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Punjab-Haryana High Court
Tejinder Singh Alias Teja vs State Of Punjab And Another on 5 March, 2021IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
229 CRM-M-34265-2020
DATE OF DECISION: 05.03.2021
TEJINDER SINGH ALIAS TEJA … Petitioner (s)
Versus
STATE OF PUNJAB AND ANOTHER … Respondent(s)
CORAM: HON’BLE MR. JUSTICE ANUPINDER SINGH GREWAL
Present: Mr. Saurav Bhatia, Advocate for the petitioner.
Mr. Dhruv Dayal, Senior DAG, Punjab.
****
ANUPINDER SINGH GREWAL, J. (ORAL)
The petitioner is seeking quashing of the order dated 31.08.2020
(Annexure P-2) passed by the Chief Judicial Magistrate, SAS Nagar, Mohali
whereby investigating agency has been granted extension of time to complete
investigation and order dated 18.09.2020 (Annexure P-3) passed by JMIC,
SAS Nagar, Mohali whereby the petitioner has been denied right of default
bail.
Learned counsel for the petitioner contends that an FIR bearing
No.9 dated 01.06.2020, under Sections 153-A, 171, 465, 467, 468, 471, 473,
120-B of the Indian Penal Code, Section 25 of the Arms Act and Sections 10,
13, 18, 19 and 20 of the Unlawful Activities (Prevention) Act, 1967, was
registered at Police Station State Special Operation Cell, SAS Nagar.
Learned counsel contends that the petitioner was arrested on
01.06.2020. Challan had to be filed within a period of 90 days in terms of
Section 167(2) Cr.P.C and the period of 90 days was completed on
31.08.2020. The application preferred on behalf of prosecution for extension
of time before the Chief Judicial Magistrate on 31.08.2020 and it was allowed
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on 31.08.2020 itself. The petitioner preferred the application for default bail
on 18.09.2020 which was dismissed by the Judicial Magistrate Ist Class on
18.09.2020 on the ground that the period of completing investigation has been
extended by 60 days vide order dated 31.08.2020. The investigation was
completed and challan was filed on 28.08.2020. He also contends that time for
investigation could not have been extended by the Court of Chief Judicial
Magistrate as only designated Special Court under the Act or in the absence
thereof, a Court of Sessions can extend time. In support of his submissions,
learned counsel has relied upon the judgments of the Supreme Court in the
cases of Bikramjit Singh Vs. The State of Punjab, 2020 (4) R.C.R.
(Criminal) 713 and Hitendra Vishnu Thakur Vs. State of Maharashtra,
1994 (3) RCR (Criminal) 156.
Learned State counsel, while referring to the reply in the form of
an affidavit of DSP, Organized Control Crime Unit (Operations), Punjab,
contends that the application for extension of time to complete investigation
was preferred before the Court of Chief Judicial Magistrate in terms of the
judgment of this Court in the case of Bikramjit Singh Vs. State of Punjab,
CRM-M-19259 of 2019 passed on 30.10.2019. The application for extension
of time was filed on 21.08.2020 and the judgment of the High Court was in
force at that time although it had been set aside later by the Supreme Court.
However, another application was preferred through Additional Public
Prosecutor on 27.08.2020 before the Chief Judicial Magistrate and it was
allowed on 31.08.2020. He further contends that the petitioner has not availed
the alternative remedy of preferring revision against the impugned order and
has, instead, approached this Court under Section 482 Cr.P.C. He also
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contends that the allegations are serious and the petitioner is also involved in
several other cases and, therefore, he is entitled to the concession of default
bail.
Learned State counsel has raised the objection with regard to the
maintainability of this petition without the petitioner having availed the
alternative remedy of revision. The application of the petitioner for default
bail had been dismissed by the court of Judicial Magistrate on 18.09.2020.
The petitioner has challenged the order, extending the time for completion of
investigation dated 31.08.2020 as well as the order dated 18.09.2020 by
preferring the instant petition under Section 482 Cr.P.C on 23.10.2020. Notice
was issued by the coordinate Bench of this Court on 28.10.2020 and the
matter had been pending adjudication since then. The petitioner could have
exercised the option of preferring revision petition. In the afore-noted facts
and circumstances, it could be unjust at this stage to relegate him to the
alternative remedy.
