Default Bail | Oral Request For Extension Of Custody Period Permissible: Karnataka High Court

The Karnataka High Court has made it clear that an oral request by an investigating agency to extend the custody period is permissible, if the accused fails to seek default bail on expiry of statutory period.

A division bench of Justice Sreenivas Harish Kumar and Justice Vijaykumar A Patil also said that the right to get default bail under Section 167 of Criminal Procedure Code is an indefeasible right which the court cannot deny if an accused is ready to furnish bail, but this right should be exercised before the investigating agency files charge sheet or seeks extension of time to complete the investigation.

It thus dismissed a plea filed by accused Mohammed Jabir who had questioned the order allowing NIA's application under section 43D(2) of Unlawful Activities Prevention Act (UAPA), extending the period of investigation beyond 90 days and dismissing his application for bail.

The bench said “The law is settled that unless the accused makes an application either orally or in writing for being released on bail, the court cannot release him from custody.”

The accused is charged under Section 302 of Indian Penal Code and Sections 16, 18, 19 and 20 of UAPA for the alleged killing of BJP Yuva Morcha member Praveen Nettaru. The petitioner was arrested in November 2022.

The initial period of ninety days from the date of production of the petitioner before the court expired on February 6, 2023. NIA did not file a charge sheet against the petitioner on or before expiry of ninety days period. And when the case was called in the court on February 7, 2023, the petitioner did not exercise his right to be released on default bail. When the case was called the next day, the Special Public Prosecutor for NIA filed an application under Section 43D(2)(b) UAPA, seeking extension of time to file charge sheet. The petitioner also filed an application under Section 167(2) of CrPC ,claiming default bail. Following which the impugned order was passed.

The petitioner argued it was the duty of the trial court to have informed the petitioner of his right to apply for bail soon after expiry of ninety days from the date of his production before the court once the respondent failed to submit the charge sheet.

NIA opposed the plea stating that on February 7, 2023, an oral extension of remand of the petitioner was sought by the junior advocate of the Special Public prosecutor appointed in the case.

The bench noted that Section 43D (2) of the Act clearly states that Section 167 of Cr.P.C is applicable in a proceeding in relation to an offence under UAPA, undoubtedly if charge sheet is not filed within ninety days and if the investigating agency does not seek extension of the period to complete the investigation, an accused gets a right under Section 167 (2) of Cr.P.C to be released on bail.

Further, mere filing of application seeking extension of time is not enough, the application must disclose the progress in the investigation and also specific reasons for detention of the accused beyond ninety days. If the application does not disclose these requirements, the accused has to be released on bail if he is ready to furnish bail.

Rejecting the contention of petitioner that oral application for extension is not permitted, it said,

“This argument is difficult to be accepted. There is no bar as such in Section 167 of Cr.P.C for an oral request being made seeking extension of custody period. If the accused does not avail his right to be released on bail after expiry of the prescribed period to file the charge sheet, obviously the court has to extend the custody period. The accused cannot be left in lurch. Oral request for extension is also permitted.”

Relying on Apex court decisions in the case of Sanjay Dutt vs State (1994) and Hitendra Vishnu Thakur vs State of Maharashtra (1994), the court said “It is not possible to accept the argument that the trial court should have released the petitioner on bail immediately after expiry of ninety days without an application being made on his behalf. Since this position of law being very clear.”

Noting that in the case on hand on February 7, 2023, upon an oral request made by the counsel appearing on behalf of the Special Public Prosecutor, the court extended the custody period, the court refused to accept the submission that counsel who sought extension was not the Special Public Prosecutor and his oral request should not have been considered. It said “It is difficult to commend the argument as it is too rhetoric and technical; if it is accepted no junior or a colleague of an advocate can represent in the court.”

It added “In the case before us, Special Public Prosecutor has been appointed and it appears that his junior appeared before the court and made an oral request for extension of custody period stating that the investigating officer could not file extension application due to inadvertence and he also made a further submission that necessary application would be filed on the next day. Therefore the case was called on 08.02.2023. In this view, it cannot be stated that the counsel who appeared before the court on 07.02.2023 was not authorised to seek extension of the custody period.”

The court dismissed the petition.

Appearance: Advocate Haleema Ameen for Petitioner.

Special Public Prosecutor p Prasanna Kumar for Respondent

Citation No: 2024 LiveLaw (Kar) 135

Case Title: Mohammed Jabir AND National Investigation Agency

Case No: WRIT PETITION NO.7388 OF 2023

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