# BIKRAMJIT SINGH v. THE STATE OF PUNJAB

- **Citation:** [2020] 12 S.C.R. 875
- **Court:** Supreme Court of India
- **Decided:** 2020-10-12
- **Case number:** Criminal Appeal No. 667 of 2020
- **Bench:** R. F. Nariman, Navin Sinha, K. M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bikramjit-singh-v-the-state-of-punjab-34541
- **Pages:** 40

## Headnote

Code of Criminal Procedure, 1973 - s. 167 - Penal Code,
1860 - ss. 302, 307, 452, 427, 341, 34 - Arms Act, 1959 - s.25 -
Explosive Substances Act, 1908 - ss. 3,4,5,6 - Unlawful Activities
(Prevention) Act, 1967 - s. 13 - Default Bail - A hand grenade was
thrown on the stage of a public gathering - 22 persons were injured
seriously, out of which 3 persons died - An FIR was registered under
the provisions of IPC, Arms Act, Explosive Substances Act and
Unlawful Activities (Prevention) Act, 1967 - Pursuant to this FIR,
the appellant was apprehended and remanded to custody by
Sub-Divisional Magistrate - After 90 days in custody, which expired
on 21.02.2019, an application for default bail was made to the
Sub-Divisional Judicial Magistrate - This application was dismissed
on 25.02.2019 on the ground that the Sub-Divisional Judicial
Magistrate had, by an order dated 13.02.2019, already extended
time from 90 days to 180 days u/s. 167 Cr.P.C. as amended by the
Unlawful Activities (Prevention) Act, 1967 - Revision petition by
appellant - The Special Court allowed the revision petition and
held that the Special designated Court was competent to pass an
order on any application moved u/s.45(D)(2) Unlawful Activities
(Prevention) Act, 1967 - The Magistrate was not competent to pass
any order on any such application - On 26.03.2019, a chargesheet was filed before the Special Judge, in which ss. 302, 307,
452, 427, 341, 34 of IPC r/w. s.25 of the Arms Act, 1959, ss. 3,4,5,6
of the Explosive Substances Act, 1908 and ss. 13, 16, 18, 18-B and
20 of the Unlawful Activities (Prevention) Act, 1967 were invoked
for offences - The Special Judge refused to grant default bail u/s.
167(2) Cr. P.C. - Later, another application for default bail was
filed on 08.04.2019 and it was also dismissed - The High Court
held that once the challan was presented by the prosecution on
25.03.2019, as the application was filed next day i.e. 26.03.2019,
the petitioner was not entitled to default bail - On appeal, held:
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SUPREME COURT REPORTS
[2020] 12 S.C.R.
The High Court got the dates all wrong - The application that was
made for default bail was made on or before 25.02.2019 and not
26.03.2019 - The charge-sheet was filed on 26.03.2019 and not
25.03.2019 - The fact that this application was wrongly dismissed
on 25.02.2019 would make no difference and ought to have been
corrected in revision - The sole ground for dismissing the application
was that the time of 90 days was extended by Sub- Divisional
Magistrate by order dated 13.02.2019 - This order was correctly
set aside by the Special Court by its judgment dated 25.03.2019,
holding that under the UAPA read with the NIA Act, the Special
Court alone had jurisdiction to extend time to 180 days under the
first proviso in Section 43-D(2)(b) - The fact that another application
was filed for default bail on 08.04.2019, would not mean that it will
wipe out the effect of earlier application, which was wrongly
dismissed - The right to default bail are not mere statutory rights
under first proviso to s.167(2) of the Code, but is part of the
procedure established by law u/Art. 21 of the Constitution - This
being the case, the judgment of the High Court is set aside - The
appellant entitled to be released on 'default bail' u/s. 167 (2) of the
Code, as amended by s. 43-D of the UAPA.
Allowing the appeal, the Court
HELD: 1. A conspectus of the various Supreme Court
decisions would show 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 fu

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[2020] 12 S.C.R. 875
875
BIKRAMJIT SINGH
v.
THE STATE OF PUNJAB
(Criminal Appeal No. 667 of 2020)
OCTOBER 12, 2020
[R. F. NARIMAN, NAVIN SINHA AND K. M. JOSEPH, JJ.]