It has been held by the Supreme Court in the case of Prabhu
Chawla versus State of Rajasthan, 2016 (60) SCC 30, wherein it has been
held that availability of alternative remedy of revision under Section 397
Cr.P.C. would not make a petition under Section 482 Cr.P.C. not
maintainable. Para 6 of the judgment is reproduced hereunder:-
“6. In our considered view any attempt to explain
the law further as regards the issue relating to inherent power of
High Court under Section 482 Cr.P.C. is unwarranted. We would
simply reiterate that Section 482 begins with a non- obstante
clause to state: “Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to make such orders
as may be necessary to give effect to any order under this Code,
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or to prevent abuse of the process of any Court or otherwise to
secure the ends of justice.” A fortiori, there can be no total ban on
the exercise of such wholesome jurisdiction where, in the words
of Krishna Iyer, J. “abuse of the process of the Court or other
extraordinary situation excites the court’s jurisdiction. The
limitation is self- restraint, nothing more.” We venture to add a
further reason in support. Since Section 397 Cr.P.C. is attracted
against all orders other than interlocutory, a contrary view would
limit the availability of inherent powers under Section 482
Cr.P.C. only to petty interlocutory orders! A situation wholly
unwarranted and undesirable.”
Heard.
It is trite that the right to be released on bail for failure to
complete the investigation within the period stipulated under Section 167(2)
Cr.P.C. is indefeasible statutory right. Article 21 of the Constitution of India
guarantees right of personal liberty. No person can be deprived of its right
except according to the procedure laid down by law. The period for
completion of investigation under Section 167(2) Cr.P.C. is part of the
procedure laid down by law. The issue which falls for determination in the
instant case is as to whether the court of Chief Judicial Magistrate was
competent to extend the period for completion of investigation. The
coordinate Bench of this Court in the case of Bikramjit Singh Vs. State of
Punjab, CRM-M-19259 of 2019 passed on 30.10.2019, had set aside the
order of the revisional court, directing release of the petitioner therein, in
terms of Section 167(2) Cr.P.C., by holding that the court of Chief Judicial
Magistrate was also competent to extend the period of limitation. However,
this judgment has been set aside by the High Court in the case of Bikramjit
Singh Vs. State of Punjab, reported as 2020(4) RCR (Criminal) 713. It was
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held by the Supreme Court that a designated Special Court was competent to
extend the period of investigation and in the absence of a designated Special
court, it would be the court of Sessions alone which was competent to extend
the period of investigation. The court of Chief Judicial Magistrate could not
extend the period of limitation. The judgment of this Court was set aside and
the petitioner therein was directed to be released on default bail. The factum
of the petitioner therein being involved in several cases was also noticed and
various conditions were set out in the order. Relevant paras of the judgment
are as follows:-
21. 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 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
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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.
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 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.”
27. In a fairly recent judgment reported as Rakesh Kumar Paul v.
State of Assam (2017) 15 SCC 67, a Three-Judge Bench of this
Court referred to the earlier decisions of this Court and went one
step further.
It was held by the majority judgment of Madan B. Lokur, J. and
Deepak Gupta, J. that even an oral application for grant of default
bail would suffice, and so long as such application is made before
the charge sheet is filed by the police, default bail must be
granted. This was stated in Lokur, J.’s judgment as follows:
“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 at in that decision. We are concerned with
Conclusion (3) which reads as follows: (Nirala Yadav case
[Union of India v. Nirala Yadav, (2014) 9 SCC 457 : (2014) 5
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SCC (Cri) 212] , SCC p. 472, para 24) “’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.’ (Uday Mohanlal case [Uday Mohanlal Acharya v.
State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760] ,
SCC p. 473, para 13)”
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
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charge-sheet or challan expires and the submission of the charge-
sheet or challan in court.
Procedure for obtaining default bail
40. In the present case, it was also argued by the learned counsel
for the State that the petitioner did not apply for “default bail” on
or after 4-1-2017 till 24-1-2017 on which date his indefeasible
right got extinguished on the filing of the charge-sheet. Strictly
speaking, this is correct since the petitioner applied for regular
bail on 11-1-2017 in the Gauhati High Court — he made no
specific application for grant of “default bail”. However, the
application for regular bail filed by the accused on 11-1-2017 did
advert to the statutory period for filing a charge-sheet having
expired and that perhaps no charge-sheet had in fact being filed.
In any event, this issue was argued by the learned counsel for the
petitioner in the High Court and it was considered but not
accepted by the High Court. The High Court did not reject the
submission on the ground of maintainability but on merits.
Therefore it is not as if the petitioner did not make any
application for default bail — such an application was definitely
made (if not in writing) then at least orally before the High Court.
In our opinion, in matters of personal liberty, we cannot and
should not be too technical and must lean in favour of personal
liberty. Consequently, whether the accused makes a written
application for “default bail” or an oral application for “default
bail” is of no consequence. The court concerned must deal with
such an application by considering the statutory requirements,
namely, whether the statutory period for filing a charge- sheet or
challan has expired, whether the charge-sheet or challan has been
filed and whether the accused is prepared to and does furnish
bail.
