Supreme Court of India
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR & ORS.versusNATIONAL INVESTIGATION AGENCY
- Citation
- 2023 INSC 472
- Decided
- 1 May 2023
- Disposal
- Dismissed
- Bench
- D Y CHANDRACHUD
Holding
Filing of a chargesheet within the statutory period under Section 167(2) of the CrPC completes the investigation and extinguishes the indefeasible right to default bail, irrespective of the presence or timing of a sanction order.
Summary
The appellants were arrested in 2019 for offences under the IPC, UAPA and the Explosive Substances Act and a chargesheet was filed within the 180‑day period prescribed under Section 167(2) of the CrPC. They applied for statutory/default bail on the ground that the chargesheet was filed without a sanction order, arguing that the chargesheet was incomplete. The respondents contended that filing a chargesheet within the statutory period satisfies Section 167(2) and that sanction is a separate, post‑investigation requirement not contemplated by the provision. The Supreme Court held that a chargesheet filed within the time limit completes the investigation irrespective of the presence of a sanction order, and that the right to default bail extinguishes once the chargesheet is filed. It also ruled that the error of filing the chargesheet before the Special Court does not affect the right to default bail. Consequently, both appeals were dismissed.
Issues considered
- Whether an accused is entitled to default bail under Section 167(2) CrPC when the chargesheet is filed without a valid sanction order.
- Whether cognizance of the offence is required for the purpose of Section 167(2) CrPC.
- Whether the failure to obtain sanction under the UAPA and 1908 Act defeats the right to default bail.
- Whether filing the chargesheet before a Magistrate instead of the Special Court under the NIA Act vitiates the right to default bail.
Legislation cited
- Code of Criminal Procedure, 1973s. 167(2), s. 173, s. 173(2), s. 173(5), s. 173(8), s. 193, s. 209, s. 43D
- Explosive Substances Act, 1908s. 7
- National Investigation Agency Act, 2008s. 16, s. 18, s. 22
- Unlawful Activities (Prevention) Act, 1967s. 17, s. 18, s. 18B, s. 20, s. 43D, s. 45
Subjects
default bailSection 167(2) CrPCchargesheetsanction ordercognizanceNational Investigation Agency ActUAPASpecial Courtinvestigation periodindefeasible right
Judgment
[2023] 6 S.C.R. 1 1
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR A
& ORS.
v.
NATIONAL INVESTIGATION AGENCY
(Criminal Appeal No. 1011 of 2023) B
MAY 01, 2023
[DR. DHANANJAYA Y. CHANDRACHUD, CJI AND
J. B. PARDIWALA, J.]
Code of Criminal Procedure, 1973:
C
ss. 167(2), 173 – Default Bail – Entitlement to, u/s. 167(2) –
Though the chargesheet might have been filed within the statutory
time period as prescribed in law yet the chargesheet was without a
valid order of sanction passed by a competent authority – Held : It
cannot be said that a chargesheet filed without sanction is an
D
incomplete chargesheet which could be termed as not in consonance
with s. 173 – According sanction is the duty of the sanctioning
authority who is not connected with the investigation at all – In
case the sanctioning authority takes some time to accord sanction,
that does not vitiate the final report filed by the investigating agency
before the Court – s. 173 does not speak about the sanction order E
at all – s. 167 also speaks only about investigation and not about
cognizance by the Magistrate – Filing of a chargesheet is sufficient
compliance with the provisions of s. 167 and that an accused cannot
claim any indefeasible right of being released on statutory/default
bail u/s. 167(2) on the ground that cognizance has not been taken
F
before the expiry of the statutory time period to file the chargesheet
– Grant of sanction is nowhere contemplated u/s. 167.
Default bail – Entitlement to, u/s. 167(2) when error on the
part of the investigating agency to file chargesheet for the offence
enumerated, in the Court of Magistrate and not in the Sessions or
designated Court – Held : Error on the part of the investigating G
agency in filing chargesheet first before the Court of Magistrate
has nothing to do with the right of the accused to seek statutory/
default bail u/s. 167(2) – Committal proceedings are not warranted,
when it comes to prosecution under the UAPA by the NIA by virtue
of s. 16 of the NIA Act – This is because the Special Court acts, as H
1
2 SUPREME COURT REPORTS [2023] 6 S.C.R.
A one of the original jurisdictions – By virtue of s. 16 of the NIA Act,
the Court need not follow the requirements of Section 193 CrPC –
On facts, the application seeking default bail u/s.167(2) r/w s. 43D
of the UAPA was filed before the Special Judge, NIA, on 14.12.2020
and by that time, the chargesheet had already been filed and the
proceedings were pending in the court of Special Judge, CBI –
B
National Investigation Agency Act, 2008 – s.16 – Unlawful Activities
(Prevention) Act,1967.
S. 167 – Investigation – Investigating agencies seeking
extension of time to complete investigation – Advise to NIA as well
as the State investigating agency seeking extension of time, to be
C careful that such extension is not prayed for at the last moment –
Right to be released on default bail continues to remain enforceable
if the accused has applied for it, notwithstanding pendency of the
bail application or subsequent filing of the chargesheet or a report
seeking extension of time by the prosecution before the court –
D However, where the accused fails to apply for default bail when the
right accrues to him, and subsequently a chargesheet, or a report
seeking extension of time is preferred, the right to default bail would
be extinguished – Court would be at liberty to take cognizance of
the case or grant further time for completion of the investigation,
though the accused may still be released on bail under other
E provisions of the CrPC.
Dismissing the appeals, the Court
HELD: 1.1 It cannot be said that a chargesheet filed
without sanction is an incomplete chargesheet which could be
F termed as not in consonance with sub section (5) of Section 173
CrPC. Whether the sanction is required or not under a statute,
is a question that has to be considered at the time of taking
cognizance of the offence and not during inquiry or investigation.
There is a marked distinction in the stage of investigation and
prosecution. The prosecution starts when the cognizance of
G offence is taken. It is also to be kept in mind that cognizance is
taken of the offence and not of the offender. It cannot be said that
obtaining sanction from the competent authorities or the
authorities concerned is part of investigation. Sanction is required
only to enable the court to take cognizance of the offence. The
H court may take cognizance of the offence after the sanction order
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 3
v. NATIONAL INVESTIGATION AGENCY
was produced before the court, but the moment, the final report A
is filed along with the documents that may be relied on by the
prosecution, then the investigation will be deemed to have been
completed. Taking cognizance is entirely different from
completing the investigation. To complete the investigation and
file a final report is a duty of the investigating agency, but taking
B
cognizance of the offence is the power of the court. The court in
a given case, may not take cognizance of the offence for a
particular period of time even after filing of the final report. In
such circumstance, the accused concerned cannot claim their
indefeasible right under Section 167(2) CrPC for being released
on default bail. What is contemplated under Section 167(2) CrPC C
is that the Magistrate or designated Court (as the case may be)
has no powers to order detention of the accused beyond the period
of 180 days or 90 days or 60 days as the case may be. If the
investigation is concluded within the prescribed period, no right
accrues to the accused concerned to be released on bail under
D
the proviso to Section 167(2) CrPC. [Para 43][32-C; D-H]
1.2. Once a final report has been filed with all the documents
on which the prosecution proposes to rely, the investigation shall
be deemed to have been completed. After completing
investigation and submitting a final report to the Court, the
investigating officer can send a copy of the final report along with E
the evidence collected and other materials to the sanctioning
authority to enable the sanctioning authority to apply his mind to
accord sanction. According sanction is the duty of the sanctioning
authority who is not connected with the investigation at all. In
case the sanctioning authority takes some time to accord sanction, F
that does not vitiate the final report filed by the investigating
agency before the Court. Section 173 CrPC does not speak about
the sanction order at all. Section 167 of the CrPC also speaks
only about investigation and not about cognizance by the
Magistrate. Therefore, once a final report has been filed, that is
the proof of completion of investigation and if final report is filed G
within the period of 180 days or 90 days or 60 days from the
initial date of remand of accused concerned, he cannot claim that
a right has accrued to him to be released on bail for want of filing
of sanction order. [Para 44][33-A-D]
H
4 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 1.3 It is evident that the order of sanction passed by the
competent authority can be produced and placed on record even
after the filing of the chargesheet. It may happen that the
inordinate delay in placing the order of sanction before the Special
Court may lead to delay in trial because the competent court will
not be able to take cognizance of the offence without a valid
B
sanction on record. In such an eventuality, at the most, it may be
open for the accused to argue that his right to have a speedy trial
could be said to have been infringed thereby violating Article 21
of the Constitution. This may at the most entitle the accused to
pray for regular bail on the ground of delay in trial. But the same
C cannot be a ground to pray for statutory/default bail under the
provisions of Section 167(2) CrPC. [Para 47][34-C-E]
1.4 The maximum period of 180 days which is being granted
to the investigating agency to complete the investigation in the
case wherein the prosecution is for the offence under the UAPA
D is not something in the form of a package that everything has to
be completed including obtaining of sanction within this period
of 180 days. The investigating agency has nothing to do with
sanction. Sanction is altogether a different process. Sanction is
accorded, based on the materials collected by the investigating
agency which forms the part of the final report under Section 173
E CrPC. The investigating agency gets full 180 days to complete
the investigation. To say that obtaining of sanction and placing
the same along with the chargesheet should be done within the
period of 180 days is something which is not only contrary to the
provisions of law discussed, but is inconceivable. [Para 49][35-
F D-F]
1.5 It is very much necessary that the evidence collected
by the investigating agency in the form of chargesheet is
thoroughly looked into and thereafter, the recommendations are
made. The investigating agency gets full 180 days to complete
G the investigation and file its report before the competent court
in accordance with Section 173(2) of the CrPC. The submission
that the investigating agency may have to adjust the period of
investigation in such a manner that within the period of 180 days,
the sanction is also obtained and placed before the court is
absolutely unpalatable. [Para 53][37-E-G]
H
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 5
v. NATIONAL INVESTIGATION AGENCY
1.6 Once the chargesheet has been filed within the stipulated A
time, the question of grant of statutory/default bail does not arise.
Whether cognizance has been taken or not taken is not relevant
for the purpose of compliance of Section 167 CrPC. The mere
filing of the chargesheet is sufficient. [Para 57][41-G]
1.7 Filing of a chargesheet is sufficient compliance with the B
provisions of Section 167 CrPC and that an accused cannot claim
any indefeasible right of being released on statutory/default bail
under Section 167(2) CrPC on the ground that cognizance has
not been taken before the expiry of the statutory time period to
file the chargesheet. Grant of sanction is nowhere contemplated
under Section 167 CrPC. [Para 63][47-D-E] C
Ritu Chhabaria v. Union of India and Others, Writ
Petition (Crl.) No. 60 of 2023 – distinguished.
Suresh Kumar Bhikamchand Jain v. State of
Maharashtra and Another (2013) 3 SCC 77 : [2013] 1 D
SCR 1037; K. Veeraswami v. Union of India and Others
(1991) 3 SCC 655 : [1991] 3 SCR 189 – relied on.
Dinesh Dalmia v. CBI (2007) 8 SCC 770 : [2007] 9
SCR 1124; Central Bureau of Investigation v. Ashok
Kumar Aggarwal (2014) 14 SCC 295 : [2013] 14 SCR E
983; Mohamed Iqbal Madar Sheikh and others v. State
of Maharashtra (1996) 1 SCC 722 : [1996] 1 SCR
183; M. Ravindran v. Intelligence Officer, Directorate
of Revenue Intelligence (2021) 2 SCC 485 – referred
to.
F
2.1 The scheme of both the Acts-NIA and UAPA Act makes
it clear that once the investigation is completed, the report under
Section 173 CrPC is to be filed in the Special Court constituted
under the Act. Section 16 of the NIA Act leaves no room for any
doubt, as it empowers the Special Court to take cognizance of
any offence without the accused being committed to it, for trial, G
upon receiving a complaint of facts that constitute such offence
or upon a police report of such facts. Thus, by incorporating
Section 16 in the NIA Act the legislature has made the Special
H
6 SUPREME COURT REPORTS [2023] 6 S.C.R.
A Court as the court of original jurisdiction unlike the Sessions
Court, which is a court of committal under the Criminal Procedure
Code. [Para 68][49-B-C]
2.2. The chargesheet could not have been filed in the Court
of the SDJM and the same should have been filed in the Special
B Court. Section 16 of the NIA Act empowers the Special Court to
take cognizance of any offence without the accused being
committed to it for trial, upon receiving a complaint of facts that
constitute such an offence or upon a police report of such facts.
The error on the part of the investigating agency in filing the
chargesheet in the Court of SDJM and thereafter, committing
C the case to the Court of Sessions has again nothing to do with
Section 167 CrPC. The application seeking default bail under
Section 167(2) CrPC read with Section 43D of the UAPA was
filed before the Special Judge, NIA, Mohali, on 14.12.2020 and
by that time, the chargesheet had already been filed and the
D proceedings were pending in the court of Special Judge, CBI,
Punjab, SAS Nagar, Mohali. It is not in dispute that at the time
when the Special Court took cognizance of the offence the
sanctions under the UAPA and the 1908 Act had already been
granted. [Para 72][51-D-E; F-H]
E 2.3 The error on the part of the investigating agency in
filing chargesheet first before the Court of Magistrate has nothing
to do with the right of the accused to seek statutory/default bail
under Section 167(2) CrPC. The committal proceedings are not
warranted, when it comes to prosecution under the UAPA by the
NIA by virtue of Section 16 NIA Act. This is because the Special
F Court acts, as one of the original jurisdictions. By virtue of Section
16 NIA Act, the Court need not follow the requirements of Section
193 CrPC. [Para 73][52-A-B]
Abdul Azeez P.V. and Others v. National Investigation
Agency (2014) 16 SCC 543; Fakhrey Alam v. State of
G Uttar Pradesh 2021 SCC OnLine 532; Chitra
Ramkrishna v. Central Bureau of Investigation (2022)
SCC OnLine Del 3124; Rambhai Nathabhai Gadhvi
and Others v. State of Gujarat (1997) 7 SCC 744 :
[1997] 3 Suppl. SCR 356; Ashrafkhan v. State of
H Gujarat (2012) 11 SCC 606 : [2012] 12 SCR 1033;
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 7
v. NATIONAL INVESTIGATION AGENCY
Bikramjit Singh v. State of Punjab (2020) 10 SCC 616; A
Sanjay Dutt v. State (1994) 5 SCC 410 : [1994] 3 Suppl.