Code of Criminal Procedure, 1973 - s. 167 - Penal Code,
1860 - ss. 302, 307, 452, 427, 341, 34 - Arms Act, 1959 - s.25 -
Explosive Substances Act, 1908 - ss. 3,4,5,6 - Unlawful Activities
(Prevention) Act, 1967 - s. 13 - Default Bail - A hand grenade was
thrown on the stage of a public gathering - 22 persons were injured
seriously, out of which 3 persons died - An FIR was registered under
the provisions of IPC, Arms Act, Explosive Substances Act and
Unlawful Activities (Prevention) Act, 1967 - Pursuant to this FIR,
the appellant was apprehended and remanded to custody by
Sub-Divisional Magistrate - After 90 days in custody, which expired
on 21.02.2019, an application for default bail was made to the
Sub-Divisional Judicial Magistrate - This application was dismissed
on 25.02.2019 on the ground that the Sub-Divisional Judicial
Magistrate had, by an order dated 13.02.2019, already extended
time from 90 days to 180 days u/s. 167 Cr.P.C. as amended by the
Unlawful Activities (Prevention) Act, 1967 - Revision petition by
appellant - The Special Court allowed the revision petition and
held that the Special designated Court was competent to pass an
order on any application moved u/s.45(D)(2) Unlawful Activities
(Prevention) Act, 1967 - The Magistrate was not competent to pass
any order on any such application - On 26.03.2019, a chargesheet was filed before the Special Judge, in which ss. 302, 307,
452, 427, 341, 34 of IPC r/w. s.25 of the Arms Act, 1959, ss. 3,4,5,6
of the Explosive Substances Act, 1908 and ss. 13, 16, 18, 18-B and
20 of the Unlawful Activities (Prevention) Act, 1967 were invoked
for offences - The Special Judge refused to grant default bail u/s.
167(2) Cr. P.C. - Later, another application for default bail was
filed on 08.04.2019 and it was also dismissed - The High Court
held that once the challan was presented by the prosecution on
25.03.2019, as the application was filed next day i.e. 26.03.2019,
the petitioner was not entitled to default bail - On appeal, held:
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SUPREME COURT REPORTS
[2020] 12 S.C.R.
The High Court got the dates all wrong - The application that was
made for default bail was made on or before 25.02.2019 and not
26.03.2019 - The charge-sheet was filed on 26.03.2019 and not
25.03.2019 - The fact that this application was wrongly dismissed
on 25.02.2019 would make no difference and ought to have been
corrected in revision - The sole ground for dismissing the application
was that the time of 90 days was extended by Sub- Divisional
Magistrate by order dated 13.02.2019 - This order was correctly
set aside by the Special Court by its judgment dated 25.03.2019,
holding that under the UAPA read with the NIA Act, the Special
Court alone had jurisdiction to extend time to 180 days under the
first proviso in Section 43-D(2)(b) - The fact that another application
was filed for default bail on 08.04.2019, would not mean that it will
wipe out the effect of earlier application, which was wrongly
dismissed - The right to default bail are not mere statutory rights
under first proviso to s.167(2) of the Code, but is part of the
procedure established by law u/Art. 21 of the Constitution - This
being the case, the judgment of the High Court is set aside - The
appellant entitled to be released on 'default bail' u/s. 167 (2) of the
Code, as amended by s. 43-D of the UAPA.
Allowing the appeal, the Court
HELD: 1. A conspectus of the various Supreme Court
decisions would show 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. [Para 28][913-A-C]
2. On the facts of the present case, the High Court was
wholly incorrect in stating that once the challan was presented by
the prosecution on 25.03.2019 as an application was filed by the
Appellant on 26.03.2019, the Appellant is not entitled to default
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bail. First and foremost, the High Court has got the dates all
wrong. The application that was made for default bail was made
on or before 25.02.2019 and not 26.03.2019. The charge sheet
was filed on 26.03.2019 and not 25.03.2019. The fact that this
application was wrongly dismissed on 25.02.2019 would make no
difference and ought to have been corrected in revision. The sole
ground for dismissing the application was that the time of 90 days
had already been extended by the Sub-Divisional Judicial
Magistrate by his order dated 13.02.2019. This Order was
correctly set aside by the Special Court by its judgment dated
25.03.2019, holding that under the UAPA read with the NIA Act,
the Special Court alone had jurisdiction to extend time to 180
days under the first proviso in Section 43-D(2)(b). The fact that
the Appellant filed yet another application for default bail on
08.04.2019, would not mean that this application would wipe out
the effect of the earlier application that had been wrongly decided.
One must not forget that one is dealing with the personal liberty
of an accused under a statute which imposes drastic punishments.
The right to default bail, as has been correctly held by the
judgments of this Court, are not mere statutory rights under the
first proviso to Section 167(2) of the Code, 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. This being the case,
the judgment of the High Court is set aside. The Appellant will
now be entitled to be released on "default bail" under Section
167(2) of the Code, as amended by Section 43-D of the UAPA.
[Para 29][913-C-H; 914-A]
Sanjay Dutt v. State through CBI (1994) 5 SCC 410 :
[1994] 3 Suppl. SCR 263 - followed.
