Jammu and Kashmir High Court: Rashid Ali Dar, J. allowed an appeal against an order of the lower courts whereby appellant’s bail application had been rejected.
In the instant case, one of the accused had received some money from his cousins and handed over the same to the appellants so as to pass on the same to the militants for continuing their militant activities. The accused were charged under the Unlawful Activities (Prevention) Act, 1967 (the Act). The appellants applied for bail in the Trial Court which was disallowed. Thereon, they preferred an application for grant of bail before the Court of learned Additional Sessions Judge, Srinagar, which too was dismissed holding, ” the very seriousness of the offence alleged is sufficient ground to reasonably believe that the accused may misuse his liberty by interference with the evidence that may be available in the case, if possible or by absconding if tempering is not possible.”
The learned counsel for the respondents, Javaid Iqbal, challenged the maintainability of this appeal while relying on Sections 21 and 22 of the National Investigation Agency Act, 2008 read with Section 43-D of the Act. Whereas, M. A. Qayoom, the learned counsel for the appellants, argued that both the sections should be read independently of each other. He further argued that the learned trial Judge and the Addl. Sessions Judge had not examined the matter in its proper perspective and had declined bail to the appellants on flimsy grounds. He contended that in the instant case the appellants completed 90 days in police custody without the ‘challan’ being filed against them, on that ground the appellants were entitled to bail after the expiry of period of 90 days relying on Section 167(2) of CrPC as the police had to complete the investigation within 90 days on failure of which appellants were entitled to bail.
The Court relied on the judgment of the Apex Court in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, and held, “the learned Additional Sessions Judge was required to examine the contention raised on behalf of the appellants herein for grant of bail by applicability of the default clause of Section 43 (D) of the Unlawful Activities (Prevention) Act 1967 which he having not done.” The Court observed that, “Since the investigating agency has omitted to file final report in terms of Section 173 Cr PC within the time prescribed under Section 167(2) of CrPC, the appellants whose appeal is now treated as petition for bail are held entitled to default bail.”
It was held that “the bar created under Section 43 of the Act would not come in the way of petitioner to seek enforcement of default bail, as their further detention is not permissible.” Thus, the Court admitted the bail of the appellants with the condition of furnishing security to the tune of Rs 50,000/- with one surety in the like amount and not to leave the State without Court’s permission. [Abdul Rehman Mir v. State of J&K, 2019 SCC OnLine J&K 420, decided on 08-05-2019]