CRIMINAL APPEAL NO. 1011 OF 2023 Page 1 of 53

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1011 OF 2023

JUDGEBIR SINGH @ JASBIR SINGH .... APPELLANT(S)

SAMRA @ JASBIR & ORS.

VERSUS

NATIONAL INVESTIGATION .... RESPONDENT(S)

AGENCY

WITH

CRIMINAL APPEAL NO. 1012 OF 2023

J U D G M E N T

J. B. PARDIWALA, J:

1. As the issues raised in both the captioned appeals are common and the

challenge is also to the self-same order passed by the High Court, those were

taken up for hearing analogously and are being disposed of by this common

judgment and order.

2. These appeals by special leave are at the instance of five under trial

accused charged with having committed offences punishable under Section

Digitally signed by

Sanjay Kumar

Date: 2023.05.01

15:47:52 IST

Reason:

Signature Not Verified 2023 INSC 472

CRIMINAL APPEAL NO. 1011 OF 2023 Page 2 of 53

120B of the Indian Penal Code, 1860 (for short, ‘the IPC’), Sections 17, 18,

18B and 20 respectively of the Unlawful Activities (Prevention) Act, 1967 (for

short, ‘the UAPA’) and Sections 4 and 5 respectively of the Explosive

Substances Act, 1908 (for short, ‘the 1908 Act’) and are directed against the

order passed by the High Court of Punjab and Haryana at Chandigarh dated

26.04.2022 in CRA-D No. 47 of 2021 (O&M) by which, the High Court

dismissed the appeal and thereby declined to release the accused persons on

default bail under Section 167(2) of the CrPC.

3. The seminal issues falling for the consideration of this Court may be

formulated as under:-

(i) Whether an accused is entitled to seek default bail under the

provisions of Section 167(2) of the Code of Criminal Procedure, 1973 (for

short, ‘the CrPC’) on the ground that although the chargesheet might have been

filed within the statutory time period as prescribed in law yet the chargesheet

sans a valid order of sanction passed by a competent authority is no chargesheet

in the eye of law and therefore, it is as good as saying that no chargesheet was

filed by the investigating agency within the statutory time period as prescribed

in law? To put it more succinctly, whether the Court concerned is precluded in

any manner for the purpose of Section 167 of the CrPC from taking notice of

the chargesheet that might have been filed by the investigating agency in the

absence of a valid order of sanction?

(ii) Whether cognizance of the chargesheet is necessary to prevent the

accused from seeking default bail or whether mere filing of the chargesheet

would suffice for the investigation to be deemed complete? To put it in

different words, whether the grant of sanction is contemplated under Section of

the 167 CrPC?

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(iii) A Special Court may not be in a position to take cognizance on

account of failure on the part of the prosecution to obtain sanction to prosecute

the accused under the UAPA and the 1908 Act, but does such failure amount

to non-compliance with the provisions of Section 167(2) of the CrPC so as to

entitle the accused to seek default bail?

(iv) Whether filing of the chargesheet for the offences as enumerated

above, in the Court of the Magistrate and the Magistrate thereafter, committing

the case to the Court of Sessions or designated Court would vitiate all

subsequent proceedings on the ground that Section 16 of the National

Investigation Agency Act, 2008 (for short, ‘the NIA Act’) empowers the

Special Court to take cognizance of any offence without the accused being

committed to it for trial upon receiving a police report? To put it in other words,

whether the error on the part of the investigating agency to file chargesheet for

the offence enumerated above, in the Court of Magistrate and not in the

Sessions or designated Court would by itself entitle the accused to seek default

bail under the provisions of Section 167(2) of the CrPC?

4. For the purpose of answering the aforesaid issues, it is very much

essential to take notice of the following chronology of dates and events:

(a) On 02.06.2019 at around 04:50 in the morning, a team of police officers

was patrolling. The vehicles passing through the Harsh Cheena, Kukkarwal bus

stop in Raja Sansi, District Amritsar, State of Punjab, were being checked. At

that point of time two boys belonging to the Sikh community were noticed to

have been travelling on a motorcycle without a number plate. On being asked

to stop, they fled away. In the process of running away, one blue coloured bag

which was in the hands of the pillion rider fell down. A mobile phone and two

hand grenades were recovered from the bag. In such circumstances, FIR No.

90 came to be registered at the Police Station Raja Sansi, District Amritsar

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(Rural), Punjab, for the offences punishable under the 1908 Act. Thus, the FIR

came to be registered on 02.06.2019.

(b) On 05.06.2019, the Punjab Police added Sections 17, 18, 18B and 20 of

the UAPA.

(c) On 08.06.2019, accused Jasbir Singh and Varinder Singh came to be

arrested by the Punjab Police.

(d) On 27.07.2019, Sukhpreet Singh alias Budda (Accused No. 8) was

arrayed as accused in the instant FIR and offence under Section 120B of the

IPC was added.

(e) On 18.08.2019, the Appellant No. 3 Kulbir Singh alias Kulbir and

Appellant No. 4 Manjit Kaur wife of Darshan Singh (Appellants of Crl. A. No.

1011 of 2023) came to be arrested. It is the case of the prosecution that Kulbir

Singh and Manjit Kaur at the relevant point of time were residing at Cambodia.

One Harmit Singh and Kulwinder Singh were also arrayed as accused.

(f) On 04.09.2019, the Punjab Police applied for extension of time for

completing the investigation under the proviso to Section 43D(2)(b) of the

UAPA before the Additional Sessions Judge, Amritsar. It is pertinent to note

that the application seeking extension was filed two days prior to the expiry of

90 days from the date of arrest. Section 43D(2)(b) of the UAPA empowers the

competent court to extend the period of 90 days as contemplated under Section

167 of the CrPC up to 180 days.

(g) On 07.09.2019, Taranbir Singh (Appellant of Crl. A. No. 1012 of 2023)

came to be arrayed as accused in the instant FIR. Taranbir Singh at the relevant

point of time was residing in Malaysia.

(h) On 11.09.2019, Taranbir Singh was arrested.

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(i) On 17.09.2019, the Additional Sessions Judge, Amritsar, extended the

period of completion of investigation from 90 days to 180 days. It is pertinent

to note at this stage that the extension was granted by the Additional Sessions

Judge after giving an opportunity of hearing to all the accused persons.

(j) On 15.11.2019, a final report under Section 173(2) of the CrPC was

prepared by the investigating agency and presented before the Court of the Sub-

Divisional Judicial Magistrate, Ajnala. This report (chargesheet) was filed in

connection with the FIR No. 90 for the offence enumerated above. A common

chargesheet was filed before the Court of Magistrate on 15.11.2019. Since the

accused Nos. 1 and 2 respectively were arrested on 08.06.2019, the chargesheet

could be said to have been presented on the 161

st

day from the date of their

formal arrest. The accused Nos. 3 & 4 were arrested on 18.08.2019; for them,

the chargesheet was filed within 90 days post-arrest, and in the case of the

accused No. 5 who was arrested on 11.09.2019, it was filed within 66 days of

his arrest. Thus, the chargesheet was filed within the extended period of 180

days so far as Appellant Nos. 1 and 2 are concerned.

(k) On 16.11.2019, the SDJM, Ajnala adjourned the proceedings of all the

accused persons.

(l) On 20.11.2019, the SDJM, Ajnala further adjourned the proceedings to

25.11.2019.

(m) On 25.11.2019, the SDJM, Ajnala committed the case to the Court of

Sessions under the provisions of Section 209 of the CrPC, as the offences were

exclusively triable by the Court of Sessions. The next date fixed was

06.12.2019.

(n) On 06.12.2019, the Additional Sessions Judge, Amritsar, simply

registered the case without cognizance being taken.

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(o) On 22.02.2020, the NIA, New Delhi re-registered the instant case as RC-

07/2020/NIA/DLI under Sections 17, 18, 18B and 20 respectively of the UAPA

in compliance with the Government of India, Ministry of Home Affairs, CTCR

Division Order No. 11011/22/2020/NIA dated 20.02.2020 in the FIR No. 90 of

2019.

(p) On 09.03.2020, the Special Judge, CBI Punjab, SAS Nagar, Mohali,

received the entire file from the Court of Additional Sessions Judge, Amritsar.

In this manner, the prosecution ultimately stood transferred to the Special Court

constituted under the NIA/UAPA.

(q) On 26.10.2020, the District Magistrate, Amritsar, accorded sanction for

prosecution under the 1908 Act.

(r) On 12.11.2020, the Special Judge, NIA recorded that the sanction to

prosecute the accused persons for the offences under the 1908 Act had been

accorded and the sanction under the UAPA was being awaited.

(s) On 14.12.2020, an application for default bail under Section 167(2) of

the CrPC r/w Section 43D of the UAPA was filed before the Special Judge

NIA, SAS Nagar, Mohali, essentially on the ground that although the

chargesheet had been filed within the extended period of 180 days, yet the same

could be termed as incomplete because of want of sanction under the UAPA.

In such circumstances, the position was as if there was no chargesheet.

(t) On 16.12.2020, the prosecution produced the order of grant of sanction

issued by the District Magistrate, Amritsar, under the 1908 Act before the trial

court.

(u) On 17.12.2020, the NIA filed its reply to the application filed by the

accused persons seeking default bail.

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(v) On 17.12.2020, the Special Court rejected the application filed by the

accused persons seeking default bail on the ground that the chargesheet had

already been filed.

(w) On 06.01.2021, the Government of Punjab accorded sanction for

prosecution under the UAPA.

(x) On 07.01.2021, the Special Court acknowledged the receipt of the

sanction under the UAPA from the Home Department of the Punjab

Government.

(y) On 18.01.2021, the appellants herein filed appeal before the High Court

of Punjab and Haryana against the order dated 17.12.2020 passed by the Special

Court rejecting the default bail application.

(z) On 17.03.2021, the Government of India, accorded sanction under

Section 45(1) of the UAPA for prosecuting the Appellants.

(aa) On 22.03.2021, a supplementary chargesheet was filed by the NIA

before the Special Judge, NIA, Punjab, along with the relevant sanctions for

prosecution.

(ab) On 05.04.2021, the Special Court, NIA took cognizance of the offences

enumerated above and issued notices to the accused persons.

(ac) On 06.09.2021, the Special Court proceeded to frame charge against the

accused persons.

(ad) On 26.04.2022, the High Court of Punjab and Haryana dismissed the

appeal filed by the Appellants against the order of the Special Court rejecting

the plea of default bail.

