Further Investigation U/S 173(8) CrPC Not Ground To Seek Default Bail If Charge Sheet Filed Is Sufficient To Take Cognizance: J&K&L High Court

A Division bench comprising Justices Ali Mohammed Magrey & M A Chaudhary was hearing an appeal challenging the rejection of application for grant of regular bail by the Special Designated Court Under NIA Act Srinagar for the commission of offences punishable under Sections 13/18/20/38 Unlawful Activities (Prevention) Act 1967 and under Sections 34/121/121-A/120-B/124-A/201/468/506 IPC.

"In our considered opinion, if further action of cognizance and consideration of charge / discharge can be taken on the basis of the charge sheet laid, without waiting for further investigation and supplementary charge sheet, when such a charge sheet is laid within prescribed period, plea of statutory /default / compulsive bail is untenable," it said.

The appellant had assailed the impugned order through the medium of the appeal in terms of Section 21 of NIA Act mainly on the ground that the investigating agency had produced an incomplete challan/case before the court below on 179th day of the arrest of the appellant/accused when the time prescribed under law for production of charge-sheet was 180 days and in case of non-production of challan, right to seek default bail would accrue to the appellant/accused.

The Appellant through his counsel had further argued that in order to defeat his right to seek default bail, the investigating agency produced an incomplete challan/charge-sheet before the trial court stating that the investigation of the case was still going on and the supplementary charge-sheet will be submitted before the court, just as a mechanism to disentitle the appellant of his fundamental right of default bail.

The moot question that had to adjudicated was as to whether the appellant was entitled to be admitted to default bail as further investigation was still being carried out with regard to his role in the case by the investigating agency,all this when the charge-sheet had been laid within the period of 180 days as was available to the prosecution to lay the same.

Deliberating on the subject and after perusing the record the court noted that Special court on submission of the charge sheet not only took cognizance by summoning the accused but also charge sheeted the accused for commission of offences punishable under Sections 13, 18, 20 and 38 of UA(P) Act and Section 120-B of IPC, while as they were also discharged from the commission of offences punishable under Sections 121/121-B/124-A, 468, 506 and 34 IPC.

"In view of this development that there was sufficient material on record to summon the accused by taking cognizance and further framing of charge for trial against the accused including the appellant it cannot be said that the charge sheet was incomplete," the court observed.

Declining the argument of the counsel for the appellant that incomplete challan/charge-sheet had been submitted before the trial court stating that supplementary charge-sheet was being used as a mechanism to disentitle the appellant of his fundamental right of default bail, the bench observed that further investigation in terms of Section 173(8) of Cr.PC cannot be made a reason to say that the charge sheet filed against the appellant, whereon the cognizance was taken and the charges were also framed, can be incomplete so as to entitle the accused/appellant to grant of compulsive / statutory / default bail.

Delving deep into the subject the bench observed that the test to be applied while considering a plea for default bail in terms of Section 167(2) CrPC, in a case where charge sheet is laid with a stipulation that further investigation is to be conducted in terms of Section 173(8) CrPC, is that whether affirmative action of taking cognizance and consideration of charge / discharge can be taken, on the basis of the charge sheet laid. In our considered opinion, if further action of cognizance and consideration of charge / discharge can be taken on the basis of the charge sheet laid, without waiting for further investigation and supplementary charge sheet, when such a charge sheet is laid within prescribed period, plea of statutory /default / compulsive bail is untenable, the court underscored.

Upholding the impugned order and while dismissing the appeal the bench observed that court below has rightly rejected the plea of default bail raised by the appellant herein. The appellant, however, reserves a right to be admitted to bail as a statutory / default / compulsive bail, in the supplementary charge-sheet, if laid on further investigation, after the extended period of 180 days, the bench concluded.

Case Title: Peerzada Rafiq Maqdoomi Vs. Union Territory of J&K 

Citation: 2022 LiveLaw (JKL) 61