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Magistrate has no jurisdiction to extend the period of filing of chargesheet under Section 167 beyond ninety days in scheduled offences.

The Supreme Court was hearing a criminal appeal filed against the impugned order of the High Court of Punjab which had rejected the petition of the appellant seeking default bail.

The moot question before the Court was whether a Magistrate can extend the period under section 167(2) CrPC when a trial is to be conducted by the Special Court.

Case Background:

The appellant was involved in the commission of offences under the IPC, Explosives Act, Arms Act and Unlawful Activities Prevention Act. After the registration of FIR the police apprehended the appellant and was remanded to custody by the learned Sub-Divisional Magistrate.

After the lapse of 90 days in custody, the appellant applied for a default bail which got dismissed on the ground that learned Sub-Divisional Judicial Magistrate had already extended time from 90 days to 180 days under Section 167 CrPC.

Proceedings before the High Court of Punjab at Chandigarh.

The appellant had filed a petition seeking his release on default bail; however, the Court rejected the petition of the appellant with the following observations:

  1. A joint interpretation of Section 167 (2) Cr.P.C. read with Section 43 (d) UAP Act, Section 6, 13 & 22 of NIA Act would show that in case the investigation is being carried out by the State police, the Magistrate will have power under Section 167 (2) Cr.P.C. read with Section 43 (d) of UAP Act to extend the period of investigation upto 180 days and then, commit the case to the Court of Sessions as per provisions of Section 209 Cr.P.C., 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
  2. 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
  3. The arguments raised by learned senior counsel for the petitioner that the petitioner is entitled to default bail under Section 167 (2) Cr.P.C., 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.
  4. The fact that sanction has not been granted so far, is no ground to grant concession of bail, as it is rightly held that besides the offence committed under the UAP Act, the accused is also facing the trial for committing the offence under Sections 302, 307, 452, 341, 427, 34 IPC read with Section 25/54/59 of Arms Act and Sections 3, 4, 5 & 6 of Explosive Act, for which no sanction is required to prosecute the petitioner. Thereafter the appellant filed a Criminal Appeal before the Supreme Court:

Proceedings Before the Supreme Court
Arguments on behalf of the petitioner:
The counsel emphasized the fact that once the Special Court had been set up as an exclusive Court to try all offences under the UAPA, such offences being scheduled offences relatable to the NIA Act, it was the Special Court alone, which had exclusive jurisdiction to extend the period of 90 days to 180 days under Section 43-D (2)(b) of the UAPA.

Counsel appearing on behalf of the appellant also argued that the application was made prior to the filing of the charge sheet for default bail, therefore the indefeasible right to default bail arose immediately when the 90 days period was over.

Smt. Jaspreet Gogia, Advocate, appearing on behalf of the State of Punjab, emphasized section 10 of the NIA Act, stating that nothing in the said Act 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.

Observations of the Court with regard to the Jurisdiction of a Magistrate vis-à-vis Special Court:

The court referred to Section 26 of the Code wherein Section 26(b) states as follows:

Section 26 CRPC

The Court said that Section 167 of the Code makes it clear that whenever a person is arrested and detained in custody, the time for investigation relating to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, cannot ordinarily be beyond the period of 15 days, but is extendable, on the Magistrate being satisfied that adequate grounds exist for so doing, to a maximum period of 90 days.

The said proviso goes on to state 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.  

The Court further stated that the offences under the UAPA under Sections 16, 17, 18, 18-A, 18-B, 19, 20, 22-B, 22-C and 23, being offences which contain maximum sentences of over 7 years, would be exclusively triable by a Court of Sessions when read with Part II of the First Schedule to the Code.

It is only after the NIA Act was enacted that the definition of “Court” was extended to include Special Courts that were set up under Section 11 or Section 22 of the NIA Act.

The Court after referring to various provisions given under the NIA Act and UAP Act, stated that:

“Under the first proviso in Section 43-D(2)(b), the 90 days period indicated by the first proviso to Section 167(2) of the Code can be extended up to a maximum period of 180 days if “the Court” is satisfied with the report of the public prosecutor indicating progress of investigation and specific reasons for detention of the accused beyond the period of 90 days, therefore, with regard to offences under the UAPA, the Special Court alone has exclusive jurisdiction to try such offences.

The Court noted that Section 16 of the NIA Act empowers the Special Court to take cognizance of an offence without the accused being committed to it for trial upon receipt of a complaint of facts or upon a police report of such facts and it is clear from a reading of Section 16(2) of the NIA Act that even though offences may be punishable with imprisonment for a term not exceeding 3 years, the Special Court alone is to try such offence – albeit in a summary way if it thinks it fit to do so.

Therefore, the argument of the learned counsel appearing on behalf of the State of Punjab based on Section 10 of the said Act has no legs to stand on since the Special Court has exclusive jurisdiction over every Scheduled Offence investigated by the investigating agency of the State.

The Court further observed that after 2008 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.

The Court importantly said that 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.

Section 43D

The Court also noted that the impugned judgment is incorrect as it 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.

Observations of Court with regard to Default Bail:

With regard to this vexed question, the Court observed that once the maximum period for investigation of an offence is over, under the first proviso (a) to Section 167(2), the accused shall be released on bail, this being an indefeasible right granted by the Code. The extent of this indefeasible right has been the subject matter of a number of judgments. The Court importantly referred to the judgment given below:

The Court noted that so long as an application for grant of default bail 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.

The Court further said that 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.

The Court importantly said that: “We must not forget that we are dealing with the personal liberty of an accused under a statute which imposes drastic punishments. The 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.”

The Court while allowing the appeal set aside the impugned judgment of the High Court and held that the Appellant is entitled to be released on “default bail” under Section 167(2) of the  Code.