# JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR & ORS v. NATIONAL INVESTIGATION AGENCY

- **Citation:** [2023] 6 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2023-05-01
- **Case number:** Criminal Appeal No. 1011 of 2023
- **Bench:** Dr. Dhananjaya Y. Chandrachud, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/judgebir-singh-jasbir-singh-samra-jasbir-ors-v-national-investigation-agency-37162
- **Pages:** 55

## Headnote

Code of Criminal Procedure, 1973:
ss. 167(2), 173 - Default Bail - Entitlement to, u/s. 167(2) -
Though the chargesheet might have been filed within the statutory
time period as prescribed in law yet the chargesheet was without a
valid order of sanction passed by a competent authority - Held : It
cannot be said that a chargesheet filed without sanction is an
incomplete chargesheet which could be termed as not in consonance
with s. 173 - According sanction is the duty of the sanctioning
authority who is not connected with the investigation at all - In
case the sanctioning authority takes some time to accord sanction,
that does not vitiate the final report filed by the investigating agency
before the Court - s. 173 does not speak about the sanction order
at all - s. 167 also speaks only about investigation and not about
cognizance by the Magistrate - Filing of a chargesheet is sufficient
compliance with the provisions of s. 167 and that an accused cannot
claim any indefeasible right of being released on statutory/default
bail u/s. 167(2) on the ground that cognizance has not been taken
before the expiry of the statutory time period to file the chargesheet
- Grant of sanction is nowhere contemplated u/s. 167.
Default bail - Entitlement to, u/s. 167(2) when error on the
part of the investigating agency to file chargesheet for the offence
enumerated, in the Court of Magistrate and not in the Sessions or
designated Court - Held : Error on the part of the investigating
agency in filing chargesheet first before the Court of Magistrate
has nothing to do with the right of the accused to seek statutory/
default bail u/s. 167(2) - Committal proceedings are not warranted,
when it comes to prosecution under the UAPA by the NIA by virtue
of s. 16 of the NIA Act - This is because the Special Court acts, as
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[2023] 6 S.C.R.
one of the original jurisdictions - By virtue of s. 16 of the NIA Act,
the Court need not follow the requirements of Section 193 CrPC -
On facts, the application seeking default bail u/s.167(2) r/w s. 43D
of the UAPA was filed before the Special Judge, NIA, on 14.12.2020
and by that time, the chargesheet had already been filed and the
proceedings were pending in the court of Special Judge, CBI -
National Investigation Agency Act, 2008 - s.16 - Unlawful Activities
(Prevention) Act,1967.
S. 167 - Investigation - Investigating agencies seeking
extension of time to complete investigation - Advise to NIA as well
as the State investigating agency seeking extension of time, to be
careful that such extension is not prayed for at the last moment -
Right to be released on default bail continues to remain enforceable
if the accused has applied for it, notwithstanding pendency of the
bail application or subsequent filing of the chargesheet or a report
seeking extension of time by the prosecution before the court -
However, where the accused fails to apply for default bail when the
right accrues to him, and subsequently a chargesheet, or a report
seeking extension of time is preferred, the right to default bail would
be extinguished - Court would be at liberty to take cognizance of
the case or grant further time for completion of the investigation,
though the accused may still be released on bail under other
provisions of the CrPC.
Dismissing the appeals, the Court
HELD: 1.1 It cannot be said that a chargesheet filed
without sanction is an incomplete chargesheet which could be
termed as not in consonance with sub section (5) of Section 173
CrPC. Whether the sanction is required or not under a statute,
is a question that has to be considered at the time of taking
cognizance of the offence and not during inquiry or investigation.
There is a marked distinction in the stage of investigation and
prosecution. The prosecution starts when the cognizance of
offence is taken. It is also to be kept in mind that cognizance is
taken of the offence and not of the offender. It cannot be said that
obtaining sanct