Hitendra Vishnu Thakur v. State of Maharashtra (1994)
4 SCC 602 : [1994] 1 Suppl. SCR 360; Uday Mohanlal
Acharya v. State of Maharashtra (2001) 5 SCC 453 :
[2001] 2 SCR 878; Union of India v. Nirala Yadav
(2014) 9 SCC 457 : [2014] 6 SCR 148; Rakesh Kumar
Paul v. State of Assam (2017) 15 SCC 67 : [2017] 8
SCR 785; Syed Mohd. Ahmad Kazmi v. State (Govt. of
BIKRAMJIT SINGH v. THE STATE OF PUNJAB
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SUPREME COURT REPORTS
[2020] 12 S.C.R.
NCT of Delhi (2012) 12 SCC 1 : [2012] 9 SCR 836 -
relied on.
Pragya Singh Thakur v. State of Maharashtra (2011)
10 SCC 445 : [2011] 14 SCR 617 - referred to.
Case Law Reference
[1994] 1 Suppl. SCR 360
relied on
Para 22
[1994] 3 Suppl. SCR 263
followed
Para 23
[2001] 2 SCR 878
relied on
Para 24
[2011] 14 SCR 617
referred to
Para 25
[2014] 6 SCR 148
relied on
Para 25
[2012] 9 SCR 836
relied on
Para 26
[2017] 8 SCR 785
relied on
Para 27
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
667 of 2020.
From the Judgment and Order dated 30.10.2019 of the High Court
of Punjab and Haryana in CRM-M-19259-2019 (O&M).
Colin Gonsalves, Sr. Adv., Ms. Olivia Bang, R. Gopal, Satya Mitra,
Ms. Jaspreet Gogia, Karanvir Gogia, Advs. for the appearing parties.
The Judgment of the Court was delivered by
R. F. NARIMAN, J.
1. Leave granted.
2. In an F.I.R dated 18.11.2018, involving Sections 302, 307, 452,
427, 341, 34 of the Indian Penal Code read with Section 25 of the Arms
Act, 1959, Sections 3, 4, 5, 6 of the Explosive Substances Act, 1908 and
Section 13 of the Unlawful Activities (Prevention) Act, 1967, it was
stated as follows:
"I am a resident of above address and doing the business of
furniture at Nehru Complex, Amritsar. I do my religious services
in the Nirankari Bhawan at Rajasansi every Sunday. Today, i.e,
on 18.11.2018, Satsang was going on at Satsang Bhawan, where
about 200 Satsangis were present. At about 11.30 a.m., I along
with my companion Gagandeep Singh son of Balwinder Singh,
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resident of Gumtala, was doing the duty of a Security Guard on
the main gate, when two young boys came there on a Pulsar
Motor Cycle without number of Black shade. Out of them, one
had worn Jean and Jacket and was having turban on his head and
he has muffled his face with a cloth of check. He went inside and
the other young boy, who was wearing Kurta, Pyjama and Jacket
and had muffled his face with a handkerchief, took out a Pistol
from the fold of his Pyjama and made us to stand together near
the Bathroom. The young boy who had gone inside the Satsang
Hall threw a Hand Grenade on the stage with his right hand. An
explosion took place and the above-said young boy took out a
Pistol and ran towards the gate. Both the young men ran towards
Village Adliwal on their Pulsar Motor Cycle. Due to Grenade
explosion, about 22 persons from the Sangat sustained serious
injuries. The other persons arranged conveyance and carried the
injured to IVY Hospital, Amritsar and Guru Nanak Dev Hospital,
Amritsar, where Sukhdev Kumar son of Kans Raj, resident of
Kohali, now resident of Mirankot, aged about 45 years, Kuldeep
Singh son of Joginder Singh, resident of Bagga and Sandeep Singh
son of Amarjit Singh, resident of Ward No. 7, Rajasansi died in
IVY Hospital, Amritsar. The above young men by throwing a
Hand Grenade on the Sangat, have injured 22 persons seriously,
out of which three persons have died. Deterrent action be taken
against the above-mentioned accused. I have heard my statement.
It is correct."
