# Mohammad Aleem @ Abdul Aleem & Anr v. State of U.P

- **Citation:** (2024) 5 ILRA 1341
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-14
- **Case number:** Criminal Appeal No. 2376 of 2023
- **Bench:** Attau Rahman Masoodi, Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-aleem-abdul-aleem-anr-v-state-of-u-p-52036
- **Pages:** 38

## Headnote

A. Criminal Law-Criminal Procedure Code,
1973-Section 167(2)-Unlawful Activities
(Prevention)
Act,
1967-Section
43-D-
Indian Penal Code, 1860-Sections 121A &
123-these appeals challenge the order of
Special
Judge,
N.I.A.
concerning
the
rejection of default bail applications-the
appellants
sought
default
bail-the
prosecution failed to file a charge sheet
within 90 days period prescribed u/s
167(2) Crpc-however, the prosecution
sought an extension of the investigation
period, which was granted without the
presence of the accused or proper notice to
them-The court emphasized that the
presence of accused and notice to them is
mandatory during the hearings-failure to
follow these procedures constitutes a
violation of Article 21 of the constitutionExtension of time for investigations under
UAPA are not be granted as a matter of
routine, they require detailed reasons and
due process-Thus, the rejection of default
bail by the lower court was found to be
improper.(Para 1 to 70)

B. It is well settled that in case of any
ambiguity in the construction of a penal
statute,
the
Court
must
favour
the
interpretation
which
leans
towards
protecting the rights of the accused. This
principle is applicable even in the case of a
procedure providing for curtailment of
liberty of the accused.(Para 38)

The appeals are allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,542 of 134,511. This is a partial read: ask again with offset=39542 for what follows._

5 All. Mohammad Aleem @ Abdul Aleem &Anr. Vs. State of U.P.
1341
shall further undergo six months rigorous
imprisonment.

103. The finding of acquittal recorded
by the trial court against the accusedrespondent Raju is set aside in the
Government Appeal preferred by the State.
He is also held guilty alongwith Ashok and
is convicted for the offence under Section
302 read with Section 34 IPC and sentenced
to imprisonment for life and a fine of
Rs.10,000/-. In default of payment of fine, to
further
undergo
six
months
rigorous
imprisonment. He shall also surrender
before the court below within two weeks
from today and serve out the remaining
sentence. His bail bonds are cancelled and
his sureties are discharged under Section
437-A of IPC.

104. Accordingly, the criminal appeal,
filed by the accused-appellant Ashok, stands
dismissed and the government appeal is
partly allowed by reversing the acquittal of
the accused- respondent Raju, however, the
government appeal qua accused-respondent
Kalloo is dismissed. The government appeal
is accordingly partly allowed.

105. Let a copy of this judgment and
order be forwarded to the court concerned
alongwith the trial court record for the
information and necessary compliance.
----------
(2024) 5 ILRA 1341
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.05.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Criminal Appeal No. 2376 of 2023
connected with other cases

Mohammad Aleem @ Abdul Aleem & Anr.
 ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Furkan Pathan

Counsel for the Respondent:
G.A.

A. Criminal Law-Criminal Procedure Code,
1973-Section 167(2)-Unlawful Activities
(Prevention)
Act,
1967-Section
43-D-
Indian Penal Code, 1860-Sections 121A &
123-these appeals challenge the order of
Special
Judge,
N.I.A.
concerning
the
rejection of default bail applications-the
appellants
sought
default
bail-the
prosecution failed to file a charge sheet
within 90 days period prescribed u/s
167(2) Crpc-however, the prosecution
sought an extension of the investigation
period, which was granted without the
presence of the accused or proper notice to
them-The court emphasized that the
presence of accused and notice to them is
mandatory during the hearings-failure to
follow these procedures constitutes a
violation of Article 21 of the constitutionExtension of time for investigations under
UAPA are not be granted as a matter of
routine, they require detailed reasons and
due process-Thus, the rejection of default
bail by the lower court was found to be
improper.(Para 1 to 70)

B. It is well settled that in case of any
ambiguity in the construction of a penal
statute,
the
Court
must
favour
the
interpretation
which
leans
towards
protecting the rights of the accused. This
principle is applicable even in the case of a
procedure providing for curtailment of
liberty of the accused.(Para 38)

The appeals are allowed. (E-6)

List of Cases cited:

1. Uday Mohanlal Acharya Vs St. of Mah. (2001)
5 SCC 453
1342 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Menka Gandhi Vs U.O.I. (1978) AIR SC 597

