TaxTMI 
TaxTMI 
2020 (10) TMI 1244
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....when two young boys came there on a Pulsar Motor Cycle without number of Black shade. Out of them, one had worn Jean and Jacket and was having turban on his head and he has muffled his face with a cloth of check. He went inside and the other young boy, who was wearing Kurta, Pyjama and Jacket and had muffled his face with a handkerchief, took out a Pistol from the fold of his Pyjama and made us to stand together near the Bathroom. The young boy who had gone inside the Satsang Hall threw a Hand Grenade on the stage with his right hand. An explosion took place and the above-said young boy took out a Pistol and ran towards the gate. Both the young men ran towards Village Adliwal on their Pulsar Motor Cycle. Due to Grenade explosion, about 22 persons from the Sangat sustained serious injuries. The other persons arranged conveyance and carried the injured to IVY Hospital, Amritsar and Guru Nanak Dev Hospital, Amritsar, where Sukhdev Kumar son of Kans Raj, resident of Kohali, now resident of Mirankot, aged about 45 years, Kuldeep Singh son of Joginder Singh, resident of Bagga and Sandeep Singh son of Amarjit Singh, resident of Ward No. 7, Rajasansi died in IVY Hospital, Amritsar. The abo....
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....ved Under Section 45(D)(2) Unlawful Activities (Prevention) Act 1967. It means, Ilaqa Magistrate was not competent to pass any order on any such application. In case the same has been filed and passed i.e. without its jurisdiction. So because of the said reason order passed by Ilaqa magistrate is not sustainable in the eyes of law and the same is liable to be set aside by way of acceptance of this revision petition. Accordingly this revision is allowed and order of Ilaqa magistrate dated 13.02.2019 is set aside. Trial court record along with copy of this order be sent back to the Trial Court and file of this Court be consigned to record room. 4. One day later, on 26.03.2019, a charge sheet was filed before the learned Special Judge after police investigation, in which Sections 302, 307, 452, 427, 341, 34 of the Indian Penal Code read with Section 25 of the Arms Act, 1959, Sections 3, 4, 5, 6 of the Explosive Substances Act, 1908 and Sections 13, 16, 18, 18-B and 20 of the Unlawful Activities (Prevention) Act, 1967 were invoked for offences that were committed pursuant to investigation of the FIR lodged on 18.11.2018. Meanwhile, a revision petition that was filed against the orde....
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....ection 209 Code of Criminal Procedure, whereas in case the investigation is conducted by the agency under the NIA Act, the power shall be exercised by the Special Court and challan will be presented by the agency before the Special Court. xxx xxx xxx It is not case of the Petitioner that the investigation was conducted by the agency Under Section 6 of the NIA Act and till committal of the case to the Court of Sessions, as per Section 22(3) of NIA Act, it cannot be said that the Magistrate has no power and therefore, the order dated 25.03.2019 suffers from illegal infirmity. The arguments raised by learned Senior Counsel for the Petitioner that the Petitioner is entitled to default bail Under Section 167(2) Code of Criminal Procedure, in view of judgment of the Hon'ble Supreme Court in Sanjay Dutt's case (supra), is not available, once the challan was presented by the prosecution on 25.03.2019, as the application was filed by the Petitioner on the next day i.e. 26.03.2019 The Judge, Exclusive Court has recorded a well reasoned finding that mere fact that sanction has not been granted so far, is no ground to grant concession of bail, as it ....
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....would affect the powers of the State Government to investigate and prosecute any scheduled offence. She also stressed the fact that the entire investigation was done only by the State Police and not by the National Investigation Agency. This being the case, she argued that the Ilaqa Magistrate had jurisdiction to extend time, and having so extended time on 13.02.2019, any application for default bail after the 90 day period was over i.e. after 21.02.2019 had necessarily to be dismissed. She also argued that the first application for default bail which was filed on or before 25.03.2019, had spent its force, having been dismissed, and that the application dated 08.04.2019 filed for default bail was clearly after 26.03.2019, when the charge sheet was filed and, therefore, was correctly dismissed by the order of the learned Special Judge dated 11.04.2019. 8. Having heard learned Counsel for the parties, it is important at this stage to set out all the relevant provisions of the three enactments that we are directly concerned with-the Code, UAPA and NIA Act. 9. It is important to note that the expression "Court" is not defined by the Code. On the other hand, Section 6 of the Code ....
