Karnataka High Court: S. Vishwajith Shetty, J. quashed the extension order and granted bail under Section 167 (2) Criminal Procedure Code.
The instant writ petitions are filed by the accused persons in an FIR pending before the Special N.I.A. Court, Bangalore registered for the offences punishable under Sections 15, 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 i.e. UAPA and Sections 143, 147, 148, 353, 333, 332, 436, 427 and 149 of the Penal Code, 1860 i.e. IPC and Section 4 of the Prevention of Damage to Public Property Act, 1984 registered at Kadugondanahalli Police Station (hereinafter referred to as “the K.G. Halli P.S.”) Bengaluru, challenging the order dated 03.11.2020 passed by the said court on an application filed by the respondent – National Investigating Agency i.e. NIA under first proviso to Section 43- D(2)(b) of UAPA seeking extension of time for completion of investigation and the order dated 05.01.2021 passed by the said court rejecting the applications filed by the petitioners under Section 167(2) of the Code of Criminal Procedure, 1973 i.e. CrPC seeking statutory/default bail.
Counsel for the petitioners Mr. M.S. Shyam Sundar submitted that the application under Section 43-D(2)(b) of UAPA seeking extension of time for completion of investigation has been filed much prior to expiry of 90 days from the date of remand of the petitioners and therefore, the said application is premature. It was further submitted that said application is filed only to deny the right to statutory bail of the petitioners. He also submitted that the petitioners were not heard by the trial court before passing orders on application under Section 43-D (2) (b) of UAPA and the copy of the application was also not served on the petitioners or on their Advocates.
Mr. Anees Khan appearing on behalf of the petitioners submitted that none of the accused were present before the court on the date when the application under Section 43-D (2) (b) of UAPA was filed by the prosecution. He submits that in the event of this court holding that the order passed by the trial court extending the time for investigation is not in accordance with law, then the petitioners’ application under Section 167(2) of the Code merits consideration and as a matter of right, they are entitled to statutory bail.
Counsel for the respondents submitted that a reading of Section 43-D (2)(b) of UAPA would make it clear that there is no necessity of hearing the accused persons before passing any orders on the application filed by the prosecution seeking extension of time for completion of the investigation. He submitted that in the absence of the statute providing any such right to the accused persons in black and white, on the ground of principles of natural justice, they cannot claim such a right.
It was further submitted that as per Section 16 of the National Investigation Agency Act, 2008 and the said Act being a special enactment over-rides the provisions of the Code and therefore, the petitioners are not entitled to the relief of statutory bail under Section 167(2) of the Code.
The Court perused and concluded that Section 20(4) (bb) of the TADA Act, Section 36A (4) of the NDPS Act and Section 43-D(2)(b) of UAPA are three provisions of law which are pari materia.
The Court observed that the requirement of a notice to the accused before granting extension of time for completing the investigation need not be a written notice giving reasons therein, but production of accused at that time in the court informing him that the question of extension of the period for completing the investigation is being considered is alone sufficient for the purpose.
The Court further observed that the petitioners were not given an opportunity of being heard before passing an order on the application filed by the prosecution for extension of time for completion of the investigation and since the petitioners were not kept present before the court when the application filed by the prosecution for extension of time for completion of the investigation was being considered and since the petitioners were not notified that such an application filed by the prosecution was being considered by the court for the purpose of extending the time for completion of the investigation.
The Court thus held “the order passed by the trial court on the application filed by the prosecution under the first proviso to Section 43-D (2)(b) of UAPA extending the time to complete the investigation is legally unsustainable”
The Court relied on judgment Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616 and observed that a right to default bail becomes complete and indefeasible as soon as application for grant of default bail (regardless of its form, even if it is oral) is made on expiry of the maximum prescribed period before a charge sheet is filed. Thereafter, this indefeasible right, firstly, cannot be defeated by filing of charge sheet; secondly, it cannot be defeated whether there is non-disposal or wrong disposal of the application for default bail, before or after filing of charge sheet and thirdly filing of a subsequent application for default bail will not defeat the indefeasible right already standing accrued to accused based on the first application.
The Court also observed that in the case on hand, immediately after completion of 90 days period prescribed under Section 167(2) of the Code for completion of the investigation, an application has been filed by the petitioners seeking statutory bail, which is also known as “default bail” on the ground that the prosecution had not completed the investigation and filed the charge sheet. Hence, merely for the reason that the charge sheet has now been filed, it will not take away the indefeasible right to default bail of the petitioners, if it has accrued in their favour.
The Court held “the application filed by the petitioners under Section 167(2) of the Code immediately after completion of the first 90 days of period is required to be allowed.[Muzammil Pasha v. National Investigating Agency, W.P.No. 1417 of 2021, decided on 20-06-2021]
Arunima Bose, Editorial Assistant has reported this brief.
Additional Read: https://www.scconline.com/blog/post/2020/09/05/ori-hc-default-bail-granted-under-s-1672-crpc-in-case-of-non-compliance-of-notice-under-s-36-a-4-ndps-act/
Appearances before the Court
Petitioners: Mr. Shyam Sundar, and Mr. Mohammed Tahir
Respondents: Mr. M.B.Naragund and Mr. Prasanna Kumar