3. S.Kasi Vs St. (2021) 12 SCC 1

4. Hitendra Vishnu Thakur & ors. Vs St. of Mah.
& ors. (1994) 4 SCC 602

5. Sanjay Dutt Vs St. of Mah. thru C.B.I. Bombay
(1994) 5 SCC 410

6. M.Ravindran Vs Intelligence Offr. Directorate
Revenue (2021) 2 SCC 485

7. Jagar@ Jimmy Pravinchandra Adatiya Vs St. of
Guj. (2022) SCC OnLine SC 1290

8. St. of Mah. Vs Surendra Pundlik Gadling
(2019) 5 SCC 178

9. U.O.I. Vs Nirmala Yadav (2014) 9 SCC 457

10. Syed Mohd. Ahmad Kazmi Vs St. (Govt of NCT
of Delhi) (2012) SCC 1.

11. Rakesh Kumar Paul Vs St. of Assam (2017)
15 SCC 67

12. Bikramjit Singh Vs St. of Punj. (2020) 10 SCC
616

13. Mohamed Iqbal Madar Sheikh & ors. Vs St. of
Mah. (1996) I SCC 722.

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. We have heard Shri Aarif Ali, Sri
O.P. Tiwari and Sri Furkan Pathan, learned
counsel for the appellants, learned Sri Shiv
Nath
Tilhari,
Additional
Government
Advocate for the State-respondent and
perused the record.

2. Criminal Appeal No. 2376 of
2023 (Mohammed Aleem @ Abdul Aleem
and another v. State of U.P.) has been filed
against the order dated 03.02.2023 passed
by Additional Sessions Judge, Court No. 5,
Special Judge, N.I.A., Lucknow in Bail
Application No. 148 of 2023, rejecting the
default bail application of the appellants
under Section 167(2) of Code of Criminal
Procedure, 1973 (hereinafter referred to as
'Cr.P.C.') read with Section 43-D of
Unlawful Activities Prevention Act, 1967
(hereinafter referred to as the 'Act of 1967')
in Case Crime No. 4 of 2022, under Section
121A, 123 I.P.C. and Section 13, 18, 18B,
20, 38 of Act of 1967, registered at Police
Station A.T.S., Lucknow.

Criminal Appeal No. 2377 of 2023
(Lukman v. State of U.P.) has been filed
against the order dated 03.02.2023 passed
by Additional Sessions Judge, Court No. 5,
Special Judge, N.I.A., Lucknow in Bail
Application No. 86 of 2023, rejecting the
default bail application of the appellants
under Section 167(2) of Cr.P.C. read with
Section 43-D of the Act of 1967 in Case
Crime No. 4 of 2022, under Section 121A,
123 I.P.C. and Section 13, 18, 18B, 20, 38 of
Act of 1967, registered at Police Station
A.T.S., Lucknow.

Criminal Appeal No. 2378 of 2023
(Mudassir and another v. State of U.P.)
has been filed against the order dated
03.02.2023 passed by Additional Sessions
Judge, Court No. 5, Special Judge, N.I.A.,
Lucknow in Bail Application No. 145 of
2023, rejecting the default bail application
of the appellants under Section 167(2) of
Cr.P.C. read with Section 43-D of the Act of
1967 in Case Crime No. 4 of 2022, under
Section 121A, 123 I.P.C. and Section 13, 18,
18B, 20 38 of Act of 1967, registered at
Police Station A.T.S., Lucknow.

Criminal Appeal No. 2379 of 2023
(Mohammad Nadeem and another v.
State of U.P.) has been filed against the
order
dated
03.02.2023
passed
by
Additional Sessions Judge, Court No. 5,
Special Judge, N.I.A., Lucknow in Bail
5 All. Mohammad Aleem @ Abdul Aleem &Anr. Vs. State of U.P.
1343
Application No. 985 of 2023, rejecting the
default bail application of the appellants
under Section 167(2) of Cr.P.C. read with
Section 43-D of the Act of 1967 in Case
Crime No. 3 of 2022, under Section 121A,
123 I.P.C. and Section 13, 18, 38 of Act of
1967, registered at Police Station A.T.S.,
Lucknow.

Criminal Appeal No. 2380 of 2023
(Mohammad Harish and another v. State of
U.P.) has been filed against the order dated
13.02.2023 passed by Additional Sessions
Judge, Court No. 5, Special Judge, N.I.A.,
Lucknow in Bail Application No. 969 of 2023,
rejecting the default bail application of the
appellants under Section 167(2) of Cr.P.C.
read with Section 43-D of Act of 1967 in Case
Crime No. 4 of 2022, under Section 121A, 123
I.P.C. and Section 13, 18, 18B, 20, 38 of Act
of 1967, registered at Police Station A.T.S.,
Lucknow.

