Satish Kumar vs State Of Punjab & Another

Rajesh Bhardwaj, J

This bunch of appeals consisting of aforementioned four appeals has been filed by the appellants namely Satish Kumar and Pankaj Bansal for the

grant of bail in case FIR No.246 dated 18.10.2014 under sections 420, 467, 468, 471, 472, 392 I.P.C and 25 of Arms Act (later on added sections 120-

B I.P.C, Section 16 and 18 of the Unlawful Activities (Prevention) Act, 1967 and Section 25(6)(7)(8) of Arms Act, 1959, registered at Police Station,

City Faridkot). It is pertinent to mention here that CRA-D-28-2021 (Satish Kumar Vs. State of Punjab & another) and CRA-D-89-2021 (Pankaj

Bansal Vs. State of Punjab & another) have been filed against the impugned orders dated 7.12.2020 and 8.1.2021 wherein their prayer for the grant

of bail under Section 167(2) Cr.P.C has been rejected by the learned Additional Sessions Judge, Faridkot. So far as rest of the two appeals are

concerned i.e. CRA-D-57-2021 (Satish Kumar Vs. State of Punjab) and CRA-D-104-2021 (Pankaj Bansal Vs. State of Punjab), these have been

filed against the impugned orders dated 7.10.2020 and 14.9.2020 wherein the prayer of the appellants for the grant of bail under Section 439 Cr.P.C

has been rejected by the learned Additional Sessions Judge, Faridkot. Out of the aforementioned four appeals, firstly we are dealing with CRA-D-28-

2021 (Satish Kumar Vs. State of Punjab) and CRA-D-89-2021 (Pankaj Bansal Vs. State of Punjab), which pertain to the grant of default bail under

Section 167(2) Cr.P.C. All these four appeals arise out of the same FIR. The issue underlying these two appeals is the same as both deal with the bail

under Section 167(2) Cr.P.C, which if found to have been accrued, becomes an indefeasible right of the accused. For brevity the facts have been

culled out from CRA-D-28-2021.

Adumbrated facts of the case, FIR No.246 dated 18.10.2014 under sections 420, 467, 468, 471, 472, 392 I.P.C and 25 of Arms Act (later on added

sections 120-B I.P.C, Sections 16 & 18 of Unlawful Activities (Prevention) Act, 1967 and Section 25(6)(7)(8) of Arms Act, 1959), registered at

Police Station, City Faridkot. The investigation having been completed, challan was filed on 17.1.2015 in the court of J.M.I.C., Faridkot and the

charges were framed on 8.4.2016. However, appellant Satish Kumar was arrayed as an accused in this FIR vide DDR No.32 dated 18.8.2020 and he

was arrested on 20.8.2020. Section 16 of The Unlawful Activities (Prevention) Act, 1967 and Section 25(6)(7)(8) of Arms Act, 1959 vide DDR No.8

dated 25.8.2020 and Section 18 of Unlawful Activities (Prevention) Act, 1967 vide DDR No.38 dated 19.10.2020 were later on added in the FIR.

Similarly accused Pankaj Bansal was arrested on 21.8.2020. Aggrieved by their arrest, appellants preferred the bail under Section 439 Cr.P.C before

the learned Additional Sessions Judge, Faridkot, which were declined by the court vide order dated 7.10.2020 & 14.9.2020. As the appellants were

arrayed as accused later on, hence, the investigating agency filed their supplementary challan under Section 173(8) Cr.P.C in the court of J.M.I.C.,

Faridkot on 20.10.2020. The appellants preferred petitions for grant of bail under Section 167(2) Cr.P.C before the learned Additional Sessions Judge,

Faridkot on the premise that they are in custody since the last 95 days and as the statutory period of 90 days is already over and the investigating

agency has failed to file the challan in the Special Court thus there accrued an indefeasible right in their favour under Section 167(2) Cr.P.C and

therefore, they deserved to be released on bail. Learned Additional Sessions Judge, Faridkot after hearing the parties and perusing the record declined

the same by observing that although offence under the Unlawful Activities (Prevention) Act, 1967 is triable by the Special Court but since before

presentation of supplementary challan against the appellant, the main case was already pending in the said court of J.M.I.C and the offence under the

Unlawful Activities (Prevention) Act, 1967 were added during investigation and therefore, the filing of the supplementary challan before the same

court suffers from no illegality and hence did not entitle the appellant for the grant of bail under Section 167(2) Cr.P.C. As a result, the petitions filed

by the appellants were dismissed vide order dated 7.12.2020 & 8.1.2021.