5. To make it more explicit and clear, we trim down the aforesaid

chronology of dates and events as under:

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(i) 02.06.2019 – FIR was registered;

(ii) 08.06.2019 – arrest of the first and second Appellants;

(iii) 18.08.2019 – arrest of the third and fourth Appellants;

(iv) 11.09.2019 – arrest of Taranbir Singh (Appellant of Crl. A. No. 1012 of

2023)

(v) 17.09.2019 – extension of the period of investigation from 90 to 180 days;

(vi) 15.11.2019 – chargesheet presented;

(vii) 14.12.2020 – application for default bail;

(viii) 16.12.2020 – sanction order dated 26.10.2020 under the 1908 Act filed;

(ix) 06.01.2021 – sanction order was issued under the UAPA;

(x) 17.03.2021 – sanction by the Ministry of Home Affairs under Section 45(1),

UAPA following the transfer of investigation to NIA; and

(xi) 22.03.2021 – supplementary chargesheet has been presented by NIA.

6. In such circumstances referred to above, the Appellants (original accused

persons) are here before this Court with the present appeals.

SUBMISSIONS ON BEHALF OF THE ACCUSED PERSONS

7. Mr. Colin Gonsalves, the learned Senior Counsel and Mr. Satya Mitra,

the learned Counsel appearing for the respective appellants vehemently

submitted that the High Court committed a serious error in declining to grant

the benefit of default bail to the appellants.

8. According to both the learned counsel, the chargesheet filed without

sanction is an incomplete chargesheet and on the basis of such incomplete

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chargesheet no cognizance can be taken. It was submitted that the final report

is filed so as to enable the court concerned to apply its mind as to whether

cognizance of the offence should be taken or not. The sum and substance of the

submission canvassed on behalf of the accused persons is that there cannot be

a part chargesheet. A chargesheet filed without sanction is an incomplete

chargesheet and does not meet the requirement of a police report within the

meaning of Section 173(2) of the CrPC. Such a chargesheet would also not be

in consonance with sub section (5) of Section 173 of the CrPC.

9. Such incomplete chargesheet cannot be used as a tool or device by the

police to defeat an application seeking statutory/default bail. It was argued that

a chargesheet filed under the UAPA must be complete in all respects. The

emphasis put by both the learned counsel was on the fact that the sanction order

must accompany the chargesheet to enable the court concerned to take

cognizance.

10. It was further argued that mere gathering of evidence by the investigating

agency is not sufficient when it comes to comparing usual criminal cases with

the cases under the UAPA. The investigation cannot be said to be complete

until the facts gathered are scrutinised by the authority appointed by the Central

Government and such authority submits its report.

11. Our attention was drawn by both the learned counsel to Rules 3 and 4

respectively of the Unlawful Activities (Prevention) (Recommendation and

Sanction of Prosecution) Rules, 2008 (for short, ‘Rules 2008’), which provide

a time limit for making recommendation by the authority and a time limit

thereafter, for sanction of the prosecution. It was argued that the provisions of

the UAPA and Rules 2008 framed thereunder make the grant of sanction, time

bound.

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12. It was vociferously submitted by both the learned Counsel that the

extension of time from 90 to 180 days read together with Rules 3 and 4

respectively of the Rules 2008 referred to above, makes the grant of sanction

mandatorily time bound. The same leads to only one conclusion that the

sanction order must accompany for it to be considered a final report.

13. It was argued that since the chargesheet in the case on hand was filed on

15.11.2019, the material collected by the investigating agency should have

been received by the competent authority on 15.11.2019 itself. The report of

the competent authority should have been ready seven days thereafter, i.e., by

22.11.2019. In view of Rule 4, the sanction should have been granted by

29.11.2019. However, according to both the learned counsel, the report was

filed only on 12.03.2021 i.e., after a delay of one year and three months. The

sanction was granted on 17.03.2021 i.e., beyond the period of 180 days which

expired on 10.03.2020. The default bail application was instituted on

14.12.2020.

14. It was further argued that the NIA after taking over the investigation on

22.01.2020 was left with 49 days to file or place on record the appropriate

sanction before the expiry of the limit of 180 days. The default bail application

was filed on 14.12.2020. The sanction, which was granted only on 17.03.2021,

ought to have been granted on 29.11.2019 in view of the time period prescribed

by Rules 3 and 4 respectively of the 2008 Rules referred to above. In such

circumstances, both the learned counsel submitted that such a delayed sanction

even if otherwise valid cannot defeat the indefeasible right of the accused

persons to seek default bail.

15. The second limb of the submission canvassed by both the learned

counsel appearing for the accused persons is that the chargesheet could not have

been filed in the Court of SDJM, Ajnala as the proceedings under the NIA are

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to be conducted in the Special Court only notified under Section 22 of the NIA

Act. If there is no Special Court notified then before the Sessions Judge.

However, in any event, the chargesheet could not have been filed before the

Court of Magistrate. It was argued that in view of Section 16 of the NIA Act

read with Section 22 of the NIA Act, the provisions of Section 193 of the CrPC

would not come into play. It was argued that the error on the part of

investigating agency in filing the chargesheet before the Court of Magistrate

and the Magistrate thereafter, committing the case to the Court of Sessions was

absolutely contrary to the provisions of the NIA Act and also the provisions of

the UAPA, which rendered all subsequent proceedings to be without

jurisdiction and hence, a nullity.

16. In support of the aforesaid submissions, reliance has been placed on the

following case law:

(i) Fakhrey Alam v. State of Uttar Pradesh, 2021 SCC OnLine 532

(ii) Abdul Azeez P.V. and Others v. National Investigation Agency, (2014)

16 SCC 543

(iii) Chitra Ramkrishna v. Central Bureau of Investigation, (2022) SCC

OnLine Del 3124

(iv) Rambhai Nathabhai Gadhvi and Others v. State of Gujarat, (1997) 7

SCC 744

(v) Ashrafkhan v. State of Gujarat, (2012) 11 SCC 606

(vi) Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616

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17. In such circumstances referred to above, both the learned counsel prayed

that there being merit in their appeals, those may be allowed and the accused

persons be ordered to be released on default bail.

SUBMISSIONS ON BEHALF OF THE NIA/UNION OF INDIA

18. Mr. Sanjay Jain, the learned ASG, on the other hand, while vehemently

opposing both the appeals submitted that it is settled law that the indefeasible

right under Section 167(2) of the CrPC accrues to an accused only if the

chargesheet is not filed within the time prescribed therein or within the time

extended by a competent court under a special statute. He would submit that

the right ceases to be available if the chargesheet is filed within the time

indicated above or if the chargesheet is filed prior to preferring an application

under Section 167(2) of the CrPC. Mr. Jain sought to fortify his submission by

placing reliance on the Constitution Bench decision of this Court in the case of

Sanjay Dutt v. State reported in (1994) 5 SCC 410 (paras 48 and 53(2)(b)) and

in the case of Serious Fraud Investigation Office v. Rahul Modi and Others

reported in (2022) SCC OnLine 153 (para 16).

19. Mr. Jain vehemently submitted that there is no merit in the submission

canvassed on behalf of the accused persons that a chargesheet without requisite

sanction under the UAPA or the 1908 Act is incomplete. In other words,

according to Mr. Jain, there is no merit in the contention canvassed on behalf

of the accused persons that although the chargesheet was filed within the period

of 180 days, yet the same being without sanction, it could be said to be as good

as not filing the chargesheet within the statutory time period.

20. In the aforesaid context, Mr. Jain invited the attention of this Court to the

following aspects:

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a. The act of grant of sanction for prosecution, in several statutes, is entrusted

upon an authority other than the Investigating Agency and as such it is not

within the domain of the Investigating Agency to grant such Sanction.

b. In the present case, at the time of filing of the first chargesheet by the State

Investigating Agency (SIA), the SIA had already sought sanction for

prosecution from the appropriate Governments.

c. The cognizance of the offence was taken by the Special Court NIA/UAPA

on 05.04.2021, only after the sanctions under the 1908 Act and UAPA were

granted by the appropriate governments and communicated to the Court, as is

evident from the timeline indicated above.

d. The question of grant of sanction for prosecution is relevant only at the stage

of taking cognizance, which is altogether a separate stage distinct from the stage

of investigation. [Reliance is placed on Suresh Kumar Bhikamchand Jain v.

State of Maharashtra and Another, (2013) 3 SCC 77 @ Paras 17 – 19]

21. Mr. Jain submitted that as some of the accused persons were declared as

absconders, the request for extension of time to file chargesheet was made by

the investigating agency on 04.09.2019 (i.e., within the period of 90 days), the

said application was finally heard on 17.09.2019 and the hearing was in

conformity with the principles of natural justice as all the accused persons were

duly represented and arguments on behalf of the accused as well as prosecution

were heard on the application seeking extension of time

22. Mr. Jain further submitted that the investigation was being carried out by

the State Police and in view of the same, the State Police proceeded with filing

of the chargesheet on 15.11.2019 before the JMFC, where the accused persons

were first produced at the time of their arrest and in view thereof, the original

chargesheet was presented before the Magistrate, which at the relevant time had

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the custody of the accused persons and thus, the same cannot be termed as non-

compliance of Section 167 of the CrPC. [Reliance: Suresh Kumar

Bhikamchand Jain (Supra) @Paras 13 – 17 and Rahul Modi (supra) @ Para

16].

23. Mr. Jain further submitted that the case was eventually committed to the

Court of Sessions and finally to the Special Court constituted for NIA/UAPA

(after taking over of investigation by NIA on 22.02.2020 re-registered by NIA

as RC-07/2020/NIA/DLI) and finally the cognizance was also taken by the

Special Court only, after examining the prosecution sanctions. The sanction

under the 1908 Act was received on 26.10.2020 by the District Magistrate,

Amritsar, which was duly recorded by the Special Judge, NIA on 12.11.2020.

The sanction under the UAPA by the Punjab Government was granted on

06.01.2021. The Special Court recorded the same on 07.01.2021. Further, the

Government of India accorded the sanction under Section 45(1) of UAPA on

17.03.2021.

24. In the last, Mr. Jain pointed out that the trial of all the accused persons is

in progress and twelve witnesses have been examined so far. The accused

persons are facing trial for very serious offences relating to National security.

If the accused persons have anything to say in regard to the legality and validity

of the sanctions or the mode and manner in which the cognizance was taken

then such issues could be raised before the trial court. According to Mr. Jain,

there is no scope for the accused persons at this point of time to say that they

be released on default bail.

FEW RELEVANT STATUTORY PROVISIONS

25. Before adverting to the rival submissions canvassed on either side, we

must look into the few relevant statutory provisions of the CrPC, the UAPA,

the 1908 Act and the NIA Act.

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26. In the earlier Code of Criminal Procedure, 1898 (for short, ‘the CrPC,

1898’), Section 167 laid down the procedure to be followed in the event the

investigation of an offence was not completed within 24 hours. Section 167 in

the CrPC, 1898, was premised on the conclusion of investigation within 24

hours or within 15 days on the outside, regardless of the nature of the offence

or the punishment.

27. The Law Commission of India, in its Forty-first Report, recommended

increasing the time-limit for completion of investigation to 60 days. The new

CrPC gave effect to the recommendation of the Law Commission. Section 167

as enacted provided for time-limit of 60 days regardless of the nature of offence

or the punishment. In the year 1978, Section 167 was amended. Section 167(2)

which is relevant for the present case existing as of now is to the following

effect:

“167(2). The Magistrate to whom an accused person is forwarded

under this section may, whether he has or has not jurisdiction to try

the case, from time to time, authorise the detention of the accused in

such custody as such Magistrate thinks fit, for a term not exceeding

fifteen days in the whole; and if he has no jurisdiction to try the case

or commit it for trial, and considers further detention unnecessary,

he may order the accused to be forwarded to a Magistrate having

such jurisdiction:

Provided that,—

(a) the Magistrate may authorise the detention of the accused person,

otherwise than in the custody of the police, beyond the period of

fifteen days, if he is satisfied that adequate grounds exist for doing

so, but no Magistrate shall authorise the detention of the accused

person in custody under this paragraph for a total period

exceeding,—

(i) ninety days, where the investigation relates to an offence

punishable with death, imprisonment for life or imprisonment for a

term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence,

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and, on the expiry of the said period of ninety days, or sixty days, as

the case may be, the accused person shall be released on bail if he is

prepared to and does furnish bail, and every person released on bail

under this sub-section shall be deemed to be so released under the

provisions of Chapter XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorise detention of the accused in custody

of the police under this section unless the accused is produced before

him in person for the first time and subsequently every time till the

accused remains in the custody of the police, but the Magistrate may

extend further detention in judicial custody on production of the

accused either in person or through the medium of electronic video

linkage;

(c) no Magistrate of the second class, not specially empowered in this

behalf by the High Court, shall authorise detention in the custody of

the police.”

28. A three-Judge Bench of this Court in Uday Mohanlal Acharya v. State of

Maharashtra reported in (2001) 5 SCC 453, has noticed the object of enacting

the provisions of Section 167 of the CrPC. Section 57 of the CrPC contains the

embargo on the police officers to detain in custody, a person arrested beyond

24 hours. The object is that the accused should be brought before a Magistrate

without delay within 24 hours, which provision is, in fact, in consonance with

the constitutional mandate engrafted under Article 22(2) of the Constitution.

The provision of Section 167 is supplementary to Section 57. The power under

Section 167 is given to detain a person in custody while police goes on with the

investigation. Section 167 is, therefore, a provision which authorises the

Magistrate permitting the detention of the accused in custody prescribing the

maximum period. In Uday Mohanlal Acharya (supra) this Court while dealing

with Section 167 laid down the following:

“5. …This provision of Section 167 is in fact supplementary to

Section 57, in consonance with the principle that the accused is

entitled to demand that justice is not delayed. The object of requiring

the accused to be produced before a Magistrate is to enable the

Magistrate to see that remand is necessary and also to enable the

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accused to make a representation which he may wish to make. The

power under Section 167 is given to detain a person in custody while

the police goes on with the investigation and before the Magistrate

starts the enquiry. Section 167, therefore, is the provision which

authorises the Magistrate permitting detention of an accused in

custody and prescribing the maximum period for which such

detention could be ordered. Having prescribed the maximum period,

as stated above, what would be the consequences thereafter has been

indicated in the proviso to sub-section (2) of Section 167. The proviso

is unambiguous and clear and stipulates that the accused shall be

released on bail if he is prepared to and does furnish the bail which

has been termed by judicial pronouncement to be “compulsive bail”

and such bail would be deemed to be a bail under Chapter 33. The

right of an accused to be released on bail after expiry of the maximum

period of detention provided under Section 167 can be denied only

when an accused does not furnish bail, as is apparent from

Explanation I to the said section. The proviso to sub-section (2) of

Section 167 is a beneficial provision for curing the mischief of

indefinitely prolonging the investigation and thereby affecting the

liberty of a citizen….”

29. Again, there has been a very detailed consideration of Section 167 by a

three-Judge Bench of this Court in Rakesh Kumar Paul v. State of Assam,

reported in (2017) 15 SCC 67. This Court in the above case has traced the

legislative history of the provision of Section 167. This Court in the above case

emphasised that the debate on Section 167 must also be looked at from the

perspective of expeditious conclusion of investigation and from the angle of

personal liberty. This Court also held that the right of default bail is an

indefeasible right which cannot be allowed to be frustrated by the prosecution.

Following was laid down in paras 37, 38 and 39:

“37. This Court had occasion to review the entire case law on the

subject in Union of India v. Nirala Yadav [Union of India v. Nirala

Yadav, (2014) 9 SCC 457 : (2014) 5 SCC (Cri) 212] . In that decision,

reference was made to Uday Mohanlal Acharya v. State of

Maharashtra [Uday Mohanlal Acharya v. State of Maharashtra,

(2001) 5 SCC 453 : 2001 SCC (Cri) 760] and the conclusions arrived

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at in that decision. We are concerned with Conclusion (3) which

reads as follows : (Uday Mohanlal Acharya case [Uday Mohanlal

Acharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC

(Cri) 760] , SCC p. 473, para 13)

“13. … (3) On the expiry of the said period of 90 days or

60 days, as the case may be, an indefeasible right accrues

in favour of the accused for being released on bail on

account of default by the investigating agency in the

completion of the investigation within the period

prescribed and the accused is entitled to be released on

bail, if he is prepared to and furnishes the bail as directed

by the Magistrate.”

38. This Court also dealt with the decision rendered in Sanjay

Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433]

and noted that the principle laid down by the Constitution Bench is

to the effect that if the charge-sheet is not filed and the right for

“default bail” has ripened into the status of indefeasibility, it cannot

be frustrated by the prosecution on any pretext. The accused can

avail his liberty by filing an application stating that the statutory

period for filing the charge-sheet or challan has expired and the

same has not yet been filed and therefore the indefeasible right has

accrued in his or her favour and further the accused is prepared to

furnish the bail bond.

39. This Court also noted that apart from the possibility of the

prosecution frustrating the indefeasible right, there are occasions

when even the court frustrates the indefeasible right. Reference was

made to Mohd. Iqbal Madar Sheikh v. State of Maharashtra [Mohd.

Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1 SCC 722 :

1996 SCC (Cri) 202] wherein it was observed that some courts keep

the application for “default bail” pending for some days so that in

the meantime a charge-sheet is submitted. While such a practice both

on the part of the prosecution as well as some courts must be very

strongly and vehemently discouraged, we reiterate that no subterfuge

should be resorted to, to defeat the indefeasible right of the accused

for “default bail” during the interregnum when the statutory period

for filing the charge-sheet or challan expires and the submission of

the charge-sheet or challan in court.”

CRIMINAL APPEAL NO. 1011 OF 2023 Page 19 of 53

30. One more judgment of this Court on Section 167 of the CrPC be noticed

i.e., Achpal alias Ramswaroop and Another v. State of Rajasthan, reported in

(2019) 14 SCC 599. After referring to several earlier judgments of this Court

including the judgments of this Court in Uday Mohanlal Acharya (supra) and

Rakesh Kumar Paul (supra), this Court had laid down that the provisions of

the CrPC do not empower anyone to extend the period within which the

investigation must be completed. This Court held that no court either directly

or indirectly can extend such period. Following are the observations of this

Court in para 20 of Achpal (supra):

“20. We now turn to the subsidiary issue, namely, whether the

High Court could have extended the period. The provisions of the

Code do not empower anyone to extend the period within which

the investigation must be completed nor does it admit of any such

eventuality. There are enactments such as the Terrorist and

Disruptive Activities (Prevention) Act, 1985 and the Maharashtra

Control of Organised Crime Act, 1999 which clearly contemplate

extension of period and to that extent those enactments have

modified the provisions of the Code including Section 167. In the

absence of any such similar provision empowering the Court to

extend the period, no court could either directly or indirectly

extend such period. In any event of the matter all that the High

Court had recorded in its order dated 3-7- 2018

[Mahaveer v. State of Rajasthan, 2018 SCC OnLine Raj 1] was

the submission that the investigation would be completed within

two months by a gazetted police officer. The order does not

indicate that it was brought to the notice of the High Court that

the period for completing the investigation was coming to an end.

Mere recording of submission of the Public Prosecutor could not

be taken to be an order granting extension. We thus reject the

submissions in that behalf advanced by the learned counsel for the

State and the complainant.”

31. The scheme of the CrPC as noticed above clearly delineates that the

provisions of Section 167 of the CrPC give due regard to the personal liberty

of a person. Without submission of chargesheet within 60 days or 90 days as

CRIMINAL APPEAL NO. 1011 OF 2023 Page 20 of 53

may be applicable, an accused cannot be detained by the police. The provision

gives due recognition to the personal liberty. However, as explained by this

Court in Dinesh Dalmia v. CBI reported in (2007) 8 SCC 770, such a right of

default bail although a valuable right, yet the same is a conditional one, the

condition precedent being pendency of the investigation. Therefore, once the

investigation is complete with the filing of the police report, containing the

details specified under Section 173(2) of the CrPC, the question of a claim or

grant for default bail does not arise.

32. However, Section 43D of the UAPA operates as a special provision vis

a vis the applicability of rights granted under Section 167(2)(a) of the CrPC.

Section 43D is reproduced hereinbelow:

“43D. Modified application of certain provisions of the Code.—(1)

Notwithstanding anything contained in the Code or any other law,

every offence punishable under this Act shall be deemed to be a

cognizable offence within the meaning of clause (c) of section 2 of

the Code, and "cognizable case" as defined in that clause shall be

construed accordingly.

(2) Section 167 of the Code shall apply in relation to a case involving

an offence punishable under this Act subject to the modification that

in sub-section (2),—

(a) the references to "fifteen days", "ninety days" and "sixty days",

wherever they occur, shall be construed as references to "thirty

days", "ninety days" and "ninety days" respectively; and

(b) after the proviso, the following provisos shall be inserted,

namely:—

"Provided further that if it is not possible to complete the

investigation within the said period of ninety days, the Court may if

it is satisfied with the report of the Public Prosecutor indicating the

progress of the investigation and the specific reasons for the

detention of the accused beyond the said period of ninety days, extend

the said period up to one hundred and eighty days:

CRIMINAL APPEAL NO. 1011 OF 2023 Page 21 of 53

Provided also that if the police officer making the investigation

under this Act, requests, for the purposes of investigation, for police

custody from judicial custody of any person in judicial custody, he

shall file an affidavit stating the reasons for doing so and shall also

explain the delay, if any, for requesting such police custody.

(3) Section 268 of the Code shall apply in relation to a case involving

an offence punishable under this Act subject to the modification

that—

(a) the reference in sub-section (1) thereof

(i) to "the State Government" shall be construed as a reference to

"the Central Government or the State Government.";

(ii) to "order of the State Government" shall be construed as a

reference to "order of the Central Government or the State

Government, as the case may be"; and

(b) the reference in sub-section (2) thereof, to “the State

Government" shall be construed as a reference to "the Central

Government or the State Government, as the case may be".

