowever not followed in Pragya Singh Thakur v. State of Maharashtra(2011) 10 SCC 445. This hiccup in the law was then cleared by thejudgment in Union of India v. Nirala Yadav (2014) 9 SCC 457, whichexhaustively discussed the entire case law on the subject. In this judgment,a Two-Judge Bench of this Court referred to all the relevant authoritieson the subject including the majority judgment of Uday MohanlalAcharya (supra) and then concluded:

A

BC

D

E

F

G

H

A

A

BC

D

E

F

G

H

A

A“44. At this juncture, it is absolutely essential to delve into whatwere the precise principles stated in Uday Mohanlal Acharyacase [(2001) 5 SCC 453 : 2001 SCC (Cri) 760] and how the two-Judge Bench has understood the same in Pragyna SinghThakur [(2011) 10 SCC 445 : (2012) 1 SCC (Cri) 311] . We havealready reproduced the paragraphs in extenso from UdayBMohanlal Acharya case [(2001) 5 SCC 453 : 2001 SCC (Cri)760] and the relevant paragraphs from Pragyna SinghThakur [(2011) 10 SCC 445 : (2012) 1 SCC (Cri) 311] . PragynaSingh Thakur [(2011) 10 SCC 445 : (2012) 1 SCC (Cri) 311] hasdrawn support from Rustam [1995 Supp (3) SCC 221 : 1995 SCCC(Cri) 830] case to buttress the principle it has laid down thoughin Uday Mohanlal Acharya case [(2001) 5 SCC 453 : 2001 SCC(Cri) 760] the said decision has been held not to have stated thecorrect position of law and, therefore, the same could not havebeen placed reliance upon. The Division Bench in para 56 whichhas been reproduced hereinabove, has referred to para 13 andDthe conclusions of Uday Mohanlal Acharya case [(2001) 5 SCC453 : 2001 SCC (Cri) 760]. We have already quoted from para 13and the conclusions.

45. The opinion expressed in paras 54 and 58 in Pragyna SinghThakur [(2011) 10 SCC 445 : (2012) 1 SCC (Cri) 311] which weEhave emphasised, as it seems to us, runs counter to the principlesstated in Uday Mohanlal Acharya [(2001) 5 SCC 453 : 2001SCC (Cri) 760] which has been followed in Hassan AliKhan [(2011) 10 SCC 235 : (2012) 1 SCC (Cri) 256] and SayedMohd. Ahmad Kazmi [(2012) 12 SCC 1 : (2013) 2 SCC (Cri)F488] . The decision in Sayed Mohd. Ahmad Kazmi case [(2012)12 SCC 1 : (2013) 2 SCC (Cri) 488] has been rendered by athree-Judge Bench. We may hasten to state, though in PragynaSingh Thakur case [(2011) 10 SCC 445 : (2012) 1 SCC (Cri)311] the learned Judges have referred to Uday Mohanlal Acharyacase [(2001) 5 SCC 453 : 2001 SCC (Cri) 760] but have statedGthe principle that even if an application for bail is filed on theground that the charge-sheet was not filed within 90 days, butbefore the consideration of the same and before being releasedon bail, if the charge-sheet is filed the said right to be enlarged onbail is lost. This opinion is contrary to the earlier larger BenchHdecisions and also runs counter to the subsequent three-Judge Bench decision in Mustaq Ahmed Mohammed Isak case [(2009)7 SCC 480 : (2009) 3 SCC (Cri) 449] . We are disposed to thinkso, as the two-Judge Bench has used the words “beforeconsideration of the same and before being released on bail”, thesaid principle specifically strikes a discordant note with theproposition stated in the decisions rendered by the larger Benches.

46. At this juncture, it will be appropriate to refer to the dissentingopinion by B.N. Agarwal, J. in Uday Mohanlal Acharyacase [(2001) 5 SCC 453 : 2001 SCC (Cri) 760] . The learnedJudge dissented with the majority as far as interpretation of theexpression “if not already availed of” by stating so: (SCC p. 481,paras 29-30)

“29. My learned Brother has referred to the expression ‘if notalready availed of’ referred to in the judgment in Sanjay Duttcase [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] for arriving atConclusion 6. According to me, the expression ‘availed of’does not mean mere filing of application for bail expressingtherein willingness of the accused to furnish the bail bond. Whatwill happen if on the 61st day an application for bail is filed forbeing released on bail on the ground of default by not filing thechallan by the 60th day and on the 61st day the challan is alsofiled by the time the Magistrate is called upon to apply his mindto the challan as well as the petition for grant of bail? In viewof the several decisions referred to above and the requirementsprescribed by clause (a)(ii) of the proviso read with ExplanationI to Section 167(2) of the Code, as no bail bond has beenfurnished, such an application for bail has to be dismissedbecause the stage of proviso to Section 167(2) is over, as suchright is extinguished the moment the challan is filed.