CRA-D-28-2021& CRA-D-89-2021

The appellants in the present appeals are also accused in the same FIR as mentioned herein above. They were arrayed as accused vide DDR No.32

dated 18.8.2020 and the offence under Section 16 of the Unlawful Activities (Prevention) Act, 1967 and Section 25(6)(7)(8) of Arms Act, 1959 were

added later on vide DDR No.8 dated 25.8.2020. They were arrested on 20.8.2020 and 21.8.2020. The appellant namely Satish Kumar in CRA-D-28-

2021 & CRA-D-57-2021 preferred petition for grant of bail under Section 439 Cr.P.C before the learned Additional Sessions Judge, Faridkot and the

same was declined vide his orders dated 7.10.2020. Similarly, petition under Section 439 Cr.P.C of Pankaj Bansal was declined on 14.9.2020.

Thereafter, the appellants preferred petitions for grant of bail under Section 167(2) Cr.P.C. Learned Additional Sessions Judge, Faridkot declined the

same vide his orders dated 7.12.2020 and 8.1.2021 respectively.

Both the appellants namely Satish Kumar and Pankaj Bansal being aggrieved of declining of their prayer for grant of bail under Section 167(2) Cr.P.C

vide impugned orders dated 7.12.2020 and 8.1.2021 have now approached this Court by filing the present appeals.

Before proceeding with the case, it is pertinent to mention here that after dismissal of their bail petitions under Section 439 Cr.P.C the appellants

approached this High Court, impugning the decline of their respective petitions by way of filing CRM-M-29733-2020 and CRM-M-33750-2020. Both

these petitions were heard and disposed of vide common order dated 15.12.2020, passed by learned Single Judge. During the course of arguments

before the learned Single Judge, learned State counsel produced a copy of the order dated 7.12.2020 vide which the learned Additional Sessions

Judge, Faridkot had declined the grant of bail under Section 167(2) Cr.P.C as well to the appellant Satish Kumar. After hearing the parties, learned

Single Judge declined the bail petition filed under Section 439 Cr.P.C of both the appellants, whereas dismissal of the bail petition filed under Section

167(2) Cr.P.C qua appellant Satish Kumar vide order dated 7.12.2020 was also upheld by the learned Single Judge while disposing of the

aforementioned both the petitions.

Counsel representing the appellants Mr. Rajiv Malhotra and Mr. Nandan Jindal have contended that CRR-1326-2020 was inadvertently filed but as

the offence under the Unlawful Activities (Prevention) Act, 1967 was exclusively triable by the Special Court as defined under Section 2(h) of the

National Investigation Agency Act, 2008 and hence as per the provisions of Section 21 of the National Investigation Agency Act, 2008 only an appeal

can be filed before the High Court and thus the present appeals were filed. Learned counsel for the appellants have vehemently contended that from

the bare perusal of the provisions of Section 2(1)(d) of Unlawful Activities (Prevention) Act, 1967 as well as the National Investigation Agency Act,

2008, the challan/charge sheet of the offence has to be filed within 90 days before the “Special Courtâ€. They have vehemently contended that in

view of the provisions of Section 2(1)(d) of the Unlawful Activities (Prevention) Act, 1967 court means a criminal court having jurisdiction under the

code, to try an offence under this Act (and includes a Special Court constituted under Section 11 or under section 22 of the National Investigation

Agency Act, 2008). Thus, the sum and substance of the arguments advanced by learned counsel for the appellants is that the charge sheet/challan for

the offence under the Unlawful Activities (Prevention) Act, 1967 had not been filed by the investigating agency in the Special Court within the

prescribed statutory period of 90 days as per the mandate of Section 43-D of the Unlawful Activities (Prevention) Act, 1967. They have contended

that filing of the challan in the court of J.M.I.C., Faridkot amounts to non-filing of the challan in the eyes of law, as the court of J.M.I.C, Faridkot is

not the Special Court under the Act. Mr. Malhotra has further drawn the attention of this Court to the provisions of Section 45 of the Unlawful

Activities (Prevention) Act, 1967 pertaining to the cognizance of offence. He has vehemently contended that the provisions of this section completely

bar any court from taking the cognizance without obtaining prior sanction of the Central Govt. or the State Govt. as the case may be. However, he

submits that in the present case no sanction has been obtained by the prosecution and thus the Trial Court has no jurisdiction to take the cognizance of

the scheduled offences in the absence of prior sanction of the concerned Govt. They have relied upon various judgements of the Hon'ble Supreme