SCR 263; Serious Fraud Investigation Office v. Rahul
Modi and Others (2022) SCC OnLine 153; Uday
Mohanlal Acharya v. State of Maharashtra (2001) 5
SCC 453 : [2001] 2 SCR 878; Rakesh Kumar Paul v.
B
State of Assam (2017) 15 SCC 67 : [2017] 8 SCR 785;
Achpal Alias Ramswaroop and Another v. State of
Rajasthan (2019) 14 SCC 599 : [2018] 12 SCR 327;
Central Bureau of Investigation v. R. S. Pai and Another
(2002) 5 SCC 82 : [2002] 2 SCR 889; Narayan Rao v.
State of A.P. AIR 1957 SC 737 : [1958] SCR 283 : C
1957 Cri LJ 1320; Satya Narain Musadi and Others v.
State of Bihar (1980) 3 SCC 152; Satish Kumar v. State
of Punjab and Another 2021 SCC OnLine P&H 786 –
referred to.
3.1 The final report under Section 173(2) of the CrPC was D
filed in the Court of SDJM on 15.11.2019, was the 161st day
from the date of arrest of two of the appellants. They were the
first to be arrested on 08.06.2019. The Punjab Police applied to
the Court of the Additional Sessions Judge, Amritsar, for
extension of time to complete the investigation invoking the
proviso to Section 43D(2)(b) of the UAPA on 04.09.2019. When E
this application for extension of time was filed only two days were
left for 90 days to expire. This is suggestive of the fact that the
91st day would have fallen on 07.09.2019. What is important to
highlight is that the Additional Sessions Judge, Amritsar, looked
into the extension application dated 04.09.2019 filed by the Punjab F
Police and ultimately, extended the time limit vide its order dated
17.09.2019 i.e., on the 101st day. By the time, the Additional
Sessions Judge, Amritsar, passed an order extending the time,
the period of 90 days had already expired. Indisputably, there
was no chargesheet before the Court on the 91st day i.e., on
07.09.2019. The reason why this is said to be a grey area is G
because what would have happened if the appellants had preferred
an application seeking statutory/default bail under Section 167(2)
CrPC on the 91st day i.e., on 07.09.2019. The application seeking
extension of time was very much pending. The Additional
Sessions Judge could not have even allowed such application H
8 SUPREME COURT REPORTS [2023] 6 S.C.R.
A promptly i.e., on or before the 90th day without giving notice to
the accused persons. [Para 76][52-F-H; 53-A-C]
3.2 An opportunity of hearing has to be given to the accused
persons before the time is extended up to 180 days to complete
the investigation. The only error or lapse on the part of the
B appellants was that they failed to prefer an appropriate application
seeking statutory/default bail on the 91st day. If such application
would have been filed, the court would have had no option but to
release them on statutory/default bail. The Court could not have
said that since the extension application was pending, it shall
pass an appropriate order only after the extension application
C was decided. That again would have been something contrary to
the well settled position of law. This litigation is an eye opener
for the NIA as well as the State investigating agency that if they
want to seek extension, they must be careful that such extension
is not prayed for at the last moment. [Para 76][53-C-E]
D 3.3 The right to be released on default bail continues to
remain enforceable if the accused has applied for such bail,
notwithstanding pendency of the bail application or subsequent
filing of the chargesheet or a report seeking extension of time by
the prosecution before the court. However, where the accused
E fails to apply for default bail when the right accrues to him, and
subsequently a chargesheet, or a report seeking extension of
time is preferred before the Magistrate or any other competent
court, the right to default bail would be extinguished. The court
would be at liberty to take cognizance of the case or grant further
time for completion of the investigation, as the case may be,
F though the accused may still be released on bail under other
provisions of the CrPC. [Para 77][53-F-G]
Jigar Alias Jimmy Pravinchandra Aditya v. State of
Gujarat 2022 SCC OnLine SC 1290; Sayed Mohd.
Ahmad Kazmi v. State (Government of NCT of Delhi)
G and Others (2012) 12 SCC 1 : [2012] 9 SCR 836 –
referred to.
H
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 9
v. NATIONAL INVESTIGATION AGENCY
Case Law Reference A
(2014) 16 SCC 543 referred to Para 16
[1997] 3 Suppl. SCR 356 referred to Para 16
[2012] 12 SCR 1033 referred to Para 16
(2020) 10 SCC 616 referred to Para 16 B
[1994] 3 Suppl. SCR 263 referred to Para 18
[2013] 1 SCR 1037 relied on Para 57, 63
[2001] 2 SCR 878 referred to Para 28
C
[2017] 8 SCR 785 referred to Para 29
[2018] 12 SCR 327 referred to Para 30
[2007] 9 SCR 1124 referred to Para 31
[2002] 2 SCR 889 referred to Para 46
D
[1958] SCR 283 referred to Para 46
(1980) 3 SCC 152 referred to Para 48
[1991] 3 SCR 189 relied on Para 48
[2013] 14 SCR 983 referred to Para 51
E
[1996] 1 SCR 183 referred to Para 59
(2021) 2 SCC 485 referred to Para 59
[2012] 9 SCR 836 referred to Para 78
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. F
1011 of 2023.
From the Judgment and Order dated 26.04.2022 of the High Court
of Punjab & Haryana at Chandigarh in CRAD No. 47 of 2021.
With
G
Criminal Appeal No. 1012 of 2023.
Colin Gonsalves, Sr. Adv., Sangram Saron, Ms. Rooh-e-hina Dua,
Ms. Mugdha, Satya Mitra, Advs. for the Appellants.
H
10 SUPREME COURT REPORTS [2023] 6 S.C.R.
A Sanjay Jain, ASG, Ms. Deepabali Dutta, Annam Venkatesh, Rahul
Mishra, Padmesh Mishra, Samar Singh Kachwaha, Arvind Kumar
Sharma, Advs. for the Respondent.
The Judgment of the Court was delivered by
B J. B. PARDIWALA, J.
1. As the issues raised in both the captioned appeals are common
and the challenge is also to the self-same order passed by the High
Court, those were taken up for hearing analogously and are being disposed
of by this common judgment and order.
C 2. These appeals by special leave are at the instance of five under
trial accused charged with having committed offences punishable under
Section 120B of the Indian Penal Code, 1860 (for short, ‘the IPC’),
Sections 17, 18, 18B and 20 respectively of the Unlawful Activities
(Prevention) Act, 1967 (for short, ‘the UAPA’) and Sections 4 and 5
respectively of the Explosive Substances Act, 1908 (for short, ‘the 1908
D
Act’) and are directed against the order passed by the High Court of
Punjab and Haryana at Chandigarh dated 26.04.2022 in CRA-D No. 47
of 2021 (O&M) by which, the High Court dismissed the appeal and
thereby declined to release the accused persons on default bail under
Section 167(2) of the CrPC.
E
3. The seminal issues falling for the consideration of this Court
may be formulated as under:-
(i) Whether an accused is entitled to seek default bail under the
provisions of Section 167(2) of the Code of Criminal Procedure, 1973
(for short, ‘the CrPC’) on the ground that although the chargesheet
F might have been filed within the statutory time period as prescribed in
law yet the chargesheet sans a valid order of sanction passed by a
competent authority is no chargesheet in the eye of law and therefore, it
is as good as saying that no chargesheet was filed by the investigating
agency within the statutory time period as prescribed in law? To put it
G more succinctly, whether the Court concerned is precluded in any manner
for the purpose of Section 167 of the CrPC from taking notice of the
chargesheet that might have been filed by the investigating agency in
the absence of a valid order of sanction?
(ii) Whether cognizance of the chargesheet is necessary to prevent
H the accused from seeking default bail or whether mere filing of the
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 11
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
chargesheet would suffice for the investigation to be deemed complete? A
To put it in different words, whether the grant of sanction is contemplated
under Section of the 167 CrPC?
(iii) A Special Court may not be in a position to take cognizance
on account of failure on the part of the prosecution to obtain sanction to
prosecute the accused under the UAPA and the 1908 Act, but does B
such failure amount to non-compliance with the provisions of Section
167(2) of the CrPC so as to entitle the accused to seek default bail?
(iv) Whether filing of the chargesheet for the offences as
enumerated above, in the Court of the Magistrate and the Magistrate
thereafter, committing the case to the Court of Sessions or designated C
Court would vitiate all subsequent proceedings on the ground that Section
16 of the National Investigation Agency Act, 2008 (for short, ‘the NIA
Act’) empowers the Special Court to take cognizance of any offence
without the accused being committed to it for trial upon receiving a police
report? To put it in other words, whether the error on the part of the
investigating agency to file chargesheet for the offence enumerated above, D
in the Court of Magistrate and not in the Sessions or designated Court
would by itself entitle the accused to seek default bail under the provisions
of Section 167(2) of the CrPC?
4. For the purpose of answering the aforesaid issues, it is very
much essential to take notice of the following chronology of dates and E
events:
(a) On 02.06.2019 at around 04:50 in the morning, a team of police
officers was patrolling. The vehicles passing through the Harsh Cheena,
Kukkarwal bus stop in Raja Sansi, District Amritsar, State of Punjab,
were being checked. At that point of time two boys belonging to the Sikh F
community were noticed to have been travelling on a motorcycle without
a number plate. On being asked to stop, they fled away. In the process
of running away, one blue coloured bag which was in the hands of the
pillion rider fell down. A mobile phone and two hand grenades were
recovered from the bag. In such circumstances, FIR No. 90 came to be G
registered at the Police Station Raja Sansi, District Amritsar (Rural),
Punjab, for the offences punishable under the 1908 Act. Thus, the FIR
came to be registered on 02.06.2019.
(b) On 05.06.2019, the Punjab Police added Sections 17, 18, 18B
and 20 of the UAPA.
H
12 SUPREME COURT REPORTS [2023] 6 S.C.R.
A (c) On 08.06.2019, accused Jasbir Singh and Varinder Singh came
to be arrested by the Punjab Police.
(d) On 27.07.2019, Sukhpreet Singh alias Budda (Accused No.
8) was arrayed as accused in the instant FIR and offence under Section
120B of the IPC was added.
B (e) On 18.08.2019, the Appellant No. 3 Kulbir Singh alias Kulbir
and Appellant No. 4 Manjit Kaur wife of Darshan Singh (Appellants of
Crl. A. No. 1011 of 2023) came to be arrested. It is the case of the
prosecution that Kulbir Singh and Manjit Kaur at the relevant point of
time were residing at Cambodia. One Harmit Singh and Kulwinder Singh
C were also arrayed as accused.
(f) On 04.09.2019, the Punjab Police applied for extension of time
for completing the investigation under the proviso to Section 43D(2)(b)
of the UAPA before the Additional Sessions Judge, Amritsar. It is
pertinent to note that the application seeking extension was filed two
D days prior to the expiry of 90 days from the date of arrest. Section
43D(2)(b) of the UAPA empowers the competent court to extend the
period of 90 days as contemplated under Section 167 of the CrPC up to
180 days.
(g) On 07.09.2019, Taranbir Singh (Appellant of Crl. A. No. 1012
E of 2023) came to be arrayed as accused in the instant FIR. Taranbir
Singh at the relevant point of time was residing in Malaysia.
(h) On 11.09.2019, Taranbir Singh was arrested.
(i) On 17.09.2019, the Additional Sessions Judge, Amritsar,
extended the period of completion of investigation from 90 days to 180
F days. It is pertinent to note at this stage that the extension was granted
by the Additional Sessions Judge after giving an opportunity of hearing
to all the accused persons.
(j) On 15.11.2019, a final report under Section 173(2) of the CrPC
was prepared by the investigating agency and presented before the Court
G of the Sub-Divisional Judicial Magistrate, Ajnala. This report
(chargesheet) was filed in connection with the FIR No. 90 for the offence
enumerated above. A common chargesheet was filed before the Court
of Magistrate on 15.11.2019. Since the accused Nos. 1 and 2 respectively
were arrested on 08.06.2019, the chargesheet could be said to have
been presented on the 161st day from the date of their formal arrest.
H
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 13
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
The accused Nos. 3 & 4 were arrested on 18.08.2019; for them, the A
chargesheet was filed within 90 days post-arrest, and in the case of the
accused No. 5 who was arrested on 11.09.2019, it was filed within 66
days of his arrest. Thus, the chargesheet was filed within the extended
period of 180 days so far as Appellant Nos. 1 and 2 are concerned.
(k) On 16.11.2019, the SDJM, Ajnala adjourned the proceedings B
of all the accused persons.
(l) On 20.11.2019, the SDJM, Ajnala further adjourned the
proceedings to 25.11.2019.
(m) On 25.11.2019, the SDJM, Ajnala committed the case to the
Court of Sessions under the provisions of Section 209 of the CrPC, as C
the offences were exclusively triable by the Court of Sessions. The next
date fixed was 06.12.2019.
