Supreme Court: While hearing a set of two criminal appeals filed at the instance of five under trial accused persons for offences under Section 120-B of the Penal Code, 1860 (‘IPC’) and Sections 17, 18, 18-B and 20 of the Unlawful Activities (Prevention) Act, 1967 (‘the UAPA’) and Sections 4 and 5 of the Explosive Substances Act, 1908 (‘the 1908 Act’), against the Order of Punjab and Haryana High Court, wherein the appeal to release the accused persons on bail was dismissed, the Division Bench of Dr. D.Y. Chandrachud, CJI and J.B. Pardiwala* J., dismissed the appeals and termed the present litigation as an eye opener for the National Investigation Agency (‘NIA’) and the State Police.
1. Whether the Court concerned is precluded in any manner for the purpose of Section 167 of the Code of Criminal Procedure, 1973 (‘Cr.PC’) from taking notice of the chargesheet that might have been filed by the investigating agency in the absence of a valid order of sanction?
2. Whether cognizance of the chargesheet is necessary to prevent the accused from seeking default bail or whether mere filing of the chargesheet would suffice for the investigation to be deemed complete? To put it in different words, whether the grant of sanction is contemplated under Section of the 167 CrPC?
The Court said that whether the sanction is required or not under a statute, is a question that must be considered at the time of taking cognizance of the offence and not during inquiry or investigation. There is a marked distinction in the stage of investigation and prosecution. The prosecution starts when the cognizance of offence is taken. The Court also said that it must be noted that cognizance is taken of the offence and not of the offender. It cannot be said that obtaining sanction from the competent authorities or the authorities concerned is part of investigation. Sanction is required only to enable the Court to take cognizance of the offence. The Court may take cognizance of the offence after the sanction order was produced before the Court, but the moment, the final report is filed along with the documents that may be relied on by the prosecution, then the investigation will be deemed to have been completed. Taking cognizance is entirely different from completing the investigation. To complete the investigation and file a final report is a duty of the investigating agency, but taking cognizance of the offence is the power of the Court. The Court may not take cognizance of the offence for a particular period of time even after filing of the final report. In such circumstance, the accused concerned cannot claim their indefeasible right under Section 167(2) of the CrPC for being released on default bail.
Further, the Court said that once a final report has been filed with all the documents on which the prosecution proposes to rely, the investigation shall be deemed to have been completed. After completing investigation and submitting a final report to the Court, the investigating officer can send a copy of the final report along with the evidence collected and other materials to the sanctioning authority to enable the sanctioning authority to apply his mind to accord sanction. According a sanction is the duty of the sanctioning authority who is not connected with the investigation at all. In case the sanctioning authority takes some time to accord sanction, that does not vitiate the final report filed by the investigating agency before the Court. Section 173 of the Cr.PC does not speak about the sanction order at all. Section 167 of the CrPC also speaks only about investigation and not about cognizance by the Magistrate. Therefore, once a final report has been filed, that is the proof of completion of investigation and if final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing of sanction order.
Placing its reliance on Central Bureau of Investigation v. R.S. Pai, (2002) 5 SCC 82, the Court said that the order of sanction passed by the competent authority can be produced and placed on record even after the filing of the chargesheet. It may happen that the inordinate delay in placing the order of sanction before the Special Court may lead to delay in trial because the competent Court will not be able to take cognizance of the offence without a valid sanction on record. In such a situation, at the most, it may be open for the accused to argue that his right to have a speedy trial could be said to have been infringed by violation of Article 21 of the Constitution. This may at the most entitle the accused to pray for regular bail on the ground of delay in trial. But the same cannot be a ground to pray for statutory/default bail under the provisions of Section 167(2) of the Cr.PC.
The Court said that the maximum period of 180 days, granted to the investigating agency to complete the investigation in the case wherein the prosecution is for the offence under the UAPA is not something in the form of a package that everything has to be completed including obtaining of sanction within this period of 180 days. The Court stated that the investigating agency has nothing to do with sanction, sanction is altogether a different process. Sanction is accorded, based on the materials collected by the investigating agency which forms the part of the final report under Section 173 of the Cr.PC. The investigating agency gets full 180 days to complete the investigation. Therefore, to say that obtaining of sanction and placing the same along with the charge sheet should be done within the period of 180 days is something which is not only contrary to the provisions of law but is inconceivable.