Court, wherein the law has been settled that the right accrued under Section 167(2) Cr.P.C is an indefeasible right and the same cannot be defeated

by the investigating agency once it is established that the investigation could not be completed within the statutory period granted, as the challan in this

case has been filed in the court of J.M.I.C., which is not a competent court under the Unlawful Activities (Prevention) Act, 1967 and thus, the

appellants deserve to be released on bail. Counsel have relied upon the law laid down by the Hon'ble Apex Court in Bikramjit Singh Vs. State of

Punjab, 2020(4) R.C.R (Criminal) 713 and prayed that their case is squarely covered by the law settled by the Hon'ble Apex Court and thus, they

should be enlarged on bail under Section 167(2) Cr.P.C. Ms. Bhavna Gupta learned D.A.G., Punjab has vehemently argued that the appellants are not

entitled for the default bail under Section 167(2) Cr.P.C. She has asserted that the case was already pending before the court of J.M.I.C., Faridkot

since beginning and the appellants were arrayed as the accused during investigation, on finding the offence under Sections 16 and 18 of the Act

against them. The learned State counsel has drawn the attention of this Court to the provisions of Section 10 of the N.I.A Act which empowers the

State Govt. to investigate the scheduled offences. She submitted that as the trial was already pending in the court of J.M.I.C, hence, the investigating

agency was totally justified in submitting the supplementary challan before the same court which was later on sent to the Special Court and thus, there

was no illegality on the part of the investigating agency in filing the challan before the J.M.I.C and hence the learned Additional Sessions Judge,

Faridkot has rightly declined the prayer of the appellants for the grant of bail under Section 167(2) Cr.P.C. However, learned State counsel could not

deny the averments of the learned counsel for the appellants that no prior sanction as per the mandate of Section 45 of Unlawful Activities

(Prevention) Act, 1967 had been obtained before filing the challan under Section 173 (8) Cr.P.C when it was filed before the court of learned

J.M.I.C., Faridkot. To buttress her arguments she has relied upon the view taken by the learned Full Bench of Patna High Court in Bahadur Kora Vs.

State of Bihar (2015) 2 R.C.R (Criminal) 975 (FB).

We have heard learned counsel for the parties at length, perused the records and the law settled by the Hon'ble Apex Court in plethora of judgements.

It is apposite to mention that it is an admitted fact that the challan in the case in hand has been filed in the court of J.M.I.C., Faridkot. From the bare

reading of the statutory provisions of the Unlawful Activities (Prevention) Act, 1967 and that of the National Investigation Agency Act, 2008, it is

clear that the offences under these Acts are to be tried in the Special Court. In the absence of the notification, the same are triable by the concerned

Court of Sessions. As it is already evident from the facts narrated by learned counsel for the appellant that they had approached the learned Single

Judge against the impugned orders wherein their bail under Section 439 Cr.P.C and that under Section 167(2) Cr.P.C had been rejected. Learned

Single Judge as well upheld the view taken by the courts below. It is appropriate to analyze at this stage that approaching the learned Single Judge

against the orders of the courts below is totally in violation of the mandate of the statutory provisions of the U.A.P.A Act and the N.I.A Act. A close

look at the various provisions of both the acts is essential for analyzing this proposition. Section 2(d) of the U.A.P.A Act reads as follows:-

“2(d) “Court†means a Criminal Curt 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).

This makes it clear that the definition of 'Court' includes the Special Court constituted under Section 11 or under Section 22 of the N.I.A Act, 2008. A

perusal of Section 6 of the N.I.A Act enumerates about the investigation of the scheduled offences. Scheduled offences under U.A.P.A Act are

included at Sr. No.2 in the Schedule of the N.I.A Act. Thereafter, Section 10 prescribes about the power of the State Govt. to investigate the

scheduled offences. Section 11 of the N.I.A Act prescribes about the power of Central Govt. for constituting the Special Court, whereas Section 22

of this Act prescribes the power of the State Govt. for constituting the Special Court for trial of the scheduled offence. Section 13 of the N.I.A Act

contains the details of the jurisdiction of the Special Court. A conjoint reading of these peculiar provisions of both the Acts reveals the legislative

mandate that the offences under the U.A.P.A Act falls under the scheduled offences having been included in the Schedule of N.I.A Act. However,

the scheme of N.I.A Act prescribes the procedure for investigating the same either by the N.I.A or by the concerned State Govt., after following the

statutory provisions meticulously. Section 10 of the N.I.A Act further clarifies that the State Govt. 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 N.I.A or by the State Govt., the trial of the scheduled offence would be conducted only by

the Special Court constituted under this Act. Section 13 of the N.I.A Act is to be read with Section 11 of this Act when the investigation is carried out

by the N.I.A and in the situation, investigation having been entrusted to the State Govt., then Section 13 is to be read with 22 of the 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 Govt., in that situation

as per Section 22 (2)(ii) the reference to Agency in sub section (1) of Section 13 shall be construed as a reference to “Investigating Agency of the

State Govt.â€​ Thereafter, the relevant section is Section 21, which pertains to the provisions of filing the appeals. This section clearly mandates that an

appeal shall lie from any judgement, sentence or order not being an interlocutory order of a Special Court to the High Court both on facts and law. Sub

clause (2) of Section 21 further mandates that the appeal shall be heard by a Bench of two Judges of the High Court.