3. Pursuant to this F.I.R, the Punjab State Police apprehended the
Appellant, one Bikramjit Singh, aged 26 years, on 22.11.2018, on which
date he was remanded to custody by the learned Sub-Divisional
Magistrate. After 90 days in custody, which expired on 21.02.2019, an
application for default bail was made to the Sub-Divisional Judicial
Magistrate, Ajnala. This application was dismissed on 25.02.2019 on the
ground that the learned Sub-Divisional Judicial Magistrate had, by an
order dated 13.02.2019, already extended time from 90 days to 180 days
under Section 167 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as "the Code") as amended by the Unlawful Activities
(Prevention) Act, 1967 (hereinafter referred to as "UAPA") - See
Section 43-D(2). However, this Order was challenged by way of a
revision petition by the Appellant and his co-accused, which revision
succeeded by an order dated 25.03.2019, by which the learned Additional
BIKRAMJIT SINGH v. THE STATE OF PUNJAB
[R. F. NARIMAN, J. ]
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Sessions Judge being the Special Court set up under the National
Investigation Agency Act, 2008 (hereinafter referred to as the "NIA
Act") held as follows:
"6. After hearing the Ld Counsel for revision petitioner and Ld
PP for State, I am of the view that since Ld PP has not controverted
the proposition of law, wherein it is provided that Ilaqa Magistrate
has no jurisdiction to entertain any application for extension the
period of investigation or granting bail u/s 167 (2) Cr.P.C in default
of presentation of Challan u/s 45 D (2) Unlawful Activities
(Prevention Act 1967) and in view of the Notification supra passed
by Government of Punjab, to deal with the cases of unlawful
activities act, court of session or court of Additional Session Judge,
in every district has been designated to try the said cases, so the
application for seeking extension of time for filing challan was not
maintainable before Ilaqa magistrate.
7. Therefore, in view of the said notification as well as the case
laws referred by the Ld Counsel for revision petitioner, only this
court being special designated court was competent to pass an
order on any application moved u/s 45(D) (2) Unlawful
Activities(Prevention) Act 1967. It means, Ilaqa Magistrate was
not competent to pass any order on any such application. In case
the same has been filed and passed i.e. without its jurisdiction. So
because of the said reason order passed by Ilaqa magistrate is
not sustainable in the eyes of law and the same is liable to be set
aside by way of acceptance of this revision petition. Accordingly
this revision is allowed and order of Ilaqa magistrate dated
13.02.2019 is set aside. Trial court record along with copy of this
order be sent back to the Trial Court and file of this court be
consigned to record room."
4. One day later, on 26.03.2019, a charge sheet was filed before
the learned Special Judge after police investigation, in which Sections
302, 307, 452, 427, 341, 34 of the Indian Penal Code read with Section
25 of the Arms Act, 1959, Sections 3, 4, 5, 6 of the Explosive Substances
Act, 1908 and Sections 13, 16, 18, 18-B and 20 of the Unlawful Activities
(Prevention) Act, 1967 were invoked for offences that were committed
pursuant to investigation of the FIR lodged on 18.11.2018. Meanwhile, a
revision petition that was filed against the order dated 25.02.2019, was
dismissed by the Special Judge on 11.04.2019 who, after noticing the
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order dated 25.03.2019 allowing the revision petition against the order
dated 13.02.2019 of the Judicial Magistrate, yet refused to grant default
bail as follows:
"10. No doubt, vide gazette notification issued by Government of
Punjab on 10.06.2014, the Session Judge and first Additional Session
Judge at each District Head Quarters in the State are designated
as special court for the trial of offences of unlawful activities act.
However, as per the local arrangement, all the cases pertaining to
unlawful activities act are dealt in this court. So, being a special
court, this court is competent to directly receive the challan or
police report under section 173 Cr PC. Since the challan has already
been presented and in the judgement title das Abdul Aziz PV and
Other vs National Investigation Agency 2015 (1) RCR (Criminal)
239, it has been held that merely because certain facets of the
matter called for further investigation, it does not deem such report
anything other than a final report, revisionist are not entitled to
statutory bail under section 167 (2)Cr PC.
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12.Since Challan has already been presented, so revision petitioner
have lost their right for bail by way of default under section 167(2)
Cr PC. Therefore there is no reason to interfere in the order of
Ilaqa Magistrate passed under section 167 (2) Cr PC so this revision
petition fails and is dismissed. Consign file to the record room."
5. On the same day i.e. 11.04.2019, an application for default bail
dated 08.04.2019 was also dismissed. By the impugned judgment dated
30.10.2019, the High Court, after setting out Section 167 of the Code of
Criminal Procedure, 1973 and some of the provisions of the UAPA and
NIA Act, then arrived at the following conclusion:
"A joint interpretation of Section 167 (2) Cr.P.C. read with Section
43 (d) UAP Act, Section 6, 13 & 22 of NIA Act would show that
in case the investigation is being carried out by the State police,
the Magistrate will have power under Section 167 (2) Cr.P.C.
read with Section 43 (a) of UAP Act to extend the period of
investigation upto 180 days and then, commit the case to the Court
of Sessions as per provisions of Section 209 Cr.P.C., whereas in
case the investigation is conducted by the agency under the NIA
BIKRAMJIT SINGH v. THE STATE OF PUNJAB
[R. F. NARIMAN, J. ]
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Act, the power shall be exercised by the Special Court and challan
will be presented by the agency before the Special Court.
