Bikramjit Singh vs The State of Punjab

20 of the Unlawful Activities (Prevention) Act, 1967 were invoked for offences – The Special Judge refused to grant default bail u/s. 167(2) Cr. P.C. – Later, another application for default bail was filed on 08.04.2019 and it was also dismissed – The High Court held that once the challan was presented by the prosecution on 25.03.2019, as the application was filed next day i.e. 26.03.2019, the petitioner was not entitled to default bail – On appeal, held: The High Court got the dates all wrong – The application that was made for default bail was made on or before 25.02.2019 and not 26.03.2019 – The charge-sheet was filed on 26.03.2019 and not 25.03.2019 – The fact that this application was wrongly dismissed on 25.02.2019 would make no difference and ought to have been corrected in revision – The sole ground for dismissing the application was that the time of 90 days was extended by Sub- Divisional Magistrate by order dated 13.02.2019 – This order was correctly set aside by the Special Court by its judgment dated 25.03.2019, holding that under the UAPA read with the NIA Act, the Special Court alone had jurisdiction to extend time to 180 days under the first proviso in Section 43-D(2)(b) – The fact that another application was filed for default bail on 08.04.2019, would not mean that it will wipe out the effect of earlier application, which was wrongly dismissed – The right to default bail are not mere statutory rights under first proviso to s.167(2) of the Code, but is part of the procedure established by law u/Art. 21 of the Constitution – This being the case, the judgment of the High Court is set aside – The appellant entitled to be released on ‘default bail’ u/s. 167 (2) of the Code, as amended by s. 43-D of the UAPA.

Allowing the appeal, the Court

HELD: 1. A conspectus of the various Supreme Court decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted. [Para 28][913-A-C]

2. On the facts of the present case, the High Court was wholly incorrect in stating that once the challan was presented by the prosecution on 25.03.2019 as an application was filed by the Appellant on 26.03.2019, the Appellant is not entitled to default bail. First and foremost, the High Court has got the dates all wrong. The application that was made for default bail was made on or before 25.02.2019 and not 26.03.2019. The charge sheet was filed on 26.03.2019 and not 25.03.2019. The fact that this application was wrongly dismissed on 25.02.2019 would make no difference and ought to have been corrected in revision. The sole ground for dismissing the application was that the time of 90 days had already been extended by the Sub-Divisional Judicial Magistrate by his order dated 13.02.2019. This Order was correctly set aside by the Special Court by its judgment dated 25.03.2019, holding that under the UAPA read with the NIA Act, the Special Court alone had jurisdiction to extend time to 180 days under the first proviso in Section 43-D(2)(b). The fact that the Appellant filed yet another application for default bail on 08.04.2019, would not mean that this application would wipe out the effect of the earlier application that had been wrongly decided. One must not forget that one is dealing with the personal liberty of an accused under a statute which imposes drastic punishments. The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled. This being the case, the judgment of the High Court is set aside. The Appellant will now be entitled to be released on “default bail” under Section 167(2) of the Code, as amended by Section 43-D of the UAPA. [Para 29][913-C-H; 914-A]

Sanjay Dutt v. State through CBI (1994) 5 SCC 410 : [1994] 3 Suppl. SCR 263 – followed.

Hitendra Vishnu Thakur v. State of Maharashtra (1994)

4 SCC 602 : [1994] 1 Suppl. SCR 360; Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453 : [2001] 2 SCR 878; Union of India v. Nirala Yadav (2014) 9 SCC 457 : [2014] 6 SCR 148; Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67 : [2017] 8 SCR 785; Syed Mohd. Ahmad Kazmi v. State (Govt. of NCT of Delhi (2012) 12 SCC 1 : [2012] 9 SCR 836 – relied on.

Pragya Singh Thakur v. State of Maharashtra (2011)

10 SCC 445 : [2011] 14 SCR 617 – referred to.