# Kumar Vikas v. State of U.P

- **Citation:** (2025) 9 ILRA 545
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-10
- **Case number:** Application U/S 528 BNSS No. 908 of 2025
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumar-vikas-v-state-of-u-p-53926
- **Pages:** 5

## Headnote

G.A.

Issue for consideration
Preliminary
Objection
as
to
maintainability of Application u/s 528
BNSS-

Headnotes
Default Bail-Default bail application filedrejected-impugned- on account of non-filing of
complaint within ninety days-from the date of
arrest-allegation against applicant being an
employee of Ordnance Factory-was sharing
confidential information and documents through
WhatsApp to an agent of Pakistan-preliminary
objection-Section 21(4) of the Act 2008-appeal
shall lie to the High Court against an order of
the Special Court granting or refusing bailnotwithstanding contained in Section 378 (3)
Cr.P.C.- no otherwise definition can be given
against the intent of the legislature. Application
not maintainable-dismissed.
Held, apparent from the provision of Section
21(4) of the Act 2008 that an appeal shall lie to
the High Court against an order of the Special
Court granting or refusing bail, notwithstanding
contained in Sub Section (3) of Section 378 of
the Cr.P.C. This provision is overt in its mandate
and while applying this provision in the present
case, it is apparent that this does not speak
regarding any difference of any kind of refusing
or granting bail, meaning thereby that if the
Special Court (NIA) grants or refuses the bail,
the same is amenable to the provisions of the
appeal, prescribed under Section 21 of the Act
2008 and, therefore, in presence of the obvious
provisions, no otherwise definition can be given
against the intent of the legislature. (E-9)

Case Law Cited

## Text

9 All. Kumar Vikas Vs. State of U.P.
545
authority decided the issue and placed it in
the
pending
appeal,
which
was
subsequently dismissed and the same was
not assailed at any forum, therefore, the
order passed in the appeal attained finality.

32. In regard to order passed in the
appeal no.86/89-90 vide judgment and
order
dated
31.07.1996
the
review
application filed against the said order
has already been decided but the date of
order was not pointed out and the same
has not been assailed in the writ petition.
The judgments relied upon by learned
counsel for the petitioner which have
been noticed in the present judgment are
not
applicable
to
the
facts
and
circumstances of the case. The appeal has
rightly
been
dismissed
as
not
maintainable.

33. In view of totality of facts and
circumstances of the case, the present writ
petition filed against order of prescribed
authority and passed in the subsequent
appeal No.86/89-90 do not suffer from any
infirmity or illegality.

34. The writ petition lacks merit and is
hereby dismissed.

35. No order as to costs.
----------
(2025) 9 ILRA 545
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.09.2025

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 528 BNSS No. 908 of 2025

Kumar Vikas ...Applicant
Versus
State of U.P. ...Opposite Party
Counsel for the Applicant:
Pranjal
Jain,
Nitin
Mathur,
Purnendu
Chakravarty

Counsel for the Opposite Parties:
G.A.

Issue for consideration
Preliminary
Objection
as
to
maintainability of Application u/s 528
BNSS-

Headnotes
Default Bail-Default bail application filedrejected-impugned- on account of non-filing of
complaint within ninety days-from the date of
arrest-allegation against applicant being an
employee of Ordnance Factory-was sharing
confidential information and documents through
WhatsApp to an agent of Pakistan-preliminary
objection-Section 21(4) of the Act 2008-appeal
shall lie to the High Court against an order of
the Special Court granting or refusing bailnotwithstanding contained in Section 378 (3)
Cr.P.C.- no otherwise definition can be given
against the intent of the legislature. Application
not maintainable-dismissed.
Held, apparent from the provision of Section
21(4) of the Act 2008 that an appeal shall lie to
the High Court against an order of the Special
Court granting or refusing bail, notwithstanding
contained in Sub Section (3) of Section 378 of
the Cr.P.C. This provision is overt in its mandate
and while applying this provision in the present
case, it is apparent that this does not speak
regarding any difference of any kind of refusing
or granting bail, meaning thereby that if the
Special Court (NIA) grants or refuses the bail,
the same is amenable to the provisions of the
appeal, prescribed under Section 21 of the Act
2008 and, therefore, in presence of the obvious
provisions, no otherwise definition can be given
against the intent of the legislature. (E-9)