Criminal Appeal No. 2381 of 2023
(Qari Shahjad and another v. State of
U.P.) has been filed against the order dated
13.02.2023 passed by Additional Sessions
Judge, Court No. 5, Special Judge, N.I.A.,
Lucknow in Bail Application No. 971 of
2023, rejecting the default bail application
of the appellants under Section 167(2) of
Cr.P.C. read with Section 43-D of the Act of
1967 in Case Crime No. 4 of 2022, under
Section 121A, 123 I.P.C. and Section 13, 18,
18B, 20 38 of Act of 1967, registered at
Police Station A.T.S., Lucknow.

Since
all
the
aforementioned
appeals involve a common question of law,
they are decided together. Criminal Appeal
No. 2376 of 2023 (Mohammed Aleem @
Abdul Aleem and another v. State of U.P.)
will be treated as the leading appeal.

Facts of Criminal Appeal No.
2376 of 2023

3. First Information Report was
registered on 27.09.2022 against two
persons, namely Lukman, son of Imran and
Abdul Talha @ Hussain @ Zakir under
Section 121A, 123 I.P.C. and Section 13, 18,
18B, 20 and 38 of the Act of 1967 in Case
Crime No. 04 of 2022 at Police Station
A.T.S. Gomti Nagar, Lucknow.

4. The appellants Mohammed
Aleem @ Abdul Aleem and Mohammad
Nawajis Ansari were arrested on 06.10.2022
in Case Crime No. 04 of 2022, referred to
above. They were produced before the
Special Court on 07.10.2022. The Special
Court granted police custody remand from
07.10.2022 to 20.10.2022 by order dated
07.10.2022. Thereafter, the remand was
extended from time to time. The statutory
period of 90 days was to complete on
05.01.2023. By order dated 14.12.2022, the
appellants were granted remand up to
22.12.2022. On 19.12.2022, an application
was filed by Sri Anurag Darshan, Additional
Superintendent
of
Police/Investigating
Officer A.T.S., Lucknow, U.P., for an
extension of 60 days time for further
investigation under Section 43(d) of Act of
1967. On the aforesaid application, an
endorsement was made by the Public
Prosecutor on 21.12.2022 "submitted". On
the same day, i.e. 21.12.2022, the Special
Court passed an order "Permitted for 45
days
only".
The
application
dated
19.12.2022 has been annexed at page no. 20
as annexure no. 7 to the counter affidavit
filed by Abhilash Kumar Singh on
27.09.2022 along with application No.
A/5/23 for taking the aforesaid counter
affidavit on record.
1344 INDIAN LAW REPORTS ALLAHABAD SERIES
5. On 22.12.2022, further remand
of 30 days was allowed by the Special Court,
which was extended till 18.01.2023. An
application was filed by the appellants for
being released on default bail as, according
to them, the statutory period of 90 days was
to expire on 05.01.2023, and by the said
date, no charge sheet was filed by the police
in the aforesaid case crime number. The
application filed by the appellant was
registered as Bail Application No. 148 of
2023. After the exchange of affidavits, the
abovementioned application was rejected by
the Special Court by its order dated
03.02.2023, which is impugned in the
present appeal.

6. During the pendency of the
application for grant of bail, the period of
investigation was again extended on an
application moved by the Public Prosecutor
for 30 days. Again, on 04.03.2023, the
period of investigation was extended for 20
days by an order dated 04.03.2023 passed by
the Special Court. During this period, the
remand of the appellant was also extended.
The investigating officer submitted the
charge sheet against the appellants under
Section 121A/123 I.P.C. and Sections
13/18/18B/20/38 of the Act of 1967 on
22.03.2023. On 23.03.2023, the Special
Court directed to register the case as Misc.
Case. On 13.04.2023, the State granted
prosecution sanction, and by order dated
28.04.2023, the Special Court had taken
cognizance.

