Allahabad High Court Grants 'Default Bail' To 11 Alleged AQIS-JMB Operatives Booked Under UAPA

Stressing the special court's duty to hear the accused persons while considering the application for an extension of time to complete the investigation, a bench of Justice Attau Rahman Masoodi and Justice Manish Kumar Nigam noted that this defect had rendered the order passed by the Special Court as illegal.

Those granted bail are Mohammed Aleem, Mohammad Nawajis Ansari, Lukman, Mudassir, Mohammad Mukhtar, Mohammad Nadeem, Habeedul Islam, Mohammad Harish, Ash Mohammad, Qari Shahjad and Ali Noor.

The accused-appellants were arrested by the Anti-Terrorist Squad of the Uttar Pradesh Police in 2022 on the allegations of aiding in the preparation of sleeper modules for AQIS and JMB in Uttar Pradesh.

They all were booked under Section 121A, 123 I.P.C. and Section 13, 18, 18B, 20 and 38 of the UAPA over the allegations of recruiting people while spreading anti-national, jehadi and terrorist mentality among people so as to threaten the unity, sovereignty and integrity of the nation and to destabilise the democratically elected government.

After the special courts denied them bail, they all moved to the High Court to challenge the denial of the relief. Since the cases of all 11 appellants involved a common question of law, the court decided them together.

Case of the accused

It was the primary contention of the counsels for the accused-appellants that many days before the statutory period to complete the investigation (of 90 days) was going to expire, the investigating officer, behind the back of the appellants, applied for an extension of time for investigation under Section 43-D of the Act of 1967.

The applications were moved by the investigating officer on different dates in December 2022 and January 2023, not by the Public Prosecutor, as required by the proviso to Section 43-D of the Act of 1967. The PP merely endorsed the words 'submitted' on the aforesaid applications.

It was further argued that the Special Court passed orders extending the time of the investigation without applying the mind and without giving any reasons for the same, and it did not even ensure the presence of the accused persons to oppose the extension application.

However, after the expiry of the statutory period to complete the investigation (90 days), when the appellants filed bail applications to be released on bail as no charge sheet was submitted within the statutory period of 90 days, the appellants learned that the special court had granted an extension to complete the investigation.

On February 3 and February 13, 2023, the Special Court rejected their 'default bail' pleas on the ground that the Court had extended the investigation time.

The state government argued that the investigating agency had completed the investigation and granted a sanction. Thus, the right of bail, if any, under Section 167(2) of CrPC had been extinguished, and now the same could not be granted.

It was further contended that since the Special Court ordered the extension of time for further investigation, default bail could not have been granted to the appellants on the expiry of the statutory period of 90 days.

High Court's observations

At the outset, the Court noted that the proviso to Section 167(2) CrPC creates an indefeasible right in an accused person on account of 'default' by the investigating agency in completing the investigation within the maximum period prescribed or extended, as the case may be, to seek an order of his release on bail.

The Court added that the indefeasible right to default bail under Section 167(2) is integral to the right to personal liberty under Article 21.

In this regard, the Court said that the accused may not be entitled to know the contents of the report but are entitled to oppose the extension of time on the grounds available to them in law.

Further, referring to the verdict of the Apex Court in the case of Jigar @ Jimmy Pravinchandra Adatiya vs State of Gujarat 2022 LiveLaw (SC) 794, the Court observed that the grant of an extension of time in the absence of the accused deprives them of their right to seek default bail, resulting in the failure of justice.

It may be noted that in the Jigar case (supra), the Top Court held that the failure to produce the accused before the Court when considering the application for an extension of time for investigation amounts to a violation of a fundamental right guaranteed under Article 21 of the Constitution.

“The order passed by the Special Court extending the period of investigation is rendered illegal on account of the failure of the respondents to produce the accused-appellants before the Special Court either physically or virtually when the prayer for grant of extension made by the Public Prosecutor was considered. It was the duty of the Special Court to ensure that this important procedural safeguard was followed,” the Court said.

The Court also observed that the Public Prosecutor made no application of mind to the application submitted by the Investigating Officer seeking an extension of time to complete the investigation. On account of this, the order of extension of time for investigation passed by the Special Court was vitiated.

The Court also found faults with the special court for passing the 'unreasoned order' stating "(application for extension of time of investigation) permitted for 45 days only" as the Division bench noted that the order did not reflect that the Special Court has applied its mind to the grounds whatsoever were there for an extension of time for the investigation.

On this score, the order of extension of time for investigation passed by the Special Court cannot be sustained, the Court said.Top of Form

Further, the Court also opined that since the order of extension granting further time for investigation by the Special Court was not valid, filing the charge sheet after filing the application for bail by the appellants was of no consequence, and the appellants would be entitled to default bail.

“When the appellants applied for bail, they had no notice of extension of time granted by the Special Court. Moreover, the application was made before the filing of the charge sheet, hence, the appellants are entitled to default bail,” the Court said.

Appearances

For appellants: Furkan Pathan, Aarif Ali, Shahid Nadeem

For respondents: AGA Shiv Nath Tilhari

Case title - Mohammed Aleem @ Abdul Aleem And Another vs. State Of U.P. Thru. A.T.S. Lucknow 2024 LiveLaw (AB) 315

Case citation: 2024 LiveLaw (AB) 315

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