(n) On 06.12.2019, the Additional Sessions Judge, Amritsar, simply
registered the case without cognizance being taken.
D
(o) On 22.02.2020, the NIA, New Delhi re-registered the instant
case as RC-07/2020/NIA/DLI under Sections 17, 18, 18B and 20
respectively of the UAPA in compliance with the Government of India,
Ministry of Home Affairs, CTCR Division Order No. 11011/22/2020/
NIA dated 20.02.2020 in the FIR No. 90 of 2019.
E
(p) On 09.03.2020, the Special Judge, CBI Punjab, SAS Nagar,
Mohali, received the entire file from the Court of Additional Sessions
Judge, Amritsar. In this manner, the prosecution ultimately stood
transferred to the Special Court constituted under the NIA/UAPA.
(q) On 26.10.2020, the District Magistrate, Amritsar, accorded
F
sanction for prosecution under the 1908 Act.
(r) On 12.11.2020, the Special Judge, NIA recorded that the
sanction to prosecute the accused persons for the offences under the
1908 Act had been accorded and the sanction under the UAPA was
being awaited.
G
(s) On 14.12.2020, an application for default bail under Section
167(2) of the CrPC r/w Section 43D of the UAPA was filed before the
Special Judge NIA, SAS Nagar, Mohali, essentially on the ground that
although the chargesheet had been filed within the extended period of
180 days, yet the same could be termed as incomplete because of want
H
14 SUPREME COURT REPORTS [2023] 6 S.C.R.
A of sanction under the UAPA. In such circumstances, the position was
as if there was no chargesheet.
(t) On 16.12.2020, the prosecution produced the order of grant of
sanction issued by the District Magistrate, Amritsar, under the 1908 Act
before the trial court.
B (u) On 17.12.2020, the NIA filed its reply to the application filed
by the accused persons seeking default bail.
(v) On 17.12.2020, the Special Court rejected the application filed
by the accused persons seeking default bail on the ground that the
chargesheet had already been filed.
C
(w) On 06.01.2021, the Government of Punjab accorded sanction
for prosecution under the UAPA.
(x) On 07.01.2021, the Special Court acknowledged the receipt
of the sanction under the UAPA from the Home Department of the
D Punjab Government.
(y) On 18.01.2021, the appellants herein filed appeal before the
High Court of Punjab and Haryana against the order dated 17.12.2020
passed by the Special Court rejecting the default bail application.
(z) On 17.03.2021, the Government of India, accorded sanction
E under Section 45(1) of the UAPA for prosecuting the Appellants.
(aa) On 22.03.2021, a supplementary chargesheet was filed by
the NIA before the Special Judge, NIA, Punjab, along with the relevant
sanctions for prosecution.
(ab) On 05.04.2021, the Special Court, NIA took cognizance of
F the offences enumerated above and issued notices to the accused persons.
(ac) On 06.09.2021, the Special Court proceeded to frame charge
against the accused persons.
(ad) On 26.04.2022, the High Court of Punjab and Haryana
G dismissed the appeal filed by the Appellants against the order of the
Special Court rejecting the plea of default bail.
5. To make it more explicit and clear, we trim down the aforesaid
chronology of dates and events as under:
(i) 02.06.2019 – FIR was registered;
H
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 15
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
(ii) 08.06.2019 – arrest of the first and second Appellants; A
(iii) 18.08.2019 – arrest of the third and fourth Appellants;
(iv) 11.09.2019 – arrest of Taranbir Singh (Appellant of Crl. A.
No. 1012 of 2023)
(v) 17.09.2019 – extension of the period of investigation from 90 B
to 180 days;
(vi) 15.11.2019 – chargesheet presented;
(vii) 14.12.2020 – application for default bail;
(viii) 16.12.2020 – sanction order dated 26.10.2020 under the 1908
C
Act filed;
(ix) 06.01.2021 – sanction order was issued under the UAPA;
(x) 17.03.2021 – sanction by the Ministry of Home Affairs under
Section 45(1), UAPA following the transfer of investigation to NIA; and
(xi) 22.03.2021 – supplementary chargesheet has been presented D
by NIA.
6. In such circumstances referred to above, the Appellants (original
accused persons) are here before this Court with the present appeals.
SUBMISSIONS ON BEHALF OF THE ACCUSED E
PERSONS
7. Mr. Colin Gonsalves, the learned Senior Counsel and Mr. Satya
Mitra, the learned Counsel appearing for the respective appellants
vehemently submitted that the High Court committed a serious error in
declining to grant the benefit of default bail to the appellants. F
8. According to both the learned counsel, the chargesheet filed
without sanction is an incomplete chargesheet and on the basis of such
incomplete chargesheet no cognizance can be taken. It was submitted
that the final report is filed so as to enable the court concerned to apply
its mind as to whether cognizance of the offence should be taken or not.
G
The sum and substance of the submission canvassed on behalf of the
accused persons is that there cannot be a part chargesheet. A chargesheet
filed without sanction is an incomplete chargesheet and does not meet
the requirement of a police report within the meaning of Section 173(2)
of the CrPC. Such a chargesheet would also not be in consonance with
sub section (5) of Section 173 of the CrPC. H
16 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 9. Such incomplete chargesheet cannot be used as a tool or device
by the police to defeat an application seeking statutory/default bail. It
was argued that a chargesheet filed under the UAPA must be complete
in all respects. The emphasis put by both the learned counsel was on the
fact that the sanction order must accompany the chargesheet to enable
the court concerned to take cognizance.
B
10. It was further argued that mere gathering of evidence by the
investigating agency is not sufficient when it comes to comparing usual
criminal cases with the cases under the UAPA. The investigation cannot
be said to be complete until the facts gathered are scrutinised by the
authority appointed by the Central Government and such authority submits
C its report.
11. Our attention was drawn by both the learned counsel to Rules
3 and 4 respectively of the Unlawful Activities (Prevention)
(Recommendation and Sanction of Prosecution) Rules, 2008 (for short,
‘Rules 2008’), which provide a time limit for making recommendation
D by the authority and a time limit thereafter, for sanction of the prosecution.
It was argued that the provisions of the UAPA and Rules 2008 framed
thereunder make the grant of sanction, time bound.
12. It was vociferously submitted by both the learned Counsel
that the extension of time from 90 to 180 days read together with Rules
E 3 and 4 respectively of the Rules 2008 referred to above, makes the
grant of sanction mandatorily time bound. The same leads to only one
conclusion that the sanction order must accompany for it to be considered
a final report.
13. It was argued that since the chargesheet in the case on hand
F was filed on 15.11.2019, the material collected by the investigating agency
should have been received by the competent authority on 15.11.2019
itself. The report of the competent authority should have been ready
seven days thereafter, i.e., by 22.11.2019. In view of Rule 4, the sanction
should have been granted by 29.11.2019. However, according to both
G the learned counsel, the report was filed only on 12.03.2021 i.e., after a
delay of one year and three months. The sanction was granted on
17.03.2021 i.e., beyond the period of 180 days which expired on
10.03.2020. The default bail application was instituted on 14.12.2020.
14. It was further argued that the NIA after taking over the
investigation on 22.01.2020 was left with 49 days to file or place on
H
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 17
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
record the appropriate sanction before the expiry of the limit of 180 A
days. The default bail application was filed on 14.12.2020. The sanction,
which was granted only on 17.03.2021, ought to have been granted on
29.11.2019 in view of the time period prescribed by Rules 3 and 4
respectively of the 2008 Rules referred to above. In such circumstances,
both the learned counsel submitted that such a delayed sanction even if
B
otherwise valid cannot defeat the indefeasible right of the accused
persons to seek default bail.
15. The second limb of the submission canvassed by both the
learned counsel appearing for the accused persons is that the chargesheet
could not have been filed in the Court of SDJM, Ajnala as the proceedings
under the NIA are to be conducted in the Special Court only notified C
under Section 22 of the NIA Act. If there is no Special Court notified
then before the Sessions Judge. However, in any event, the chargesheet
could not have been filed before the Court of Magistrate. It was argued
that in view of Section 16 of the NIA Act read with Section 22 of the
NIA Act, the provisions of Section 193 of the CrPC would not come into D
play. It was argued that the error on the part of investigating agency in
filing the chargesheet before the Court of Magistrate and the Magistrate
thereafter, committing the case to the Court of Sessions was absolutely
contrary to the provisions of the NIA Act and also the provisions of the
UAPA, which rendered all subsequent proceedings to be without
jurisdiction and hence, a nullity. E
16. In support of the aforesaid submissions, reliance has been
placed on the following case law:
(i) Fakhrey Alam v. State of Uttar Pradesh, 2021 SCC OnLine
532 F
(ii) Abdul Azeez P.V. and Others v. National Investigation
Agency, (2014) 16 SCC 543
(iii) Chitra Ramkrishna v. Central Bureau of Investigation,
(2022) SCC OnLine Del 3124
G
(iv) Rambhai Nathabhai Gadhvi and Others v. State of
Gujarat, (1997) 7 SCC 744
(v) Ashrafkhan v. State of Gujarat, (2012) 11 SCC 606
(vi) Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616
H
18 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 17. In such circumstances referred to above, both the learned
counsel prayed that there being merit in their appeals, those may be
allowed and the accused persons be ordered to be released on default
bail.
SUBMISSIONS ON BEHALF OF THE NIA/UNION OF
B INDIA
18. Mr. Sanjay Jain, the learned ASG, on the other hand, while
vehemently opposing both the appeals submitted that it is settled law
that the indefeasible right under Section 167(2) of the CrPC accrues to
an accused only if the chargesheet is not filed within the time prescribed
C therein or within the time extended by a competent court under a special
statute. He would submit that the right ceases to be available if the
chargesheet is filed within the time indicated above or if the chargesheet
is filed prior to preferring an application under Section 167(2) of the
CrPC. Mr. Jain sought to fortify his submission by placing reliance on
the Constitution Bench decision of this Court in the case of Sanjay Dutt
D v. State reported in (1994) 5 SCC 410 (paras 48 and 53(2)(b)) and in the
case of Serious Fraud Investigation Office v. Rahul Modi and Others
reported in (2022) SCC OnLine 153 (para 16).
19. Mr. Jain vehemently submitted that there is no merit in the
submission canvassed on behalf of the accused persons that a chargesheet
E without requisite sanction under the UAPA or the 1908 Act is incomplete.
In other words, according to Mr. Jain, there is no merit in the contention
canvassed on behalf of the accused persons that although the
chargesheet was filed within the period of 180 days, yet the same being
without sanction, it could be said to be as good as not filing the chargesheet
F within the statutory time period.
20. In the aforesaid context, Mr. Jain invited the attention of this
Court to the following aspects:
a. The act of grant of sanction for prosecution, in several statutes,
is entrusted upon an authority other than the Investigating Agency and
G as such it is not within the domain of the Investigating Agency to grant
such Sanction.
b. In the present case, at the time of filing of the first chargesheet
by the State Investigating Agency (SIA), the SIA had already sought
sanction for prosecution from the appropriate Governments.
H
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 19
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
c. The cognizance of the offence was taken by the Special Court A
NIA/UAPA on 05.04.2021, only after the sanctions under the 1908 Act
and UAPA were granted by the appropriate governments and
communicated to the Court, as is evident from the timeline indicated
above.
d. The question of grant of sanction for prosecution is relevant B
only at the stage of taking cognizance, which is altogether a separate
stage distinct from the stage of investigation. [Reliance is placed on
Suresh Kumar Bhikamchand Jain v. State of Maharashtra and
Another, (2013) 3 SCC 77 @ Paras 17 – 19]
21. Mr. Jain submitted that as some of the accused persons were C
declared as absconders, the request for extension of time to file
chargesheet was made by the investigating agency on 04.09.2019 (i.e.,
within the period of 90 days), the said application was finally heard on
17.09.2019 and the hearing was in conformity with the principles of
natural justice as all the accused persons were duly represented and
arguments on behalf of the accused as well as prosecution were heard D
on the application seeking extension of time
22. Mr. Jain further submitted that the investigation was being
carried out by the State Police and in view of the same, the State Police
proceeded with filing of the chargesheet on 15.11.2019 before the JMFC,
where the accused persons were first produced at the time of their E
arrest and in view thereof, the original chargesheet was presented before
the Magistrate, which at the relevant time had the custody of the accused
persons and thus, the same cannot be termed as non-compliance of
Section 167 of the CrPC. [Reliance: Suresh Kumar Bhikamchand
Jain (Supra) @Paras 13 – 17 and Rahul Modi (supra) @ Para 16]. F
23. Mr. Jain further submitted that the case was eventually
committed to the Court of Sessions and finally to the Special Court
constituted for NIA/UAPA (after taking over of investigation by NIA
on 22.02.2020 re-registered by NIA as RC-07/2020/NIA/DLI) and finally
the cognizance was also taken by the Special Court only, after examining G
the prosecution sanctions. The sanction under the 1908 Act was received
on 26.10.2020 by the District Magistrate, Amritsar, which was duly
recorded by the Special Judge, NIA on 12.11.2020. The sanction under
the UAPA by the Punjab Government was granted on 06.01.2021. The
Special Court recorded the same on 07.01.2021. Further, the Government
H
20 SUPREME COURT REPORTS [2023] 6 S.C.R.
A of India accorded the sanction under Section 45(1) of UAPA on
17.03.2021.
24. In the last, Mr. Jain pointed out that the trial of all the accused
persons is in progress and twelve witnesses have been examined so far.
The accused persons are facing trial for very serious offences relating
B to National security. If the accused persons have anything to say in
regard to the legality and validity of the sanctions or the mode and manner
in which the cognizance was taken then such issues could be raised
before the trial court. According to Mr. Jain, there is no scope for the
accused persons at this point of time to say that they be released on
default bail.