(4) Nothing in section 438 of the Code shall apply in relation to any

case involving the arrest of any person accused of having committed

an offence punishable under this Act.

(5) Notwithstanding anything contained in the Code, no person

accused of an offence punishable under Chapters IV and VI of this

Act shall, if in custody, be released on bail or on his own bond unless

the Public Prosecutor has been given an opportunity of being heard

on the application for such release:

Provided that such accused person shall not be released on bail or

on his own bond if the Court, on a perusal of the case diary or the

report made under section 173 of the Code is of the opinion that there

are reasonable grounds for believing that the accusation against

such person is prima facie true.

(6) The restrictions on granting of bail specified in sub-section (5) is

in addition to the restrictions under the Code or any other law for

the time being in force on granting of bail.

CRIMINAL APPEAL NO. 1011 OF 2023 Page 22 of 53

(7) Notwithstanding anything contained in sub-sections (5) and (6),

no bail shall be granted to a person accused of an offence punishable

under this Act, if he is not an Indian citizen and has entered the

country unauthorisedly or illegally except in very exceptional

circumstances and for reasons to be recorded in writing.”

33. Thus, a plain reading of the abovementioned provision of the UAPA

makes it clear that the benefit of default bail shall be available to the accused

for the offences alleged to have been committed under the UAPA where the

investigation has not concluded within 90 days of arrest of the accused

irrespective of the punishment of the offences alleged to have been committed

by him. At the same time, the provision also gives right to the investigating

agency to seek further period of 90 days to complete the investigation by filing

a report to the public prosecutor indicating the progress of investigation. Thus,

by virtue of Section 43D of the UAPA, the investigating agency gets 90+90

days = 180 days to complete the investigation.

34. We shall now look into Section 45 of the UAPA. Section 45 of the UAPA

is with respect to cognizance of offences. Section 45 of the UAPA reads thus:

“45. Cognizance of offences.

(1) No court shall take cognizance of any offence—

(i) under Chapter III without the previous sanction of the Central

Government or any officer authorised by the Central Government in

this behalf;

(ii) under Chapter IV and VI without the previous sanction of the

Central Government or, as the case may be, the State Government,

and if such offence is committed against the Government of a foreign

country without the previous sanction of the Central Government.

(2) Sanction for prosecution under sub-section (1) shall be given

within such time as may be prescribed only after considering the

report of such authority appointed by the Central Government or, as

the case may be, the State Government which shall make an

independent review of the evidence gathered in the course of

CRIMINAL APPEAL NO. 1011 OF 2023 Page 23 of 53

investigation and make a recommendation, within such time as may

be prescribed, to the Central Government or, as the case may be, the

State Government.”

35. A close look at Section 45 of the UAPA referred to above would indicate

that sub section (1) deals with the authority who can accord sanction for the

offence committed under the UAPA whereas sub section (2) deals with the

procedure to be followed by the authority at the time of granting sanction. It is

evident from Section 45(1) of the UAPA that if the offence falls under Chapter

III of the UAPA, the Court shall not take cognizance of the offence unless

previous sanction is accorded either by the Central Government or by any other

officer authorised by the Central Government in this behalf. If the offence

alleged to have been committed falls under Chapters IV and VI resply, the

Court shall not take cognizance of the offence unless previous sanction is

granted by the Central Government or the State Government as the case may

be. However, if the offence committed as alleged is against the Government of

a foreign country, the Court shall not take cognizance without the previous

sanction of the Central Government. It is pertinent to mention here that for the

offence enumerated under Chapters IV and VI resply, only the Central or State

Government, as the case may be, are authorised to grant sanction.

36. We must read Section 45 of the UAPA referred to above along with the

Rules 3 and 4 respectively of the 2008 Rules. We quote Rules 3 and 4

respectively as under:

“3. Time limit for making a recommendation by the Authority .—

The Authority shall, under sub-section (2) of section 45 of the Act,

make its report containing the recommendations to the Central

Government or, as the case may be, the State Government within

seven working days of the receipt of the evidence gathered by the

investigating officer under the Code.

CRIMINAL APPEAL NO. 1011 OF 2023 Page 24 of 53

4. Time limit for sanction of prosecution .—The Central

Government or, as the case may be, the State Government shall,

under sub-section (2) of section 45 of the Act, take a decision

regarding sanction for prosecution within seven working days after

receipt of the recommendations of the Authority.”

37. The Rules 2008 referred to above, would indicate that the authority shall,

under sub section (2) of Section 45 of the UAPA make its report containing the

recommendations to the Central Government (or as the case may be, the State

Government) within 7 working days of the receipt of the evidence gathered by

the investigating officer under the CrPC. The Central Government (or as the

case may be, the State Government) is obliged under sub section (2) of Section

45 of the UAPA to take a decision regarding sanction for prosecution within 7

working days after receipt of the recommendations of the authority.

38. In the aforesaid context, our attention was drawn by the learned counsel

appearing for the appellants to the speech of the Hon’ble Home Minister while

moving the draft Bills in the Rajya Sabha and in his speech, the Hon’ble Home

Minister clearly stated as under:

“Finally, Sir, we have incorporated a very salutary provision. To the

best of our knowledge-I don't know, I may be corrected by the Law

Minister or the Law Secretary later - it is the first time we are

introducing this. In a prosecution under the UAPA, now, it is the

executive Government which registers the case through a police

officer. It is the executive Government which investigates the case

through an investigating agency, namely, the police department. It is

the executive Govt. which sanctions U/s.45. Therefore, there is a fear

that a vindictive or a wrong executive Govt. could register a case,

investigate and sanction prosecution. There is a fear. May be, it is

not a fear that is entirely justified but you cannot say that it is entirely

unjustified. So what are we doing? The executive Govt. can register

the case because no one else can register a case. The executive Govt.,

through its agency, can investigate the case. But, before sanction is

granted under 45(1) we are interposing an independent authority

which will review the entire evidence, gathered in the investigation,

and then make a recommendation whether this is a fit case of

CRIMINAL APPEAL NO. 1011 OF 2023 Page 25 of 53

prosecution. So, here, we are bringing a filter, a buffer, an

independent authority who has to review the entire evidence that is

gathered and, then, make a recommendation to the State Govt. or the

Central Govt. as the case may be, a fit case for sanction. I think, this

is a very salutary safeguard. All sections of the House should

welcome it. This is a biggest buffer against arbitrariness which many

Members spoke about. Sir, these are the features in the Bill.”

(Emphasis supplied)

39. We shall now proceed to look into the provisions of the NIA Act. Section

16 of the NIA Act relates to the procedure and powers of Special Courts. Sub

section (1) of Section 16 is relevant for our purpose. The same reads thus:

“16. Procedure and powers of Special Courts.—

(1) A Special Court may take cognizance of any offence, without

the accused being committed to it for trial, upon receiving a

complaint of facts that constitute such offence or upon a police

report of such facts.”

40. Section 18 of the NIA Act relates to sanction for prosecution. Section 18

reads thus:

“18. Sanction for prosecution.—

No prosecution, suit or other legal proceedings shall be instituted

in any court of law, except with the previous sanction of the

Central Government, against any member of the Agency or any

person acting on his behalf in respect of anything done or

purported to be done in exercise of the powers conferred by this

Act.”

41. Section 22 of the NIA Act is with respect to the power of the State

Government to designate the Court of Sessions as Special Courts. Section 22

of the NIA Act reads thus:

“22. Power of State Government to designate Court of Session

as Special Courts.— (1) The State Government may designate one

CRIMINAL APPEAL NO. 1011 OF 2023 Page 26 of 53

or more Courts of Session as Special Courts for the trial of

offences under any or all the enactments specified in the Schedule.

(2) The provisions of this Chapter shall apply to the Special

Courts designated by the State Government under sub-section (1)

and shall have effect subject to the following modifications,

namely—(i) references to "Central Government" in sections 11

and 15 shall be construed as references to State Government;

(ii) reference to "Agency" in sub-section (1) of section 13 shall be

construed as a reference to the “investigation agency of the State

Government";

(iii) reference to “Attorney-General for India” in sub-section (3)

of section 13 shall be construed as reference to "Advocate-General

of the State".

(3) The jurisdiction conferred by this Act on a Special Court shall,

until a Special Court is designated by the State Government under

sub-section (1) in the case of any offence punishable under this

Act, notwithstanding anything contained in the Code, be exercised

by the Court of Session of the division in which such offence has

been committed and it shall have all the powers and follow the

procedure provided under this Chapter.

(4) On and from the date when the Special Court is designated by

the State Government the trial of any offence investigated by the

State Government under the provisions of this Act, which would

have been required to be held before the Special Court, shall stand

transferred to that Court on the date on which it is designated.”

42. We shall now look into the 1908 Act. Section 7 of the 1908 Act imposes

restriction on trial of offences under the 1908 Act except with the consent of

the District Magistrate. Section 7 reads thus:

“7. Restriction on trial of offences.—

No court shall proceed to the trial of any person for an offence

against this Act except with the consent of the District

Magistrate.”

CRIMINAL APPEAL NO. 1011 OF 2023 Page 27 of 53

FINAL ANALYSIS

Issue No. 1

43. 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. It was conceded by the learned counsel appearing

for the appellants that the chargesheet was filed well within the statutory time

period i.e., 180 days, however, the court concerned could not have taken

cognizance of such chargesheet in the absence of the orders of sanction not

being a part of such chargesheet. Whether the sanction is required or not under

a statute, is a question that has to be considered at the time of taking cognizance

of the offence and not during inquiry or investigation. There is a marked

distinction in the stage of investigation and prosecution. The prosecution starts

when the cognizance of offence is taken. It is also to be kept in mind that

cognizance is taken of the offence and not of the offender. It cannot be said that

obtaining sanction from the competent authorities or the authorities concerned

is part of investigation. Sanction is required only to enable the court to take

cognizance of the offence. The court may take cognizance of the offence after

the sanction order was produced before the court, but the moment, the final

report is filed along with the documents that may be relied on by the

prosecution, then the investigation will be deemed to have been completed.

Taking cognizance is entirely different from completing the investigation. To

complete the investigation and file a final report is a duty of the investigating

agency, but taking cognizance of the offence is the power of the court. The

court in a given case, may not take cognizance of the offence for a particular

period of time even after filing of the final report. In such circumstance, the

CRIMINAL APPEAL NO. 1011 OF 2023 Page 28 of 53

accused concerned cannot claim their indefeasible right under Section 167(2)

of the CrPC for being released on default bail. What is contemplated under

Section 167(2) of the CrPC is that the Magistrate or designated Court (as the

case may be) has no powers to order detention of the accused beyond the period

of 180 days or 90 days or 60 days as the case may be. If the investigation is

concluded within the prescribed period, no right accrues to the accused

concerned to be released on bail under the proviso to Section 167(2) of the

CrPC.