7. The contention of the learned
counsel for the appellants is that the
statutory period of 90 days was going to
expire on 05.01.2023. The application dated
19.12.2022 was filed by the investigating
officer
for
extension
of
time
for
investigation under Section 43-D of the Act
of 1967. Application dated 19.12.2022 was
filed behind the back of appellants and
without any notice to them. It has been
further contended by learned counsel for the
appellants that the application was moved
by the investigating officer and not by the
Public Prosecutor as required by the proviso
to Section 43-D of the Act of 1967. The
Public Prosecutor has merely endorsed
words
'submitted'
on
the
aforesaid
application. It is next submitted by the
learned counsel for the appellants that the
Special Court has passed an order dated
21.12.2022 without application of mind. It
has extended the period of investigation for
45 days. It is also contended by learned
counsel for the appellant that the order dated
21.12.2022 passed by the Special Court has
been passed in the absence of the appellants.
The appellants were neither present in
person nor through video conferencing on
the date, i.e. 21.12.2022, when the order was
passed, extending the period of investigation
for 45 days. It has also been contended that
the Special Court has merely passed an order
"permitted for 45 days only". No reasons
have been given by the Special Court for
permitting the extension of time for
investigation. The order dated 21.12.2022 is
cryptic and has been passed mechanically by
the Special Court. After the expiry of the
statutory period, the appellants filed a bail
application for being released on bail as no
charge sheet was submitted within the
statutory period of 90 days. Only when the
objection was filed by the opposite party, the
appellants came to know about the order
dated 21.12.2022.

8. Per contra, learned Standing
Counsel submitted that the Special Court
had committed no illegality in rejecting the
bail application of the appellants. It has been
further contended by learned Standing
Counsel that since the charge sheet has been
submitted by the investigating agency and
5 All. Mohammad Aleem @ Abdul Aleem &Anr. Vs. State of U.P.
1345
sanction
has
been
granted
by
the
government, the right of bail, if any, under
Section 167(2) of Cr.P.C. is extinguished,
and now the same cannot be granted. It is
further contended that since time for further
investigation was extended by an order
dated 21.12.2022 for 45 days, the default
bail cannot be given to the appellants on the
expiry of the statutory period of 90 days.

9. Before considering the rival
submissions of the learned counsel for the
parties, it will be useful to look into the
relevant statutory provisions:

Section 167 Cr.P.C., 1973 provides
for the procedure when the investigation
cannot be completed in the time frame
provided
by
the
Code
of
Criminal
Procedure. Section 167 of the Code of
Criminal Procedure is quoted as follows:

167. Procedure when investigation
cannot be completed in twenty-four hours.-
(1)Whenever any person is arrested and
detained in custody, and it appears that the
investigation cannot be completed within
the period of twenty-four hours fixed by
section 57, and there are grounds for
believing that the accusation or information
is well-founded, the officer in charge of the
police station or the police officer making
the investigation, if he is not below the rank
of sub-inspector, shall forthwith transmit to
the nearest Judicial Magistrate a copy of the
entries in the diary hereinafter prescribed
relating to the case, and shall at the same
time
forward
the
accused
to
such
Magistrate.
(2) The Magistrate to whom an
accused person is forwarded under this
section may, whether he has or has not
jurisdiction to try the case, from time to time,
authorise the detention of the accused in
such custody as such Magistrate thinks fit,
for a term not exceeding fifteen days in the
whole; and if he has no jurisdiction to try the
case or commit it for trial, and considers
further detention unnecessary, he may order
the accused to be forwarded to a Magistrate
having such jurisdiction:
Provided that-
[(a) the Magistrate may authorise
the detention of the accused person,
otherwise than in the custody of the police,
beyond the period of fifteen days, if he is
satisfied that adequate grounds exist for
doing so, but no Magistrate shall authorise
the detention of the accused person in
custody under this paragraph for a total
period exceeding,-
(i)
ninety
days,
where
the
investigation
relates
to
an
offence
punishable with death, imprisonment for life
or imprisonment for a term of not less than
ten years;
(ii)
sixty
days,
where
the
investigation relates to any other offence,
and, on the expiry of the said period of
ninety days, or sixty days, as the case may
be, the accused person shall be released on
bail if he is prepared to and does furnish
bail, and every person released on bail
under this sub-section shall be deemed to be
so released under the provisions of Chapter
XXXIII for the purposes of that Chapter;]

10. Section 43D of the Unlawful
Activities (Prevention) Act, 1967, provides
for the modified application of certain
provisions of the Code. Section 43D of the
Act of 1967 is quoted as under:

[43D. Modified application of
certain
provisions
of
the
Code.-(1)
Notwithstanding anything contained in the
Code or any other law, every offence
punishable under this Act shall be deemed to
be a cognizable offence within the meaning
of clause (c) of section 2 of the Code, and
1346 INDIAN LAW REPORTS ALLAHABAD SERIES
"cognizable case" as defined in that clause
shall be construed accordingly.
(2) Section 167 of the Code shall
apply in relation to a case involving an
offence punishable under this Act subject to
the modification that in sub-section (2),-
(a) the references to "fifteen days",
"ninety days", and "sixty days", wherever
they occur, shall be construed as references
to "thirty days", "ninety days", and "ninety
days", respectively, and
(b) after the proviso, the following
provisos shall be inserted, namely:-
"Provided further that if it is not
possible to complete the investigation within
the said period of ninety days, the Court
may, if it is satisfied with the report of the
Public Prosecutor indicating the progress of
the investigation and the specific reasons for
the detention of the accused beyond the said
period of ninety days, extend the said period
up to one hundred and eighty days:
Provided also that if the police
officer making the investigation under this
Act
requests,
for
the
purposes
of
investigation, for police custody from
judicial custody of any person in judicial
custody, he shall file an affidavit stating the
reasons for doing so and shall also explain
the delay, if any, for requesting such police
custody."

11. An order for release on bail
under proviso (a) to section 167(2) may
appropriately be termed an order on default.
Indeed, it is a release on bail on the default
of the prosecution in filing charge-sheet
within the prescribed period. The right to
bail under Section 167(2) proviso (a) is
absolute. If the investigating agency fails to
file a charge sheet before the expiry of 90/60
days, as the case may be, the accused in
custody should be released on bail,
irrespective of the order passed under
Section 439. The object of incorporating the
proviso is to see that a person arrested by
police does not languish unnecessarily in
prison awaiting the completion of the
investigation. The provisions contained in
Section 167(2) are mandatory and failure of
the Investigating Agency to complete the
investigation within the prescribed period
entitles the accused to be enlarged on bail
Proviso (a) to Sub-section (2) Section 167,
Cr.P.C. is not controlled by Section 437 of
Cr.P.C. Merits of the case are immaterial.
Whatever may be the serious nature of the
crime and gravity of the offence, no
discretion is given to the Magistrate when
the accused files an application for grant of
bail under the said section, and thereupon,
the accused is entitled to bail as a matter of
right.

12. We cannot lose sight of the fact
that
legislature
envisaged
that
the
investigation should be completed in 24
hours, but practically, that was never found
feasible. It is in these circumstances that
Section 167 of the Code of Criminal
Procedure provided for time period within
which investigation should be completed
depending upon the nature of offence. Since
liberty is a constitutional right, time periods
were specified in default of which the
accused will have a right of default bail.

13. It would be useful to refer to
Section 57 Cr.P.C., which provides that any
person arrested by the police should not be
detained for more than 24 hours unless an
order is obtained from the Magistrate under
Section 167 of the Code. The Code was
originally enacted in the year 1898. We must
remember that at that time, the means of
communication were very primitive; the
means of telecommunication barely existed.
Despite that, in the Code as originally
enacted, the police were expected to
complete the investigation within 15 days,
5 All. Mohammad Aleem @ Abdul Aleem &Anr. Vs. State of U.P.
1347
and the Magistrate did not have any
jurisdiction to pass an order detaining a
person beyond 15 days if the investigation
was not completed. This system worked
well enough for more than seven decades.
After the country attained independence, we
enacted
and
gave
to
ourselves
the
Constitution of India, which came into force
on
26.01.1950.
Article
21
of
the
Constitution provides that "no man shall be
deprived of his life and personal liberty
except in accordance with procedure
established by law". The right of personal
liberty is not only a legal but also a human
right, which is inherent in every citizen of
any civilized society. Article 21 only
recognizes this right. We can read Sections
57 and 167 to be the procedure established
by law that curtails this right.

14. The Code of Criminal
Procedure enacted in 1898 contained
Section 167, which laid down the procedure
to be followed if the investigation into an
offence is not completed within twenty-four
hours. The legislative expectation was that
the investigation would ordinarily be
completed
within
twenty-four
hours.
Incidentally, this legislative expectation
continues till today. Whatever the anxiety of
the Legislature in 1898, there can be no
gainsaying that investigation into an offence
deserves an early closure, one way or the
other. Therefore, when Section 167 was
enacted in the Code of Criminal Procedure,
1898, it was premised on the conclusion of
investigations within twenty-four hours or
15 days on the outside, regardless of the
nature of the offence or the punishment.
Section 167 of the Code of Criminal
Procedure, 1898 reads as follows:

167.
Procedure
when
investigation cannot be completed in
twenty-four hours.- (1) Whenever any
person is arrested and detained in custody,
and it appears that the investigation cannot
be completed within the period of twentyfour hours fixed by section 61, and there are
grounds for believing that the accusation or
information is well-founded, the officer in
charge of the police-station or the policeofficer making the investigation if he is not
below the rank of sub-inspector shall
forthwith transmit to the nearest Magistrate
a copy of the entries in the diary hereinafter
prescribed relating to the case, and shall at
the same time forward the accused to such
Magistrate.
(2) The Magistrate to whom an
accused person is forwarded under this
section may, whether he has or has not
jurisdiction to try the case, from time to time
authorise the detention of the accused in
such custody as such Magistrate thinks fit,
for a term not exceeding fifteen days in the
whole. Suppose he has no jurisdiction to try
or commit the case for trial and considers
further detention unnecessary. In that case,
he may order the accused to be forwarded to
a Magistrate having such jurisdiction:
Provided that no Magistrate of the
third class and no Magistrate of the second
class not specially empowered in this behalf
by the State Government shall authorise
detention in the custody of the police.
(3) A Magistrate authorizing under
this section detention in the custody of the
police shall record his reasons for so doing.
(4) If such order is given by a
Magistrate other than the District Magistrate
or Sub-divisional Magistrate, he shall
forward a copy of his order, with his reasons
for making it, to the Magistrate to whom he
is immediately subordinate."

15. The Law Commission of India,
in its 41st report, proposed to increase the
time limit for completion of an investigation
to 60 days, which was accepted by the
1348 INDIAN LAW REPORTS ALLAHABAD SERIES
legislature while enacting the new Code, i.e.
Code
of
Criminal
Procedure,
1973
incorporating the time limit to be 60 days by
providing the same under Section 167 of the
Code
of
Criminal
Procedure,
1973,
regardless the nature of offence or
punishment. Section 167 of Cr.P.C., 1973
provides as under:

167.
Procedure
when
investigation cannot be completed in
twenty-four hours.- (1) Whenever any
person is arrested and detained in custody,
and it appears that the investigation cannot
be completed within the period of twentyfour hours fixed by section 57, and there are
grounds for believing that the accusation or
information is well-founded, the officer in
charge of the police station or the police
officer making the investigation, if he is not
below the rank of sub-inspector shall
forthwith transmit to the nearest Judicial
Magistrate a copy of the entries in the diary
hereinafter prescribed relating to the case,
and shall at the same time forward the
accused to such Magistrate.
(2) The Magistrate to whom an
accused person is forwarded under this
section may, whether he has or has not
jurisdiction to try the case, from time to time
authorise the detention of the accused in
such custody as such Magistrate thinks fit,
for a term not exceeding fifteen days in the
whole: and if he has no jurisdiction to try the
case or commit it for trial, and considers
further detention unnecessary, he may order
the accused to be forwarded to a Magistrate
having such jurisdiction:
Provided that
(a) the Magistrate may authorise the
detention of the accused person, otherwise
than in the custody of the police, beyond the
period of fifteen days if he is satisfied that
adequate grounds exist for doing so, but no
Magistrate shall authorise the detention of
the accused person in custody under this
section for a total period exceeding sixty
days, and on the expiry of the said period of
sixty days, the accused person shall be
released on bail if he is prepared to and does
furnish bail; and every person released on
bail under this section shall be deemed to be
so released under the provisions of Chapter
XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise
detention in any custody under this section
unless the accused is produced before him;
(c) no Magistrate of the second
class, not specially empowered in this behalf
by the High Court, shall authorise detention
in the custody of the police.
Explanation.- If any question arises
whether an accused person was produced
before the Magistrate as required under
paragraph (b), the production of the accused
person may be proved by his signature on
the order authorising detention."

16. In 1978, a need was felt to
amend Section 167 Cr.P.C. by not only
extending the period of completing the
investigation but also relating that period to
the offence. Section 167 Cr.P.C., as amended
in 1978, has already been quoted above.

17. Generally speaking, therefore, it
could be said that ever since 1898, the
legislative intent has been to conclude
investigations within twenty-four hours.
This intention has not changed for more than
a century. However, the Legislature has been
pragmatic enough to appreciate that it is not
always possible to complete investigations
into an offence within twenty-four hours.
Therefore, initially, in the Cr.P.C. of 1898, a
maximum period of 15 days was provided
for
completing
the
investigations.
Unfortunately, this limit was being violated
through the subterfuge of taking advantage
of Section 344 of the Cr.P.C. of 1898. The
5 All. Mohammad Aleem @ Abdul Aleem &Anr. Vs. State of U.P.
1349
misuse was recognized in the 41st Report of
the
Law
Commission
of
India.
Consequently,
the
Law
Commission
recommended fixing a maximum period of
60 days for completing investigations, and
that recommendation was enacted as the law
in the Cr.P.C. of 1973. Subsequently, this
period was also found to be insufficient for
completing investigations into more serious
offences, and, as mentioned above, the
period for completing investigations was
bifurcated into 90 days for some offences
and 60 days for the remaining offences.