C
FEW RELEVANT STATUTORY PROVISIONS
25. Before adverting to the rival submissions canvassed on either
side, we must look into the few relevant statutory provisions of the CrPC,
the UAPA, the 1908 Act and the NIA Act.
D 26. In the earlier Code of Criminal Procedure, 1898 (for short,
‘the CrPC, 1898’), Section 167 laid down the procedure to be followed
in the event the investigation of an offence was not completed within 24
hours. Section 167 in the CrPC, 1898, was premised on the conclusion
of investigation within 24 hours or within 15 days on the outside, regardless
E of the nature of the offence or the punishment.
27. The Law Commission of India, in its Forty-first Report,
recommended increasing the time-limit for completion of investigation
to 60 days. The new CrPC gave effect to the recommendation of the
Law Commission. Section 167 as enacted provided for time-limit of 60
F days regardless of the nature of offence or the punishment. In the year
1978, Section 167 was amended. Section 167(2) which is relevant for
the present case existing as of now is to the following effect:
“167(2). The Magistrate to whom an accused person is
forwarded under this section may, whether he has or has not
jurisdiction to try the case, from time to time, authorise the
G
detention of the accused in such custody as such Magistrate
thinks fit, for a term not exceeding fifteen days in the whole;
and if he has no jurisdiction to try the case or commit it for
trial, and considers further detention unnecessary, he may
order the accused to be forwarded to a Magistrate having
H such jurisdiction:
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 21
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
Provided that,— A
(a) the Magistrate may authorise the detention of the accused
person, otherwise than in the custody of the police, beyond
the period of fifteen days, if he is satisfied that adequate
grounds exist for doing so, but no Magistrate shall authorise
the detention of the accused person in custody under this B
paragraph for a total period exceeding,—
(i) ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or imprisonment
for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other C
offence,
and, on the expiry of the said period of ninety days, or sixty
days, as the case may be, the accused person shall be released
on bail if he is prepared to and does furnish bail, and every
person released on bail under this sub-section shall be deemed D
to be so released under the provisions of Chapter XXXIII for
the purposes of that Chapter;
(b) no Magistrate shall authorise detention of the accused in
custody of the police under this section unless the accused is
produced before him in person for the first time and E
subsequently every time till the accused remains in the custody
of the police, but the Magistrate may extend further detention
in judicial custody on production of the accused either in
person or through the medium of electronic video linkage;
(c) no Magistrate of the second class, not specially empowered F
in this behalf by the High Court, shall authorise detention in
the custody of the police.”
28. A three-Judge Bench of this Court in Uday Mohanlal
Acharya v. State of Maharashtra reported in (2001) 5 SCC 453, has
noticed the object of enacting the provisions of Section 167 of the CrPC. G
Section 57 of the CrPC contains the embargo on the police officers to
detain in custody, a person arrested beyond 24 hours. The object is that
the accused should be brought before a Magistrate without delay within
24 hours, which provision is, in fact, in consonance with the constitutional
mandate engrafted under Article 22(2) of the Constitution. The provision
H
22 SUPREME COURT REPORTS [2023] 6 S.C.R.
A of Section 167 is supplementary to Section 57. The power under Section
167 is given to detain a person in custody while police goes on with the
investigation. Section 167 is, therefore, a provision which authorises the
Magistrate permitting the detention of the accused in custody prescribing
the maximum period. In Uday Mohanlal Acharya (supra) this Court
while dealing with Section 167 laid down the following:
B
“5. …This provision of Section 167 is in fact supplementary
to Section 57, in consonance with the principle that the
accused is entitled to demand that justice is not delayed. The
object of requiring the accused to be produced before a
Magistrate is to enable the Magistrate to see that remand is
C necessary and also to enable the accused to make a
representation which he may wish to make. The power under
Section 167 is given to detain a person in custody while the
police goes on with the investigation and before the Magistrate
starts the enquiry. Section 167, therefore, is the provision
D which authorises the Magistrate permitting detention of an
accused in custody and prescribing the maximum period for
which such detention could be ordered. Having prescribed
the maximum period, as stated above, what would be the
consequences thereafter has been indicated in the proviso to
sub-section (2) of Section 167. The proviso is unambiguous
E and clear and stipulates that the accused shall be released
on bail if he is prepared to and does furnish the bail which
has been termed by judicial pronouncement to be “compulsive
bail” and such bail would be deemed to be a bail under
Chapter 33. The right of an accused to be released on bail
F after expiry of the maximum period of detention provided
under Section 167 can be denied only when an accused does
not furnish bail, as is apparent from Explanation I to the said
section. The proviso to sub-section (2) of Section 167 is a
beneficial provision for curing the mischief of indefinitely
prolonging the investigation and thereby affecting the liberty
G of a citizen….”
29. Again, there has been a very detailed consideration of Section
167 by a three-Judge Bench of this Court in Rakesh Kumar Paul v. State
of Assam, reported in (2017) 15 SCC 67. This Court in the above case
has traced the legislative history of the provision of Section 167. This
H
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 23
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
Court in the above case emphasised that the debate on Section 167 must A
also be looked at from the perspective of expeditious conclusion of
investigation and from the angle of personal liberty. This Court also held
that the right of default bail is an indefeasible right which cannot be
allowed to be frustrated by the prosecution. Following was laid down in
paras 37, 38 and 39:
B
“37. This Court had occasion to review the entire case law on
the subject in Union of India v. Nirala Yadav [Union of
India v. Nirala Yadav, (2014) 9 SCC 457 : (2014) 5 SCC (Cri)
212] . In that decision, reference was made to Uday Mohanlal
Acharya v. State of Maharashtra [Uday Mohanlal
Acharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001 C
SCC (Cri) 760] and the conclusions arrived at in that decision.
We are concerned with Conclusion (3) which reads as follows
: (Uday Mohanlal Acharya case [Uday Mohanlal
Acharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001
SCC (Cri) 760] , SCC p. 473, para 13) D
“13. … (3) On the expiry of the said period of 90 days or
60 days, as the case may be, an indefeasible right accrues
in favour of the accused for being released on bail on
account of default by the investigating agency in the
completion of the investigation within the period prescribed E
and the accused is entitled to be released on bail, if he is
prepared to and furnishes the bail as directed by the
Magistrate.”
38. This Court also dealt with the decision rendered in Sanjay
Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) F
1433] and noted that the principle laid down by the
Constitution Bench is to the effect that if the charge-sheet is
not filed and the right for “default bail” has ripened into the
status of indefeasibility, it cannot be frustrated by the
prosecution on any pretext. The accused can avail his liberty
by filing an application stating that the statutory period for G
filing the charge-sheet or challan has expired and the same
has not yet been filed and therefore the indefeasible right
has accrued in his or her favour and further the accused is
prepared to furnish the bail bond.
H
24 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 39. This Court also noted that apart from the possibility of
the prosecution frustrating the indefeasible right, there are
occasions when even the court frustrates the indefeasible
right. Reference was made to Mohd. Iqbal Madar
Sheikh v. State of Maharashtra [Mohd. Iqbal Madar
Sheikh v. State of Maharashtra, (1996) 1 SCC 722 : 1996
B
SCC (Cri) 202] wherein it was observed that some courts keep
the application for “default bail” pending for some days so
that in the meantime a charge-sheet is submitted. While such
a practice both on the part of the prosecution as well as some
courts must be very strongly and vehemently discouraged,
C we reiterate that no subterfuge should be resorted to, to defeat
the indefeasible right of the accused for “default bail” during
the interregnum when the statutory period for filing the
charge-sheet or challan expires and the submission of the
charge-sheet or challan in court.”
D 30.One more judgment of this Court on Section 167 of the CrPC
be noticed i.e., Achpal alias Ramswaroop and Another v. State of
Rajasthan, reported in (2019) 14 SCC 599. After referring to several
earlier judgments of this Court including the judgments of this Court
in Uday Mohanlal Acharya (supra) and Rakesh Kumar Paul (supra),
this Court had laid down that the provisions of the CrPC do not empower
E anyone to extend the period within which the investigation must be
completed. This Court held that no court either directly or indirectly can
extend such period. Following are the observations of this Court in para
20 of Achpal (supra):
“20. We now turn to the subsidiary issue, namely, whether
F the High Court could have extended the period. The provisions
of the Code do not empower anyone to extend the period
within which the investigation must be completed nor does it
admit of any such eventuality. There are enactments such as
the Terrorist and Disruptive Activities (Prevention) Act, 1985
G and the Maharashtra Control of Organised Crime Act, 1999
which clearly contemplate extension of period and to that
extent those enactments have modified the provisions of the
Code including Section 167. In the absence of any such
similar provision empowering the Court to extend the period,
no court could either directly or indirectly extend such period.
H
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 25
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
In any event of the matter all that the High Court had recorded A
in its order dated 3-7-2018 [Mahaveer v. State of Rajasthan,
2018 SCC OnLine Raj 1] was the submission that the
investigation would be completed within two months by a
gazetted police officer. The order does not indicate that it
was brought to the notice of the High Court that the period
B
for completing the investigation was coming to an end. Mere
recording of submission of the Public Prosecutor could not
be taken to be an order granting extension. We thus reject
the submissions in that behalf advanced by the learned counsel
for the State and the complainant.”
31. The scheme of the CrPC as noticed above clearly delineates C
that the provisions of Section 167 of the CrPC give due regard to the
personal liberty of a person. Without submission of chargesheet within
60 days or 90 days as may be applicable, an accused cannot be detained
by the police. The provision gives due recognition to the personal liberty.
However, as explained by this Court in Dinesh Dalmia v. CBI reported D
in (2007) 8 SCC 770, such a right of default bail although a valuable
right, yet the same is a conditional one, the condition precedent being
pendency of the investigation. Therefore, once the investigation is
complete with the filing of the police report, containing the details specified
under Section 173(2) of the CrPC, the question of a claim or grant for
default bail does not arise. E
32. However, Section 43D of the UAPA operates as a special
provision vis a vis the applicability of rights granted under Section
167(2)(a) of the CrPC. Section 43D is reproduced hereinbelow:
“43D. Modified application of certain provisions of the F
Code.—(1) Notwithstanding anything contained in the Code
or any other law, every offence punishable under this Act
shall be deemed to be a cognizable offence within the meaning
of clause (c) of section 2 of the Code, and “cognizable case”
as defined in that clause shall be construed accordingly.
G
(2) Section 167 of the Code shall apply in relation to a case
involving an offence punishable under this Act subject to the
modification that in sub-section (2),—
(a) the references to “fifteen days”, “ninety days” and “sixty
days”, wherever they occur, shall be construed as references
H
26 SUPREME COURT REPORTS [2023] 6 S.C.R.
A to “thirty days”, “ninety days” and “ninety days” respectively;
and
(b) after the proviso, the following provisos shall be inserted,
namely:—
“Provided further that if it is not possible to complete the
B investigation within the said period of ninety days, the Court
may if it is satisfied with the report of the Public Prosecutor
indicating the progress of the investigation and the specific
reasons for the detention of the accused beyond the said
period of ninety days, extend the said period up to one hundred
C and eighty days:
Provided also that if the police officer making the investigation
under this Act, requests, for the purposes of investigation,
for police custody from judicial custody of any person in
judicial custody, he shall file an affidavit stating the reasons
D for doing so and shall also explain the delay, if any, for
requesting such police custody.
(3) Section 268 of the Code shall apply in relation to a case
involving an offence punishable under this Act subject to the
modification that—
E (a) the reference in sub-section (1) thereof
(i) to “the State Government” shall be construed as a reference
to “the Central Government or the State Government.”;
(ii) to “order of the State Government” shall be construed as
a reference to “order of the Central Government or the State
F
Government, as the case may be”; and
(b) the reference in sub-section (2) thereof, to “the State
Government” shall be construed as a reference to “the Central
Government or the State Government, as the case may be”.
G (4) Nothing in section 438 of the Code shall apply in relation
to any case involving the arrest of any person accused of
having committed an offence punishable under this Act.
(5) Notwithstanding anything contained in the Code, no person
accused of an offence punishable under Chapters IV and VI
H of this Act shall, if in custody, be released on bail or on his
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 27
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
own bond unless the Public Prosecutor has been given an A
opportunity of being heard on the application for such release:
Provided that such accused person shall not be released on
bail or on his own bond if the Court, on a perusal of the case
diary or the report made under section 173 of the Code is of
the opinion that there are reasonable grounds for believing B
that the accusation against such person is prima facie true.
(6) The restrictions on granting of bail specified in sub-
section (5) is in addition to the restrictions under the Code or
any other law for the time being in force on granting of bail.
(7) Notwithstanding anything contained in sub- C
sections (5) and (6), no bail shall be granted to a person
accused of an offence punishable under this Act, if he is not
an Indian citizen and has entered the country unauthorisedly
or illegally except in very exceptional circumstances and for
reasons to be recorded in writing.” D
33. Thus, a plain reading of the abovementioned provision of the
UAPA makes it clear that the benefit of default bail shall be available to
the accused for the offences alleged to have been committed under the
UAPA where the investigation has not concluded within 90 days of arrest
of the accused irrespective of the punishment of the offences alleged to E
have been committed by him. At the same time, the provision also gives
right to the investigating agency to seek further period of 90 days to
complete the investigation by filing a report to the public prosecutor
indicating the progress of investigation. Thus, by virtue of Section 43D
of the UAPA, the investigating agency gets 90+90 days = 180 days to
complete the investigation. F
34. We shall now look into Section 45 of the UAPA. Section 45 of
the UAPA is with respect to cognizance of offences. Section 45 of the
UAPA reads thus:
“45. Cognizance of offences.
