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

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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.


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