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It is not case of the petitioner that the investigation was conducted
by the agency under Section 6 of the NIA Act and till committal
of the case to the Court of Sessions, as per Section 22 (3) of NIA
Act, it cannot be said that the Magistrate has no power and
therefore, the order dated 25.03.2019 suffers from illegal infirmity.
The arguments raised by learned senior counsel for the petitioner
that the petitioner is entitled to default bail under Section 167 (2)
Cr.P.C., in view of judgment of the Hon'ble Supreme Court in
Sanjay Dutt's case(supra), is not available, once the challan was
presented by the prosecution on 25.03.2019, as the application
was filed by the petitioner on the next day i.e. 26.03.2019
The Judge, Exclusive Court has recorded a well reasoned finding
that mere fact that sanction has not been granted so far, is no
ground to grant concession of bail, as it is rightly held that besides
the offence committed under the UAP Act, the accused is also
facing the trial for committing the offence under Sections 302,
307, 452, 341, 427, 34 IPC read with Section 25/54/59 of Arms
Act and Sections 3, 4, 5, & 6 of Explosive Act, for which no
sanction is required to prosecute the petitioner.
For the reasons recorded above and in view of judgment of the
Hon'ble Supreme Court in Hitendra Vishnu Thakur vs. State of
Maharashtra, 1994 (3) RCR (Crl.) 156, finding no merit in the
present petition, the same is dismissed."
6. Shri Colin Gonsalves, learned Senior Advocate appearing on
behalf of the Appellant, referred to both the enactments as aforesaid in
copious detail and stressed the fact that once the Special Court had
been set up as an exclusive Court to try all offences under the UAPA,
such offences being scheduled offences relatable to the NIA Act, it was
the Special Court alone which had exclusive jurisdiction to extend the
period of 90 days to 180 days under Section 43-D (2)(b) of the UAPA.
This being the case, on an application having been made prior to the
filing of the charge sheet for default bail, his contention was that the
indefeasible right to default bail arose immediately after 21.02.2019, when
the 90 day period was over. An order that is passed without jurisdiction
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by the learned Sub-Divisional Judicial Magistrate dated 13.02.2019, had
been corrected by the learned Additional Sessions Judge/Special Court
vide the order dated 25.03.2019, as a result of which his right to default
bail sprung into action before filing of the charge sheet dated 26.03.2019.
He, therefore, assailed the High Court judgment on both counts - Firstly,
that the exclusive jurisdiction to extend time vested only in the Special
Court and not in the Ilaqa Magistrate, despite the fact that it was the
State Police Agency that investigated these offences. Secondly, he also
argued, relying upon a number of judgments, that the Appellant's right to
default bail was not extinguished by the filing of the charge sheet dated
26.03.2019, as was incorrectly held by the High Court.
7. Smt. Jaspreet Gogia, learned Advocate who appeared on behalf
of the State of Punjab, also took us through the provisions of both the
aforesaid enactments. She stressed in particular Section 10 of the NIA
Act, stating that nothing in the said Act would affect the powers of the
State Government to investigate and prosecute any scheduled offence.
She also stressed the fact that the entire investigation was done only by
the State Police and not by the National Investigation Agency. This being
the case, she argued that the Ilaqa Magistrate had jurisdiction to extend
time, and having so extended time on 13.02.2019, any application for
default bail after the 90 day period was over i.e. after 21.02.2019 had
necessarily to be dismissed. She also argued that the first application for
default bail which was filed on or before 25.03.2019, had spent its force,
having been dismissed, and that the application dated 08.04.2019 filed
for default bail was clearly after 26.03.2019, when the charge sheet
was filed and, therefore, was correctly dismissed by the order of the
learned Special Judge dated 11.04.2019.
8. Having heard learned counsel for the parties, it is important at
this stage to set out all the relevant provisions of the three enactments
that we are directly concerned with - the Code, UAPA and NIA Act.
9. It is important to note that the expression "Court" is not defined
by the Code. On the other hand, Section 6 of the Code refers to
classes of Criminal Courts as follows:
"6. Classes of Criminal Courts.
Besides the High Courts and the Courts constituted under any
law, other than this Code, there shall be, in every State, the
following classes of Criminal Courts, namely:
BIKRAMJIT SINGH v. THE STATE OF PUNJAB
[R. F. NARIMAN, J. ]
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[2020] 12 S.C.R.