Case Law Cited
1. Harendra Vs. State of U.P. and another
reported in 2020 SCC OnLine All 850
2. Madhu Limaye Vs. the State of Maharashtra,
reported in NA528 No. 908 of 2025 4 (1977) 4
SCC 551
3. Amar Nath and others Vs. State of Haryana
and another, reported in (1977) 4 SCC 137
546 INDIAN LAW REPORTS ALLAHABAD SERIES
4. V.C. Shukla Vs. State reported in 1980 Supp
SCC 92

List of Acts
National Investigation Agency Act, 2008
Indian Penal Act
List of Keywords
Default bail application; on account of non-filing
of complaint, within ninety days, from the date
of arrest; appealable under the provision of Act
2008 and therefore, being an efficacious and
alternative statutory remedy

Appearances of parties
Counsel for Applicant(s) : Pranjal Jain, Nitin
Mathur, Purnendu Chakravarty
Counsel for Opposite Party(s) : G.A.

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Purnendu Chakravarty,
learned counsel assisted by Ms. Aishwarya
Saxena, Mr. Pranajal Jain and Mr. Rohit
Kanaujia, learned counsels for the applicant
and Sri Shiv Nath Tilhari, learned counsel
for the State of U.P.

2. Present application is directed
against the order dated 7.7.2025 passed by
learned Additional Sessions Judge, Court
No.3/Special
Judge/NIA,
Lucknow
whereby the default bail application on
account of non-filing of complaint, within
ninety days, from the date of arrest, has
been rejected.

3. At the very outset, a preliminary
objection has been taken by Sri Shiv Nath
Tilhari, learned counsel appearing for the
State that the F.I.R. No.2/2025 dated
19.3.2025 was registered under Section 148
BNS and Section 3/4/5 of the Official
Secrets Act, 2023 (hereinafter referred to as
'the Act 2023'), against the applicant, while
alleging that the applicant being an
employee of Ordnance Factory, Kanpur,
was sharing confidential information and
documents through WhatsApp to one Neha
Sharma who is said to be an agent of
Pakistan, compromising the safety and
interest of the Country. He submits that the
schedule as prescribed under the National
Investigation
Agency
Act,
2008
(hereinafter referred to as 'the Act 2008')
reveals that Chapter VI of the Indian Penal
Code [Sections 121 to 130 (both inclusive)]
are find mention and, therefore, this is
amenable to the jurisdiction of Special
Court designated/constituted under the
scheme of the Act 2008 read with the Rules
2008 made thereunder. He submits that
Section 121A of I.P.C. corresponds to
Section 148 in Bharatiya Nyaya Sanhita,
2023 (hereinafter referred to as 'the BNS').
He further submits that the order impugned
dated 7.7.2025 has admittedly been passed
by the Special Court (NIA) wherein default
bail application has been rejected. He
argued that any order passed by the Special
Court (NIA) is appealable as per the
provisions given under Section 21 of the
Act 2008.

4. For ready reference, Section 21 of
the Act 2008 is reproduced hereinunder:-

"21. Appeals. (1) Notwithstanding
anything contained in the Code, an appeal
shall lie from any judgment sentence or
order, not being an interlocutory order, of
a Special Court to the High Court both on
facts and on law.

(2) Every appeal under subsection (1) shall be heard by a bench of two
Judges of the High Court and shall, as far
as possible, be disposed of within a period
of three months from the date of admission
of the appeal.

(3) Except as aforesaid, no
appeal or revision shall lie to any court
from any judgment, sentence or order
9 All. Kumar Vikas Vs. State of U.P.
547
including an interlocutory order of a
Special Court.

(4)
Notwithstanding
anything
contained in sub-section (3) of Section 378
of the Code, an appeal shall lie to the High
Court against an order of the Special Court
granting or refusing bail.

(5) Every appeal under this
section shall be preferred within a period
of thirty days from the date of the judgment,
sentence or order appealed from:

Provided that the High Court
may entertain an appeal after the expiry of
the said period of thirty days if it is
satisfied that the appellant had sufficient
cause for not preferring the appeal within
the period of thirty days:

Provided further that no appeal
shall be entertained after the expiry of
period of ninety days."

