J&K HC | Bail plea of accused transporting three militants who launched a suicide attack on BSF Camp in J&K in October 2017, rejected

Jammu and Kashmir High Court: A Division Bench of Ali Mohammad Magray and Sanjay Dhar, JJ. rejected the bail plea and upheld the order of the Special Judge.

The present appeal was under the National Investigation Agency Act was directed against an order of the Special Judge Designated under the NIA Act, whereby petition of the appellants/accused of grant of bail by default was rejected.

It is averred in the appeal that the appellant 1 was arrested for offences under Section 302, 307 RPC, 7/27 Arms Act and ULA(P) Act. It is further averred that one of the appellant’s had completed 177 days in custody whereas the other two had completed 170 days in custody in connection with the said offences. It is also averred that, the appellants/accused were admitted to bail but in spite of that, they were not released from the custody. It was further contended that the appellants were taken into preventive custody under Public Safety Act and under preventive custody in terms of Section 107 of CrPC respectively.

Briefly stated case of the prosecution against the appellants/accused was that they had transported three militants from Rawalpora to the BSF Camp located at Gogoland and these three militants launched a suicide attack on the BSF camp leading to the death of ASI B. K. Yadav.

The Court pointed out that in cases relating to the investigation of offences under the provisions of ULA(P) Act, even if it is not possible to complete the investigation in such cases within a period of ninety days, the Court, if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the reasons for the detention of the accused beyond the period of ninety days, can extend the said period up to 180 days. It means that the right to claim bail in default will accrue to the accused facing investigation relating to offences under ULA(P) Act only upon expiry of 180 days from the date of his first arrest.

The Court looked at a decision wherein the question whether custody in a particular case for investigation can be treated as custody in another case, came up for consideration before the Supreme Court in the case of CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141 wherein it was held that if one case is registered against the accused in which during the course of the investigation it is found that he has committed more than one offence then it will be treated to be one investigation and for each offence a separate police remand cannot be sought. But in case it is a different offence which has been committed by him then it will be a separate case registered and a separate investigation will be taken up and for that, the detention by the accused in the previous case cannot be counted towards a new case or different case registered against the accused.

Applying the aforesaid ratio of the law laid down by the Supreme Court to the facts of the instant case, the Court held that the period of custody undergone by the appellants cannot be added to the period of custody which they have undergone in. Furthermore, the appellants/accused did not undergo custody of 180 days. Therefore, their right to claim default bail in terms of Proviso (a) to Section 167(2) of the Code of Criminal Procedure read with Section 43D of ULA(P) Act in the eyes of the Court did not accrue to them. [Mohammad Amin Illahie v. J&K,  2020 SCC OnLine J&K 456, decided on 09-09-2020]

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