(i) Courts of Session;
(ii) Judicial Magistrates of the first class and, in any metropolitan
area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates."
The Court of Sessions is then referred to as a Court that is
established by the State Government under Section 9(1) of the
Code for every Sessions Division.
10. Section 26 of the Code refers to Courts by which offences
are triable. We are concerned directly with Section 26(b) which states
as follows:
"26. Courts by which offences are triable.
Subject to the other provisions of this Code,
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(b) any offence under any other law shall, when any Court is
mentioned in this behalf in such law, be tried by such Court and
when no Court is so mentioned, may be tried by-
(i) the High Court, or
(ii) any other Court by which such offence is shown in the
First Schedule to be triable."
11. Section 167 of the Code 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 - See first proviso (a)(i) to Section 167(2) of the Code. The said
proviso 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.
12. The First Schedule to the Code then sets out at the fag end, in
Part II thereof, classification of offences against other laws as follows:
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THE FIRST SCHEDULE
CLASSIFICATION OF OFFENCES
II.-CLASSIFICATION OF OFFENCES AGAINST OTHER
LAWS
Offence
Cognizable or noncognizable
Bailable or nonbailable
By what court
triable
If
punishable
with
death, imprisonment for
life, or imprisonment
for more than 7 years
Cognizable
Non-bailable
Court of Session
If
punishable
with
imprisonment
for
3
years and upwards and
not more than 7 years
Ditto
Ditto
Magistrate of first
class
If
punishable
with
imprisonment for less
than 3 years or with
fine only
Non-cognizable
Bailable
Any Magistrate
13. The UAPA deals with "unlawful activity" and "unlawful
association", and interdicts both unlawful activity and unlawful association
as defined under Sections 2(o) and 2(p). It further defines what are
terrorist acts, terrorist gangs and terrorists organisations under Section
2(k), 2(l) and 2(m) and proscribes each of these in offences which are
than fleshed out under its provisions. What is important from our point of
view in this case is the definition of "Court" in Section 2(1)(d) of UAPA
which is as follows:
"2. Definitions.-(1) In this Act, unless the context otherwise
requires,-
xxx xxxxxx
(d) "court" means a criminal court having jurisdiction, under the
Code, to try offences under this Act and includes a Special Court
constituted under section 11 or under section 21 of the National
Investigation Agency Act, 2008"
Equally important is the provision contained in Section 43-D(2) of
UAPA, which is set out as follows:
BIKRAMJIT SINGH v. THE STATE OF PUNJAB
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"43-D. Modified application of certain provisions of the
Code.
xxx xxxxxx
(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.""
14. A cursory reading of these provisions would show that the
offences under the UAPA under Sections 16, 17, 18, 18-A, 18-B, 19, 20,
22-B, 22-C and 23, being offences which contain maximum sentences
of over 7 years, would be exclusively triable by a Court of Sessions
when read with Part II of the First Schedule to the Code. It is only after
the NIA Act was enacted that the definition of "Court" was extended to
include Special Courts that were set up under Section 11 or Section 22
of the NIA Act.
15. When we come to the NIA Act, the Preamble of the said Act
indicates the thrust of the provisions of that Act as follows:
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"An Act to constitute an investigation agency at the national
level to investigate and prosecute offences affecting the
sovereignty, security and integrity of India, security of State,
friendly relations with foreign States and offences under Acts
enacted to implement international treaties, agreements,
conventions and resolutions of the United Nations, its agencies
and other international organisations and for matters connected
therewith or incidental thereto."
Under Section 2(g) "Scheduled Offence" is defined as follows:
"2. Definitions.-(1) In this Act, unless the context otherwise
requires,-
xxx xxxxxx
(g) "Scheduled Offence" means an offence specified in the
Schedule""
Section 2(h) defines "Special Court" as follows:
"2. Definitions.-(1) In this Act, unless the context otherwise
requires,-
xxx xxxxxx
(h) "Special Court" means a Special Court constituted under
section 11 or, as the case may be, under section 22"
16. Section 3 constitutes a National Investigation Agency which
is a special agency set up for prosecution of offences under the Acts
specified in the Schedule by the Central Government. It may be noted
that the UAPA is Item 2 of the said Schedule. Section 10, upon which
strong reliance is placed by the State, is as follows:
"10. Power of State Government to investigate Scheduled
Offences.-Save as otherwise provided in this Act, nothing
contained in this Act shall affect the powers of the State
Government to investigate and prosecute any Scheduled Offence
or other offences under any law for the time being in force"
Sections 11 and 22 which speak of the power of the Central
Government and the State Government respectively, to designate Courts
of Sessions as Special Courts, are as follows:
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"11. Power of Central Government to constitute Special
Courts.-
(1) The Central Government shall, by notification in the Official
Gazette, for the trial of Scheduled Offences, constitute one or
more Special Courts for such area or areas, or for such case or
class or group of cases, as may be specified in the notification.
