Supreme Court Says Fundamental Right of Accused To Be Released on Default Bail if S.167(2) CrPC Fulfilled

Must Read

Plea Challenging the AIBE Rules Framed by BCI Filed in the Supreme Court

A Writ Petition was presently filed in the Supreme Court by a newly enrolled lawyer challenging the All India Bar Examination Rules 2010 which have been framed by the Bar Council of India which mandates that an advocate has to qualify for the All India Bar Examination (AIBE) to practice law after enrollment.

CAIT Files a Plea Against WhatsApp’s New Privacy Policy in the Supreme Court

Confederation of All India Traders (CAIT) has filed a petition against WhatsApp’s new privacy rules in the Supreme Court. The petition says that WhatsApp which is known to render public services by providing a platform to communicate has recently imposed a privacy policy that is unconstitutional, which not only goes against the fundamental rights of citizens but also jeopardizes the national security of our country.

Lahore High Court Outlaws Two-Finger Virginity Test

The Lahore High Court in Pakistan has outlawed the use and conduct of virginity tests, namely, the use of...

London Court Rejects Assange’s Extradition – What Happens Now? 

Earlier last week, District Judge Vanessa Baraitser, sitting in the Westminster Magistrates’ Court denied the Government of the U.S.A.'s...

Supreme Court Agrees To Examine Centre’s Plea To Keep Adultery a Crime in Armed Forces

The Centre appealed to the Supreme court on Wednesday, pleading that the 2018 judgment of decriminalizing adultery under IPC must not apply to the armed forces. The Supreme Court in a path-breaking verdict in 2018 decriminalized adultery and declared all its provisions unconstitutional as it diminishes the value of women, but maintained that it continues to be a ground for divorce.

Supreme Court Examines the Pollution in Yamuna River for the Second Time

The Supreme Court on Wednesday made a second attempt to clean the Yamuna river by taking a Suo Moto Cognizance of significantly high levels of ammonia water discharged from neighbouring states like Haryana into Delhi.

Follow us

Supreme Court heard a plea for default bail held that in case of scheduled offences, the Special Courts have exclusive jurisdiction irrespective of the Investigating Agency. The District Magistrate cannot remand the Accused to judicial/police custody.

Brief Facts

This appeal is one challenging the Order of the High Court denying the Accused charged under several sections of IPC, Arms Act 1959, and Unlawful Activities (Prevention) Act 1967.

The relevant events leading up to this appeal are:

  • The Accused-Appellant was arrested and remanded to custody by a Sub-Divisional Magistrate.
  • On the expiry of 90 days, he filed for default bail. But it was rejected on the ground that the SDM had already extended the time from 90 to 180 days.
  • The Special Court under NIA Act set aside the order stating that the power under s 43-D(2)(b) is vested only with the Special Court.
  • A day after the order a charge sheet was filed by the State Police and the default bail plea was rejected again.
  • The Punjab and Haryana High Court set aside the order of the Special Court saying that since the Investigating authority here is the State Police, the Magistrate does have that power under Section 167(2) CrPC r.w. Section 43(a) of UAPA.

This appeal had been preferred against this Order of the High Court.

Arguments by the Appellant

Shri Colin Gonsalves, Senior Advocate appearing on behalf of the Appellant stressed the fact that once the Special Court had been set up as an exclusive Court to try all offences under the UAPA, such offences being scheduled offences relatable to the NIA Act, it was the Special Court alone which had exclusive jurisdiction to extend the period of 90 days to 180 days under Section 43-D (2)(b) of the UAPA.

Hence, the contention was that the Appellant’s indefeasible right to default bail arose when he applied for the same after the expiry of 90 days.

The Order that was passed without jurisdiction by the SDM was corrected by Special Court before the charge sheet was filed. Hence, his right to default bail sprung into action before the filing of the charge sheet.

Arguments by Respondent

Smt. Jaspreet Gogia, Advocate stressed, in particular, Section 10 of the NIA Act. It said that nothing in the said Act would affect the powers of the State Government to investigate and prosecute any scheduled offence.

Further, the entire investigation was done only by the State Police and not by the National Investigation Agency. Hence she argued that the Ilaqa Magistrate had jurisdiction to extend the time and exercised the same. Thus, post the extension of the time any application for default bail after the 90 day period was over had to be dismissed.

Further, the application filed before the order of the Special Court was dismissed, and that the application dated 08.04.2019 filed for default bail was after the charge sheet was filed and, so, was dismissed by the order of the Special Judge.

Court’s Observation

The Court referred to Section 16 of the NIA Act, particularly sub-clause 2. The Bench said that reading them with Section 13 and Section 22(2)(ii) of the Act the Argument of the Respondent based on Section 10 of the said Act “has no legs to stand on since the Special Court has exclusive jurisdiction over every Scheduled Offence investigated by the investigating agency of the State.”