44. 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. After completing investigation and submitting a final report to the

Court, the investigating officer can send a copy of the final report along with

the evidence collected and other materials to the sanctioning authority to enable

the sanctioning authority to apply his mind to accord sanction. According

sanction is the duty of the sanctioning authority who is not connected with the

investigation at all. In case the sanctioning authority takes some time to accord

sanction, that does not vitiate the final report filed by the investigating agency

before the Court. Section 173 of the CrPC does not speak about the sanction

order at all. Section 167 of the CrPC also speaks only about investigation and

not about cognizance by the Magistrate. Therefore, 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.

45. Section 173(5) of the CrPC, of course, requires all the documents or the

relevant extracts thereof on which the prosecution proposes to rely on, to

accompany the final report. Sanction order cannot be brought within the

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category of those documents contemplated under clause (5) to Section 173 of

the CrPC. The grant of sanction is altogether a different act to be performed by

the Government concerned under Section 45 of the UAPA.

46. In the case of Central Bureau of Investigation v. R.S. Pai and Another

reported in (2002) 5 SCC 82, it was observed by this Court that “…it cannot be

held that the additional documents cannot be produced subsequently. If some

mistake is committed in not producing the relevant documents at the time of

submitting the report or the charge-sheet, it is always open to the investigating

officer to produce the same with the permission of the court.” It was further

observed that “….the word “shall” used in sub-section (5) cannot be

interpreted as mandatory, but as directory. Normally, the documents gathered

during the investigation upon which the prosecution wants to rely are required

to be forwarded to the Magistrate, but if there is some omission, it would not

mean that the remaining documents cannot be produced subsequently.

Analogous provision under Section 173(4) of the Code of Criminal Procedure,

1898 was considered by this Court in Narayan Rao v. State of A.P. [AIR 1957

SC 737 : 1958 SCR 283 : 1957 Cri LJ 1320] (SCR at p. 293) and it was held

that the word “shall” occurring in sub-section (4) of Section 173 and sub-

section (3) of Section 207-A is not mandatory but only directory. Further, the

scheme of sub-section (8) of Section 173 also makes it abundantly clear that

even after the charge-sheet is submitted, further investigation, if called for, is

not precluded. If further investigation is not precluded then there is no question

of not permitting the prosecution to produce additional documents which were

gathered prior to or subsequent to the investigation. In such cases, there cannot

be any prejudice to the accused….”

47. From the aforesaid, it is evident that the order of sanction passed by the

competent authority can be produced and placed on record even after the filing

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of the chargesheet. It may happen that the inordinate delay in placing the order

of sanction before the Special Court may lead to delay in trial because the

competent court will not be able to take cognizance of the offence without a

valid sanction on record. In such an eventuality, at the most, it may be open for

the accused to argue that his right to have a speedy trial could be said to have

been infringed thereby violating Article 21 of the Constitution. This may at the

most entitle the accused to pray for regular bail on the ground of delay in trial.

But the same cannot be a ground to pray for statutory/default bail under the

provisions of Section 167(2) of the CrPC.

48. The chargesheet is nothing but a final report of police officer under

Section 173(2) of the CrPC. Section 173(2) of the CrPC provides that on

completion of the investigation, the police officer investigating into a

cognizable offence shall submit a report. The report must be in the form

prescribed by the State Government, stating therein (a) the names of the parties;

(b) the nature of the information; (c) the names of the persons who appear to be

acquainted with the circumstances of the case; (d) whether any offence appears

to have been committed and, if so, by whom (e) whether the accused has been

arrested; (f) whether he had been released on his bond and, if so, whether with

or without sureties; and (g) whether he has been forwarded in custody under

Section 170. As observed by this Court in Satya Narain Musadi and Others

v. State of Bihar reported in (1980) 3 SCC 152 at 157 that the statutory

requirement of the report under Section 173(2) of the CrPC would be complied

with if the various details prescribed therein are included in the report. This

report is an intimation to the magistrate that upon investigation into a

cognizable offence the Investigating Officer has been able to procure sufficient

evidence for the court to inquire into the offence and the necessary information

is being sent to the court. In fact, the report under Section 173(2) of the CrPC

CRIMINAL APPEAL NO. 1011 OF 2023 Page 31 of 53

purports to be an opinion of the Investigating Officer that as far as he is

concerned he has been able to procure sufficient material for the trial of the

accused by the court. The report is complete if it is accompanied with all the

documents and statements of witnesses as required by Section 175(5) of the

CrPC. Nothing more need be stated in the report of the Investigating Officer. It

is also not necessary that all the details of the offence must be stated. The details

of the offence are required to be proved to bring home the guilt to the accused

at a later stage i.e., in the course of the trial of the case by adducing acceptable

evidence. (See K. Veeraswami v. Union of India and Others, (1991) 3 SCC

655.)

49. The maximum period of 180 days which is being granted to the

investigating agency to complete the investigation in the case wherein the

prosecution is for the offence under the UAPA is not something in the form of

a package that everything has to be completed including obtaining of sanction

within this period of 180 days. As observed above, the investigating agency has

nothing to do with sanction. Sanction is altogether a different process. Sanction

is accorded, based on the materials collected by the investigating agency which

forms the part of the final report under Section 173 of the CrPC. The

investigating agency gets full 180 days to complete the investigation. To say

that obtaining of sanction and placing the same along with the chargesheet

should be done within the period of 180 days is something which is not only

contrary to the provisions of law discussed above, but is inconceivable.

50. Let us test the aforesaid argument, keeping in mind the Rules 2008. Rule

3 of the Rules 2008 makes it very clear that the authority concerned shall make

its report under sub section (2) of Section 45 of the UAPA containing the

recommendations to the Central Government from the State Government as the

case may be within 7 working days of the receipt of the evidence gathered by

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the investigating officer under the CrPC. We place emphasis on the expression

“within 7 working days of the receipt of the evidence gathered by the

investigating officer under the CrPC”. This evidence which Rule 3 of the Rules

2008 contemplates is the final report i.e., filed by the investigating agency

under Section 173 of the CrPC. How can one expect the authority under sub

section (2) of Section 45 to make its report containing the recommendations

without looking into the chargesheet thoroughly containing the evidence

gathered by the investigating officer. On the contrary, Rule 3 of the Rules 2008

makes it explicitly clear that the authority under sub section (2) of Section 45

of the UAPA is obliged in law to apply its mind thoroughly to the evidence

gathered by the investigating officer and thereafter, prepare its report

containing the recommendations to the Central Government or the State

government for the grant of sanction. The grant of sanction is not an idle

formality. The grant of sanction should reflect proper application of mind.

51. This Court in Central Bureau of Investigation v. Ashok Kumar

Aggarwal reported in (2014) 14 SCC 295, while deliberating on the validity of

sanction held as under:

“13. The prosecution has to satisfy the court that at the time of

sending the matter for grant of sanction by the competent authority,

adequate material for such grant was made available to the said

authority. This may also be evident from the sanction order, in case

it is extremely comprehensive, as all the facts and circumstances of

the case may be spelt out in the sanction order. However, in every

individual case, the court has to find out whether there has been an

application of mind on the part of the sanctioning authority

concerned on the material placed before it. It is so necessary for the

reason that there is an obligation on the sanctioning authority to

discharge its duty to give or withhold sanction only after having full

knowledge of the material facts of the case. Grant of sanction is not

a mere formality. Therefore, the provisions in regard to the sanction

must be observed with complete strictness keeping in mind the public

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interest and the protection available to the accused against whom the

sanction is sought.”

52. While summarising the legal propositions in Ashok Kumar Aggarwal

(supra) in para 16, this Court observed as under:

“16.1. The prosecution must send the entire relevant record to the

sanctioning authority including the FIR, disclosure statements,

statements of witnesses, recovery memos, draft charge-sheet and all

other relevant material. The record so sent should also contain the

material/document, if any, which may tilt the balance in favour of the

accused and on the basis of which, the competent authority may

refuse sanction.

16.2. The authority itself has to do complete and conscious

scrutiny of the whole record so produced by the prosecution

independently applying its mind and taking into consideration all the

relevant facts before grant of sanction while discharging its duty to

give or withhold the sanction.

16.3. The power to grant sanction is to be exercised strictly

keeping in mind the public interest and the protection available to

the accused against whom the sanction is sought.

16.4. The order of sanction should make it evident that the

authority had been aware of all relevant facts/materials and had

applied its mind to all the relevant material.

16.5. In every individual case, the prosecution has to establish and

satisfy the court by leading evidence that the entire relevant facts had

been placed before the sanctioning authority and the authority had

applied its mind on the same and that the sanction had been granted

in accordance with law.”

53. It is, therefore, very much necessary that the evidence collected by the

investigating agency in the form of chargesheet is thoroughly looked into and

thereafter, the recommendations are made. The investigating agency gets full

180 days to complete the investigation and file its report before the competent

court in accordance with Section 173(2) of the CrPC. If we accept the argument

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canvassed on behalf of the appellants, it comes to this that the investigating

agency may have to adjust the period of investigation in such a manner that

within the period of 180 days, the sanction is also obtained and placed before

the court. We find this argument absolutely unpalatable.

54. This Court in the case of Suresh Kumar Bhikamchand Jain (supra) had

the occasion to consider in detail the question whether cognizance of the

chargesheet was necessary to prevent the accused from seeking default bail or

whether mere filing of the chargesheet would suffice for the investigation to be

deemed complete. The petitioner in the said case was arrested on 11.03.2012

on the allegation of misappropriation of amounts meant for development of

slums in Jalgaon City. The petitioner therein was accused of committing

offences punishable under Sections 120B, 409, 411, 406, 408, 465, 466, 468,

471, 177 and 109 read with Section 34, IPC and also under Sections 13(1)(c),

13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. The contention

of the petitioner therein was that he could not have been remanded to custody

in view of cognizance not being taken for want of sanction within the statutory

period of 90 days. The scheme of the provisions relating to remand of an

accused first during the stage of investigation and thereafter, after cognizance

is taken, indicates that the legislature intended investigation of certain crimes

to be completed within the period prescribed therein. This Court held that in

the event of investigation not being completed by the investigating authorities

within the prescribed period, the accused acquires an indefeasible right to be

granted bail, if he offers to furnish bail. This Court was of the firm view that if

on either the 61

st

day or the 91

st

day, an accused makes an application for being

released on bail in default of chargesheet having been filed, the court has no

option but to release the accused on bail. However, once the chargesheet was

filed within the stipulated period, the right of the accused to statutory/default

bail came to an end and the accused would be entitled to pray for regular bail

CRIMINAL APPEAL NO. 1011 OF 2023 Page 35 of 53

on merits. It was held by this Court that the filing of chargesheet is sufficient

compliance with the provisions of proviso (a) to Section 167(2) of the CrPC

and that taking of cognizance is not material to Section 167 of the CrPC. The

scheme of CrPC is such that once the stage of investigation is completed, the

court proceeds to the next stage, which is the taking of cognizance and trial.