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....h unlawful activity and unlawful association as defined Under Sections 2(o) and 2(p). It further defines what are terrorist acts, terrorist gangs and terrorists organisations Under Section 2(k), 2(l) and 2(m) and proscribes each of these in offences which are than fleshed out under its provisions. What is important from our point of view in this case is the definition of "Court" in Section 2(1)(d) of UAPA which is as follows: 2. Definitions.-(1) In this Act, unless the context otherwise requires,- xxx xxx xxx (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 21 of the National Investigation Agency Act, 2008 Equally important is the provision contained in Section 43-D(2) of UAPA, which is set out as follows: 43-D. Modified application of certain provisions of the Code. xxx xxx xxx (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" ....
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....ons.-(1) In this Act, unless the context otherwise requires,- xxx xxx xxx (h) "Special Court" means a Special Court constituted Under Section 11 or, as the case may be, Under Section 22 16. Section 3 constitutes a National Investigation Agency which is a special agency set up for prosecution of offences under the Acts specified in the Schedule by the Central Government. It may be noted that the UAPA is Item 2 of the said Schedule. Section 10, upon which strong reliance is placed by the State, is as follows: 10. Power of State Government to investigate Scheduled Offences.--Save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offence or other offences under any law for the time being in force Sections 11 and 22 which speak of the power of the Central Government and the State Government respectively, to designate Courts of Sessions as Special Courts, are as follows: 11. Power of Central Government to constitute Special Courts.-- (1) The Central Government shall, by notification in the Official Gazette, for the trial of Scheduled....
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....re 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 constituted 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 constituted 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. ....
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....rd punishment authorised by this Act or, as the case may be, under such other law. Section 16 is important and sets out the procedure and powers of Special Courts as follows: 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. (2) Where an offence triable by a Special Court is punishable with imprisonment for a term not exceeding three years or with fine or with both, the Special Court may, notwithstanding anything contained in Sub-section (1) of Section 260 or Section 262 of the Code, try the offence in a summary way in accordance with the procedure prescribed in the Code and the provisions of Sections 263 to 265 of the Code shall, so far as may be, apply to such trial: Provided that when, in the course of a summary trial under this Sub-section, it appears to the Special Court that the nature of the case is such that it is not desirable to try it in a summary way, the Special Court shall recall any witnesses who may have been examined and ....
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....hief 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 Schedule appended to the aforesaid Act, which are investigated by the State police. 18. It will be seen that the aforesaid notification has been issued Under Section 22(1) of the NIA Act. What is important to note is that Under Section 22(2)(ii), reference to the Central Agency in Section 13(1) is to be construed as a reference to the investigation agency of the State Government-namely, the State police in this case. Thereafter, what is important to note is that notwithstanding anything contained in the Code, the jurisdiction conferred on a Special Court shall, until a Special Court is designated by the State Government, be exercised only by the Court of Sessions of the Division in which such offence has been committed vide Sub-section (3) of Section 22; and by Sub-section (4) of Section 22, on and from the date on which the Special Court is designa....
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....gating agency of the State. 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 ei....
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....riod up to one year, on 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 one hundred and eighty days; and 20. ...Sub-section (2) of Section 167 of the Code lays down that the Magistrate to whom the Accused is forwarded may authorise his detention in such custody, as he may think fit, for a term specified in that section. The proviso to Sub-section (2) fixes the outer limit within which the investigation must be completed and in case the same is not completed within the said prescribed period, the Accused would acquire a right to seek to be released on bail and if he is prepared to and does furnish bail, the Magistrate shall release him on bail and such release shall be deemed to be grant of bail under Chapter XXXIII of the Code of Criminal Procedure...Section 167 read with Section 20(4) of TADA, thus, strictly speaking is not a provision for "grant of bail" but deals with the maximum period during which a person Accused of an offence may be kept in custody and detention to enable the investigating agency to complete the investigation and file the charge-sheet....
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.... 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. 21. Thus, we find that once the period for filing the charge-sheet has expired and either no extension under Clause (bb) has been granted by the Designated Court or the period of extension has also expired, the Accused person would be entitled to move an application for being admitted to bail Under Sub-section (4) of Section 20 TADA read with Section 167 of the Code and the Designated Court shall release him on bail, if the Accused seeks to be so released and furnishes the requisite bail. We are not impressed with the argument of the learned Counsel for the Appellant that on the expiry of the period during whi....
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.... enforceable on the challan being filed, if already not availed of. 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. The custody of the Accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the Accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Code of Criminal Procedure ceases to apply. The Division Bench also indicated that if there be such an application of the Accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the pray....
