J&K High Court: Custody in One Case Cannot Be Counted for the Purpose of Another Case

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On 9th September 2020, Justice Ali Mohammad Magrey and Justice Sanjay Dhar heard the case of Mohammad Amin Illahie and others vs. Union Territory of J&K, via video-conferencing. The Court rejected the bail application as the appellants did not undergo their custody of 180 days. 

Facts of the case

On 8th March 2019, the appellants were taken into custody in connection with FIR No.229/2017. This FIR was filed for offences under Sections 302 and 307 of RPC, Section 7 and 27 of Arms Act. On 2nd September 2019, the custody of the appellants was changed to FIR No.69/2018. At that time, the appellants had completed their custody of 177 days in connection to FIR No.229/2017. On 16th September 2019, the appellants were admitted to bail in connection to FIR No.69/2018. Despite this, they were not released from the custody nor was their custody shifted to FIR No.229/2017. The Court of learned Special Judge refused to grant bail to the appellants. Therefore, the appellants filed this appeal under Section 21 (3) of the National Investigation Agency Act.

Arguments of the Appellants

The learned counsel for the appellants argued that mere shifting of custody of the appellants from one case to another and detaining them under preventive detention laws, would not absolve the Investigating Agency of its duty to produce challan within 180 days of the arrest of the appellants. Therefore, default bail is sought by the appellants.

Court’s Analysis

The learned counsel for the appellants has not argued on merits of the prosecution case against the appellants. Therefore, the Court confines this judgment to the aspect of the default bail only.

The SC in the case of State of West Bengal vs. Dinesh Dalmia held that for separate offences accused has to be tried separately. For the same, the proceedings will be initiated separately and independent remand can be sought. Therefore, it becomes clear that the period of custody undergone by the appellants in FIR No.69/2018 cannot be added to the period of custody which they have undergone in FIR No.229/2017. The appellants did not undergo custody of 180 days in FIR No.229/2017. Thus, their right to claim default bail in terms of Proviso (a) to Section 167(2) of the Code of Criminal Procedure read with Section 43D of Unlawful Activities (Prevention) Act has not accrued to them. Hence, the Special Judge was not at fault in refusing bail to the appellants.

Court’s Decision

The Court dismissed the bail application as it lacked merit. However, the appellants are at liberty to approach the learned Special Judge to claim bail on merits of the case


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