(2) Where any question arises as to the jurisdiction of any Special
Court, it shall be referred to the Central Government whose
decision in the matter shall be final.
(3) A Special Court shall be presided over by a judge to be appointed
by the Central Government on the recommendation of the Chief
Justice of the High Court.
(4) The Agency may make an application to the Chief Justice of
the High Court for appointment of a Judge to preside over the
Special Court.
(5) On receipt of an application under sub-section (4), the Chief
Justice shall, as soon as possible and not later than seven days,
recommend the name of a judge for being appointed to preside
over the Special Court.
(6) The Central Government may, if required, appoint an additional
judge or additional judges to the Special Court, on the
recommendation of the Chief Justice of the High Court.
(7) A person shall not be qualified for appointment as a judge or
an additional judge of a Special Court unless he is, immediately
before such appointment, a Sessions Judge or an Additional
Sessions Judge in any State.
(8) For the removal of doubts, it is hereby provided that the
attainment, by a person appointed as a judge or an additional judge
of a Special Court, of the age of superannuation under the rules
applicable to him in the service to which he belongs shall not affect
his continuance as such judge or additional judge and the Central
Government may by order direct that he shall continue as judge
until a specified date or until completion of the trial of the case or
cases before him as may be specified in that order.
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(9) Where any additional judge or additional judges is or are
appointed in a Special Court, the judge of the Special Court may,
from time to time, by general or special order, in writing, provide
for the distribution of business of the Special Court among all
judges including himself and the additional judge or additional judges
and also for the disposal of urgent business in the event of his
absence or the absence of any additional judge.
22. Power of State Government to constitute Special
Courts.-
(1) The State Government may constitute one or more Special
Courts for the trial of offences under any or all the enactments
specified in the Schedule.
(2) The provisions of this Chapter shall apply to the Special Courts
constituted by the State Government under sub-section (1) and
shall have effect subject to the following modifications, namely-
(i) references to "Central Government" in sections 11 and 15 shall
be construed as references to State Government;
(ii) reference to "Agency" in sub-section (1) of section 13 shall
be construed as a reference to the "investigation agency of the
State Government";
(iii) reference to "Attorney-General for India" in sub-section (3)
of section 13 shall be construed as reference to "Advocate-General
of the State".
(3) The jurisdiction conferred by this Act on a Special Court shall,
until a Special Court is constituted by the State Government under
sub-section (1) in the case of any offence punishable under this
Act, notwithstanding anything contained in the Code, be exercised
by the Court of Session of the division in which such offence has
been committed and it shall have all the powers and follow the
procedure provided under this Chapter.
(4) On and from the date when the Special Court is constituted by
the State Government the trial of any offence investigated by the
State Government under the provisions of this Act, which would
have been required to be held before the Special Court, shall stand
transferred to that Court on the date on which it is constituted."
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Section 13 speaks of the jurisdiction of the Special Courts as
follows:
"13. Jurisdiction of Special Courts.-
(1) Notwithstanding anything contained in the Code, every
Scheduled Offence investigated by the Agency shall be tried
only by the Special Court within whose local jurisdiction it was
committed.
(2) If, having regard to the exigencies of the situation prevailing
in a State if,-
(a) it is not possible to have a fair, impartial or speedy trial; or
(b) it is not feasible to have the trial without occasioning the
breach of peace or grave risk to the safety of the accused, the
witnesses, the Public Prosecutor or a judge of the Special Court
or any of them; or
(c) it is not otherwise in the interests of justice, the Supreme
Court may transfer any case pending before a Special Court
to any other Special Court within that State or in any other
State and the High Court may transfer any case pending before
a Special Court situated in that State to any other Special Court
within the State.
(3) The Supreme Court or the High Court, as the case may be,
may act under this section either on the application of the Central
Government or a party interested and any such application
shall be made by motion, which shall, except when the applicant
is the Attorney-General for India, be supported by an affidavit
or affirmation."
Section 14 clarifies that Special Courts may also try offences
other than the scheduled offences as follows:
"14. Powers of Special Courts with respect to other
offences.-
(1) When trying any offence, a Special Court may also try any
other offence with which the accused may, under the Code be
charged, at the same trial if the offence is connected with
such other offence.
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(2) If, in the course of any trial under this Act of any offence,
it is found that the accused person has committed any other
offence under this Act or under any other law, the Special
Court may convict such person of such other offence and pass
any sentence or award punishment authorised by this Act or,
as the case may be, under such other law."