During the period of investigation, the accused is under the custody of the

Magistrate before whom he or she is first produced, with such Magistrate being

vested with the power to remand the accused to police custody and/or judicial

custody, up to a maximum period as prescribed under Section 167(2) of the

CrPC. Acknowledging the fact that an accused has to remain in custody of some

court, this Court concluded that on filing of the chargesheet within the

stipulated period, the accused continues to remain in the custody of the

Magistrate till such time as cognizance is taken by the court trying the offence,

when the said court assumes custody of the accused for purposes of remand

during the trial in terms of Section 309 of the CrPC. This Court clarified that

the two stages are different, with one following the other so as to maintain

continuity of the custody of the accused with a court.

55. We refer to the relevant portions of Suresh Kumar Bhikamchand Jain

(supra) judgment as under:

“16. At this juncture, we may refer to certain dates which are

relevant to the facts of this case, namely:

(a) 11-3-2012 — The petitioner arrested and remanded to police

custody;

(b) 25-4-2012 — First charge-sheet filed against the four accused;

(c) 1-6-2012 — Supplementary charge-sheet filed in which the

petitioner is named;

(d) 30-7-2012 — The trial court rejected the petitioner's prayer for

grant of bail;

(e) 13-9-2012 [Suresh v. State of Maharashtra, Criminal Application

No. 3568 of 2012, order dated 13-9-2012 (Bom)] — The High Court

confirmed the order of the trial court;

CRIMINAL APPEAL NO. 1011 OF 2023 Page 36 of 53

(f) 2-10-2012 — Application filed under Section 167(2) CrPC before

the trial court;

(g) 5-10-2012 — The trial court rejected the application under

Section 167(2) CrPC.

From the above dates, it would be evident that both the charge-sheet

as also the supplementary charge-sheet were filed within 90 days

from the date of the petitioner's arrest and remand to police custody.

It is true that cognizance was not taken by the Special Court on

account of failure of the prosecution to obtain sanction to prosecute

the accused under the provisions of the PC Act, but does such failure

amount to non-compliance with the provisions of Section 167(2)

CrPC is the question with which we are confronted.

17. In our view, grant of sanction is nowhere contemplated under

Section 167 CrPC. What the said section contemplates is the

completion of investigation in respect of different types of cases

within a stipulated period and the right of an accused to be released

on bail on the failure of the investigating authorities to do so. The

scheme of the provisions relating to remand of an accused, first

during the stage of investigation and, thereafter, after cognizance is

taken, indicates that the legislature intended investigation of certain

crimes to be completed within 60 days and offences punishable with

death, imprisonment for life or imprisonment for a term of not less

than 10 years, within 90 days. In the event, the investigation is not

completed by the investigating authorities, the accused acquires an

indefeasible right to be granted bail, if he offers to furnish bail.

Accordingly, if on either the 61st day or the 91st day, an accused

makes an application for being released on bail in default of charge-

sheet having been filed, the court has no option but to release the

accused on bail. The said provision has been considered and

interpreted in various cases, such as the ones referred to

hereinbefore. Both the decisions in Natabar Parida case [(1975) 2

SCC 220 : 1975 SCC (Cri) 484] and in Sanjay Dutt case [(1994) 5

SCC 410 : 1994 SCC (Cri) 1433] were instances where the charge-

sheet was not filed within the period stipulated in Section 167(2)

CrPC and an application having been made for grant of bail prior to

the filing of the charge-sheet, this Court held that the accused

enjoyed an indefeasible right to grant of bail, if such an application

was made before the filing of the charge-sheet, but once the charge-

sheet was filed, such right came to an end and the accused would be

entitled to pray for regular bail on merits.

CRIMINAL APPEAL NO. 1011 OF 2023 Page 37 of 53

18. None of the said cases detract from the position that once a

charge-sheet is filed within the stipulated time, the question of grant

of default bail or statutory bail does not arise. As indicated

hereinabove, in our view, the filing of charge-sheet is sufficient

compliance with the provisions of Section 167(2)(a)(ii) in this case.

Whether cognizance is taken or not is not material as far as Section

167 CrPC is concerned. The right which may have accrued to the

petitioner, had charge-sheet not been filed, is not attracted to the

facts of this case. Merely because sanction had not been obtained to

prosecute the accused and to proceed to the stage of Section 309

CrPC, it cannot be said that the accused is entitled to grant of

statutory bail, as envisaged in Section 167 CrPC. The scheme of

CrPC is such that once the investigation stage is completed, the court

proceeds to the next stage, which is the taking of cognizance and

trial. An accused has to remain in custody of some court. During the

period of investigation, the accused is under the custody of the

Magistrate before whom he or she is first produced. During that

stage, under Section 167(2) CrPC, the Magistrate is vested with

authority to remand the accused to custody, both police custody

and/or judicial custody, for 15 days at a time, up to a maximum

period of 60 days in cases of offences punishable for less than 10

years and 90 days where the offences are punishable for over 10

years or even death sentence. In the event, an investigating authority

fails to file the charge-sheet within the stipulated period, the accused

is entitled to be released on statutory bail. In such a situation, the

accused continues to remain in the custody of the Magistrate till such

time as cognizance is taken by the court trying the offence, when the

said court assumes custody of the accused for purposes of remand

during the trial in terms of Section 309 CrPC. The two stages are

different, but one follows the other so as to maintain a continuity of

the custody of the accused with a court.” (Emphasis supplied)

56. It is clear from the decision of this Court in Suresh Kumar

Bhikamchand Jain (supra) that filing of a chargesheet is sufficient compliance

with the provisions of Section 167 of the CrPC and that an accused cannot

demand release on 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. The accused continues to be in the custody of the Magistrate till such

CRIMINAL APPEAL NO. 1011 OF 2023 Page 38 of 53

time cognizance is taken by the court trying the offence, which assumes custody

of the accused for the purpose of remand after cognizance is taken.

57. The aforesaid decision of this Court makes the position of law very clear

that once the chargesheet has been filed within the stipulated time, the question

of grant of statutory/default bail does not arise. Whether cognizance has been

taken or not taken is not relevant for the purpose of compliance of Section 167

of the CrPC. The mere filing of the chargesheet is sufficient.

58. The decision of Suresh Kumar Bhikamchand Jain (supra) has been

referred to and relied upon by this Court in the case of Serious Fraud

Investigation Office (supra). In the said decision, the very same point fell for

the consideration of the Court, whether the accused is entitled for

statutory/default bail under Section 167(2) of the CrPC on the ground that

cognizance had not been taken before the expiry of 60 days or 90 days from the

date of remand?

59. However, one another issue that fell for the consideration of this Court,

in Serious Fraud Investigation Office (supra) was whether Suresh Kumar

Bhikamchand Jain (supra) had taken a different view than in the case of

Sanjay Dutt (supra), Mohamed Iqbal Madar Sheikh and others v. State of

Maharashtra reported in (1996) 1 SCC 722 and M. Ravindran v. Intelligence

Officer, Directorate of Revenue Intelligence reported in (2021) 2 SCC 485.

This Court explained in details as to why nothing contrary to Sanjay Dutt

(supra), Iqbal Madar (supra) and M. Ravindran (supra) had been decided in

Suresh Kumar Bhikamchand Jain (supra). We quote the relevant

observations:

“12. The point that requires to be considered is whether this Court

has taken a different view in Sanjay Dutt (supra), Madar

Sheikh (supra) and M. Ravindran (supra). In Sanjay Dutt (supra),

this Court held that the indefeasible right accruing to the accused is

CRIMINAL APPEAL NO. 1011 OF 2023 Page 39 of 53

enforceable only prior to the filing of challan and it does not survive

or remain enforceable, on the challan being filed. It was made clear

that once the challan has been filed, the question of grant of bail has

to be considered and decided only with reference to the merits of the

case under the provisions relating to grant of bail to an accused after

the filing of the challan. In light of the above findings, this Court held

that the custody of the accused after the challan has been filed is not

governed by Section 167(2) but different provisions of the CrPC.

13. In Madar Sheikh (supra), which was relied upon by the learned

Senior Counsel appearing for Respondent Nos. 1 and 2 and the

Intervenor, the appellants therein were taken into custody on

16.01.1993. The charge-sheet was submitted on 30.08.1993. Though

the appellants were entitled to be released in view of the charge-sheet

not being filed within the statutory period prescribed under Section

20(4)(b) of the Terrorist and Disruptive Activities (Prevention) Act,

1987 read with proviso (a) to Section 167(2), CrPC, they did not

make an application for release on bail on the ground of default in

completion of the investigation within the statutory period. After

filing of the charge-sheet and cognizance having been taken, they

continued to be in custody on the basis of orders of remand passed

under other provisions of the CrPC. Refusing to grant relief of

statutory bail in the said fact situation, this Court held that the right

conferred on an accused under Section 167(2) cannot be exercised

after the charge-sheet has been submitted and cognizance has been

taken. A plain reading of the judgment in Madar Sheikh (supra)

would show that reference to the right of statutory bail becoming

unenforceable after cognizance having been taken is in view of the

facts of the said case, where this Court denied statutory bail to the

appellants therein on the ground that charge-sheet was filed and

cognizance had also been taken, with orders of remand passed under

other provisions of the CrPC. Thereafter, they were not entitled for

bail under Section 167(2).

14. Application for bail under Section 167(2), CrPC fell for

consideration of this Court in M. Ravindran (supra). In the said case,

the appellant was arrested and remanded to judicial custody on

04.08.2018 for offences punishable under the Narcotics Drugs and

Psychotropic Substances Act, 1985. On 01.02.2019, the appellant

therein filed an application for bail under Section 167(2) on the

ground that investigation was not complete and charge-sheet had not

been filed within the statutory period. The trial court granted bail

under Section 167(2), which was set aside by the High Court of

CRIMINAL APPEAL NO. 1011 OF 2023 Page 40 of 53

Madras by judgment dated 21.11.2019. Challenging the said

judgment of the High Court, the appellant approached this Court.

The crucial fact in the said case is that the appellant therein filed an

application on 01.02.2019 at 10.30 a.m. before the trial court and on

the same day at 4.25 p.m., an additional complaint was filed against

the appellant, on the basis of which dismissal of the bail application

was sought. This Court restored the order of the trial court while

setting aside the judgment of the High Court, by holding that the

accused is deemed to have “availed of” or enforced his right to be

released on default bail, once application for bail has been filed

under Section 167(2) on expiry of the stipulated time period. Taking

into account the fact that before the expiry of 180 days, no charge-

sheet had been submitted nor any application filed seeking extension

of time to investigate, this Court held that the appellant was entitled

to be released on statutory bail notwithstanding the subsequent filing

of an additional complaint. The point that was decided in the said

case was that the filing of an additional complaint after the accused

has availed his right to be released on default bail, should not deter

the courts from enforcing this indefeasible right, if the charge-sheet

was not filed before the expiry of the statutory period. Reference was

made by this Court to Madar Sheikh (supra) in M.