G
(1) No court shall take cognizance of any offence—
(i) under Chapter III without the previous sanction of the
Central Government or any officer authorised by the Central
Government in this behalf;
H
28 SUPREME COURT REPORTS [2023] 6 S.C.R.
A (ii) under Chapter IV and VI without the previous sanction of
the Central Government or, as the case may be, the State
Government, and if such offence is committed against the
Government of a foreign country without the previous sanction
of the Central Government.
B (2) Sanction for prosecution under sub-section (1) shall be
given within such time as may be prescribed only after
considering the report of such authority appointed by the
Central Government or, as the case may be, the State
Government which shall make an independent review of the
evidence gathered in the course of investigation and make a
C recommendation, within such time as may be prescribed, to
the Central Government or, as the case may be, the State
Government.”
35. A close look at Section 45 of the UAPA referred to above
would indicate that sub section (1) deals with the authority who can
D accord sanction for the offence committed under the UAPA whereas
sub section (2) deals with the procedure to be followed by the authority
at the time of granting sanction. It is evident from Section 45(1) of the
UAPA that if the offence falls under Chapter III of the UAPA, the
Court shall not take cognizance of the offence unless previous sanction
E is accorded either by the Central Government or by any other officer
authorised by the Central Government in this behalf. If the offence alleged
to have been committed falls under Chapters IV and VI resply, the Court
shall not take cognizance of the offence unless previous sanction is
granted by the Central Government or the State Government as the
case may be. However, if the offence committed as alleged is against
F the Government of a foreign country, the Court shall not take cognizance
without the previous sanction of the Central Government. It is pertinent
to mention here that for the offence enumerated under Chapters IV and
VI resply, only the Central or State Government, as the case may be,
are authorised to grant sanction.
G 36. We must read Section 45 of the UAPA referred to above
along with the Rules 3 and 4 respectively of the 2008 Rules. We quote
Rules 3 and 4 respectively as under:
“3. Time limit for making a recommendation by the
Authority .—The Authority shall, under sub-section (2) of
H
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 29
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
section 45 of the Act, make its report containing the A
recommendations to the Central Government or, as the case
may be, the State Government within seven working days of
the receipt of the evidence gathered by the investigating officer
under the Code.
4. Time limit for sanction of prosecution .—The Central B
Government or, as the case may be, the State
Government shall, under sub-section (2) of section 45 of the
Act, take a decision regarding sanction for prosecution within
seven working days after receipt of the recommendations of
the Authority.”
C
37. The Rules 2008 referred to above, would indicate that the
authority shall, under sub section (2) of Section 45 of the UAPA make
its report containing the recommendations to the Central Government
(or as the case may be, the State Government) within 7 working days of
the receipt of the evidence gathered by the investigating officer under
the CrPC. The Central Government (or as the case may be, the State D
Government) is obliged under sub section (2) of Section 45 of the UAPA
to take a decision regarding sanction for prosecution within 7 working
days after receipt of the recommendations of the authority.
38. In the aforesaid context, our attention was drawn by the learned
counsel appearing for the appellants to the speech of the Hon’ble Home E
Minister while moving the draft Bills in the Rajya Sabha and in his speech,
the Hon’ble Home Minister clearly stated as under:
“Finally, Sir, we have incorporated a very salutary provision.
To the best of our knowledge-I don’t know, I may be corrected
by the Law Minister or the Law Secretary later - it is the first F
time we are introducing this. In a prosecution under the UAPA,
now, it is the executive Government which registers the case
through a police officer. It is the executive Government which
investigates the case through an investigating agency, namely,
the police department. It is the executive Govt. which sanctions G
U/s.45. Therefore, there is a fear that a vindictive or a wrong
executive Govt. could register a case, investigate and sanction
prosecution. There is a fear. May be, it is not a fear that is
entirely justified but you cannot say that it is entirely
unjustified. So what are we doing? The executive Govt. can
H
30 SUPREME COURT REPORTS [2023] 6 S.C.R.
A register the case because no one else can register a case. The
executive Govt., through its agency, can investigate the
case. But, before sanction is granted under 45(1) we are
interposing an independent authority which will review the
entire evidence, gathered in the investigation, and then make
a recommendation whether this is a fit case of prosecution.
B
So, here, we are bringing a filter, a buffer, an independent
authority who has to review the entire evidence that is gathered
and, then, make a recommendation to the State Govt. or the
Central Govt. as the case may be, a fit case for sanction. I
think, this is a very salutary safeguard. All sections of the
C House should welcome it. This is a biggest buffer against
arbitrariness which many Members spoke about. Sir, these
are the features in the Bill.”
(Emphasis supplied)
39. We shall now proceed to look into the provisions of the NIA
D Act. Section 16 of the NIA Act relates to the procedure and powers of
Special Courts. Sub section (1) of Section 16 is relevant for our purpose.
The same reads thus:
“16. Procedure and powers of Special Courts.—
E (1) A Special Court may take cognizance of any offence,
without the accused being committed to it for trial, upon
receiving a complaint of facts that constitute such offence or
upon a police report of such facts.”
40. Section 18 of the NIA Act relates to sanction for prosecution.
F Section 18 reads thus:
“18. Sanction for prosecution.—
No prosecution, suit or other legal proceedings shall be
instituted in any court of law, except with the previous sanction
of the Central Government, against any member of the Agency
G or any person acting on his behalf in respect of anything
done or purported to be done in exercise of the powers
conferred by this Act.”
41. Section 22 of the NIA Act is with respect to the power of the
State Government to designate the Court of Sessions as Special Courts.
H Section 22 of the NIA Act reads thus:
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 31
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
“22. Power of State Government to designate Court of Session A
as Special Courts.— (1) The State Government may designate
one or more Courts of Session as Special Courts for the trial
of offences under any or all the enactments specified in the
Schedule.
(2) The provisions of this Chapter shall apply to the Special B
Courts designated by the State Government under sub-section
(1) and shall have effect subject to the following modifications,
namely—(i) references to “Central Government” in sections
11 and 15 shall be construed as references to State
Government;
C
(ii) reference to “Agency” in sub-section (1) of section 13
shall be construed as a reference to the “investigation agency
of the State Government”;
(iii) reference to “Attorney-General for India” in sub-section
(3) of section 13 shall be construed as reference to “Advocate- D
General of the State”.
(3) The jurisdiction conferred by this Act on a Special Court
shall, until a Special Court is designated by the State
Government under sub-section (1) in the case of any offence
punishable under this Act, notwithstanding anything E
contained in the Code, be exercised by the Court of Session
of the division in which such offence has been committed and
it shall have all the powers and follow the procedure provided
under this Chapter.
(4) On and from the date when the Special Court is designated F
by the State Government the trial of any offence investigated
by the State Government under the provisions of this Act,
which would have been required to be held before the Special
Court, shall stand transferred to that Court on the date on
which it is designated.”
G
42. We shall now look into the 1908 Act. Section 7 of the 1908
Act imposes restriction on trial of offences under the 1908 Act except
with the consent of the District Magistrate. Section 7 reads thus:
“7. Restriction on trial of offences.—
H
32 SUPREME COURT REPORTS [2023] 6 S.C.R.
A No court shall proceed to the trial of any person for an offence
against this Act except with the consent of the District
Magistrate.”
FINAL ANALYSIS
Issue No. 1
B
43. We find no merit in the principal argument canvassed on behalf
of the appellants that a chargesheet filed without sanction is an
incomplete chargesheet which could be termed as not in consonance
with sub section (5) of Section 173 of the CrPC. It was conceded by the
learned counsel appearing for the appellants that the chargesheet was
C filed well within the statutory time period i.e., 180 days, however, the
court concerned could not have taken cognizance of such chargesheet
in the absence of the orders of sanction not being a part of such
chargesheet. Whether the sanction is required or not under a statute, is
a question that has to be considered at the time of taking cognizance of
D the offence and not during inquiry or investigation. There is a marked
distinction in the stage of investigation and prosecution. The prosecution
starts when the cognizance of offence is taken. It is also to be kept in
mind that cognizance is taken of the offence and not of the offender. It
cannot be said that obtaining sanction from the competent authorities or
the authorities concerned is part of investigation. Sanction is required
E only to enable the court to take cognizance of the offence. The court
may take cognizance of the offence after the sanction order was produced
before the court, but the moment, the final report is filed along with the
documents that may be relied on by the prosecution, then the investigation
will be deemed to have been completed. Taking cognizance is entirely
F different from completing the investigation. To complete the investigation
and file a final report is a duty of the investigating agency, but taking
cognizance of the offence is the power of the court. The court in a given
case, may not take cognizance of the offence for a particular period of
time even after filing of the final report. In such circumstance, the accused
concerned cannot claim their indefeasible right under Section 167(2) of
G the CrPC for being released on default bail. What is contemplated under
Section 167(2) of the CrPC is that the Magistrate or designated Court
(as the case may be) has no powers to order detention of the accused
beyond the period of 180 days or 90 days or 60 days as the case may be.
If the investigation is concluded within the prescribed period, no right
H accrues to the accused concerned to be released on bail under the proviso
to Section 167(2) of the CrPC.
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 33
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
44. Once a final report has been filed with all the documents on A
which the prosecution proposes to rely, the investigation shall be deemed
to have been completed. After completing investigation and submitting a
final report to the Court, the investigating officer can send a copy of the
final report along with the evidence collected and other materials to the
sanctioning authority to enable the sanctioning authority to apply his mind
B
to accord sanction. According sanction is the duty of the sanctioning
authority who is not connected with the investigation at all. In case the
sanctioning authority takes some time to accord sanction, that does not
vitiate the final report filed by the investigating agency before the Court.
Section 173 of the CrPC does not speak about the sanction order at all.
Section 167 of the CrPC also speaks only about investigation and not C
about cognizance by the Magistrate. Therefore, once a final report has
been filed, that is the proof of completion of investigation and if final
report is filed within the period of 180 days or 90 days or 60 days from
the initial date of remand of accused concerned, he cannot claim that a
right has accrued to him to be released on bail for want of filing of
D
sanction order.
45. Section 173(5) of the CrPC, of course, requires all the
documents or the relevant extracts thereof on which the prosecution
proposes to rely on, to accompany the final report. Sanction order cannot
be brought within the category of those documents contemplated under
clause (5) to Section 173 of the CrPC. The grant of sanction is altogether E
a different act to be performed by the Government concerned under
Section 45 of the UAPA.
46. In the case of Central Bureau of Investigation v. R.S. Pai
and Another reported in (2002) 5 SCC 82, it was observed by this Court
that “…it cannot be held that the additional documents cannot be F
produced subsequently. If some mistake is committed in not producing
the relevant documents at the time of submitting the report or the
charge-sheet, it is always open to the investigating officer to produce
the same with the permission of the court.” It was further observed
that “….the word “shall” used in sub-section (5) cannot be G
interpreted as mandatory, but as directory. Normally, the documents
gathered during the investigation upon which the prosecution wants
to rely are required to be forwarded to the Magistrate, but if there is
some omission, it would not mean that the remaining documents
cannot be produced subsequently. Analogous provision under
H
34 SUPREME COURT REPORTS [2023] 6 S.C.R.
A Section 173(4) of the Code of Criminal Procedure, 1898 was
considered by this Court in Narayan Rao v. State of A.P. [AIR 1957
SC 737 : 1958 SCR 283 : 1957 Cri LJ 1320] (SCR at p. 293) and it
was held that the word “shall” occurring in sub-section (4) of Section
173 and sub-section (3) of Section 207-A is not mandatory but only
directory. Further, the scheme of sub-section (8) of Section 173 also
B
makes it abundantly clear that even after the charge-sheet is
submitted, further investigation, if called for, is not precluded. If
further investigation is not precluded then there is no question of
not permitting the prosecution to produce additional documents
which were gathered prior to or subsequent to the investigation. In
C such cases, there cannot be any prejudice to the accused….”
47. From the aforesaid, it is evident that the order of sanction
passed by the competent authority can be produced and placed on record
even after the filing of the chargesheet. It may happen that the inordinate
delay in placing the order of sanction before the Special Court may lead
D to delay in trial because the competent court will not be able to take
cognizance of the offence without a valid sanction on record. In such an
eventuality, at the most, it may be open for the accused to argue that his
right to have a speedy trial could be said to have been infringed thereby
violating Article 21 of the Constitution. This may at the most entitle the
accused to pray for regular bail on the ground of delay in trial. But the
E same cannot be a ground to pray for statutory/default bail under the
provisions of Section 167(2) of the CrPC.
48. The chargesheet is nothing but a final report of police officer
under Section 173(2) of the CrPC. Section 173(2) of the CrPC provides
that on completion of the investigation, the police officer investigating
F into a cognizable offence shall submit a report. The report must be in the
form prescribed by the State Government, stating therein (a) the names
of the parties; (b) the nature of the information; (c) the names of the
persons who appear to be acquainted with the circumstances of the
case; (d) whether any offence appears to have been committed and, if
G so, by whom (e) whether the accused has been arrested; (f) whether he
had been released on his bond and, if so, whether with or without sureties;
and (g) whether he has been forwarded in custody under Section 170.
As observed by this Court in Satya Narain Musadi and Others v. State
of Bihar reported in (1980) 3 SCC 152 at 157 that the statutory
requirement of the report under Section 173(2) of the CrPC would be
H
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 35
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
complied with if the various details prescribed therein are included in the A
report. This report is an intimation to the magistrate that upon investigation
into a cognizable offence the Investigating Officer has been able to
procure sufficient evidence for the court to inquire into the offence and
the necessary information is being sent to the court. In fact, the report
under Section 173(2) of the CrPC purports to be an opinion of the
B
Investigating Officer that as far as he is concerned he has been able to
procure sufficient material for the trial of the accused by the court. The
report is complete if it is accompanied with all the documents and
statements of witnesses as required by Section 175(5) of the CrPC.