30. In this background, the expression ‘availed of’ does notmean mere filing of the application for bail expressingthereunder willingness to furnish bail bond, but the stage foractual furnishing of bail bond must reach. If the challan is filedbefore that, then there is no question of enforcing the right,howsoever valuable or indefeasible it may be, after filing ofthe challan because thereafter the right under default clausecannot be exercised.”

AB

C

D

E

F

G

H

A

AOn a careful reading of the aforesaid two paragraphs, we think,the two-Judge Bench in Pragyna Singh Thakur case [(2011)10 SCC 445 : (2012) 1 SCC (Cri) 311] has somewhat in a similarmatter stated the same. As long as the majority view occupies thefield it is a binding precedent. That apart, it has been followed bya three-Judge Bench in Sayed Mohd. Ahmad Kazmi case [(2012)B12 SCC 1 : (2013) 2 SCC (Cri) 488] . Keeping in view the principlestated in Sayed Mohd. Ahmad Kazmi case [(2012) 12 SCC 1 :(2013) 2 SCC (Cri) 488] which is based on three-Judge Benchdecision in Uday Mohanlal Acharya case [(2001) 5 SCC 453 :2001 SCC (Cri) 760], we are obliged to conclude and hold thatCthe principle laid down in paras 54 and 58 of Pragyna SinghThakur case [(2011) 10 SCC 445 : (2012) 1 SCC (Cri) 311] (whichhas been emphasised by us: see paras 42 and 43 above) does notstate the correct principle of law. It can clearly be stated that inview of the subsequent decision of a larger Bench that cannot betreated to be good law. Our view finds support from the decisionDin Union of India v. Arviva Industries India Ltd. [(2014) 3 SCC159].”

26. Also, in Syed Mohd. Ahmad Kazmi v. State (Govt. of NCTof Delhi) (2012) 12 SCC 1, Section 43-D of the UAPA came up forconsideration before the Court, in particular the proviso which extendsEthe period for investigation beyond 90 days up to a period of 180 days.An application for default bail had been made on 17.07.2012, as no chargesheet was filed within a period of 90 days of the appellant’s custody.The charge sheet in the aforesaid case was filed thereafter on 31.07.2012.Despite the fact that this application was not taken up for hearing beforeFthe filing of the charge sheet, this Court held that this since an applicationfor default bail had been filed prior to the filing of the charge sheet the“indefeasible right” spoken of earlier had sprung into action, as a resultof which default bail had to be granted. The Court held:

“25. Having carefully considered the submissions made on behalfGof the respective parties, the relevant provisions of law and thedecision cited, we are unable to accept the submissions advancedon behalf of the State by the learned Additional Solicitor GeneralMr Raval. There is no denying the fact that on 17-7-2012, whenCR No. 86 of 2012 was allowed by the Additional Sessions Judgeand the custody of the appellant was held to be illegal and an H

application under Section 167(2) CrPC was made on behalf ofthe appellant for 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 the PublicProsecutor filed an application for extension of the period ofcustody and investigation and on 20-7-2012 extended the time ofinvestigation and the custody of the appellant for a further periodof 90 days with retrospective effect from 2-6-2012. Not only isthe retrospectivity of the order of the Chief Metropolitan Magistrateuntenable, it could not also defeat the statutory right which hadaccrued to the appellant on the expiry of 90 days from the datewhen the appellant was taken into custody. Such right, as hasbeen commented upon by this Court in Sanjay Dutt [(1994) 5SCC 410 : 1994 SCC (Cri) 1433] and the other cases cited by thelearned Additional Solicitor General, could only be distinguished(sic extinguished) once the charge-sheet had been filed in thecase and no application has been made prior thereto for grant ofstatutory bail. It is well-established that if an accused does notexercise his right to grant of statutory bail before the charge-sheet is filed, he loses his right to such benefit once such charge-sheet is filed and can, thereafter, only apply for regular bail.

