'Accused Not Heard Before Extending Time To File Chargesheet' : Karnataka High Court Grants Default Bail To 115 UAPA Accused In Bengaluru Riots Case

A bench of Justice S Vishwajith Shetty, while setting aside the order of the special NIA court extending time to the agency for filing chargesheet, said :

"The order dated 03.11.2020 passed on the application filed by the prosecution under the first proviso to Section 43-D(2)(b) of the Unlawful Activities (Prevention) Act, 1967, seeking extension of time for completion of the investigation and also the order dated 05.01.2021 passed by the the Special N.I.A. Court, Bangalore (CCH-50) on the application filed by the petitioners under Section 167(2) of the Code of Criminal Procedure, are hereby set aside."

The court consequently allowed the prayer made by the petitioners in their application filed under Section 167(2) of the Code seeking default bail is allowed. The court directed the accused to be released on bail on execution of a personal bond for Rs Two lakhs with two sureties of like sum.

The court observed :

"The fundamental right of an individual recognized under Article 21 of the Constitution of India cannot be defeated other than in accordance with law. Since the order passed by the trial court on the application filed by the prosecution seeking extension of time for completion of the investigation is already held to be bad in law, the statutory right that has accrued to the petitioners/accused immediately after the completion of the first 90 days of period which right has been availed of by them by filing an application under Section 167(2) of the Code, seeking statutory bail and also offering surety cannot be denied to the petitioners/accused."

The court set aside the order of the Special court extending the time granted for filing chargesheet stating :

"In my considered opinion, the judgment of the Hon'ble Supreme Court in the case of Hitendra Thakur and in the case of Sanjay Dutt would be applicable to the facts of the present case. Since the petitioners were not given an opportunity of being heard before passing an order on the application filed by the prosecution for extension of time for completion of the investigation and since the petitioners were not kept present before the court when the application filed by the prosecution for extension of time for completion of the investigation was being considered and since the petitioners were not notified that such an application filed by the prosecution was being considered by the court for the purpose of extending the time for completion of investigation, I am of the considered opinion that the order passed by the trial court on the application filed by the prosecution under the first proviso to Section 43-D(2)(b) of the Act of 1967 extending the time to complete the investigation is legally unsustainable."

"The order sheet would go to show that neither the accused persons nor the Advocates representing them were present before the trial court on the said date. The filing of such an application by the prosecution was not at all notified either to the accused or to their Advocates", the Court noted in the order.

The court also turned down the contention made by the prosecution that that considering the fact that charge sheet was already filed by the prosecution during the extended period, accused can very well apply for a regular bail under Section 439 of the Code having regard to the fact that charge sheet has already been filed.

Justice Shetty noted "In view of the law laid down in Bikramjit Singh's case, merely for the reason that the charge sheet has now been filed, it will not take away the indefeasible right of the petitioners, if it has accrued in their favour."

It added "Therefore, there is no merit in the contentions of the learned ASG that the prayer made by the petitioners for grant of statutory bail under Section 167(2) of the Code cannot be considered having regard to the fact that the charge sheet has now been filed during the extended period for completion of the investigation."

Case Background:

The case relates to the riots which took place in Bengaluru last year over a communally sensitive Facebook post by the relative of an MLA.

The accused Muzzamil Pasha and others have been arrested on August 12, 2020 for the offences punishable under Sections 15, 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967; Sections 143, 147, 148, 353, 333, 332, 436, 427 and 149 of the Indian Penal Code and Section 4 of the Prevention of Damage to Public Property Act, 1984.

The NIA filed an application for extension in time to file a final report on November 3, 2020, the same was allowed the same day. The accused filed an application for default bail on November 11, which was rejected by the court on the ground that time has been extended to the agency to file a chargesheet.