Section 16 is important and sets out the procedure and powers of
Special Courts as follows:
"16. Procedure and powers of Special Courts.-
(1) A Special Court may take cognizance of any offence, without
the accused being committed to it for trial, upon receiving a
complaint of facts that constitute such offence or upon a police
report of such facts.
(2) Where an offence triable by a Special Court is punishable
with imprisonment for a term not exceeding three years or with
fine or with both, the Special Court may, notwithstanding anything
contained in sub-section (1) of section 260 or section 262 of the
Code, try the offence in a summary way in accordance with the
procedure prescribed in the Code and the provisions of sections
263 to 265 of the Code shall, so far as may be, apply to such trial:
Provided that when, in the course of a summary trial under this
sub-section, it appears to the Special Court that the nature of the
case is such that it is not desirable to try it in a summary way, the
Special Court shall recall any witnesses who may have been
examined and proceed to re-hear the case in the manner provided
by the provisions of the Code for the trial of such offence and the
said provisions shall apply to, and in relation to, a Special Court as
they apply to and in relation to a Magistrate:
Provided further that in the case of any conviction in a summary
trial under this section, it shall be lawful for a Special Court to
pass a sentence of imprisonment for a term not exceeding one
year and with fine which may extend to five lakh rupees.
(3) Subject to the other provisions of this Act, a Special Court
shall, for the purpose of trial of any offence, have all the powers
of a Court of Session and shall try such offence as if it were a
Court of Session so far as may be in accordance with the procedure
prescribed in the Code for the trial before a Court of Session.
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(4) Subject to the other provisions of this Act, every case transferred
to a Special Court under sub-section (2) of section 13 shall be
dealt with as if such case had been transferred under section 406
of the Code to such Special Court.
(5) Notwithstanding anything contained in the Code, but subject
to the provisions of section 299 of the Code, a Special Court may,
if it thinks fit and for reasons to be recorded by it, proceed with
the trial in the absence of the accused or his pleader and record
the evidence of any witness, subject to the right of the accused to
recall the witness for cross-examination."
17. The Scheme of the NIA Act is that offences under the
enactments contained to the Schedule to the Act are now to be tried
exclusively by Special Courts set up under that Act. These may be set
up by the Central Government under Section 11 or by the State
Government under Section 22 of the Act. On the facts of the present
case, we are concerned with Section 22 as Special Courts have been
set up within the State of Punjab by a notification dated 10.06.2014,
which reads as follows:
"PART III
GOVERNMENT OF PUNJAB
DEPARTMENT OF HOME AFFAIRS AND JUSTICE
(JUDICIAL-1 BRANCH)
NOTIFICATION
The 10th June, 2014
No. S.O. 141/C.A.34/2008/S.22/2014.-In exercise of the
powers conferred under sub-section(1) of section 22 of the
National Investigation Agency Act, 2008 (Central Act No. 34 of
2008), and all other powers enablinghim in this behalf, the Governor
of Punjab, with the concurrence of Hon'ble Chief Justice of the
High Court of Punjab and Haryana, Chandigarh, is pleased to
constitute the courts of Sessions Judge and the first Additional
Sessions Judge (for the area falling within their respective
jurisdiction), at each district headquarter in the State, to be the
Special Courts, for the trial of offences as specified in the Schedule
appended to the aforesaid Act, which are investigated by the State
police."
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18. It will be seen that the aforesaid notification has been issued
under Section 22(1) of the NIA Act. What is important to note is that
under Section 22(2)(ii), reference to the Central Agency in Section 13(1)
is to be construed as a reference to the investigation agency of the State
Government - namely, the State police in this case. Thereafter, what is
important to note is that notwithstanding anything contained in the Code,
the jurisdiction conferred on a Special Court shall, until a Special Court
is designated by the State Government, be exercised only by the Court
of Sessions of the Division in which such offence has been committed
vide sub-section (3) of Section 22; and by sub-section (4) of Section 22,
on and from the date on which the Special Court is designated by the
State Government, the trial of any offence investigated by the State
Government under the provisions of the NIA Act shall stand transferred
to that Court on and from the date on which it is designated.
19. Section 13(1) of the NIA Act, which again begins with a nonobstante clause which is notwithstanding anything contained in the Code,
read with Section 22(2)(ii), states that every scheduled offence that is
investigated by the investigation agency of the State Government is to
be tried exclusively by the Special Court within whose local jurisdiction
it was committed.
20. When these provisions are read along with Section 2(1)(d)
and the provisos in 43-D(2) of the UAPA, the Scheme of the two Acts,
which are to be read together, becomes crystal clear.