Code of Criminal Procedure, 1973:
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 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 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 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 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 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 – 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 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 – 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 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 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 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 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 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) CrPC for being released on default bail. What is contemplated under Section 167(2) 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 accrues to the accused concerned to be released on bail under 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 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, 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 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]
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 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 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 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 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][35D-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 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]
1.6 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 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 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]
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 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 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.
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, 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 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 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 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 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]
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 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 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 Gujarat (2012) 11 SCC 606 : [2012] 12 SCR 1033; Bikramjit Singh v. State of Punjab (2020) 10 SCC 616; 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. 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 : 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 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 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 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 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 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 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 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]
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 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, 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) and Others (2012) 12 SCC 1 : [2012] 9 SCR 836 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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