Case BriefsDistrict Court

Patiala House Courts, New Delhi: Parveen Singh, Additional Sessions Judge expressed that,

“Section 6(3) NIA Act only applies to the cases where a report has been sent by the State Government and does not apply to the cases where information has been given by some individual and thus, Central Government is not bound to act upon this information within 15 days or to revert back to said individual.”

Instant application was filed under Section 156 (3) CrPC read with Section 16 of NIA Act seeking directions for registration of First Information Report.

Applicant/Complainant was renowned in the field of medicine with recognized expertise and in the said capacity he undertook a thorough analysis of nature and origin of SARS-CoV-2.

He submitted that in view of the nefarious, terrorist, expansionist, aggressive and animus behaviour of China at the borders of Northeast region of India, it would be dangerous not to undertake a detailed investigation qua the origin and spread of the virus from China to India. Considering the nature of deliberate and malicious origin of the virus, offences under Sections 16, 17, 18, 18A, 18B, 23 etc. of UAPA and section 14 of Weapons of Mass Destruction and their Delivery System (Prohibition of Unlawful Activities) Act and Sections 121/270/302/307/312/313/325/333/314 r/w Sections 34/120B of IPC are made out.

In view of the above-stated applicant forwarded a complaint to the Director General, NIA for registration of appropriate report and for investigation into the offences. Applicant forwarded a complaint to the MHA.

Complainant’s counsel submitted that it was a widespread conspiracy to carry out the terrorist act by a biological weapon throughout the world and it had its effects in India also.

Adding to the above contention, he added that as per Section 15 (1) (a) of UAPA, 1967, an act committed by using substances whether biological radioactive, nuclear of a hazardous nature or by any other means to cause death, injury to any person or persons is a terrorist act. He has further contended that the virus created in the lab was a biological substance which has resulted in loss of lives and thus a terrorist act has been committed. He has further contended that as per Section 16 (1) of NIA Act, 2008, this court has powers to take cognizance of the offence and thus, it becomes a court of original jurisdiction and hence, the present application under Section 156 (3) CrPC is maintainable before this court.

Analysis, Law and Decision

Bench stated that a bare perusal of Section 6 of the NIA Act reflected that there are two modes of investigation by NIA.

  • One is where an offence is reported and registered with local PS in a State and the State forwards the report to Central Government for its consideration, as is provided under Section 6(3) NIA Act. Thereafter, after considering the said report, the Central Government shall take a decision whether the matter is to be investigated by NIA or not.
  • The second is, that the Central Government, as provided under Section 6(5) NIA Act, can suo moto and without any report of the State Government can direct the NIA to take over the investigation.

Court disagreeing with the interpretation made by the complainant’s counsel that the words “or received from any other source” imply if the Centre receives information from any other source, it is still duty bound to act as provided under Section 6(3) NI Act and take a decision within 15 days.

Analysis, further, the Bench added that, if read holistically, Section 6(3) NIA Act opens with words “On receipt of report from the State Government”. So as far as Section 6(3) NIA Act was concerned, the process is only set in motion when the Central Government receives a report from the State Government.

Moving further, the Court expressed that while evaluating the report of State Government to decide whether the offence is Scheduled Offence or not and whether, the gravity of offence is such which would make it a fit case to be investigated by NIA, the Central Government on receipt of report from the State can not only use the information made available by the State but also use information received from any other source. So the words “from any other source” have been used with respect to material which the Central Government can utilize to decide whether from the report of the State, Scheduled Offences are made out or not and whether the offence is fit to be investigated by NIA.

an investigation by the NIA can only be taken up on the recommendation of the Central Government which the Central Government either gives suo moto or which it gives on the report of the State Government.

Hence, Section 156(3) CrPC will have no applicability in the present case.

Final Words

In Court’s opinion, the present complaint was based upon media reports, opinions, conjectures, surmises, probabilities and possibilities. There are no categorical facts which have been alleged and only the possibilities that SARS-CoV-2 might have been genetically modified at Wuhan Laboratories have been raised and that too not on the basis of facts but on the basis of view of experts.