Nothing more need be stated in the report of the Investigating Officer. It
is also not necessary that all the details of the offence must be stated. C
The details of the offence are required to be proved to bring home the
guilt to the accused at a later stage i.e., in the course of the trial of the
case by adducing acceptable evidence. (See K. Veeraswami v. Union
of India and Others, (1991) 3 SCC 655.)
49. The maximum period of 180 days which is being granted to D
the investigating agency to complete the investigation in the case wherein
the prosecution is for the offence under the UAPA is not something in
the form of a package that everything has to be completed including
obtaining of sanction within this period of 180 days. As observed above,
the investigating agency has nothing to do with sanction. Sanction is
altogether a different process. Sanction is accorded, based on the E
materials collected by the investigating agency which forms the part of
the final report under Section 173 of the CrPC. The investigating agency
gets full 180 days to complete the investigation. To say that obtaining of
sanction and placing the same along with the chargesheet should be
done within the period of 180 days is something which is not only contrary F
to the provisions of law discussed above, but is inconceivable.
50. Let us test the aforesaid argument, keeping in mind the Rules
2008. Rule 3 of the Rules 2008 makes it very clear that the authority
concerned shall make its report under sub section (2) of Section 45 of
the UAPA containing the recommendations to the Central Government G
from the State Government as the case may be within 7 working days of
the receipt of the evidence gathered by the investigating officer under
the CrPC. We place emphasis on the expression “within 7 working days
of the receipt of the evidence gathered by the investigating officer under
the CrPC”. This evidence which Rule 3 of the Rules 2008 contemplates
H
36 SUPREME COURT REPORTS [2023] 6 S.C.R.
A is the final report i.e., filed by the investigating agency under Section 173
of the CrPC. How can one expect the authority under sub section (2) of
Section 45 to make its report containing the recommendations without
looking into the chargesheet thoroughly containing the evidence gathered
by the investigating officer. On the contrary, Rule 3 of the Rules 2008
makes it explicitly clear that the authority under sub section (2) of Section
B
45 of the UAPA is obliged in law to apply its mind thoroughly to the
evidence gathered by the investigating officer and thereafter, prepare its
report containing the recommendations to the Central Government or
the State government for the grant of sanction. The grant of sanction is
not an idle formality. The grant of sanction should reflect proper
C application of mind.
51. This Court in Central Bureau of Investigation v. Ashok
Kumar Aggarwal reported in (2014) 14 SCC 295, while deliberating on
the validity of sanction held as under:
“13.The prosecution has to satisfy the court that at the time
D of sending the matter for grant of sanction by the competent
authority, adequate material for such grant was made
available to the said authority. This may also be evident from
the sanction order, in case it is extremely comprehensive, as
all the facts and circumstances of the case may be spelt out in
E the sanction order. However, in every individual case, the court
has to find out whether there has been an application of mind
on the part of the sanctioning authority concerned on the
material placed before it. It is so necessary for the reason
that there is an obligation on the sanctioning authority to
discharge its duty to give or withhold sanction only after
F having full knowledge of the material facts of the case. Grant
of sanction is not a mere formality. Therefore, the provisions
in regard to the sanction must be observed with complete
strictness keeping in mind the public interest and the protection
available to the accused against whom the sanction is
G sought.”
52. While summarising the legal propositions in Ashok Kumar
Aggarwal (supra) in para 16, this Court observed as under:
“16.1. The prosecution must send the entire relevant record
to the sanctioning authority including the FIR, disclosure
H
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 37
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
statements, statements of witnesses, recovery memos, draft A
charge-sheet and all other relevant material. The record so
sent should also contain the material/document, if any, which
may tilt the balance in favour of the accused and on the basis
of which, the competent authority may refuse sanction.
16.2. The authority itself has to do complete and conscious B
scrutiny of the whole record so produced by the prosecution
independently applying its mind and taking into consideration
all the relevant facts before grant of sanction while
discharging its duty to give or withhold the sanction.
16.3. The power to grant sanction is to be exercised strictly C
keeping in mind the public interest and the protection available
to the accused against whom the sanction is sought.
16.4. The order of sanction should make it evident that the
authority had been aware of all relevant facts/materials and
had applied its mind to all the relevant material. D
16.5. In every individual case, the prosecution has to establish
and satisfy the court by leading evidence that the entire
relevant facts had been placed before the sanctioning authority
and the authority had applied its mind on the same and that
the sanction had been granted in accordance with law.” E
53. It is, therefore, very much necessary that the evidence collected
by the investigating agency in the form of chargesheet is thoroughly
looked into and thereafter, the recommendations are made. The
investigating agency gets full 180 days to complete the investigation and
file its report before the competent court in accordance with Section F
173(2) of the CrPC. If we accept the argument canvassed on behalf of
the appellants, it comes to this that the investigating agency may have to
adjust the period of investigation in such a manner that within the period
of 180 days, the sanction is also obtained and placed before the court.
We find this argument absolutely unpalatable.
G
54. This Court in the case of Suresh Kumar Bhikamchand Jain
(supra) had the occasion to consider in detail the question whether
cognizance of the chargesheet was necessary to prevent the accused
from seeking default bail or whether mere filing of the chargesheet would
suffice for the investigation to be deemed complete. The petitioner in
H
38 SUPREME COURT REPORTS [2023] 6 S.C.R.
A the said case was arrested on 11.03.2012 on the allegation of
misappropriation of amounts meant for development of slums in Jalgaon
City. The petitioner therein was accused of committing offences
punishable under Sections 120B, 409, 411, 406, 408, 465, 466, 468, 471,
177 and 109 read with Section 34, IPC and also under Sections 13(1)(c),
13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. The
B
contention of the petitioner therein was that he could not have been
remanded to custody in view of cognizance not being taken for want of
sanction within the statutory period of 90 days. The scheme of the
provisions relating to remand of an accused first during the stage
of investigation and thereafter, after cognizance is taken, indicates that
C the legislature intended investigation of certain crimes to be completed
within the period prescribed therein. This Court held that in the event
of investigation not being completed by the investigating authorities within
the prescribed period, the accused acquires an indefeasible right to be
granted bail, if he offers to furnish bail. This Court was of the firm view
that if on either the 61 st day or the 91st day, an accused makes an
D
application for being released on bail in default of chargesheet having
been filed, the court has no option but to release the accused on bail.
However, once the chargesheet was filed within the stipulated period,
the right of the accused to statutory/default bail came to an end and the
accused would be entitled to pray for regular bail on merits. It was held
E by this Court that the filing of chargesheet is sufficient compliance with
the provisions of proviso (a) to Section 167(2) of the CrPC and that
taking of cognizance is not material to Section 167 of the CrPC. The
scheme of CrPC is such that once the stage of investigation is completed,
the court proceeds to the next stage, which is the taking of cognizance
and trial. During the period of investigation, the accused is under the
F
custody of the Magistrate before whom he or she is first produced, with
such Magistrate being vested with the power to remand the accused to
police custody and/or judicial custody, up to a maximum period as
prescribed under Section 167(2) of the CrPC. Acknowledging the fact
that an accused has to remain in custody of some court, this Court
G concluded that on filing of the chargesheet within the stipulated period,
the accused continues to remain in the custody of the Magistrate till
such time as cognizance is taken by the court trying the offence, when
the said court assumes custody of the accused for purposes of remand
during the trial in terms of Section 309 of the CrPC. This Court clarified
that the two stages are different, with one following the other so as to
H maintain continuity of the custody of the accused with a court.
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 39
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
55. We refer to the relevant portions of Suresh Kumar A
Bhikamchand Jain (supra) judgment as under:
“16. At this juncture, we may refer to certain dates which are
relevant to the facts of this case, namely:
(a) 11-3-2012 — The petitioner arrested and remanded to
police custody; B
(b) 25-4-2012 — First charge-sheet filed against the four
accused;
(c) 1-6-2012 — Supplementary charge-sheet filed in which
the petitioner is named; C
(d) 30-7-2012 — The trial court rejected the petitioner’s prayer
for grant of bail;
(e) 13-9-2012 [Suresh v. State of Maharashtra, Criminal
Application No. 3568 of 2012, order dated 13-9-2012 (Bom)]
— The High Court confirmed the order of the trial court; D
(f) 2-10-2012 — Application filed under Section 167(2) CrPC
before the trial court;
(g) 5-10-2012 — The trial court rejected the application under
Section 167(2) CrPC.
E
From the above dates, it would be evident that both the charge-
sheet as also the supplementary charge-sheet were filed within
90 days from the date of the petitioner’s arrest and remand to
police custody. It is true that cognizance was not taken by the
Special Court on account of failure of the prosecution to
obtain sanction to prosecute the accused under the provisions F
of the PC Act, but does such failure amount to non-compliance
with the provisions of Section 167(2) CrPC is the question
with which we are confronted.
17. In our view, grant of sanction is nowhere contemplated
under Section 167 CrPC. What the said section contemplates G
is the completion of investigation in respect of different types
of cases within a stipulated period and the right of an accused
to be released on bail on the failure of the investigating
authorities to do so. The scheme of the provisions relating to
remand of an accused, first during the stage of investigation H
40 SUPREME COURT REPORTS [2023] 6 S.C.R.
A and, thereafter, after cognizance is taken, indicates that the
legislature intended investigation of certain crimes to be
completed within 60 days and offences punishable with death,
imprisonment for life or imprisonment for a term of not less
than 10 years, within 90 days. In the event, the investigation
is not completed by the investigating authorities, the accused
B
acquires an indefeasible right to be granted bail, if he offers
to furnish bail. Accordingly, if on either the 61st day or the
91st day, an accused makes an application for being released
on bail in default of charge-sheet having been filed, the court
has no option but to release the accused on bail. The said
C provision has been considered and interpreted in various
cases, such as the ones referred to hereinbefore. Both the
decisions in Natabar Parida case [(1975) 2 SCC 220 : 1975
SCC (Cri) 484] and in Sanjay Dutt case [(1994) 5 SCC 410 :
1994 SCC (Cri) 1433] were instances where the charge-sheet
was not filed within the period stipulated in Section 167(2)
D
CrPC and an application having been made for grant of bail
prior to the filing of the charge-sheet, this Court held that the
accused enjoyed an indefeasible right to grant of bail, if such
an application was made before the filing of the charge-sheet,
but once the charge-sheet was filed, such right came to an
E end and the accused would be entitled to pray for regular
bail on merits.
18. None of the said cases detract from the position that once
a charge-sheet is filed within the stipulated time, the question
of grant of default bail or statutory bail does not arise. As
F indicated hereinabove, in our view, the filing of charge-sheet
is sufficient compliance with the provisions of Section
167(2)(a)(ii) in this case. Whether cognizance is taken or not
is not material as far as Section 167 CrPC is concerned. The
right which may have accrued to the petitioner, had charge-
sheet not been filed, is not attracted to the facts of this case.
G Merely because sanction had not been obtained to prosecute
the accused and to proceed to the stage of Section 309 CrPC,
it cannot be said that the accused is entitled to grant of
statutory bail, as envisaged in Section 167 CrPC. The scheme
of CrPC is such that once the investigation stage is completed,
H the court proceeds to the next stage, which is the taking of
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 41
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
cognizance and trial. An accused has to remain in custody of A
some court. During the period of investigation, the accused
is under the custody of the Magistrate before whom he or she
is first produced. During that stage, under Section 167(2)
CrPC, the Magistrate is vested with authority to remand the
accused to custody, both police custody and/or judicial
B
custody, for 15 days at a time, up to a maximum period of 60
days in cases of offences punishable for less than 10 years
and 90 days where the offences are punishable for over 10
years or even death sentence. In the event, an investigating
authority fails to file the charge-sheet within the stipulated
period, the accused is entitled to be released on statutory C
bail. In such a situation, the accused continues to remain in
the custody of the Magistrate till such time as cognizance is
taken by the court trying the offence, when the said court
assumes custody of the accused for purposes of remand during
the trial in terms of Section 309 CrPC. The two stages are
D
different, but one follows the other so as to maintain a
continuity of the custody of the accused with a court.”
(Emphasis supplied)
56. It is clear from the decision of this Court in Suresh Kumar
Bhikamchand Jain (supra) that filing of a chargesheet is sufficient E
compliance with the provisions of Section 167 of the CrPC and that an
accused cannot demand release on default bail under Section 167(2) of
the CrPC on the ground that cognizance has not been taken before the
expiry of the statutory time period. The accused continues to be in the
custody of the Magistrate till such time cognizance is taken by the court
trying the offence, which assumes custody of the accused for the purpose F
of remand after cognizance is taken.
57. The aforesaid decision of this Court makes the position of law
very clear that once the chargesheet has been filed within the stipulated
time, the question of grant of statutory/default bail does not arise. Whether
cognizance has been taken or not taken is not relevant for the purpose G
of compliance of Section 167 of the CrPC. The mere filing of the
chargesheet is sufficient.
58. The decision of Suresh Kumar Bhikamchand Jain (supra)
has been referred to and relied upon by this Court in the case of Serious
H
42 SUPREME COURT REPORTS [2023] 6 S.C.R.
A Fraud Investigation Office (supra). In the said decision, the very same
point fell for the consideration of the Court, whether the accused is
entitled for statutory/default bail under Section 167(2) of the CrPC on
the ground that cognizance had not been taken before the expiry of 60
days or 90 days from the date of remand?
