Don't Seek Extension Of Time For Investigation At Last Moment, Accused Will Get Right To Default Bail : Supreme Court To NIA, Police

The Supreme Court cautioned the Investigating agencies against filing of applications seeking extension of time for completing the investigation at the last moment.

A bench comprising Chief Justice of India DY Chandrachud and Justice JB Pardiwala made this observation after noting that the Punjab Police(investigation later taken over by the NIA) had filed an application seeking to extend the time for investigation as per Section 43D(2)(b) of the UAPA only when there was two days left for 90 days time to expire. The Court extended the time on the 101st day. Had the accused filed an application for default bail in the meantime, they would have got it.

Terming that this litigation should be an "eye opener" for the NIA and the police, the bench observed :

"The application seeking extension of time was very much pending. The Additional Sessions Judge could not have even allowed such application promptly i.e., on or before the 90th day without giving notice to the accused persons. The law is now well settled in view of the decision of this Court in the case of Jigar alias Jimmy Pravinchandra Aditya v. State of Gujarat that an opportunity of hearing has to be given to the accused persons before the time is extended up to 180 days to complete the investigation. The only error or lapse on the part of the appellants Jasbir and Varinder Singh was that they failed to prefer an appropriate application seeking statutory/default bail on the 91st day. If such application would have been filed, the court would have had no option but to release them on statutory/default bail. The Court could not have said that since the extension application was pending, it shall pass an appropriate order only after the extension application was decided. That again would have been something contrary to the well settled position of law. This litigation is an eye opener for the NIA as well as the State investigating agency that if they want to seek extension, they must be careful that such extension is not prayed for at the last moment."

In this regard, the bench, referring to the judgment in Sayed Mohd. Ahmad Kazmi v. State (Government of NCT of Delhi) and Others reported in (2012) 12 SCC 1, observed:

The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the court. However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, or a report seeking extension of time is preferred before the Magistrate or any other competent court, the right to default bail would be extinguished. The court would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC.

The above observation was made in the judgment delivered today that an accused person would not be entitled to default bail on the ground that the chargesheet filed against them is without a sanction of valid authority and hence is an incomplete chargesheet. Whether the sanction of a valid authority for chargesheet was required was not a question to be addressed while taking cognisance of an offence, rather, it was a question to be addressed during prosecution and such prosecution started after the cognisance of an offence was taken, the court held.

Case details

Judgebir Singh @ Jasbir Singh @ Jasbir vs National Investigation Agency and others | 2023 LiveLaw (SC) 377 | Crl.A. No. 1011/2023 | 1 May 2023 |CJI D Y Chandrachud and Justice J B Pardiwala

Headnotes

Code of Criminal Procedure, 1973 ; Section 167(2), Section 173- We find no merit in the principal argument canvassed on behalf of the appellants that a chargesheet filed without sanction is an incomplete chargesheet which could be termed as not in consonance with sub section (5) of Section 173 of the CrPC-Once a final report has been filed with all the documents on which the prosecution proposes to rely, the investigation shall be deemed to have been completed-once a final report has been filed, that is the proof of completion of investigation and if final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing of sanction order

Code of Criminal Procedure, 1973 ; Section 167(2) - Filing of a chargesheet is sufficient compliance with the provisions of Section 167 of the CrPC and that an accused cannot claim any indefeasible right of being released on statutory/default bail under Section 167(2) of the CrPC on the ground that cognizance has not been taken before the expiry of the statutory time period to file the chargesheet - Grant of sanction is nowhere contemplated under Section 167 of the CrPC - Once a final report has been filed, that is the proof of completion of investigation and if final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing of sanction order. (Para 44,63)

Code of Criminal Procedure, 1973 ; Section 167(2), 193 - National Investigation Agency Act, 2008 ; Section 16 - Error on the part of the investigating agency in filing chargesheet first before the Court of Magistrate has nothing to do with the right of the accused to seek statutory/default bail under Section 167(2) of the CrPC. The committal proceedings are not warranted, when it comes to prosecution under the UAPA by the NIA by virtue of Section 16 of the NIA Act. This is because the Special Court acts, as one of the original jurisdictions. By virtue of Section 16 of the NIA Act, the Court need not follow the requirements of Section 193 of the CrPC,

Code of Criminal Procedure, 1973 ; Section 167(2) - Default Bail - If NIA as well as the State investigating agency they want to seek extension of time for investigation, they must be careful that such extension is not prayed for at the last moment - The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the court. However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, or a report seeking extension of time is preferred before the Magistrate or any other competent court, the right to default bail would be extinguished. The court would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC.

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