41. We take this view keeping in mind that in matters of personal
liberty and Article 21 of the Constitution, it is not always
advisable to be formalistic or technical. The history of the
personal liberty jurisprudence of this Court and other
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constitutional courts includes petitions for a writ of habeas corpus
and for other writs being entertained even on the basis of a letter
addressed to the Chief Justice or the Court.
xxx xxx xxx Application of the law to the petitioner
45. On 11-1-2017 [Rakesh Kumar Paul v. State of Assam, 2017
SCC OnLine Gau 573] when the High Court dismissed the
application for bail filed by the petitioner, he had an indefeasible
right to the grant of “default bail” since the statutory period of 60
days for filing a charge-sheet had expired, no charge-sheet or
challan had been filed against him (it was filed only on 24-1-
2017) and the petitioner had orally applied for “default bail”.
Under these circumstances, the only course open to the High
Court on 11-1-2017 was to enquire from the petitioner whether
he was prepared to furnish bail and if so then to grant him
“default bail” on reasonable conditions. Unfortunately, this was
completely overlooked by the High Court.
46. It was submitted that as of today, a charge-sheet having been
filed against the petitioner, he is not entitled to “default bail” but
must apply for regular bail — the “default bail” chapter being
now closed. We cannot agree for the simple reason that we are
concerned with the interregnum between 4-1-2017 and 24-1-2017
when no charge-sheet had been filed, during which period he had
availed of his indefeasible right of “default bail”. It would have
been another matter altogether if the petitioner had not applied
for “default bail” for whatever reason during this interregnum.
There could be a situation (however rare) where an accused is not
prepared to be bailed out perhaps for his personal security since
he or she might be facing some threat outside the correction
home or for any other reason. But then in such an event, the
accused voluntarily gives up the indefeasible right for default bail
and having forfeited that right the accused cannot, after the
charge- sheet or challan has been filed, claim a resuscitation of
the indefeasible right. But that is not the case insofar as the
petitioner is concerned, since he did not give up his indefeasible
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right for “default bail” during the interregnum between 4-1-2017
and 24-1-2017 as is evident from the decision of the High Court
rendered on 11-1-2017 [Rakesh Kumar Paul v. State of Assam,
2017 SCC OnLine Gau 573] . On the contrary, he had availed of
his right to “default bail” which could not have been defeated on
11-1-2017 and which we are today compelled to acknowledge
and enforce.
47. Consequently, we are of the opinion that the petitioner had
satisfied all the requirements of obtaining “default bail” which is
that on 11-1-2017 he had put in more than 60 days in custody
pending investigations into an alleged offence not punishable
with imprisonment for a minimum period of 10 years, no charge-
sheet had been filed against him and he was prepared to furnish
bail for his release, as such, he ought to have been released by the
High Court on reasonable terms and conditions of bail.
xxx xxx xxx
49. The petitioner is held entitled to the grant of “default bail” on
the facts and in the circumstances of this case. The trial Judge
should release the petitioner on “default bail” on such terms and
conditions as may be reasonable. However, we make it clear that
this does not prohibit or otherwise prevent the arrest or re-arrest
of the petitioner on cogent grounds in respect of the subject
charge and upon arrest or re-arrest, the petitioner is entitled to
petition for grant of regular bail which application should be
considered on its own merit. We also make it clear that this will
not impact on the arrest of the petitioner in any other case.”
28. Deepak Gupta, J. in his concurring opinion agreed with
Lokur, J. as follows:
“82. The right to get “default bail” is a very important right.
Ours is a country where millions of our countrymen are totally
illiterate and not aware of their rights. A Constitution Bench of
this Court in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC
410 : 1994 SCC (Cri) 1433] has held that the accused must apply
for grant of “default bail”. As far as Section 167 of the Code is
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concerned, Explanation I to Section 167 provides that
notwithstanding the expiry of the period specified (i.e. 60 days or
90 days, as the case may be), the accused can be detained in
custody so long as he does not furnish bail. Explanation I to
Section 167 of the Code reads as follows:
“Explanation I.–For the avoidance of doubts, it is hereby
declared that, notwithstanding the expiry of the period specified
in para (a), the accused shall be detained in custody so long as he
does not furnish bail.” This would, in my opinion, mean that
even though the period had expired, the accused would be
deemed to be in legal custody till he does not furnish bail. The
requirement is of furnishing of bail. The accused does not have to
make out any grounds for grant of bail. He does not have to file a
detailed application. All he has to aver in the application is that
since 60/90 days have expired and charge-sheet has not been
filed, he is entitled to bail and is willing to furnish bail. This
indefeasible right cannot be defeated by filing the charge-sheet
after the accused has offered to furnish bail.