B 59. However, one another issue that fell for the consideration of
this Court, in Serious Fraud Investigation Office (supra) was whether
Suresh Kumar Bhikamchand Jain (supra) had taken a different view
than in the case of Sanjay Dutt (supra), Mohamed Iqbal Madar Sheikh
and others v. State of Maharashtra reported in (1996) 1 SCC 722 and
M. Ravindran v. Intelligence Officer, Directorate of Revenue
C Intelligence reported in (2021) 2 SCC 485. This Court explained in
details as to why nothing contrary to Sanjay Dutt (supra), Iqbal Madar
(supra) and M. Ravindran (supra) had been decided in Suresh Kumar
Bhikamchand Jain (supra). We quote the relevant observations:
“12. The point that requires to be considered is whether this
D Court has taken a different view in Sanjay
Dutt (supra), Madar Sheikh (supra) and M. Ravindran
(supra). In Sanjay Dutt (supra), this Court held that the
indefeasible right accruing to the accused is enforceable only
prior to the filing of challan and it does not survive or remain
E enforceable, on the challan being filed. It was made clear
that once the challan has been filed, the question of grant of
bail has to be considered and decided only with reference to
the merits of the case under the provisions relating to grant
of bail to an accused after the filing of the challan. In light of
the above findings, this Court held that the custody of the
F accused after the challan has been filed is not governed by
Section 167(2) but different provisions of the CrPC.
13. In Madar Sheikh (supra), which was relied upon by the
learned Senior Counsel appearing for Respondent Nos. 1 and
2 and the Intervenor, the appellants therein were taken into
G custody on 16.01.1993. The charge-sheet was submitted on
30.08.1993. Though the appellants were entitled to be released
in view of the charge-sheet not being filed within the statutory
period prescribed under Section 20(4)(b) of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 read with proviso
H (a) to Section 167(2), CrPC, they did not make an application
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 43
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
for release on bail on the ground of default in completion of A
the investigation within the statutory period. After filing of
the charge-sheet and cognizance having been taken, they
continued to be in custody on the basis of orders of remand
passed under other provisions of the CrPC. Refusing to grant
relief of statutory bail in the said fact situation, this Court
B
held that the right conferred on an accused under Section
167(2) cannot be exercised after the charge-sheet has been
submitted and cognizance has been taken. A plain reading of
the judgment in Madar Sheikh (supra) would show that
reference to the right of statutory bail becoming unenforceable
after cognizance having been taken is in view of the facts of C
the said case, where this Court denied statutory bail to the
appellants therein on the ground that charge-sheet was filed
and cognizance had also been taken, with orders of remand
passed under other provisions of the CrPC. Thereafter, they
were not entitled for bail under Section 167(2).
D
14. Application for bail under Section 167(2), CrPC fell for
consideration of this Court in M. Ravindran (supra). In the
said case, the appellant was arrested and remanded to judicial
custody on 04.08.2018 for offences punishable under the
Narcotics Drugs and Psychotropic Substances Act, 1985. On
01.02.2019, the appellant therein filed an application for bail E
under Section 167(2) on the ground that investigation was
not complete and charge-sheet had not been filed within the
statutory period. The trial court granted bail under Section
167(2), which was set aside by the High Court of Madras by
judgment dated 21.11.2019. Challenging the said judgment F
of the High Court, the appellant approached this Court. The
crucial fact in the said case is that the appellant therein filed
an application on 01.02.2019 at 10.30 a.m. before the trial
court and on the same day at 4.25 p.m., an additional
complaint was filed against the appellant, on the basis of
which dismissal of the bail application was sought. This Court G
restored the order of the trial court while setting aside the
judgment of the High Court, by holding that the accused is
deemed to have “availed of” or enforced his right to be
released on default bail, once application for bail has been
filed under Section 167(2) on expiry of the stipulated time H
44 SUPREME COURT REPORTS [2023] 6 S.C.R.
A period. Taking into account the fact that before the expiry of
180 days, no charge-sheet had been submitted nor any
application filed seeking extension of time to investigate, this
Court held that the appellant was entitled to be released on
statutory bail notwithstanding the subsequent filing of an
additional complaint. The point that was decided in the said
B
case was that the filing of an additional complaint after the
accused has availed his right to be released on default bail,
should not deter the courts from enforcing this indefeasible
right, if the charge-sheet was not filed before the expiry of
the statutory period. Reference was made by this Court
C to Madar Sheikh (supra) in M. Ravindran (supra). This Court
observed that no prior application for bail was filed in Madar
Sheikh (supra) though the charge-sheet was submitted after
the expiry of the statutory period. This Court repeated the
findings recorded in Madar Sheikh (supra) that the right to
bail cannot be exercised once the charge-sheet has been
D
submitted and cognizance has been taken. As stated above,
the said conclusion in Madar Sheikh (supra) was arrived at
with reference to the facts of the case.
15. The issue that arose for consideration before this Court
in Criminal Appeal Nos. 701-702 of 2020 relates to whether
E the date of remand is to be included in computation of the
period of 60 days or 90 days, as contemplated under proviso
(a) to Section 167(2), for considering the claim for default
bail. Taking note of the divergence of opinions on the said
point, this Court felt the need for consideration of the issue
F by a larger bench. The later order dated 12.03.2021 passed
in SLP (Crl.) Nos. 2105-2106 of 2021 and SLP (Crl.) Nos.
2111-2112 of 2021 is for tagging all those matters along with
Criminal Appeal Nos. 701-702 of 2020. The submission made
on behalf of the petitioners therein and recorded in the said
order relates to the filing of a charge-sheet on the last day
G without a list of witnesses and documents not amounting to a
proper filing of charge-sheet. Mr. Rohatgi referred to the SLP
(Crl.) No. 2111-2112 of 2021 and submitted that one of the
points raised relates to cognizance being taken before the
expiry of the statutory period under Section 167, CrPC. It is
H clear that a reference to a larger bench pertains to the issue
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 45
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
of exclusion or inclusion of the date of remand for A
computation of the period prescribed under Section 167.
Therefore, there is no requirement for referring this case to a
larger bench.
16. A close scrutiny of the judgments in Sanjay Dutt (supra),
Madar Sheikh (supra) and M. Ravindran (supra) would show B
that there is nothing contrary to what has been decided
in Bhikamchand Jain (supra). In all the above judgments
which are relied upon by either side, this Court had
categorically laid down that the indefeasible right of an
accused to seek statutory bail under Section 167(2), CrPC
arises only if the charge-sheet has not been filed before the C
expiry of the statutory period. Reference to cognizance
in Madar Sheikh (supra) is in view of the fact situation where
the application was filed after the charge-sheet was submitted
and cognizance had been taken by the trial court. Such
reference cannot be construed as this Court introducing an D
additional requirement of cognizance having to be taken
within the period prescribed under proviso (a) to Section
167(2), CrPC, failing which the accused would be entitled to
default bail, even after filing of the charge-sheet within the
statutory period. It is not necessary to repeat that in
both Madar Sheikh (supra) and M. Ravindran (supra), this E
Court expressed its view that non-filing of the charge-sheet
within the statutory period is the ground for availing the
indefeasible right to claim bail under Section 167(2), CrPC.
The conundrum relating to the custody of the accused after
the expiry of 60 days has also been dealt with by this Court F
in Bhikamchand Jain (supra). It was made clear that the
accused remains in custody of the Magistrate till cognizance
is taken by the relevant court. As the issue that arises for
consideration in this case is squarely covered by the judgment
in Bhikamchand Jain (supra), the order passed by the High
Court on 31.05.2019 is hereby set aside.” G
(Emphasis supplied)
60. Our attention was drawn by the learned counsel appearing
for the accused to a very recent pronouncement of this Court, in the
case of Ritu Chhabaria v. Union of India and Others, Writ Petition H
46 SUPREME COURT REPORTS [2023] 6 S.C.R.
A (Crl.) No. 60 of 2023 decided on 26.04.2023. This decision has been
relied upon to fortify the submission that right of an accused to seek
default bail cannot be defeated by filing incomplete chargesheet. Ritu
Chhabaria filed a writ petition under Article 32 of the Constitution, seeking
release of her husband on default bail. In the facts of the said case,
three issues fell for the consideration of this Court:
B
i. Can a chargesheet or a prosecution complaint be filed in
piecemeal without first completing the investigation of the case?
ii.Whether the filing of such a chargesheet without completing
the investigation will extinguish the right of an accused for grant
C of default bail?
iii. Whether the remand of an accused can be continued by the
trial court during the pendency of investigation beyond the stipulated
time as prescribed by the CrPC?
61. This Court, while allowing the petition observed in paras 24
D and 25 respectively, as under:
“24. This right of statutory bail, however, is extinguished, if
the charge sheet is filed within the stipulated period. The
question of resorting to a supplementary chargesheet u/s
173(8) of the Cr.PC only arises after the main chargesheet
E has been filed, and as such, a supplementary chargesheet,
wherein it is explicitly stated that the investigation is still
pending, cannot under any circumstance, be used to scuttle
the right of default bail, for then, the entire purpose of default
bail is defeated, and the filing of a chargesheet or a
F supplementary chargesheet becomes a mere formality, and a
tool, to ensue that the right of default bail is scuttled.
25. It is thus axiomatic that first investigation is to be
completed, and only then can a chargesheet or a complaint
be filed within the stipulated period, and failure to do so would
trigger the statutory right of default bail under Section 167(2)
G
of Cr.PC. In the case of Union of India vs Thamisharasi &
Ors. [(1995) 4 SCC 190] , which was a case under the
Narcotic Drugs and Psychotropic Substances Act, 1985, on
finding that the investigation was not complete and a
chargesheet was not filed within the prescribed period, denial
H of default bail was held to be in violation of Article 21 of the
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 47
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
Constitution of India, and it was further held that even the A
twin limitation on grant of bail would not apply.”
62. Thus, in Ritu Chhabaria (supra), the facts were altogether
different. In the said case, indisputably, the investigation was in progress,
but as the statutory time period to file the chargesheet was coming to an
end, the chargesheet was filed clarifying that the investigation was still B
pending. In such circumstances, this Court took the view that there is no
question of filing any supplementary chargesheet, taking the aid of sub
section (8) of Section 173 of the CrPC, as sub section (8) of Section 173
of the CrPC comes into play only after the investigation is completed
and the chargesheet is laid. We are of the view that the aforesaid decision
of this Court is of no avail to the accused in the present case. In the case C
on hand, the chargesheet was filed after the entire investigation was
completed. This fact is not in dispute.
63. Thus, we answer Issue No. 1 holding that filing of a chargesheet
is sufficient compliance with the provisions of Section 167 of the CrPC
and that an accused cannot claim any indefeasible right of being released D
on statutory/default bail under Section 167(2) of the CrPC on the ground
that cognizance has not been taken before the expiry of the statutory
time period to file the chargesheet. We once again, reiterate what this
Court said in Suresh Kumar Bhikamchand Jain (supra) that grant of
sanction is nowhere contemplated under Section 167 of the CrPC. E
Issue No. 2
64. We now proceed to discuss the second limb of the submission
canvassed on behalf of the appellants that filing of the chargesheet in
the Court of SDJM, Ajnala instead of the Special Court as notified under
Section 22 of the NIA Act and the Magistrate thereafter, committing the F
case to the Court of Sessions under the provisions of Section 209 of the
CrPC vitiated all further proceedings rendering the custody or further
detention of the appellants from the date of filing of the chargesheet in
the Court of Magistrate absolutely unlawful. To put it in other words, we
need to consider the submission that since the chargesheet was filed in G
the Court of Magistrate on 15.11.2019, i.e., on the 161st day from the
arrest of two of the appellants before us, the further detention thereafter,
of the appellants could be termed as unlawful and the appellants were
entitled to be released on statutory/default bail under the provisions of
Section 167(2) of CrPC.
H
48 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 65. Section 2(1)(d) of the UAPA reads as follows:
“2(1)(d). court means a criminal court having jurisdiction,
under the Code, to try offences under this Act and includes a
Special Court constituted under section 11 or under section
22 of the National Investigation Agency Act, 2008;”
B 66. The plain reading of the definition of “court” referred to above
indicates that it includes the Special Court, constituted under Section 11
or Section 22 of the NIA Act. Section 11 of the NIA Act confers power
upon the Central Government to designate the Court of Sessions as the
Special Courts. Section 22 of the NIA Act confers power upon the State
C Government to designate the Court of Sessions, as the Special Courts.
67. A perusal of Section 6 of the NIA Act enumerates about the
investigation of the scheduled offences. The scheduled offences under
the UAPA are included at Sr. No. 2 in the Schedule of the NIA Act.
Thereafter, Section 10 of the NIA Act prescribes about the power of the
D State Government to investigate the scheduled offences. Section 11 of
the NIA Act prescribes about the power of Central Government for
constituting the Special Court, whereas Section 22 of the NIA Act
prescribes the power of the State Govt. for constituting the Special Court
for trial of the scheduled offence. Section 13 of the NIA Act contains
the details of the jurisdiction of the Special Court. A conjoint reading of
E these provisions of both the Acts reveals the legislative mandate that the
offences under the UAPA Act fall under the scheduled offences having
been included in the Schedule of NIA Act. However, the scheme of
NIA Act prescribes the procedure for investigating the same either by
the NIA or by the concerned State Government, after following the
F statutory provisions meticulously. Section 10 of the NIA Act further
clarifies that the State Government also has the power to investigate the
scheduled offence in accordance with the procedure prescribed under
this Act. However, there is no ambiguity in the legislative mandate that
in both the situations, whether the investigation is carried out by the NIA
or by the State Government, the trial of the scheduled offence would be
G conducted only by the Special Court constituted under this Act. Section
13 of the NIA Act is to be read with Section 11 of this Act when the
investigation is carried out by the NIA and in the situation, investigation
having been entrusted to the State Government, then Section 13 is to be
read with 22 of the NIA Act. A combined reading of both the sections
H makes it crystal clear that in the situation where the investigation has
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 49
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
been carried out by the State Government, in that situation as per Section A
22(2)(ii) the reference to Agency in sub section (1) of Section 13 of the
NIA Act shall be construed as a reference to “Investigating Agency of
the State Government”.
