The Supreme Court has reiterated that default bail is not merely a statutory right under CrPC but a fundamental right, since it is procedure established by law under Article 21 of the Constitution. The bench comprising Justices SK Kaul and R Subhash Reddy deprecated the practice followed by the State of filing a chargesheet and then extending time to file supplementary chargesheet under UAPA.
The appellant/accused, Fakhrey Alam was charged under sections 420 (cheating), 467, 468 and 471 (related to forgery) and 120-B (criminal conspiracy) of Indian penal Code (IPC) and certain sections of Arms Act and section 18 (conspiracy) of Unlawful Activities (Prevention) Act (UAPA) and was arrested in March 2017 and in June 2017, the Chief Judicial Magistrate, Lucknow granted a total of 180 days to the police for filing the charge sheet. Accordingly, the police filed a chargesheet in September 2017 under all sections except provisions under UAPA stating that it was mandatory to obtain prosecution sanction from the State Government which had not been granted until filing of chargesheet.
A second chargesheet was filed on October 5, 2017 and on October 3, the appellant had filed for default bail under Section 167 (2) of the Code of Criminal Procedure (CrPC) since the second charge sheet had been filed after 180 days and thus, he was entitled to default bail. The court opined that the second chargesheet was a supplementary chargesheet and thus default bail would not be admissible. The said order was also upheld by the High Court in November 2020, and an appeal was filed against this order before the Supreme Court.
The counsel for the appellant argued that only special courts have jurisdiction in UAPA cases and hence, the order of the Chief Judicial Magistrate is beyond its jurisdiction. The court, however, held that in UP special courts were not notified when the appellant’s case came up and hence, the Chief Judicial Magistrate court was competent.
The counsel for the appellant argued that the second chargesheet was filed after a lapse of 211 days, two days after the appellant filed for default bail. The counsel for the state argued that there is no restriction on the number of supplementary charge sheets which can be filed but there will be only one charge sheet in view of the apex court’s judgment in Vinay Tyagi vs. Irshad Ali @ Deepak & Ors (2013).
The court observed that section 167 of CrPC provided for a time period within which the investigation should be completed, depending upon the nature of offences.
“Since, liberty is a Constitutional right, time periods were specified in the default of which the accused will have a right to default bail, a valuable right.”
The court pointed out that the chargesheet was required to be filed within 90 days as per CrPC, but was filed within 180 days on the premise of charge under UAPA but even within 180 days the chargesheet with respect to charges under UAPA was not filed. The said charge sheet was filed after a lapse of 211 days, 2 days after the application of default bail was signed. The period of 180 days had elapsed, observed the court.
“We do not think that the State can take advantage of the fact that in one case there is one charge sheet and supplementary charge sheets are used to extend the time period in this manner by seeking to file the supplementary charge sheet qua the offences under the UAPA Act even beyond the period specified under Section 167 of the Cr.P.C beyond which default bail will be admissible, i.e, the period of 180 days.”
The court held that the period had expired and chargesheet was not filed qua those offences under UAPA, even if it is a supplementary chargesheet and hence the appellant would be entitled to default bail in these circumstances. The court cited Bikramjit Singh vs. State of Punjab (2020) and stated that “default bail under first proviso of Section 167(2) of the Cr.P.C. is a fundamental right and not merely a statutory right as it is, a procedure established by law under Article 21 of the Constitution.”
“A fundamental right is granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2)of the Cr.P.C. are fulfilled.”
The first proviso (a)(i) to Section 167(2) of the CrPc states that the accused person shall be released on bail if he is prepared to and does furnish bail on expiry of the maximum period of 90 days, and every person so released on bail be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.
But when it comes to Section 43-D(2)(b) of UAPA this period of arresting and detaining a person until the investigation is complete can be extended to 180 days instead of 90 days, if the Court is satisfied with the report of the public prosecutor.
The court further observed that even an oral application for grant of default bail would suffice. The court further held that consequences of UAPA are drastic in punishment and in that context, it has been held not to be a mere statutory right but part of the procedure established by law under Article 21 of the Constitution of India.
The court set aside the impugned orders and held that the appellant was entitled to default bail in given circumstances.
The complete order may be read here: