On the second aspect, it is urged that what is
called as the second charge sheet is really a
supplementary charge sheet as 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
judgment of this Court in the case of Vinay Tyagi vs.
Irshad Ali @ Deepak & Ors. (2013) 5 SCC 762
On the second aspect we cannot lose sight of the
fact that what was envisaged by the Legislature was that
the investigation should be completed in 24 hours but
practically that was never found feasible. It is in these
circumstances that Section 167 of the Cr.P.C. provided
for 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.
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. That period having expired and the charge sheet not
having been filed qua those offences (albeit a
supplementary charge sheet), we are of the view the
appellant would be entitled to default bail in the
aforesaid facts and circumstances.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 319 OF 2021
FAKHREY ALAM Vs THE STATE OF UTTAR PRADESH
Dated: March 15, 2021.
Leave granted.
An FIR bearing No. 04/2017 has been registered
against the appellant-accused Fakhrey Alam under Section
420,467, 468, 471 and 120-B, IPC and 3/25/30 of the Arms
Act and under Section 18 of the UAPA Act, 1967.
The appellant was arrested on 08.03.2017 and on
03.06.2017, learned Court of Chief Judicial Magistrate,
Lucknow granted a total of 180 days to the police for
filing the charge sheet. The police filed charge sheet on
04.09.2017 under the aforesaid provisions, except under
the UAPA Act as it was mandatory to obtain prosecution
sanction from the State Government which had not been
forthcoming till the date of filing of the charge sheet.
Thus, the charge sheet states as under :
“ That the accused are in Judicial Custody and
the remand period of the accused Fakhrey Alam
is completing today. Therefore, the Charge
Sheet under Section 420/467/468/471/120-B IPC
and Section 3/25/30 Arms Act is being filed
before this Hon’ble Court against the accused
persons. It is requested to summon the
witnesses and commences the Trial of the Case.
A separate Charge Sheet shall be under Section
18 UA (P) Act shall be filed against obtaining
the prosecution sanction.”
Thereafter, a second charge sheet was filed after
obtaining sanction of the State Government on 05.10.2017.
We are concerned with the order passed by the Chief
Judicial Magistrate, Lucknow dated 13.10.2017 on an
application filed by the appellant on 03.10.2017 for
default bail under Section 167 (2) of the Code of Criminal
Procedure, 1973 (hereinafter referred to as “the
Cr.P.C.”) two days prior to the charge sheet having been
filed under the UAPA Act. The case set up by the
appellant was that the charge sheet had been filed after
180 days and thus he was entitled to default bail. The
Court, however, opined that what was stated to be a
second charge sheet was really a supplementary charge
sheet and thus default bail would not be admissible. The
aforesaid view was given its imprimatur by the High Court
in terms of the impugned order dated 03.11.2020 which has
been assailed before us.
Learned senior counsel for the appellant has made a
dual submissions before us:
Firstly, it is his submission that the Chief
Judicial Magistrate, Lucknow on 03.06.2017 could not have
granted 180 days for filing of the charge sheet as the
jurisdiction in respect of offences under the UAPA Act,
which cases are entrusted to NIA, vests only with the
special courts and this aspect was no more res integra in
view of judgment of this Court in the case of Bikramjit
Singh vs. State of Punjab. (2020) 10 SCC 616
Secondly, it was urged before us that even within
the 180 days period, the charge sheet/supplementary charge
sheet under the UAPA Act was not filed which gave a cause
to the appellant to file the application for default bail
on 03.10.2017 and it is only two days thereafter on
05.10.2017 after a lapse of 211 days that this charge
sheet had been filed.
On the other hand, learned counsel for the State
submits that the judgment of this Court in Bikramjit
Singh’s case (supra) was in the given situation prevalent
in the State of Punjab, but on the other hand in State of
Uttar Pradesh the competent Court was of the special Chief
Judicial Magistrate and it is only recently now about a
month back that special Courts had been notified.
On the second aspect, it is urged that what is
called as the second charge sheet is really a
supplementary charge sheet as 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
judgment of this Court in the case of Vinay Tyagi vs.
Irshad Ali @ Deepak & Ors. (2013) 5 SCC 762
We have examined the aforesaid pleas.
Insofar as the first aspect is concerned, suffice to
say that the situation in the State of Uttar Pradesh is
different and it is not as if there were any notified
special courts in existence.
On the second aspect we cannot lose sight of the
fact that what was envisaged by the Legislature was that
the investigation should be completed in 24 hours but
practically that was never found feasible. It is in these
circumstances that Section 167 of the Cr.P.C. provided
for 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.
If we look at the scenario in the present case in
that conspectus, the charge sheet under the provisions of
law as originally filed on 04.09.2017 were required to be
filed within 90 days but was actually filed within 180
days. This was on the premise of the charge under Section
18 of the UAPA Act. However, no charge sheet was filed
even within 180 days under the UAPA Act, but post filing
of the application for default bail, it was filed after
211 days. Thus, undoubtedly the period of 180 days to
file the charge sheet qua UAPA Act had elapsed. 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. That period having expired and the charge sheet not
having been filed qua those offences (albeit a
supplementary charge sheet), we are of the view the
appellant would be entitled to default bail in the
aforesaid facts and circumstances.
We need only emphasize what is already observed in
Bikramjit Singh case (supra) 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. Thus 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.
In fact in the majority judgment of this Court it
has been held that an oral application for grant of
default bail would suffice [See. Rakesh Kumar Paul vs.
State of Assam]3. The consequences of the UAPA Act 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.
We are thus of the view that the impugned order(s)
are liable to be set aside. The appellant is entitled to
default bail under Section 167(2)of the Cr.P.C. in the
given facts of the case on the terms and conditions to the
satisfaction of the trial Court.
The appeal is accordingly allowed leaving he parties
to bear their own costs.
………………………………………..J.
[SANJAY KISHAN KAUL]
………………………………………...J.
[R. SUBHASH REDDY]
New Delhi;
March 15, 2021.
3 (2017) 15 SCC 67
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