Hence, Court held that,

“Opinions can never substitute facts and for creation of an offence, certain facts constituting the offence need to be disclosed and not the mere possibilities as has been done in the present matter.”

No merits were found in the present complaint. [Dr Jagdish Prasad v. State, CC No. 68 of 2021, decided on 7-8-2021]

Case BriefsSupreme Court

Supreme Court: Interpreting Section 167(2) CrPC, the 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Sarah, JJ has said that the Courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Article 21. It said,

“The history of the enactment of Section 167(2), CrPC and the safeguard of ‘default bail’ contained in the Proviso thereto is intrinsically linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law.”

Going into the legislative intent, the Court noticed that Section 167(2) was enacted providing for time limits on the period of remand of the accused, proportionate to the seriousness of the offence committed, failing which the accused acquires the indefeasible right to bail.

“… the intent of the legislature was to balance the need for sufficient time limits to complete the investigation with the need to protect the civil liberties of the accused.”

Section 167(2) provides for a clear mandate that the investigative agency must collect the required evidence within the prescribed time period, failing which the accused can no longer be detained. This ensures that the investigating officers are compelled to act swiftly and efficiently without misusing the prospect of further remand. This also ensures that the Court takes cognizance of the case without any undue delay from the date of giving information of the offence, so that society at large does not lose faith and develop cynicism towards the criminal justice system. Hence,

“Section 167(2) has to be interpreted keeping in mind the threefold objectives expressed by the legislature namely ensuring a fair trial, expeditious investigation and trial, and setting down a rationalized procedure that protects the interests of indigent sections of society. These objects are nothing but subsets of the overarching fundamental right guaranteed under Article 21.”

Further, in case of any ambiguity in the construction of a penal statute, the Courts must favour the   interpretation which leans towards protecting the rights of the accused, given the ubiquitous   power disparity between the individual accused and the State machinery. This is applicable not only in the case of substantive penal statutes but also in the case of procedures providing for the curtailment of the liberty of the accused.

The Court, hence, concluded as follows:

  • Once the accused files an application for bail under the Proviso to Section 167(2) he is deemed to have ‘availed of’ or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2), CrPC read with Section 36A (4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency.
  • 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; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.
  • Where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC.
  • Notwithstanding the order of default bail passed by the Court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the Court, his continued detention in custody is valid.

Earlier this month, in Bikramjit Singh v. State of Punjab2020 SCC OnLine SC 824, the 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, 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.

[M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, 2020 SCC OnLine SC 867, decided on 26.10.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, 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.

Right to default bail

Explaining the law on grant of default bail, the Court said 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. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed.

“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.”

Power of the Court to extend the period of 90 days up to a maximum period of 180 days

The Court was dealing with the question relating to extension of time from 90 days to 180 days under Section 167 of the Code of Criminal Procedure, 1973 as amended by the Unlawful Activities (Prevention) Act, 1967 (UAPA). It, hence, discussed at length, the scheme of the statutes.

Section 167 CrPC

Section 167 CrPC 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 first proviso (a)(i) to Section 167(2) of the Code 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.

Section 43-D(2)(b) of UAPA

Under the first proviso in Section 43-D(2)(b), the 90 day 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.

“Court” under UAPA

Before the National Investigation Agency Act, 2008 (NIA Act) was enacted, offences under the UAPA were of two kinds – those with a maximum imprisonment of over 7 years, and those with a maximum imprisonment of 7 years and under. Under the Code as applicable to offences against other laws, offences having a maximum sentence of 7 years and under are triable by the Magistrate’s Courts, whereas offences having a maximum sentence of above 7 years are triable by Courts of Sessions.

However, this Scheme has been completely done away with by the NIA Act as 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.”

Hence, for offences under the UAPA, the Magistrate’s jurisdiction to extend time under the first proviso in Section 43-D(2)(b) is non-existent, “the Court” being either a Sessions Court, in the absence of a notification specifying a Special Court, or the Special Court itself.

[Bikramjit Singh v. State of Punjab, 2020 SCC OnLine SC 824, decided on 12.10.2020]

Case BriefsHigh Courts

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]