Accused Can’t Be Deprived Of Default Bail U/S 167(2) CrPC When Arrested In UAPA Case And Later Chargesheeted For Lessor Offences: Delhi Court

A Delhi Court has recently observed that an accused cannot be deprived of default bail when arrest was made in an FIR registered under the offences of UAPA but later the chargesheet was filed for lessor offences.

“Fact that accused was arrested in FIR for offences under U(P)Act and later investigating agency in its fairness could not file charge sheet for those offences, cannot be a reason to deprive the accused for relief u/s 167(2) CrPC because if such argument is entertained, obviously an accused can be arrested in FIR for offences which is investigable for maximum period of 90 days or more under UA(P) Act and later agency can conveniently file charge sheet for lesser offences. Such practice cannot be expected under the law,” Special NIA judge Shailender Malik of Patiala House Courts observed.

The court made the observation while granting bail to one Asif Khan arrested in an alleged terror gangster nexus case being probed by National Investigation Agency which also names the proscribed terrorist organisation Khalistan Tiger Force operative Arshdeep Singh Gill as one of the accused.

The allegations against Khan was regarding recovery of arms and ammunition. The court observed that the serious allegations can be examined during the trial and that bail cannot be deprived as a "punishment before trial" on ground of gravity of allegations.

“At this stage when accused has been in judicial custody for more than seven months relief of bail cannot be denied only for the reason that there are certain serious allegations. No doubt such serious allegations is important factor in the assessment of the facts and deciding the question of bail but cannot be sole reason for declining the bail,” the judge added.

The FIR was registered by NIA for the offences under sections 120B of Indian Penal Code and sections 18,18B & 20 of UAPA. Khan was arrested on October 18 last year. However, the chargesheet was filed against him by NIA on March 21 for the offences under section 120B of IPC and section 25 of the Arms Act.

Noting that Khan was chargesheeted under section 25 of the Arms Act and substantive offence of criminal conspiracy under section 120B of IPC which is maximum punishable upto 3 to 7 years, the judge said:

“As such going by the offences for which accused has been charge sheeted, investigation for offences against accused ought to have been completed within 60 days of time since the time of his arrest.”

It added: “One can understand that accused has been arrested on the basis of alleged recovery of Arms etc. for above mentioned offences as FIR in this case was filed for different offences of UA(P) Act. But at the same time I am of considered view that it is the legal responsibility of investigating agency to ensure that if by the time of expiry of prescribed period of 60/90 days us 167(2) Cr.PC, no sufficient evidence has been collected for offences of UA(P) Act or for other offences for which investigation could carry out for more than 90 days, then the onus is on the investigating agency to charge sheet him within the period prescribed u/s 167(2) Cr.PC.”

The judge also said that section 167(2) of CrPC was enacted by the legislature giving a valuable right to the accused and an assurance that if he has been arrested, investigation qua him would be completed within the prescribed period.

Law expects that investigation must be completed within prescribed period u/s 167(2) of Cr.PC, the court added.

The judge also observed that at the stage of expiry of 60 or 90 days, investigating agency has a legal onus to check whether there is evidence to carry on investigation from 60 to 90 days as well as in UAPA cases from 90 days to further time.

Asif Khan was represented by Advocates Chirag Madan and Shivender Sharma.