26. The circumstances in this case, however, are different in thatthe appellant had exercised his right to statutory bail on the verysame day on which his custody was held to be illegal and such anapplication was left undecided by the Chief MetropolitanMagistrate till after the application filed by the prosecution forextension of time to complete investigation was taken up and orderswere passed thereupon.

27. We are unable to appreciate the procedure adopted by theChief Metropolitan Magistrate, which has been endorsed by theHigh Court and we are of the view that the appellant acquired theright for grant of statutory bail on 17-7-2012, when his custodywas held to be illegal by the Additional Sessions Judge since hisapplication for statutory bail was pending at the time when theapplication for extension of time for continuing the investigationwas filed by the prosecution. In our view, the right of the appellantto grant of statutory bail remained unaffected by the subsequentapplication and both the Chief Metropolitan Magistrate and theHigh Court erred in holding otherwise.”

ABC

D

E

F

G

H

A

A27. In a fairly recent judgment reported as Rakesh Kumar Paulv. State of Assam (2017) 15 SCC 67, a Three-Judge Bench of thisCourt referred to the earlier decisions of this Court and went one stepfurther. It was held by the majority judgment of Madan B. Lokur, J. andDeepak Gupta, J. that even an oral application for grant of default bailwould suffice, and so long as such application is made before the chargeBsheet is filed by the police, default bail must be granted. This was statedin Lokur, J.’s judgment as follows:

“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)C212]. In that decision, reference was made to Uday MohanlalAcharya v. State of Maharashtra [Uday Mohanlal Acharyav. State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760]and the conclusions arrived at in that decision. We are concernedwith Conclusion (3) which reads as follows: (Nirala YadavDcase [Union of India v. Nirala Yadav, (2014) 9 SCC 457 : (2014)5 SCC (Cri) 212] , SCC p. 472, para 24)

“‘13. (3) On the expiry of the said period of 90 days or 60days, as the case may be, an indefeasible right accrues in favourof the accused for being released on bail on account of defaultby the investigating agency in the completion of the investigationwithin the period prescribed and the accused is entitled to bereleased on bail, if he is prepared to and furnishes the bail asdirected by the Magistrate.’ (Uday Mohanlal case [UdayMohanlal Acharya v. State of Maharashtra, (2001) 5 SCC453 : 2001 SCC (Cri) 760] , SCC p. 473, para 13)”

E

F

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 the ConstitutionBench is to the effect that if the charge-sheet is not filed and theright for “default bail” has ripened into the status of indefeasibility,it cannot be frustrated by the prosecution on any pretext. Theaccused can avail his liberty by filing an application stating thatthe statutory period for filing the charge-sheet or challan has expiredand the same has not yet been filed and therefore the indefeasibleright has accrued in his or her favour and further the accused isprepared to furnish the bail bond.

G

H

39. This Court also noted that apart from the possibility of theprosecution frustrating the indefeasible right, there are occasionswhen even the court frustrates the indefeasible right. Referencewas made to Mohd. Iqbal Madar Sheikh v. State ofMaharashtra [Mohd. Iqbal Madar Sheikh v. State ofMaharashtra, (1996) 1 SCC 722 : 1996 SCC (Cri) 202] whereinit was observed that some courts keep the application for “defaultbail” pending for some days so that in the meantime a charge-sheet is submitted. While such a practice both on the part of theprosecution as well as some courts must be very strongly andvehemently discouraged, we reiterate that no subterfuge shouldbe resorted to, to defeat the indefeasible right of the accused for“default bail” during the interregnum when the statutory periodfor filing the charge-sheet or challan expires and the submissionof the charge-sheet or challan in court.

Procedure for obtaining default bail

40. In the present case, it was also argued by the learned counselfor the State that the petitioner did not apply for “default bail” onor after 4-1-2017 till 24-1-2017 on which date his indefeasibleright got extinguished on the filing of the charge-sheet. Strictlyspeaking, this is correct since the petitioner applied for regularbail on 11-1-2017 in the Gauhati High Court — he made no specificapplication for grant of “default bail”. However, the applicationfor regular bail filed by the accused on 11-1-2017 did advert to thestatutory period for filing a charge-sheet having expired and thatperhaps no charge-sheet had in fact being filed. In any event, thisissue was argued by the learned counsel for the petitioner in theHigh Court and it was considered but not accepted by the HighCourt. The High Court did not reject the submission on the groundof maintainability but on merits. Therefore it is not as if the petitionerdid not make any application for default bail — such an applicationwas definitely made (if not in writing) then at least orally beforethe High Court. In our opinion, in matters of personal liberty, wecannot and should not be too technical and must lean in favour ofpersonal liberty. Consequently, whether the accused makes awritten application for “default bail” or an oral application for“default bail” is of no consequence. The court concerned mustdeal with such an application by considering the statutory AB

C

DE

F

G

H

A

B

C

D

E

F

G

H

requirements, namely, whether the statutory period for filing acharge-sheet or challan has expired, whether the charge-sheet orchallan has been filed and whether the accused is prepared toand does furnish bail.