Further, the Court relied on Suresh Kumar Suresh Kumar Bhikamchand Jain v. State of Maharashtra, (2013) 3 SCC 77, and said that filing of a chargesheet is sufficient compliance with the provisions of Section 167 of the CrPC and that an accused cannot demand release on default bail under Section 167(2) of the CrPC on the ground that cognizance has not been taken before the expiry of the statutory time period. The accused continues to be in the custody of the Magistrate till such time cognizance is taken by the Court trying the offence, which assumes custody of the accused for the purpose of remand after cognizance is taken.
Therefore, the Court held that filing of a chargesheet is sufficient compliance with the provisions of Section 167 of the Cr.PC and that an accused cannot claim any indefeasible right of being released on statutory/default bail under Section 167(2) of the Cr.PC on the ground that cognizance was not taken before the expiry of the statutory time period to file the chargesheet. Thus, the Court reiterated what was said in Suresh Kumar Bhikamchand Jain (supra), that grant of sanction is nowhere contemplated under Section 167 of the Cr.PC.
An Eye Opener Litigation
The Court termed the present litigation as an eye opener for the NIA/ State Police. The Court said that it is evident from the chronology of dates and events of the present case that the final report under Section 173(2) of the Cr.PC was filed in the Court of Sub-Divisional Judicial Magistrate, Ajnala on 15-11-2019. The Court noted that 15-11-2019 was the 161st day from the date of arrest of the accused persons. The Punjab Police had applied to the Court of the Additional Sessions Judge, Amritsar, for extension of time to complete the investigation invoking the proviso to Section 43D(2)(b) of the UAPA on 04-09-2019. The Court also noted that when this application for extension of time was filed only two days were left for 90 days to expire. Therefore, the Court said that this is suggestive of the fact that the 91st day would have fallen on 07-09-2019. The Court considered it important to highlight that the Additional Sessions Judge, Amritsar, looked into the extension application dated 04-09-2019 filed by the Punjab Police and ultimately, extended the time limit vide its order dated 17-09-2019 i.e., on the 101st day. By the time, the Additional Sessions Judge, Amritsar, passed an order extending the time, the period of 90 days had already expired. Indisputably, there was no chargesheet before the Court on the 91st day i.e., on 07-09-2019. The Court considered this as a grey area because what would have happened if the appellants/ accused persons had preferred an application seeking statutory/default bail under Section 167(2) of the Cr.PC on the 91st day i.e., on 07-09-2019. The application seeking extension of time was very much pending. The Court further said that the Additional Sessions Judge could not have even allowed such application promptly i.e., on or before the 90th day without giving notice to the accused persons. The Court referred to Jigar v. State of Gujarat, 2022 SCC OnLine SC 1290, and said that the law is well settled that an opportunity of hearing must be given to the accused persons before the time is extended up to 180 days to complete the investigation. Therefore, the Court said that the only error or lapse on the part of the appellants was that they failed to prefer an appropriate application seeking statutory/default bail on the 91st day. If such application would have been filed in time, the Court would have had no option but to release them on statutory/default bail. The Court could not have said that since the extension application was pending, it shall pass an appropriate order only after the extension application was decided. The Court said that this litigation is an eye opener for the NIA as well as the State investigating agency, that if they want to seek extension, they must be careful that such extension is not prayed for at the last moment.
Further, placing its reliance on Sayed Mohd. Ahmad Kazmi v. State (Govt. of NCT of Delhi), (2012) 12 SCC 1, the Court observed that the right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court. However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, or a report seeking extension of time is preferred before the Magistrate or any other competent Court, the right to default bail would be extinguished. Therefore, the Court would be at liberty to take cognizance of the case or grant further time for completion of the investigation, though the accused may still be released on bail under other provisions of the Cr.PC.
Therefore, the Court dismissed both the appeals.
[Judgebir Singh v. National Investigation Agency, 2023 SCC OnLine SC 543, Decided on 01-05-2023]
*Judgment Authored by: Justice J.B. Pardiwala