Ravindran (supra). This Court observed that no prior application for

bail was filed in Madar Sheikh (supra) though the charge-sheet was

submitted after the expiry of the statutory period. This Court

repeated the findings recorded in Madar Sheikh (supra) that the

right to bail cannot be exercised once the charge-sheet has been

submitted and cognizance has been taken. As stated above, the said

conclusion in Madar Sheikh (supra) was arrived at with reference to

the facts of the case.

15. The issue that arose for consideration before this Court in

Criminal Appeal Nos. 701-702 of 2020 relates to whether the date of

remand is to be included in computation of the period of 60 days or

90 days, as contemplated under proviso (a) to Section 167(2), for

considering the claim for default bail. Taking note of the divergence

of opinions on the said point, this Court felt the need for

consideration of the issue by a larger bench. The later order dated

12.03.2021 passed in SLP (Crl.) Nos. 2105-2106 of 2021 and SLP

(Crl.) Nos. 2111-2112 of 2021 is for tagging all those matters along

with Criminal Appeal Nos. 701-702 of 2020. The submission made

on behalf of the petitioners therein and recorded in the said order

relates to the filing of a charge-sheet on the last day without a list of

CRIMINAL APPEAL NO. 1011 OF 2023 Page 41 of 53

witnesses and documents not amounting to a proper filing of charge-

sheet. Mr. Rohatgi referred to the SLP (Crl.) No. 2111-2112 of 2021

and submitted that one of the points raised relates to cognizance

being taken before the expiry of the statutory period under Section

167, CrPC. It is clear that a reference to a larger bench pertains to

the issue of exclusion or inclusion of the date of remand for

computation of the period prescribed under Section 167. Therefore,

there is no requirement for referring this case to a larger bench.

16. A close scrutiny of the judgments in Sanjay Dutt (supra), Madar

Sheikh (supra) and M. Ravindran (supra) would show that there is

nothing contrary to what has been decided in Bhikamchand

Jain (supra). In all the above judgments which are relied upon by

either side, this Court had categorically laid down that the

indefeasible right of an accused to seek statutory bail under Section

167(2), CrPC arises only if the charge-sheet has not been filed before

the expiry of the statutory period. Reference to cognizance in Madar

Sheikh (supra) is in view of the fact situation where the application

was filed after the charge-sheet was submitted and cognizance had

been taken by the trial court. Such reference cannot be construed as

this Court introducing an additional requirement of cognizance

having to be taken within the period prescribed under proviso (a) to

Section 167(2), CrPC, failing which the accused would be entitled to

default bail, even after filing of the charge-sheet within the statutory

period. It is not necessary to repeat that in both Madar

Sheikh (supra) and M. Ravindran (supra), this Court expressed its

view that non-filing of the charge-sheet within the statutory period is

the ground for availing the indefeasible right to claim bail under

Section 167(2), CrPC. The conundrum relating to the custody of the

accused after the expiry of 60 days has also been dealt with by this

Court in Bhikamchand Jain (supra). It was made clear that the

accused remains in custody of the Magistrate till cognizance is taken

by the relevant court. As the issue that arises for consideration in this

case is squarely covered by the judgment in Bhikamchand

Jain (supra), the order passed by the High Court on 31.05.2019 is

hereby set aside.” (Emphasis supplied)

60. Our attention was drawn by the learned counsel appearing for the

accused to a very recent pronouncement of this Court, in the case of Ritu

Chhabaria v. Union of India and Others, Writ Petition (Crl.) No. 60 of 2023

CRIMINAL APPEAL NO. 1011 OF 2023 Page 42 of 53

decided on 26.04.2023. This decision has been relied upon to fortify the

submission that right of an accused to seek default bail cannot be defeated by

filing incomplete chargesheet. Ritu Chhabaria filed a writ petition under Article

32 of the Constitution, seeking release of her husband on default bail. In the

facts of the said case, three issues fell for the consideration of this Court:

i. Can a chargesheet or a prosecution complaint be filed in piecemeal

without first completing the investigation of the case?

ii. Whether the filing of such a chargesheet without completing the

investigation will extinguish the right of an accused for grant of default bail?

iii. Whether the remand of an accused can be continued by the trial court

during the pendency of investigation beyond the stipulated time as prescribed

by the CrPC?

61. This Court, while allowing the petition observed in paras 24 and 25

respectively, as under:

“24. This right of statutory bail, however, is extinguished, if the

charge sheet is filed within the stipulated period. The question

of resorting to a supplementary chargesheet u/s 173(8) of the

Cr.PC only arises after the main chargesheet has been filed, and

as such, a supplementary chargesheet, wherein it is explicitly

stated that the investigation is still pending, cannot under any

circumstance, be used to scuttle the right of default bail, for then,

the entire purpose of default bail is defeated, and the filing of a

chargesheet or a supplementary chargesheet becomes a mere

formality, and a tool, to ensue that the right of default bail is

scuttled.

25. It is thus axiomatic that first investigation is to be completed,

and only then can a chargesheet or a complaint be filed within

the stipulated period, and failure to do so would trigger the

statutory right of default bail under Section 167(2) of Cr.PC. In

the case of Union of India vs Thamisharasi & Ors. [(1995) 4

SCC 190] , which was a case under the Narcotic Drugs and

CRIMINAL APPEAL NO. 1011 OF 2023 Page 43 of 53

Psychotropic Substances Act, 1985, on finding that the

investigation was not complete and a chargesheet was not filed

within the prescribed period, denial of default bail was held to

be in violation of Article 21 of the Constitution of India, and it

was further held that even the twin limitation on grant of bail

would not apply.”

62. Thus, in Ritu Chhabaria (supra), the facts were altogether different. In

the said case, indisputably, the investigation was in progress, but as the

statutory time period to file the chargesheet was coming to an end, the

chargesheet was filed clarifying that the investigation was still pending. In

such circumstances, this Court took the view that there is no question of filing

any supplementary chargesheet, taking the aid of sub section (8) of Section

173 of the CrPC, as sub section (8) of Section 173 of the CrPC comes into play

only after the investigation is completed and the chargesheet is laid. We are of

the view that the aforesaid decision of this Court is of no avail to the accused

in the present case. In the case on hand, the chargesheet was filed after the

entire investigation was completed. This fact is not in dispute.

63. Thus, we answer Issue No. 1 holding that 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. We once again, reiterate what this Court said in Suresh

Kumar Bhikamchand Jain (supra) that grant of sanction is nowhere

contemplated under Section 167 of the CrPC.

Issue No. 2

CRIMINAL APPEAL NO. 1011 OF 2023 Page 44 of 53

64. We now proceed to discuss the second limb of the submission canvassed

on behalf of the appellants that filing of the chargesheet in the Court of SDJM,

Ajnala instead of the Special Court as notified under Section 22 of the NIA Act

and the Magistrate thereafter, committing the case to the Court of Sessions

under the provisions of Section 209 of the CrPC vitiated all further proceedings

rendering the custody or further detention of the appellants from the date of

filing of the chargesheet in the Court of Magistrate absolutely unlawful. To put

it in other words, we need to consider the submission that since the chargesheet

was filed in the Court of Magistrate on 15.11.2019, i.e., on the 161

st

day from

the arrest of two of the appellants before us, the further detention thereafter, of

the appellants could be termed as unlawful and the appellants were entitled to

be released on statutory/default bail under the provisions of Section 167(2) of

CrPC.

65. Section 2(1)(d) of the UAPA reads as follows:

“2(1)(d). court means a criminal court having jurisdiction, under the

Code, to try offences under this Act and includes a Special Court

constituted under section 11 or under section 22 of the National

Investigation Agency Act, 2008;”

66. The plain reading of the definition of “court” referred to above indicates

that it includes the Special Court, constituted under Section 11 or Section 22 of

the NIA Act. Section 11 of the NIA Act confers power upon the Central

Government to designate the Court of Sessions as the Special Courts. Section

22 of the NIA Act confers power upon the State Government to designate the

Court of Sessions, as the Special Courts.

67. A perusal of Section 6 of the NIA Act enumerates about the investigation

of the scheduled offences. The scheduled offences under the UAPA are

included at Sr. No. 2 in the Schedule of the NIA Act. Thereafter, Section 10 of

CRIMINAL APPEAL NO. 1011 OF 2023 Page 45 of 53

the NIA Act prescribes about the power of the State Government to investigate

the scheduled offences. Section 11 of the NIA Act prescribes about the power

of Central Government for constituting the Special Court, whereas Section 22

of the NIA Act prescribes the power of the State Govt. for constituting the

Special Court for trial of the scheduled offence. Section 13 of the NIA Act

contains the details of the jurisdiction of the Special Court. A conjoint reading

of these provisions of both the Acts reveals the legislative mandate that the

offences under the UAPA Act fall under the scheduled offences having been

included in the Schedule of NIA Act. However, the scheme of NIA Act

prescribes the procedure for investigating the same either by the NIA or by the

concerned State Government, after following the statutory provisions

meticulously. Section 10 of the NIA Act further clarifies that the State

Government also has the power to investigate the scheduled offence in

accordance with the procedure prescribed under this Act. However, there is no

ambiguity in the legislative mandate that in both the situations, whether the

investigation is carried out by the NIA or by the State Government, the trial of

the scheduled offence would be conducted only by the Special Court

constituted under this Act. Section 13 of the NIA Act is to be read with Section

11 of this Act when the investigation is carried out by the NIA and in the

situation, investigation having been entrusted to the State Government, then

Section 13 is to be read with 22 of the NIA Act. A combined reading of both

the sections makes it crystal clear that in the situation where the investigation

has been carried out by the State Government, in that situation as per Section

22(2)(ii) the reference to Agency in sub section (1) of Section 13 of the NIA

Act shall be construed as a reference to “Investigating Agency of the State

Government”.

68. Thus, the scheme of both the Acts makes it clear that once the

investigation is completed, the report under Section 173 of the CrPC is to be

CRIMINAL APPEAL NO. 1011 OF 2023 Page 46 of 53

filed in the Special Court constituted under the Act. Section 16 of the NIA Act

leaves no room for any doubt, as it empowers the Special Court to take

cognizance of any offence without the accused being committed to it, for trial,

upon receiving a complaint of facts that constitute such offence or upon a police

report of such facts. Thus, by incorporating Section 16 in the NIA Act the

legislature has made the Special Court as the court of original jurisdiction

unlike the Sessions Court, which is a court of committal under the Criminal

Procedure Code. (See Satish Kumar v. State of Punjab and Another, 2021

SCC OnLine P&H 786)

69. In Satish Kumar (supra), the High Court of Punjab and Haryana at

Chandigarh has referred to a notification issued by the Government of Punjab

dated 10.6.2014 wherein the Special Courts are constituted by the State

Government for the trial of offence as specified in the schedule appended to the

NIA Act which are investigated by the State Police. The aforesaid notification

is reproduced as under:

“NOTIFICATION The 10

th

June, 2014 No.