41. We take this view keeping in mind that in matters of personalliberty and Article 21 of the Constitution, it is not always advisableto be formalistic or technical. The history of the personal libertyjurisprudence of this Court and other constitutional courts includespetitions for a writ of habeas corpus and for other writs beingentertained even on the basis of a letter addressed to the ChiefJustice or the Court.

xxx xxxxxx

Application of the law to the petitioner

45. On 11-1-2017 [Rakesh Kumar Paul v. State of Assam, 2017SCC OnLine Gau 573] when the High Court dismissed theapplication for bail filed by the petitioner, he had an indefeasibleright to the grant of “default bail” since the statutory period of 60days for filing a charge-sheet had expired, no charge-sheet orchallan had been filed against him (it was filed only on 24-1-2017)and the petitioner had orally applied for “default bail”. Under thesecircumstances, the only course open to the High Court on 11-1-2017 was to enquire from the petitioner whether he was preparedto furnish bail and if so then to grant him “default bail” onreasonable conditions. Unfortunately, this was completelyoverlooked by the High Court.

46. It was submitted that as of today, a charge-sheet having beenfiled against the petitioner, he is not entitled to “default bail” butmust apply for regular bail — the “default bail” chapter beingnow closed. We cannot agree for the simple reason that we areconcerned with the interregnum between 4-1-2017 and 24-1-2017when no charge-sheet had been filed, during which period he hadavailed of his indefeasible right of “default bail”. It would havebeen another matter altogether if the petitioner had not appliedfor “default bail” for whatever reason during this interregnum.There could be a situation (however rare) where an accused isnot prepared to be bailed out perhaps for his personal securitysince he or she might be facing some threat outside the correction home or for any other reason. But then in such an event, theaccused voluntarily gives up the indefeasible right for default bailand having forfeited that right the accused cannot, after the charge-sheet or challan has been filed, claim a resuscitation of theindefeasible right. But that is not the case insofar as the petitioneris concerned, since he did not give up his indefeasible right for“default bail” during the interregnum between 4-1-2017 and 24-1-2017 as is evident from the decision of the High Court renderedon 11-1-2017 [Rakesh Kumar Paul v. State of Assam, 2017 SCCOnLineGau 573]. On the contrary, he had availed of his right to“default bail” which could not have been defeated on 11-1-2017and which we are today compelled to acknowledge and enforce.

47. Consequently, we are of the opinion that the petitioner hadsatisfied all the requirements of obtaining “default bail” which isthat on 11-1-2017 he had put in more than 60 days in custodypending investigations into an alleged offence not punishable withimprisonment for a minimum period of 10 years, no charge-sheethad been filed against him and he was prepared to furnish bail forhis release, as such, he ought to have been released by the HighCourt on reasonable terms and conditions of bail.

xxx xxxxxx

xxx xxxxxx

49. The petitioner is held entitled to the grant of “default bail” onthe facts and in the circumstances of this case. The trial Judgeshould release the petitioner on “default bail” on such terms andconditions as may be reasonable. However, we make it clear thatthis does not prohibit or otherwise prevent the arrest or re-arrestof the petitioner on cogent grounds in respect of the subject chargeand upon arrest or re-arrest, the petitioner is entitled to petitionfor grant of regular bail which application should be consideredon its own merit. We also make it clear that this will not impact onthe arrest of the petitioner in any other case.”

28. Deepak Gupta, J. in his concurring opinion agreed with Lokur,J. as follows:

“82. The right to get “default bail” is a very important right. Oursis a country where millions of our countrymen are totally illiterateand not aware of their rights. A Constitution Bench of this Courtin Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994

AB

C

D

E

F

G

H

A

B

C

D

E

F

G

H

SCC (Cri) 1433] has held that the accused must apply for grantof “default bail”. As far as Section 167 of the Code is concerned,Explanation I to Section 167 provides that notwithstanding theexpiry of the period specified (i.e. 60 days or 90 days, as the casemay be), the accused can be detained in custody so long as hedoes not furnish bail. Explanation I to Section 167 of the Codereads as follows:

“Explanation I.—For the avoidance of doubts, it is herebydeclared that, notwithstanding the expiry of the period specifiedin para (a), the accused shall be detained in custody so long ashe does not furnish bail.”