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....once a charge sheet is filed was authoritatively dealt with in a decision of a Three-Judge Bench of this Court in Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453. The majority judgment of G.B. Pattanaik, J. reviewed the decisions of this Court and in particular the enigmatic expression "if already not availed of" in Sanjay Dutt (supra). The Court then held: 13....The crucial question that arises for consideration, therefore, is what is the true meaning of the expression "if already not availed of"? Does it mean that an Accused files an application for bail and offers his willingness for being released on bail or does it mean that a bail order must be passed, the Accused must furnish the bail and get him released on bail? In our considered opinion it would be more in consonance with the legislative mandate to hold that an Accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression "availed of" to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the....
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....ulated period alleging that no challan has been filed and he is prepared to offer the bail that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the Accused. In our view, such interpretation would subserve the purpose and the object for which the provision in question was brought on to the statute-book. In such a case, therefore, even if the application for consideration of an order of being released on bail is posted before the court after some length of time, or even if the Magistrate refuses the application erroneously and the Accused moves the higher forum for getting a formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the Accused. Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated Under Article 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the Accused in custody up to a maximum period as indicated in t....
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....o to furnish the bail on being directed, then it has to be held that the Accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the Accused has not furnished the same. [Emphasis Supplied] B.N. Agrawal J. dissented, holding: 29. My learned brother has referred to the expression "if not already availed of" referred to in the judgment in Sanjay Dutt case [ (1994) 5 SCC 410 : 1994 SCC (Cri.) 1433] for arriving at Conclusion 6. According to me, the expression "availed of" does not mean mere filing of application for bail expressing therein willingness of the Accused to furnish the bail bond. What will happen if on the 61st day an application for bail is filed for being released on bail on the ground of default by not filing the challan by the 60th day and on the 61st day the challan is also filed by the time the Magistrate is called upon to apply his mind to the challan as well as the petition for grant of bail? In view of the several decisions referred to above and the requirements prescribed by Clause (a)(ii) of the proviso read with Explanation I....
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....conclusions. 45. The opinion expressed in paras 54 and 58 in Pragyna Singh Thakur [ (2011) 10 SCC 445 : (2012) 1 SCC (Cri.) 311] which we have emphasised, as it seems to us, runs counter to the principles stated in Uday Mohanlal Acharya [ (2001) 5 SCC 453 : 2001 SCC (Cri.) 760] which has been followed in Hassan Ali Khan [(2011) 10 SCC 235 : (2012) 1 SCC (Cri.) 256] and Sayed Mohd. Ahmad Kazmi [ (2012) 12 SCC 1 : (2013) 2 SCC (Cri.) 488]. The decision in Sayed Mohd. Ahmad Kazmi case [ (2012) 12 SCC 1 : (2013) 2 SCC (Cri.) 488] has been rendered by a three-Judge Bench. We may hasten to state, though in Pragyna Singh Thakur case [ (2011) 10 SCC 445 : (2012) 1 SCC (Cri.) 311] the learned Judges have referred to Uday Mohanlal Acharya case [ (2001) 5 SCC 453 : 2001 SCC (Cri.) 760] but have stated the principle that even if an application for bail is filed on the ground that the charge-sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if the charge-sheet is filed the said right to be enlarged on bail is lost. This opinion is contrary to the earlier larger Bench decisions and also runs counter to the subsequent three-Ju....
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....r case [ (2011) 10 SCC 445 : (2012) 1 SCC (Cri.) 311] has somewhat in a similar matter stated the same. As long as the majority view occupies the field it is a binding precedent. That apart, it has been followed by a three-Judge Bench in Sayed Mohd. Ahmad Kazmi case [(2012) 12 SCC 1 : (2013) 2 SCC (Cri.) 488]. Keeping in view the principle stated in Sayed Mohd. Ahmad Kazmi case [ (2012) 12 SCC 1 : (2013) 2 SCC (Cri.) 488] which is based on three-Judge Bench decision in Uday Mohanlal Acharya case [ (2001) 5 SCC 453 : 2001 SCC (Cri.) 760], we are obliged to conclude and hold that the principle laid down in paras 54 and 58 of Pragyna Singh Thakur case [ (2011) 10 SCC 445 : (2012) 1 SCC (Cri.) 311] (which has been emphasised by us: see paras 42 and 43 above) does not state the correct principle of law. It can clearly be stated that in view of the subsequent decision of a larger Bench that cannot be treated to be good law. Our view finds support from the decision in Union of India v. Arviva Industries India Ltd. [(2014) 3 SCC 159]. 26. Also, in Syed Mohd. Ahmad Kazmi v. State (Govt. of NCT of Delhi) (2012) 12 SCC 1, Section 43-D of the UAPA came up for consideration before the Court,....
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....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 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 Metropolit....
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....d 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. 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 2....
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....ad 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....
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....nding 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....