5. Referring to Sub Section (4) of
Section 21, he submits that an appeal shall
lie to the High Court, against an order of
the Special Court, granting or refusing bail
and in the present case, the default bail
application has been rejected, thus, he
submits that the order impugned dated
7.7.2025 passed by the Special Court (NIA)
is appealable under the provision of Act
2008 and therefore, being an efficacious
and alternative statutory remedy available
to the applicant, the present application
under
Section
482
Cr.P.C.
is
not
maintainable, as such, this application may
be dismissed on this ground alone.

6. Per contra, learned counsel for the
applicant has opposed the contention
aforesaid and submits that Section 167(2)
Cr.P.C. (corresponding to Section 187(3)
BNS, 2023) is a statutory provision which
confers indefeasible right upon accused to
be released on bail, on non-filing of charge
sheet, within the prescribed time period
whereas Section 439 Cr.P.C./Section 483
Bharatiya Nyaya Suraksha Sanhita, 2023
(hereinafter referred to as 'the BNSS') is
regular bail procedure and is wholly
discretionary in nature. He also submits
that Sub Section (1) (2) of Section 21 of
Act 2008 provides right to appeal against
the Judgment, sentence or order, not being
an interlocutory order. Further submitted
that Section 21(3) of the Act provides an
exclusion clause, restricting appeals against
interlocutory orders and Section 21(4) of
the Act 2008 prescribes the right to appeal
against an order granting or refusing bail
which is to be construed with reference to
Section 439 Cr.P.C./483 BNSS and does
not apply to Section 167 (2) Cr.P.C./187(3)
of BNSS 2023.

7. In support of his contention, he has
placed reliance on a Judgement of this
Court in the case of Harendra Vs. State of
U.P. and another reported in 2020 SCC
OnLine All 850 and has referred to para
13, which reads as under:-

"13. Thus, on the facts of the case
that the applications for default bail were
filed prior to the filing of the charge-sheet
and following the law as laid down by the
Supreme Court in the case of Union of
India
Through
General
Bureau
of
Investigation v. Nirala Yadav alias Raja
Ram Yadav alias Deepak Yadav (Supra), I
am of the view that the applicants were
entitled to be enlarged on statutory bail
and non-grant of statutory bail and the
rejection of the application for grant of
statutory bail was wholly untenable in
law."

8. He also argued that non-filing of
charge sheet within the prescribed time,
mandates release of an accused under
statutory remedy of default bail and such
548 INDIAN LAW REPORTS ALLAHABAD SERIES
release is a deemed release under Chapter
XXXIII of Cr.P.C., however, order for the
bail can be cancelled under Section 439 (2)
of Cr.P.C. which is subject to cancellation
and, therefore, any order which is subject to
cancellation,
withdrawal
or
recession,
would not be a final order. He also added
that test of finality has to be seen in terms
of Sub Section (2) which bars alteration or
review of Judgment or final judgement
except of clerical or arithmetical errors and
since this Court possesses inherent power
to give effect to any order under this Code
empowers it to give effect to Section 167
(2) of Cr.P.C. while directing the release of
an accused on statutory bail.

9. Concluding his arguments, he
submits that the order passed under Section
167(2) Cr.P.C./187(3) BNSS is not passed,
on the merits of this case, thus, the same
cananot be treated as a final order. and,
therefore, the instant application under
Section 482 Cr.P.C./582 of BNSS is
maintainable
and,
therefore,
the
preliminary objection may be rejected.

10. Having heard learned counsel for
the parties and after perusal of the record, it
transpires that at the very inception, the
preliminary objection has been raised by
the counsel appearing for the State, on the
premises of Section 21 of the Act 2008,
while submitting that the appeal is
maintainable against any order passed by
the Special Court constituted/designated
under the provisions of Act 2008.

11. By way of the present application,
the order passed under Section 187(3) of
BNSS whereby the default bail has been
rejected, is under challenge. The provision
prescribed under Section 187(3) of BNSS
contains the 'statutory bail', which in fact
identifies the indefeasible right given to the
accused person. In fact, the right of default
bail can be exercised once and not likewise
the other provision of bail as prescribed
under Section 439 of the Cr.P.C. where at
the
subsequent
stage
,more
bail
applications can be instituted, in form of
second, third and fourth bail application
and so on.