S.O.141/C.A.34/2008/S.22/2014- In exercise of the powers

conferred under sub section (1) of section 22 of the National

Investigation Agency Act, 2008 (Central Act No. 34 of 2008) and all

other powers enabling him in this behalf, the Governor of Punjab

with the concurrence of Hon'ble Chief Justice of the High Court of

Punjab and Haryana, Chandigarh is pleased to constitute the courts

of Sessions Judge and the first Additional Sessions Judge (for the

area falling within their respective jurisdiction), at each district

headquarter in the State, to be the Special Courts, for the trial of

offences as specified in the Scheduled appended to the aforesaid Act,

which are investigated by the State Police.”

70. The learned counsel appearing for the appellants placed strong reliance

on the decision of this Court in Bikramjit Singh (supra) wherein this Court held

that all offences under the UAPA whether investigated by the NIA or by the

CRIMINAL APPEAL NO. 1011 OF 2023 Page 47 of 53

investigating agency of the State Government are to be tried exclusively by the

Special Court set up under that Act and in the absence of any Special Court, set

up by notifications issued either by the Central Government or the State

Government, then the Court of Sessions alone. This Court held as under:

“26. Before the NIA Act was enacted, offences under the UAPA were

of two kinds — those with a maximum imprisonment of over 7 years,

and those with a maximum imprisonment of 7 years and under.

Under the Code as applicable to offences against other laws,

offences having a maximum sentence of 7 years and under are triable

by the Magistrate's courts, whereas offences having a maximum

sentence of above 7 years are triable by Courts of Session. This

scheme has been completely done away with by the NIA Act, 2008

as all Scheduled Offences i.e. all offences under the UAPA, whether

investigated by the National Investigation Agency or by the

investigating agencies of the State Government, are to be tried

exclusively by Special Courts set up under that Act. In the absence of

any designated court by notification issued by either the Central

Government or the State Government, the fallback is upon the Court

of Session alone. Thus, under the aforesaid scheme what becomes

clear is that so far as all offences under the UAPA are concerned,

the Magistrate's jurisdiction to extend time under the first proviso in

Section 43-D(2)(b) is non-existent, “the Court” being either a

Sessions Court, in the absence of a notification specifying a Special

Court, or the Special Court itself. The impugned judgment in arriving

at the contrary conclusion is incorrect as it has missed Section 22(2)

read with Section 13 of the NIA Act. Also, the impugned judgment

has missed Section 16(1) of the NIA Act which states that a Special

Court may take cognizance of any offence without the accused being

committed to it for trial, inter alia, upon a police report of such facts.

27. xxx xxx xxx

“…The right to bail under Section 167(2) proviso (a) thereto is

absolute. It is a legislative command and not court's discretion. If the

investigating agency fails to file charge-sheet before the expiry of

90/60 days, as the case may be, the accused in custody should be

released on bail. But at that stage, merits of the case are not to be

CRIMINAL APPEAL NO. 1011 OF 2023 Page 48 of 53

examined. Not at all. In fact, the Magistrate has no power to remand

a person beyond the stipulated period of 90/60 days. He must pass

an order of bail and communicate the same to the accused to furnish

the requisite bail bonds.””

71. The reply to the aforesaid at the end of the learned ASG is that since the

investigation was being carried out by the State Police, it proceeded to file the

first report on 15.11.2019 before the SDJM, Ajnala where the appellants were

first produced after their arrest. This according to the learned ASG has nothing

to do with Section 167 of the CrPC. The learned ASG further pointed out that

eventually the case was committed to the Court of Sessions and finally

transferred to the Special Court constituted for NIA/UAPA. According to the

learned ASG, it is not in dispute that the cognizance was finally taken by the

Special Court after looking into the sanctions accorded by the competent

authorities.

72. We do agree that the chargesheet could not have been filed in the Court

of the SDJM and the same should have been filed in the Special Court. Section

16 of the NIA Act empowers the Special Court to take cognizance of any

offence without the accused being committed to it for trial, upon receiving a

complaint of facts that constitute such an offence or upon a police report of

such facts. However, the pristine question to consider is whether the

unnecessary committal proceedings by itself vitiated all further proceedings

and thereby creating an indefeasible right in favour of the appellants to seek

statutory/default bail under Section 167 of the CrPC? We are of the view that

the error on the part of the investigating agency in filing the chargesheet in the

Court of SDJM and thereafter, committing the case to the Court of Sessions has

again nothing to do with Section 167 of the CrPC. This entire argument

canvassed on behalf of the appellants can be put to rest solely on the ground

CRIMINAL APPEAL NO. 1011 OF 2023 Page 49 of 53

that the application seeking default bail under Section 167(2) of the CrPC read

with Section 43D of the UAPA was filed before the Special Judge, NIA,

Mohali, on 14.12.2020 and by that time, the chargesheet had already been filed

and the proceedings were pending in the court of Special Judge, CBI, Punjab,

SAS Nagar, Mohali. It is not in dispute that at the time when the Special Court

took cognizance of the offence the sanctions under the UAPA and the 1908 Act

had already been granted.

73. Thus, we answer Issue No.2 holding that the 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.

74. We have also looked into the case law relied upon by the learned counsel

appearing for the respective appellants in support of their submissions.

However, it is not necessary for us to discuss each one of the decisions relied

upon as none of the decisions are of any avail to the appellant. Each of the

decisions are in the peculiar facts of the case.

75. In view of the aforesaid discussion, both the appeals are liable to be

dismissed. However, before we proceed to pass the final order, there is one grey

area in this litigation which we must look into and say something in that regard.

Of course, this grey area has not been ventured into by the learned counsel

appearing for the appellants, but as a highest Court of the Country, we should

not shut our eyes to the same.

CRIMINAL APPEAL NO. 1011 OF 2023 Page 50 of 53

AN EYE-OPENER LITIGATION FOR THE NIA/STATE POLICE

76. As is evident from the chronology of dates and events referred to in the

earlier part of our judgment, the final report under Section 173(2) of the CrPC

was filed in the Court of SDJM, Ajnala on 15.11.2019. 15.11.2019 was the

161

st

day from the date of arrest of two of the appellants before us, namely,

Jasbir Singh and Varinder Singh. They were the first to be arrested on

08.06.2019. The Punjab Police applied to the Court of the Additional Sessions

Judge, Amritsar, for extension of time to complete the investigation invoking

the proviso to Section 43D(2)(b) of the UAPA on 04.09.2019. When this

application for extension of time was filed only two days were left for 90 days

to expire. This is suggestive of the fact that the 91

st

day would have fallen on

07.09.2019. What is important to highlight is that the Additional Sessions

Judge, Amritsar, looked into the extension application dated 04.09.2019 filed

by the Punjab Police and ultimately, extended the time limit vide its order dated

17.09.2019 i.e., on the 101

st

day. By the time, the Additional Sessions Judge,

Amritsar, passed an order extending the time, the period of 90 days had already

expired. Indisputably, there was no chargesheet before the Court on the 91

st

day

i.e., on 07.09.2019. The reason why we say that this is a grey area is because

what would have happened if the appellants Jasbir Singh and Varinder Singh

had preferred an application seeking statutory/default bail under Section 167(2)

of the CrPC on the 91

st

day i.e., on 07.09.2019. 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 90

th

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 reported in 2022 SCC OnLine SC

1290 that an opportunity of hearing has to be given to the accused persons

CRIMINAL APPEAL NO. 1011 OF 2023 Page 51 of 53

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 91

st

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.

77. 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.

78. Our observations in paras 76 and 77 respectively as above are keeping in

mind the decision of this Court rendered by a three-Judge Bench in the case of

Sayed Mohd. Ahmad Kazmi v. State (Government of NCT of Delhi) and

Others reported in (2012) 12 SCC 1, wherein in paras 25, 26 and 27

respectively, this Court observed as under:

CRIMINAL APPEAL NO. 1011 OF 2023 Page 52 of 53

“25. Having carefully considered the submissions made on behalf of

the respective parties, the relevant provisions of law and the decision

cited, we are unable to accept the submissions advanced on behalf of

the State by the learned Additional Solicitor General Mr Raval.

There is no denying the fact that on 17-7-2012, when CR No. 86 of

2012 was allowed by the Additional Sessions Judge and the custody

of the appellant was held to be illegal and an application under

Section 167(2) CrPC was made on behalf of the appellant for grant

of statutory bail which was listed for hearing. Instead of hearing the

application, the Chief Metropolitan Magistrate adjourned the same

till the next day when the Public Prosecutor filed an application for

extension of the period of custody and investigation and on 20-7-

2012 extended the time of investigation and the custody of the

appellant for a further period of 90 days with retrospective effect

from 2-6-2012. Not only is the retrospectivity of the order of the Chief

Metropolitan Magistrate untenable, it could not also defeat the

statutory right which had accrued to the appellant on the expiry of

90 days from the date when the appellant was taken into custody.

Such right, as has been commented upon by this Court in Sanjay

Dutt [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] and the other cases

cited by the learned Additional Solicitor General, could only be

distinguished (sic extinguished) once the charge-sheet had been filed

in the case and no application has been made prior thereto for grant

of statutory bail. It is well-established that if an accused does not

exercise his right to grant of statutory bail before the charge-sheet is

filed, he loses his right to such benefit once such charge-sheet is filed

and can, thereafter, only apply for regular bail.

26. The circumstances in this case, however, are different in that the

appellant had exercised his right to statutory bail on the very same

day on which his custody was held to be illegal and such an

application was left undecided by the Chief Metropolitan Magistrate

till after the application filed by the prosecution for extension of time

to complete investigation was taken up and orders were passed

thereupon.

27. We are unable to appreciate the procedure adopted by the Chief

Metropolitan Magistrate, which has been endorsed by the High

Court and we are of the view that the appellant acquired the right for

grant of statutory bail on 17-7-2012, when his custody was held to

be illegal by the Additional Sessions Judge since his application for

statutory bail was pending at the time when the application for

CRIMINAL APPEAL NO. 1011 OF 2023 Page 53 of 53

extension of time for continuing the investigation was filed by the

prosecution. In our view, the right of the appellant to grant of

statutory bail remained unaffected by the subsequent application and

both the Chief Metropolitan Magistrate and the High Court erred in

holding otherwise.”

(Emphasis supplied)

79. In view of the aforesaid discussion, both the appeals fail and are hereby

dismissed.

80. Pending application(s), if any, shall stand disposed of.

……………………………………………….. CJI.

( DR. DHANANJAYA Y. CHANDRACHUD)

…………………………………………………..J.

(J.B. PARDIWALA)

NEW DELHI;

MAY 1, 2023.