18. From the mid-eighties, the
prevailing conditions have been surcharged
with terrorism and disruption, posing a serious
threat to the sovereignty and integrity of India
as well as creating panic and a sense of
insecurity in the minds of people. Added to
that, the brutality of terrorism let loose by the
secessionists and anti-nationals in the highly
vulnerable area of Indian territory was causing
grave concern even about the chances of
survival of the democratic polity and process.
There was also the continuous commission of
heinous offences such as gruesome masskillings of defenceless innocent people,
including women, children and bystanders,
destroying the peace, tranquillity and security.
The existing ordinary criminal laws were
found inadequate to deal sternly with such
activities perpetrated on humanity. It was only
in
these
prevailing
circumstances
the
legislature was compelled to bring forth
various special Acts such as The Terrorist and
Disruptive Activities (Prevention) Act, 1987,
The Prevention of Terrorism Act, 2002, The
Narcotic Drugs and Psychotropic Substance
Act, 1985, etc. to prevent and deal with
conditions prevailing providing different
procedure.

The Legislature responded to the
menace without sacrificing the national
values and to combat terrorism by extending
and expanding the legal powers of the State
and taking steps/measures in a legalised
way. The outcome of such responses is the
enactment of these Acts after a prolonged
debate in both Houses of Parliament as the
Legislature has felt that the ordinary
criminal laws, both Penal and Procedural,
are quite inadequate to meet the challenges,
especially when the incidents of terrorists
and disruptionists activities have increased
astronomically. ]

19. In cases involving serious
offences, such as those under the Terrorist
and Disruptive Activities (Prevention) Act,
Prevention of Terrorism Act, Unlawful
Activities (Prevention) Act and Narcotic
Drugs and Psychotropic Substances Act, the
Legislature has given some latitude to the
investigating machinery in the manner of
completion of the investigation by providing
for extension of time to complete the
investigation. Under the Act of 1967,
Section 43-D was inserted by Act 35 of
2008. The amended Section provided for
modified applications of certain provisions
of the Code of Criminal Procedure. Under
the special Acts, this period was further
extended by the legislature to a period
ranging from 180 days to 365 days, on
certain eventualities provided in the Act
itself. Though Section 43-D of the Act of
1967 provides for the extension of time for
completing the investigation. The extension
is, however, not to be granted as a matter of
course but subject to conditions enumerated
in the Act. Unless those conditions are
satisfied, the Court will refuse to grant an
extension.

20. Notwithstanding this, the basic
legislative
intent
of
completing
investigations within twenty-four hours or
within an otherwise time-bound period
1350 INDIAN LAW REPORTS ALLAHABAD SERIES
remained unchanged, even though the
period had been extended several times
under the special Acts. This indicates that in
addition to giving adequate time to the
investigating
agency
to
complete
investigations, the Legislature has always
put a premium on personal liberty and has
always felt that it would be unfair to an
accused to remain in custody for a prolonged
or indefinite period. It is for this reason and
also to hold the investigating agency
accountable that time limits have been laid
down by the Legislature. There is a
legislative appreciation of the fact that
certain offences require more extensive and
intensive investigations and, therefore, for
those offences, a longer period is provided
for completing investigations.

21. The question of grant of default
bail is that once the maximum period for
investigation of an offence is over under the
first proviso (a) to Section 167(2) of Cr.P.C.,
the accused shall be released on bail, this
being an indefeasible right granted by the
legislature. Sub Section (2) of Section 167
of Cr.P.C. lays down that the Magistrate to
whom the accused is forwarded may
authorise his detention in such custody as he
may deem fit for a term specified in that
Section. Proviso to Sub-section (2) fixes the
outer limit within which the investigation
must be completed, and in case, the same is
not completed within the said prescribed
period, the accused would acquire a right to
seek to be released on bail and if he is
prepared to and does furnish bail, the
Magistrate shall release him on bail and such
release shall be deemed to be grant of bail
under Chapter XXXIII of the Cr.P.C.

22. Section 167 Cr.P.C., thus,
strictly speaking, is not a provision for 'grant
of bail' but deals with the maximum period
during which a person accused of an offence
may be kept in custody and detention to
enable the investigating agency to complete
the investigation and file the charge-sheet, if
necessary, in the court. The proviso to
Section 167(2) Cr.P.C., therefore, creates an
indefeasible right in an accused person on
account of 'default' by the investigating
agency
in
the
completion
of
the
investigation within the maximum period
prescribed or extended, as the case may be,
to seek an order of his release on bail. It is
for this reason that an order for release on
bail under proviso (a) of Section 167(2)
Cr.P.C. is termed as an order of 'default' as it
is granted on the ground of 'default' of the
prosecution to complete the investigation
and file the charge-sheet within the
prescribed period.