12. The provision of statutory bail
under Section 187(3) BNSS/167(2) Cr.P.C.
is whether an interlocutory order or a final
order. The test which could be applied, for
an order, being interlocutory, intermediary
or final, can be summarized in two folds;
firstly
that
any
such
order,
which
substantially affects the right of the accused
or parties, cannot be termed as an
interlocutory order and secondly, any right,
which accrue out of some statutory
provisions, is also not an interlocutory
order. Time and again, this issue has
exhaustively been dealt with by the Apex
Court starting from a three Judge Bench
decision of the Hon'ble Apex Court in the
case of Madhu Limaye Vs. the State of
Maharashtra, reported in (1977) 4 SCC
551 wherein the ratio drawn in the case of
Amar Nath and others Vs. State of
Haryana and another, reported in (1977)
4 SCC 137 has partly been affirmed,
holding that the term 'interlocutory order' as
is used in Section 397 of the Cr.P.C. does
not invariably mean the converse of the
term of 'final order' and certain guidelines
were provided to examine that a particular
order is not an 'interlocutory order'.

13. Subsequently, the Apex Court in
the case of V.C. Shukla Vs. State reported
in 1980 Supp SCC 92, considering the
ratio drawn in Amar Nath (supra) and
Madhu Limaye (supra), has held that the
intermediate, quasi final and final orders
are revisable. In this view, the provision of
9 All. Ajay Pratap Singh alias Ajai Sipahi Vs. State of U.P. & Anr.
549
statutory bail under Section 187(3) of
BNSS is an intermediary order and the
same is revisable, subject to any other
provision provided in a special Act.

14. Coming to the crux of the issue of
maintainability, it is apparent from the
provision of Section 21(4) of the Act 2008
that an appeal shall lie to the High Court
against an order of the Special Court
granting or refusing bail, notwithstanding
contained in Sub Section (3) of Section 378
of the Cr.P.C. This provision is overt in its
mandate and while applying this provision
in the present case, it is apparent that this
does not speak regarding any difference
of any kind of refusing or granting bail,
meaning thereby that if the Special Court
(NIA) grants or refuses the bail, the same
is amenable to the provisions of the
appeal, prescribed under Section 21 of
the Act 2008 and, therefore, in presence
of the obvious provisions, no otherwise
definition can be given against the intent
of the legislature. This Court is also
aware of the trite law that a thing should
be done in the manner prescribed under
the statute, not otherwise. Admittedly,
vide order dated 7.7.2025, the learned
Special Judge (NIA) has rejected the
default bail application of the applicant.
Thus, against such order the remedy of
appeal is provided under the Special Act,
i.e., Act 2008.

15. Further this Court also noticed that
the law referred by counsel for the
applicant, which is rendered in case of
Harendra Vs. State of U.P. and another
(supra), is on different factual matrix and
this will not apply to the facts and
circumstances of the present case as the
dispute in question in the above-said case
was regarding completion of ninety days as
the charge sheet was dispatched on the
same day when the application for default
bail was moved, therefore, this will not
cover the field of the issue in the instant
matter.

16. Ergo, this Court is of the
considered
opinion
that
the
instant
application challenging the order dated
7.7.2025 passed by the Special Court (NIA)
is not maintainable, thus, preliminary
objection taken by counsel for the State;
sustains.

17. The present application is hereby
dismissed as not maintainable.

18. However, it is open to the
applicant to pursue the appropriate remedy,
provided under law.

19. Consigned to the records.
---------
(2025) 9 ILRA 549
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.09.2025

BEFORE

THE HON'BLE AJAY BHANOT, J.

Application U/S 482 No. 6702 of 2025

Ajay Pratap Singh Alias Ajai Sipahi
 ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Abhishek Singh, Dharmendra Pratap Singh,
Shradha

Counsel for the Opposite Parties:
G.A., Sayyed Farooq Ahmad

Issue for consideration
Legality of impugned order rejecting Application
u/s 311 Cr.P.C.