Further, all scheduled offences irrespective of the designated Court are to be tried only by Special Courts. In the absence of any designated Court, the fall back is upon the Court of Sessions alone. Thus it is clear so far as all offences under the UAPA are concerned, the Magistrate’s jurisdiction to extend time under the first proviso in Section 43-D(2)(b) is non-existent. 

Additionally, the Court reiterated that “if an application has been made for default bail on expiry of the stated period before time is further extended to the largest period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.” 

The right to default bail is not a mere statutory right under Section 167(2) of the Code but is part of the procedure established by law under Article 21 of the Constitution of India. Thus, it is a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

Court’s Order

The Bench as per its observation and scrutiny of the law on default bail via a catena of Judgments held that the High Court was incorrect. And hence, the Appellant was released on default bail. But, this would not interfere with his re-arrest on cogent grounds and that would allow him to release on regular bail.

Click here to view the Judgement.


Contribute to this Page

Libertatem.in is working to expand this Law Notes Section and is open to any submission relating to this Act or specific Section. In case you have any college project, article, case analysis, case comment or any blog which you think would help contribute to this page or Law Notes section in general, please feel free to check out our Law Notes Submission Guidelines and submit your work for publication.

LEAVE A REPLY

Please enter your comment!
Please enter your name here

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Latest News

[WhatsApp Privacy Policy Row] It’s a Private App, Don’t Use It; Says Delhi High Court

On Monday, while hearing a petition regarding the privacy policy of WhatsApp, the Delhi High Court said, “It is a private app. Don't join it. It is a voluntary thing, don't accept it. Use some other app.”

Madras High Court Asks the State To Reconsider Number of Seats Allotted for Bcm Category

Mr. Shakkiya filed a Writ Petition under Article 226 of the Indian Constitution to issue a Writ of Mandamus. The petition sought to direct...

Gujarat High Court Directs To Register Name of Petitioners in the Society Records as Owners of Property, as per Will

A single-judge bench of Gujarat High Court consisting of Honourable Justice Biren Vaishnav, because probate wasn’t necessary and that the petitioners were entitled to...

If No Complaint Is Filed, No Further Orders Are Required To Be Passed: Telangana High Court

Excerpt In Matlakunta Sundaramma vs The State Of Telangana, on January 8, 2021, the Telangana High Court decided that there is no requirement of passing...

Gujarat High Court Allows Report Filed by Official Liquidator for Dissolution of the Company

The present report had been filed by the Official Liquidator for the dissolution of M/s AtRo Limited under the provisions of Section 497 (6)...

Parents of Road Accident Victim Entitled To Compensation: Delhi High Court

Justice JR Midha said, “Even if parents are not dependent on their children at the time of an accident, they will certainly be dependent, both financially and emotionally, upon them at the later stage of their life, as the children were dependent upon their parents in their initial years.”

Plea Challenging the AIBE Rules Framed by BCI Filed in the Supreme Court

A Writ Petition was presently filed in the Supreme Court by a newly enrolled lawyer challenging the All India Bar Examination Rules 2010 which have been framed by the Bar Council of India which mandates that an advocate has to qualify for the All India Bar Examination (AIBE) to practice law after enrollment.

Bombay High Court: Mere Presence at the Crime Scene Not Enough for Punishment

The Bombay High Court ruled that it cannot be considered a crime if a person is merely present at the crime scene which falls under the Maharashtra Prohibition of Obscene Dance in Hotels and Restaurants and Bar Rooms and Protection of Dignity of Women Act 2016. It also quashed two First Information Reports (FIR) against two individuals who were arrested in a raid at a dance bar by the Santacruz Police, in 2017.

CAIT Files a Plea Against WhatsApp’s New Privacy Policy in the Supreme Court

Confederation of All India Traders (CAIT) has filed a petition against WhatsApp’s new privacy rules in the Supreme Court. The petition says that WhatsApp which is known to render public services by providing a platform to communicate has recently imposed a privacy policy that is unconstitutional, which not only goes against the fundamental rights of citizens but also jeopardizes the national security of our country.

RTI Activist Files a Plea in Bombay High Court Against Bharat Biotech’s Covaxin

On Saturday, a plea has been filed before the Bombay High Court by an activist stating that Bharat Biotech Covaxin had not been granted full approval but a restricted use in clinical trials according to the Drugs Comptroller General of India. The Company's phase 3 trials are ongoing and the DGCI has not made any data available in the public domain for peer- review by independent scientists.

More Articles Like This

- Advertisement -