Thus, the scheme of both the acts makes it clear that once the investigation is completed, the report under Section 173 Cr.P.C is to be filed in the

Special Court constituted under the Act. Section 16 of the N.I.A 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 N.I.A 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. Learned counsel for the appellants has drawn

our attention to the notification of the Govt. of Punjab dated 10.6.2014 wherein the Special Courts are constituted by the State Govt. for the trial of

offence as specified in the schedule appended to the N.I.A Act which are investigated by the State Police. The aforesaid notification is reproduced as

under:-

“NOTIFICATION The 10th 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.â€​

A close look on the statutory provisions further reveals that the cases in which the investigation has been carried out by the State Police, the trial of

such cases would be conducted out in the Special Court as per the jurisdiction of the Special Court prescribed under Section 13 of the N.I.A Act read

with Section 22 of the Act. Any order passed by the Special Court would be challenged only before the High Court which would be heard by a Bench

of two Judges of the High Court as per the mandate of Section 21 of this Act. Thus, the filing of the earlier petitions before the learned Single Bench

were non-existent in the eyes of law and would have no bearing on the maintainability of the present petitions before this Court.

The admitted position of the present case is that the charge sheet/challan had been presented in the court of J.M.I.C., Faridkot on 20.10.2020 which is

not a competent court to try the case under the aforementioned Acts. Hence, the same, even if, filed within the stipulated period of 90 days, does not

come to the rescue of the prosecution. Moreover, not obtaining the prior sanction as in accordance with Section 45 of the U.A.P.A Act up to the

stage of filing the challan before the court of learned J.M.I.C., Faridkot has also not been denied by learned State counsel. We are fortified by the

ratio of law settled by the Hon'ble Supreme Court in Bikramjit Singh's case (supra), wherein their Lordships have categorically held that all offences

under the Unlawful Activities (Prevention) Act, 1967 whether investigated by the National Investigation Agency or by investigating agency of the

State Govt. 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

by either Central Govt. or State Govt., the fall back is upon the Court of Sessions alone. Their Lordships have reiterated that right to default bail is not

a mere statutory right but is a part of procedure established by law under Article 21 of the Constitution of India.

In this regard, their Lordships have held as under:-

“21. Before the NIA Act was enacted, offences under the UAPA were of two kinds â€" 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 Sessions. This Scheme has been completely done away with by the 2008 Act 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 fall back is upon the Court of Sessions 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

judgement 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.â€​ xxx xxx xxx xxx xxx

xxx 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 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.â€​

Applying the laid down parameters to the facts and circumstances of the present case, we find ourselves in agreement with the arguments advanced

by learned counsel for the appellants that there accrued an indefeasible right for the grant of bail under Section 167(2) Cr.P.C in favour of the

appellants, once the charge sheet/challan had been filed in the court having no competence to try the case. This makes the custody of the appellants

beyond the statutory period of 90 days without any sanctity of law and hence entitles the appellants with an indefeasible right of bail under Section

167(2) Cr.P.C. As a result, CRA-D-28-2021 and CRA-D-89-2021 are allowed and the appellants therein are held entitled for grant of bail under

Section 167(2) Cr.P.C. Appellants be enlarged on bail to the satisfaction of Trial Court/CJM/Duty Magistrate, Faridkot.

It is being clarified that nothing observed herein above shall be construed having expressed any opinion on the merits of the case pending before the

Trial Court.

CRA-D-57-2021 & CRA-D-104-2021

Both these appeals have been filed under Section 439 Cr.P.C seeking bail to the appellants in case FIR No.246 dated 18.10.2014 under sections 420,

467, 468, 471, 472, 392 I.P.C and 25 of Arms Act (later on added sections 120-B I.P.C, Sections 16 and 18 of Unlawful Activities (Prevention) Act,

1967 and Section 25(6)(7)(8) of Arms Act, 1959, registered at Police Station, City Faridkot.

As we have already granted bail to the appellants under Section 167(2) CR.P.C in CRA-D-28-2021 and CRA-D-89-2021, therefore, the instant two

appeals i.e. CRA-D-57-2021 & CRA-D-104-2021 are disposed of as having been rendered infructuous.