23. Before we proceed to consider
the parameters of the right to default bail
under Section 167 (2) as interpreted by
various decisions of this Court and Supreme
Court, we find it pertinent to note the
observations made by this Court in case of
Uday Mohanlal Acharya v. State of
Maharashtra reported in (2001) 5 SCC 453
on the fundamental right to personal liberty
of the person and the effect of deprivation of
the same as follows: (SCC P 472 p. 13)

"13. .... Personal liberty is one of
the cherished objects of the Indian
Constitution and deprivation of the same
can only be in accordance with law and in
conformity with the provisions thereof, as
stipulated
under
Article
21
of
the
Constitution. When the law provides that the
Magistrate could authorise the detention of
the accused in custody up to a maximum
period as indicated in the proviso to subsection (2) of Section 167, any further
detention beyond the period without filing of
a challan by the investigating agency would
be a subterfuge and would not be in
5 All. Mohammad Aleem @ Abdul Aleem &Anr. Vs. State of U.P.
1351
accordance with law and in conformity with
the provisions of the Criminal Procedure
Code, and as such, could be violative of
Article 21 of the Constitution."

24. Article 21 of the Constitution of
India provides that "no person shall be
deprived of his life or personal liberty except
according to procedure established by law".
It has been settled by a Constitution Bench
of this Court in Meneka Gandhi v. Union of
India reported in AIR 1978 SC 597 that such
a procedure cannot be arbitrary, unfair or
unreasonable. The history of the enactment
of Section 167(2) Cr.P.C. 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.

25. Therefore, as mentioned supra,
Section 167(2) is integrally linked to the
constitutional commitment under Article 21
promising protection of life and personal
liberty against unlawful and arbitrary
detention and must be interpreted in a
manner that serves this purpose. In our
opinion, the entire matter before us must
also be looked at from the point of view of
expeditious conclusion of investigations and
the angle of personal liberty and not from a
purely dictionary or textual perspective as
canvassed by the learned counsel for the
State.

We take this view keeping in mind
that in matters of personal liberty and Article
21 of the Constitution, it is not always
advisable to be formalistic or technical. The
history of the personal liberty jurisprudence
of this Court and other constitutional courts
includes petitions for a writ of habeas corpus
and for other writs being entertained even on
the basis of a letter addressed to the Chief
Justice or the Court. Therefore, the courts
cannot adopt a rigid or formalistic approach
when considering any issue that touches
upon the rights contained in Article 21.

26. We may also refer with benefit
to the recent Judgment of this Court in S.
Kasi v. State reported in (2021) 12 SCC 1
wherein
it
was
observed
that
the
indefeasible right to default bail under
Section 167(2) is an integral part of the right
to personal liberty under Article 21, and the
said right to bail cannot be suspended even
during a pandemic situation as is prevailing
currently. It was emphasized that the right of
the accused to be set at liberty takes
precedence over the right of the State to
carry on the investigation and submit a
chargesheet.

27. Additionally, it is well-settled
that in case of any ambiguity in the
construction of a penal statute, the Courts
must favour the interpretation that 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.

28. With respect to the CrPC, the
Statement of Objects and Reasons is an
important aid for construction. Section
167(2) has to be interpreted keeping in mind
the three-fold 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. The entire
1352 INDIAN LAW REPORTS ALLAHABAD SERIES
justice-delivery system is dependent upon
the concept of fairness. It is the interest of
justice that has a predominant role in the
criminal jurisprudence of the country- the
hallmark of justice is the requirement of the
day and the need of the hour.

29. In case of Hitendra Vishnu
Thakur
and
others
v.
State
of
Maharashtra and others reported in
(1994) 4 SCC 602, while interpreting
Section 20(4) of Terrorist and Disruptive
Activities
(Prevention)
Act,
1987
(hereinafter referred to as 'TADA Act') read
with Section 167 Cr.P.C., the Supreme Court
held that once the period for filing the
charge-sheet has expired and either no
extension under Clause (bb) has been
granted by the designated court or the period
of extension has also expired, the accused
person would be entitled to move an
application for being admitted to bail under
Sub-Section (4) of Section 20 of TADA Act
read with Section 167 of Cr.P.C. and
designated court shall release him on bail, if
the accused seeks to be released and furnishes
the requisite bail bonds but that does not mean
that on expiry of the period, during which
investigation is required to be completed
under Section 24 of TADA Act read with
Section 167 of Cr.P.C., the court must release
the accused on bail on its own motion even
without any application from the accused
person on his offering to furnish bail.