When Default Bail Plea & Application To Extend Time For Chargesheet Filed On Same Day, Which Will Prevail? Supreme Court To Consider

The Supreme Court today (August 21) agreed to consider the question of law whether the default bail filed under Section 167(2) (procedure when investigation cannot be completed within twenty-four hours) of Code of Criminal Procedure could take precedence over an application for extension of time to file chargesheet under Section 43D(2) of Unlawful Activities (Prevention) Act, 1967 (UAPA) if both are filed on same day.

As per the brief facts, the accused is charged under various provisions of the UAPA, Indian Penal Code and Arms Act. He was arrested in November 2022. The National Investigation Agency (NIA) however failed to complete the investigation within a period of 90 days as stipulated in Section 43D(2) of UAPA.

It should be noted that Section 167 CrPC is applicable to Section 43D(2) UAPA with modifications. 

In the meantime, the trial court extended the custody of the accused upon an oral request by the NIA. When the case came before the court, the accused person did not exercise his right to default bail.

Thereafter, the NIA filed an application for extension under Section 43D(2)(b) in the morning, the accused filed an application for default bail in the afternoon on the same day. The trial court decided both applications together and allowed the application of NIA while dismissing the accused person's application.

The accused challenged the order before the Karnataka High Court, arguing that the trial court should have informed him of his right to apply for bail. However, the High Court rejected the petition stating that the trial court had found that the NIA had valid reasons for not being able to file chargesheet within 90 days.

The High Court added that the right under Section 167(2) CrPC has to be exercised before the investigation agency files chargesheet or seeks an extension. The Court added that in order to allow an application for default bail, it has to reject an application for extension of time.

The court further pointed out that there is no bar as such in Section 167 CrPC for an oral request being made seeking extension of custody period. 

It said: "If the accused does not avail his right to be released on bail after expiry of the prescribed period to file chargesheet, obviously the court has to extend the custody period. The accused cannot be left in lurch. Oral request for extension is also permitted."

The order of the high court has been challenged before the Supreme Court.

Before a bench of Justices M.M. Sundresh and Aravind Kumar, the counsel for the accused, Advocate Talha Abdul Rahman at the outset submitted that apart from the issue of default bail, the court will have to consider whether an oral request for extension could be made.

Rahman told the court that the legislative intent under Section 43D requires that there must be a report in order to seek extension. 

He said: "An oral request or even a written application for that matter cannot substitute a requirement of report. It is a legislative requirement."

Justice Aravind asked if they had opposed the oral request made by NIA for extension.  

Rahman:  "I had moved the high court. I had no counsel before the trial court. I then appointed a new counsel. But these are the circumstances in which the accused is put, which is where the duty of the court comes in to inform the accused of his precious right that was no where there despite the position of law being settled in this case."

He referred to the judgment of the Supreme Court in Rakesh Kumar Paul v State of Assam (2017) wherein the court said: "This Court and other constitutional courts have also taken the view that in the matters concerning personal liberty and penal statutes, it is the obligation of the court to inform the accused that he or she is entitled to free legal assistance as a matter of right.."

Case Details: Mohammed Jabir v. National Investigation Agency, Diary No. 34469-2024