This would, in my opinion, mean that even though the period hadexpired, the accused would be deemed to be in legal custody tillhe does not furnish bail. The requirement is of furnishing of bail.The accused does not have to make out any grounds for grant ofbail. He does not have to file a detailed application. All he has toaver in the application is that since 60/90 days have expired andcharge-sheet has not been filed, he is entitled to bail and is willingto furnish bail. This indefeasible right cannot be defeated by filingthe charge-sheet after the accused has offered to furnish bail.

xxx xxxxxx

86. I agree and concur with the conclusions drawn and directionsgiven by learned Brother Lokur, J. in paras 49 to 51 of hisjudgment.”

P.C. Pant, J., however, dissented holding:

“113. The law laid down as above shows that the requirementof an application claiming the statutory right under Section167(2) of the Code is a prerequisite for the grant of bail ondefault. In my opinion, such application has to be made beforethe Magistrate for enforcement of the statutory right. In thecases under the Prevention of Corruption Act or other Actswhere Special Courts are constituted by excluding thejurisdiction of the Magistrate, it has to be made before suchSpecial Court. In the present case, for the reasons discussed,since the appellant never sought default bail before the courtconcerned, as such is not entitled to the same.”

A conspectus of the aforesaid decisions would show that so longas an application for grant of default bail is made on expiry of the periodof 90 days (which application need not even be in writing) before acharge sheet is filed, the right to default bail becomes complete. It is ofno moment that the Criminal Court in question either does not dispose ofsuch application before the charge sheet is filed or disposes of suchapplication wrongly before such charge sheet is filed. So long as anapplication has been made for default bail on expiry of the stated periodbefore time is further extended to the maximum period of 180 days,default bail, being an indefeasible right of the accused under the firstproviso to Section 167(2), kicks in and must be granted.

29. On the facts of the present case, the High Court was whollyincorrect in stating that once the challan was presented by the prosecutionon 25.03.2019 as an application was filed by the Appellant on 26.03.2019,the Appellant is not entitled to default bail. First and foremost, the HighCourt has got the dates all wrong. The application that was made fordefault bail was made on or before 25.02.2019 and not 26.03.2019. Thecharge sheet was filed on 26.03.2019 and not 25.03.2019. The fact thatthis application was wrongly dismissed on 25.02.2019 would make nodifference and ought to have been corrected in revision. The sole groundfor dismissing the application was that the time of 90 days had alreadybeen extended by the learned Sub-Divisional Judicial Magistrate, Ajnalaby his order dated 13.02.2019. This Order was correctly set aside by theSpecial Court by its judgment dated 25.03.2019, holding that under theUAPA read with the NIA Act, the Special Court alone had jurisdictionto extend time to 180 days under the first proviso in Section 43-D(2)(b).The fact that the Appellant filed yet another application for default bailon 08.04.2019, would not mean that this application would wipe out theeffect of the earlier application that had been wrongly decided. We mustnot forget that we are dealing with the personal liberty of an accusedunder a statute which imposes drastic punishments. The right to defaultbail, as has been correctly held by the judgments of this Court, are notmere statutory rights underthe first proviso to Section 167(2) of the Code,but is part of the procedure established by law under Article 21 of theConstitution of India, which is, therefore, a fundamental right granted toan accused person to be released on bail once the conditions of the firstproviso to Section 167(2) are fulfilled. This being the case, we set asidethe judgment of the High Court. The Appellant will now be entitled to bereleased on “default bail” under Section 167(2) of the Code, as amended AB

C

D

E

F

G

H

Aby Section 43-D of the UAPA. However, we make it clear that thisdoes not prohibit or otherwise prevent the arrest or re-arrest of thepetitioner on cogent grounds, and upon arrest or re-arrest, the petitioneris entitled to petition for the grant of regular bail which application shouldbe considered on its own merit. We also make it clear that this judgementwill have no impact on the arrest of the petitioner in any other case.B

30. The appeal is, accordingly, allowed, and the impugnedjudgement of the High Court is set aside.

C

Ankit Gyan

Appeal allowed.

D

E

F

G

H