The Supreme Court was hearing a criminal appeal arising out of impugned final judgment and order dated 03-11-2020 passed by the Lucknow Bench, High Court Of Allahabad, in the third bail application of the appellant.
Proceedings before the Lucknow Bench:
The appellant in its third bail application had stated that the applicant was arrested on 08.03.2017 and charge-sheet was filed on 05.10.2017 that is after more than 180 days which is in violation of Section 43D (2) of Unlawful Activities (prevention) Act, 1967 read with Section 167 (2) of Criminal Procedure Code. Therefore the applicant is entitled for bail. However, the said Court rejected the bail application on the ground that since its second bail application has been considered in the facts and circumstances of the case, the same ground cannot be considered in this third bail application. The applicant has assailed the said impugned order by filing criminal appeal before the Supreme Court.
Grounds of Appeal taken by the appellant before the Supreme Court:
1. 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
2. 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
Observations of the Court:
The Court while answering the contentions raised by the appellant observed that 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.
The Court importantly said:
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.
The Court also emphasized the observations laid down in case of Bikramjit Singh versus State of Punjab, that default bail under the 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.
The Court while allowing the appeal held that the impugned order is liable to be set aside and the appellant is entitled to default bail under Section 167(2) of the Criminal Procedure Code.
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