68. Thus, the scheme of both the Acts makes it clear that once
the investigation is completed, the report under Section 173 of the CrPC B
is to be filed in the Special Court constituted under the Act. Section 16 of
the NIA Act leaves no room for any doubt, as it empowers the Special
Court to take cognizance of any offence without the accused being
committed to it, for trial, upon receiving a complaint of facts that constitute
such offence or upon a police report of such facts. Thus, by incorporating
Section 16 in the NIA Act the legislature has made the Special Court as C
the court of original jurisdiction unlike the Sessions Court, which is a
court of committal under the Criminal Procedure Code. (See Satish
Kumar v. State of Punjab and Another, 2021 SCC OnLine P&H 786)
69. In Satish Kumar (supra), the High Court of Punjab and
Haryana at Chandigarh has referred to a notification issued by the D
Government of Punjab dated 10.6.2014 wherein the Special Courts are
constituted by the State Government for the trial of offence as specified
in the schedule appended to the NIA Act which are investigated by the
State Police. The aforesaid notification is reproduced as under:
“NOTIFICATION The 10th June, 2014 No. S.O.141/C.A.34/ E
2008/S.22/2014- In exercise of the powers conferred under
sub section (1) of section 22 of the National Investigation
Agency Act, 2008 (Central Act No. 34 of 2008) and all other
powers enabling him in this behalf, the Governor of Punjab
with the concurrence of Hon’ble Chief Justice of the High F
Court of Punjab and Haryana, Chandigarh is pleased to
constitute the courts of Sessions Judge and the first Additional
Sessions Judge (for the area falling within their respective
jurisdiction), at each district headquarter in the State, to be
the Special Courts, for the trial of offences as specified in
the Scheduled appended to the aforesaid Act, which are G
investigated by the State Police.”
70. The learned counsel appearing for the appellants placed strong
reliance on the decision of this Court in Bikramjit Singh (supra) wherein
this Court held that all offences under the UAPA whether investigated
by the NIA or by the investigating agency of the State Government are H
50 SUPREME COURT REPORTS [2023] 6 S.C.R.
A to be tried exclusively by the Special Court set up under that Act and in
the absence of any Special Court, set up by notifications issued either by
the Central Government or the State Government, then the Court of
Sessions alone. This Court held as under:
“26. Before the NIA Act was enacted, offences under the UAPA
B were of two kinds — those with a maximum imprisonment of
over 7 years, and those with a maximum imprisonment of 7
years and under. Under the Code as applicable to offences
against other laws, offences having a maximum sentence of 7
years and under are triable by the Magistrate’s courts,
whereas offences having a maximum sentence of above 7 years
C are triable by Courts of Session. This scheme has been
completely done away with by the NIA Act, 2008
as all Scheduled Offences i.e. all offences under the UAPA,
whether investigated by the National Investigation Agency
or by the investigating agencies of the State Government, are
D to be tried exclusively by Special Courts set up under that
Act. In the absence of any designated court by notification
issued by either the Central Government or the State
Government, the fallback is upon the Court of Session alone.
Thus, under the aforesaid scheme what becomes clear is that
so far as all offences under the UAPA are concerned, the
E Magistrate’s jurisdiction to extend time under the first proviso
in Section 43-D(2)(b) is non-existent, “the Court” being either
a Sessions Court, in the absence of a notification specifying
a Special Court, or the Special Court itself. The impugned
judgment in arriving at the contrary conclusion is incorrect
F as it has missed Section 22(2) read with Section 13 of the NIA
Act. Also, the impugned judgment has missed Section 16(1)
of the NIA Act which states that a Special Court may take
cognizance of any offence without the accused being
committed to it for trial, inter alia, upon a police report of
such facts.
G
27. xxx xxx xxx
“…The right to bail under Section 167(2) proviso (a) thereto
is absolute. It is a legislative command and not court’s
discretion. If the investigating agency fails to file charge-sheet
H before the expiry of 90/60 days, as the case may be, the
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 51
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
accused in custody should be released on bail. But at that A
stage, merits of the case are not to be examined. Not at all. In
fact, the Magistrate has no power to remand a person beyond
the stipulated period of 90/60 days. He must pass an order of
bail and communicate the same to the accused to furnish the
requisite bail bonds.””
B
71. The reply to the aforesaid at the end of the learned ASG is
that since the investigation was being carried out by the State Police, it
proceeded to file the first report on 15.11.2019 before the SDJM, Ajnala
where the appellants were first produced after their arrest. This according
to the learned ASG has nothing to do with Section 167 of the CrPC. The
learned ASG further pointed out that eventually the case was committed C
to the Court of Sessions and finally transferred to the Special Court
constituted for NIA/UAPA. According to the learned ASG, it is not in
dispute that the cognizance was finally taken by the Special Court after
looking into the sanctions accorded by the competent authorities.
72. We do agree that the chargesheet could not have been filed in D
the Court of the SDJM and the same should have been filed in the
Special Court. Section 16 of the NIA Act empowers the Special Court
to take cognizance of any offence without the accused being committed
to it for trial, upon receiving a complaint of facts that constitute such an
offence or upon a police report of such facts. However, the pristine E
question to consider is whether the unnecessary committal proceedings
by itself vitiated all further proceedings and thereby creating an
indefeasible right in favour of the appellants to seek statutory/default
bail under Section 167 of the CrPC? We are of the view that the error
on the part of the investigating agency in filing the chargesheet in the
Court of SDJM and thereafter, committing the case to the Court of F
Sessions has again nothing to do with Section 167 of the CrPC. This
entire argument canvassed on behalf of the appellants can be put to rest
solely on the ground that the application seeking default bail under Section
167(2) of the CrPC read with Section 43D of the UAPA was filed before
the Special Judge, NIA, Mohali, on 14.12.2020 and by that time, the G
chargesheet had already been filed and the proceedings were pending in
the court of Special Judge, CBI, Punjab, SAS Nagar, Mohali. It is not in
dispute that at the time when the Special Court took cognizance of the
offence the sanctions under the UAPA and the 1908 Act had already
been granted.
H
52 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 73. Thus, we answer Issue No.2 holding that the error on the part
of the investigating agency in filing chargesheet first before the Court of
Magistrate has nothing to do with the right of the accused to seek statutory/
default bail under Section 167(2) of the CrPC. The committal proceedings
are not warranted, when it comes to prosecution under the UAPA by
the NIA by virtue of Section 16 of the NIA Act. This is because the
B
Special Court acts, as one of the original jurisdictions. By virtue of Section
16 of the NIA Act, the Court need not follow the requirements of Section
193 of the CrPC.
74. We have also looked into the case law relied upon by the
learned counsel appearing for the respective appellants in support of
C their submissions. However, it is not necessary for us to discuss each
one of the decisions relied upon as none of the decisions are of any avail
to the appellant. Each of the decisions are in the peculiar facts of the
case.
75. In view of the aforesaid discussion, both the appeals are liable
D to be dismissed. However, before we proceed to pass the final order,
there is one grey area in this litigation which we must look into and say
something in that regard. Of course, this grey area has not been ventured
into by the learned counsel appearing for the appellants, but as a highest
Court of the Country, we should not shut our eyes to the same.
E AN EYE-OPENER LITIGATION FOR THE NIA/STATE
POLICE
76. As is evident from the chronology of dates and events referred
to in the earlier part of our judgment, the final report under Section 173(2)
of the CrPC was filed in the Court of SDJM, Ajnala on 15.11.2019.
F 15.11.2019 was the 161st day from the date of arrest of two of the
appellants before us, namely, Jasbir Singh and Varinder Singh. They
were the first to be arrested on 08.06.2019. The Punjab Police applied
to the Court of the Additional Sessions Judge, Amritsar, for extension of
time to complete the investigation invoking the proviso to Section
G 43D(2)(b) of the UAPA on 04.09.2019. When this application for
extension of time was filed only two days were left for 90 days to expire.
This is suggestive of the fact that the 91st day would have fallen on
07.09.2019. What is important to highlight is that the Additional Sessions
Judge, Amritsar, looked into the extension application dated 04.09.2019
filed by the Punjab Police and ultimately, extended the time limit vide its
H order dated 17.09.2019 i.e., on the 101 st day. By the time, the Additional
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 53
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
Sessions Judge, Amritsar, passed an order extending the time, the period A
of 90 days had already expired. Indisputably, there was no chargesheet
before the Court on the 91st day i.e., on 07.09.2019. The reason why we
say that this is a grey area is because what would have happened if the
appellants Jasbir Singh and Varinder Singh had preferred an application
seeking statutory/default bail under Section 167(2) of the CrPC on the
B
91st day i.e., on 07.09.2019. The application seeking extension of time
was very much pending. The Additional Sessions Judge could not have
even allowed such application promptly i.e., on or before the 90 th day
without giving notice to the accused persons. The law is now well settled
in view of the decision of this Court in the case of Jigar alias Jimmy
Pravinchandra Aditya v. State of Gujarat reported in 2022 SCC OnLine C
SC 1290 that an opportunity of hearing has to be given to the accused
persons before the time is extended up to 180 days to complete the
investigation. The only error or lapse on the part of the appellants Jasbir
and Varinder Singh was that they failed to prefer an appropriate
application seeking statutory/default bail on the 91st day. If such application
D
would have been filed, the court would have had no option but to release
them on statutory/default bail. The Court could not have said that since
the extension application was pending, it shall pass an appropriate order
only after the extension application was decided. That again would have
been something contrary to the well settled position of law. This litigation
is an eye opener for the NIA as well as the State investigating agency E
that if they want to seek extension, they must be careful that such
extension is not prayed for at the last moment.
77. The right to be released on default bail continues to remain
enforceable if the accused has applied for such bail, notwithstanding
pendency of the bail application or subsequent filing of the chargesheet F
or a report seeking extension of time by the prosecution before the court.
However, where the accused fails to apply for default bail when the
right accrues to him, and subsequently a chargesheet, or a report seeking
extension of time is preferred before the Magistrate or any other
competent court, the right to default bail would be extinguished. The
court would be at liberty to take cognizance of the case or grant further G
time for completion of the investigation, as the case may be, though the
accused may still be released on bail under other provisions of the CrPC.
78. Our observations in paras 76 and 77 respectively as above
are keeping in mind the decision of this Court rendered by a three-Judge
H
54 SUPREME COURT REPORTS [2023] 6 S.C.R.
A Bench in the case of Sayed Mohd. Ahmad Kazmi v. State (Government
of NCT of Delhi) and Others reported in (2012) 12 SCC 1, wherein in
paras 25, 26 and 27 respectively, this Court observed as under:
“25. Having carefully considered the submissions made on
behalf of the respective parties, the relevant provisions of
B law and the decision cited, we are unable to accept the
submissions advanced on behalf of the State by the learned
Additional Solicitor General Mr Raval. There is no denying
the fact that on 17-7-2012, when CR No. 86 of 2012 was
allowed by the Additional Sessions Judge and the custody of
the appellant was held to be illegal and an application under
C Section 167(2) CrPC was made on behalf of the appellant
for grant of statutory bail which was listed for hearing.
Instead of hearing the application, the Chief Metropolitan
Magistrate adjourned the same till the next day when the
Public Prosecutor filed an application for extension of the
D period of custody and investigation and on 20-7-2012
extended the time of investigation and the custody of the
appellant for a further period of 90 days with retrospective
effect from 2-6-2012. Not only is the retrospectivity of the
order of the Chief Metropolitan Magistrate untenable, it could
not also defeat the statutory right which had accrued to the
E appellant on the expiry of 90 days from the date when the
appellant was taken into custody. Such right, as has been
commented upon by this Court in Sanjay Dutt [(1994) 5 SCC
410 : 1994 SCC (Cri) 1433] and the other cases cited by the
learned Additional Solicitor General, could only be
F distinguished (sic extinguished) once the charge-sheet had
been filed in the case and no application has been made prior
thereto for grant of statutory bail. It is well-established that if
an accused does not exercise 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,
G only apply for regular bail.
26. The circumstances in this case, however, are different in
that the appellant had exercised his right to statutory bail on
the very same day on which his custody was held to be illegal
and such an application was left undecided by the Chief
H
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR 55
v. NATIONAL INVESTIGATION AGENCY [J. B. PARDIWALA, J.]
Metropolitan Magistrate till after the application filed by the A
prosecution for extension of time to complete investigation
was taken up and orders were passed thereupon.
27. We are unable to appreciate the procedure adopted by
the Chief Metropolitan Magistrate, which has been endorsed
by the High Court and we are of the view that the appellant B
acquired the right for grant of statutory bail on 17-7-2012,
when his custody was held to be illegal by the Additional
Sessions Judge since his application for statutory bail was
pending at the time when the application for extension of
time for continuing the investigation was filed by the
prosecution. In our view, the right of the appellant to grant C
of statutory bail remained unaffected by the subsequent
application and both the Chief Metropolitan Magistrate and
the High Court erred in holding otherwise.”
(Emphasis supplied)
D
79. In view of the aforesaid discussion, both the appeals fail and
are hereby dismissed.
80. Pending application(s), if any, shall stand disposed of.
Nidhi Jain Appeals dismissed. E
(Assisted by : Tamana, LCRA)
F
G
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "default bail"Sign in to search