xxx xxx xxx
86. I agree and concur with the conclusions drawn and directions
given by learned Brother Lokur, J. in paras 49 to 51 of his
judgment.” P.C. Pant, J., however, dissented holding:
“113. The law laid down as above shows that the requirement
of an application claiming the statutory right under Section
167(2) of the Code is a prerequisite for the grant of bail on
default. In my opinion, such application has to be made before
the Magistrate for enforcement of the statutory right. In the cases
under the Prevention of Corruption Act or other Acts where
Special Courts are constituted by excluding the jurisdiction of the
Magistrate, it has to be made before such Special Court. In the
present case, for the reasons discussed, since the appellant never
sought default bail before the court concerned, as such is not
entitled to the same.” A conspectus of the aforesaid decisions
would show that so long as an application for grant of default bail
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is made on expiry of the period of 90 days (which application
need not even be in writing) before a charge sheet is filed, the
right to default bail becomes complete. It is of no moment that
the Criminal Court in question either does not dispose of such
application before the charge sheet is filed or disposes of such
application wrongly before such charge sheet is filed. So long as
an application has been made for default bail on expiry of the
stated period before time is further extended to the maximum
period of 180 days, default bail, being an indefeasible right of the
accused under the first proviso to Section 167(2), kicks in and
must be granted.
29. On the facts of the present case, the High Court was wholly
incorrect in stating that once the challan was presented by the
prosecution on 25.03.2019 as an application was filed by the
Appellant on 26.03.2019, the Appellant is not entitled to default
bail. First and foremost, the High Court has got the dates all
wrong. The application that was made for default bail was made
on or before 25.02.2019 and not 26.03.2019.
The charge sheet was filed on 26.03.2019 and not 25.03.2019.
The fact that this application was wrongly dismissed on
25.02.2019 would make no difference and ought to have been
corrected in revision. The sole ground for dismissing the
application was that the time of 90 days had already been
extended by the learned Sub-Divisional Judicial Magistrate,
Ajnala by his order dated 13.02.2019. This Order was correctly
set aside by the Special Court by its judgment dated 25.03.2019,
holding that under the UAPA read with the NIA Act, the Special
Court alone had jurisdiction to extend time to 180 days under the
first proviso in Section 43-D(2)(b). The fact that the Appellant
filed yet another application for default bail on 08.04.2019,
would not mean that this application would wipe out the effect of
the earlier application that had been wrongly decided. We must
not forget that we are dealing with the personal liberty of an
accused under a statute which imposes drastic punishments. The
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right to default bail, as has been correctly held by the judgments
of this Court, are not mere statutory rights under the first proviso
to Section 167(2) of the Code, but is part of the procedure
established by law under Article 21 of the Constitution of India,
which is, therefore, a fundamental right granted to an accused
person to be released on bail once the conditions of the first
proviso to Section 167(2) are fulfilled. This being the case, we set
aside the judgment of the High Court. The Appellant will now be
entitled to be released on “default bail” under Section 167(2) of
the Code, as amended by Section 43-D of the UAPA. However,
we make it clear that this does not prohibit or otherwise prevent
the arrest or re-arrest of the petitioner on cogent grounds, and
upon arrest or re-arrest, the petitioner is entitled to petition for the
grant of regular bail which application should be considered on
its own merit. We also make it clear that this judgement will have
no impact on the arrest of the petitioner in any other case.”
In the instant cases, the application for extension of time had
been allowed by the court of Chief Judicial Magistrate which was not the
competent court as held by the Supreme Court in the case of Bikramjit Singh
Vs. The State of Punjab (supra) and, therefore, the petitioner would be
entitled to release on default bail.
Consequently, the instant petition is allowed. The order dated
18.09.2020 (Annexure P-3) is set aside. The petitioner is ordered to be
released on default bail on his furnishing requisite bonds to the satisfaction of
the trial Court.
However, it is made clear that this does not prohibit or otherwise
prevent the arrest or re-arrest of the petitioner on cogent grounds, and upon
arrest or re-arrest, the petitioner is entitled to petition for the grant of regular
bail which application should be considered on its own merit. It is also made
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clear that this judgement will have no impact on the arrest of the petitioner in
any other case.
(ANUPINDER SINGH GREWAL)
JUDGE
05.03.2021.SwarnjitS
Whether speaking/reasoned : Yes / No
Whether reportable : Yes / No
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