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[2023] 6 S.C.R. 1
1
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR
& ORS.
v.
NATIONAL INVESTIGATION AGENCY
(Criminal Appeal No. 1011 of 2023)
MAY 01, 2023
[DR. DHANANJAYA Y. CHANDRACHUD, CJI AND
J. B. PARDIWALA, J.]
Code of Criminal Procedure, 1973:
ss. 167(2), 173 - Default Bail - Entitlement to, u/s. 167(2) -
Though the chargesheet might have been filed within the statutory
time period as prescribed in law yet the chargesheet was without a
valid order of sanction passed by a competent authority - Held : It
cannot be said that a chargesheet filed without sanction is an
incomplete chargesheet which could be termed as not in consonance
with s. 173 - According sanction is the duty of the sanctioning
authority who is not connected with the investigation at all - In
case the sanctioning authority takes some time to accord sanction,
that does not vitiate the final report filed by the investigating agency
before the Court - s. 173 does not speak about the sanction order
at all - s. 167 also speaks only about investigation and not about
cognizance by the Magistrate - Filing of a chargesheet is sufficient
compliance with the provisions of s. 167 and that an accused cannot
claim any indefeasible right of being released on statutory/default
bail u/s. 167(2) on the ground that cognizance has not been taken
before the expiry of the statutory time period to file the chargesheet
- Grant of sanction is nowhere contemplated u/s. 167.
Default bail - Entitlement to, u/s. 167(2) when error on the
part of the investigating agency to file chargesheet for the offence
enumerated, in the Court of Magistrate and not in the Sessions or
designated Court - Held : Error on the part of the investigating
agency in filing chargesheet first before the Court of Magistrate
has nothing to do with the right of the accused to seek statutory/
default bail u/s. 167(2) - Committal proceedings are not warranted,
when it comes to prosecution under the UAPA by the NIA by virtue
of s. 16 of the NIA Act - This is because the Special Court acts, as
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[2023] 6 S.C.R.
one of the original jurisdictions - By virtue of s. 16 of the NIA Act,
the Court need not follow the requirements of Section 193 CrPC -
On facts, the application seeking default bail u/s.167(2) r/w s. 43D
of the UAPA was filed before the Special Judge, NIA, on 14.12.2020
and by that time, the chargesheet had already been filed and the
proceedings were pending in the court of Special Judge, CBI -
National Investigation Agency Act, 2008 - s.16 - Unlawful Activities
(Prevention) Act,1967.
S. 167 - Investigation - Investigating agencies seeking
extension of time to complete investigation - Advise to NIA as well
as the State investigating agency seeking extension of time, to be
careful that such extension is not prayed for at the last moment -
Right to be released on default bail continues to remain enforceable
if the accused has applied for it, notwithstanding pendency of the
bail application or subsequent filing of the chargesheet or a report
seeking extension of time by the prosecution before the court -
However, where the accused fails to apply for default bail when the
right accrues to him, and subsequently a chargesheet, or a report
seeking extension of time is preferred, the right to default bail would
be extinguished - Court would be at liberty to take cognizance of
the case or grant further time for completion of the investigation,
though the accused may still be released on bail under other
provisions of the CrPC.
Dismissing the appeals, the Court
HELD: 1.1 It cannot be said that a chargesheet filed
without sanction is an incomplete chargesheet which could be
termed as not in consonance with sub section (5) of Section 173
CrPC. Whether the sanction is required or not under a statute,
is a question that has to be considered at the time of taking
cognizance of the offence and not during inquiry or investigation.
There is a marked distinction in the stage of investigation and
prosecution. The prosecution starts when the cognizance of
offence is taken. It is also to be kept in mind that cognizance is
taken of the offence and not of the offender. It cannot be said that
obtaining sanction from the competent authorities or the
authorities concerned is part of investigation. Sanction is required
only to enable the court to take cognizance of the offence. The
court may take cognizance of the offence after the sanction order
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was produced before the court, but the moment, the final report
is filed along with the documents that may be relied on by the
prosecution, then the investigation will be deemed to have been
completed. Taking cognizance is entirely different from
completing the investigation. To complete the investigation and
file a final report is a duty of the investigating agency, but taking
cognizance of the offence is the power of the court. The court in
a given case, may not take cognizance of the offence for a
particular period of time even after filing of the final report. In
such circumstance, the accused concerned cannot claim their
indefeasible right under Section 167(2) CrPC for being released
on default bail. What is contemplated under Section 167(2) CrPC
is that the Magistrate or designated Court (as the case may be)
has no powers to order detention of the accused beyond the period
of 180 days or 90 days or 60 days as the case may be. If the
investigation is concluded within the prescribed period, no right
accrues to the accused concerned to be released on bail under
the proviso to Section 167(2) CrPC. [Para 43][32-C; D-H]
1.2. Once a final report has been filed with all the documents
on which the prosecution proposes to rely, the investigation shall
be deemed to have been completed. After completing
investigation and submitting a final report to the Court, the
investigating officer can send a copy of the final report along with
the evidence collected and other materials to the sanctioning
authority to enable the sanctioning authority to apply his mind to
accord sanction. According sanction is the duty of the sanctioning
authority who is not connected with the investigation at all. In
case the sanctioning authority takes some time to accord sanction,
that does not vitiate the final report filed by the investigating
agency before the Court. Section 173 CrPC does not speak about
the sanction order at all. Section 167 of the CrPC also speaks
only about investigation and not about cognizance by the
Magistrate. Therefore, once a final report has been filed, that is
the proof of completion of investigation and if final report is filed
within the period of 180 days or 90 days or 60 days from the
initial date of remand of accused concerned, he cannot claim that
a right has accrued to him to be released on bail for want of filing
of sanction order. [Para 44][33-A-D]
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR
v. NATIONAL INVESTIGATION AGENCY
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1.3 It is evident that the order of sanction passed by the
competent authority can be produced and placed on record even
after the filing of the chargesheet. It may happen that the
inordinate delay in placing the order of sanction before the Special
Court may lead to delay in trial because the competent court will
not be able to take cognizance of the offence without a valid
sanction on record. In such an eventuality, at the most, it may be
open for the accused to argue that his right to have a speedy trial
could be said to have been infringed thereby violating Article 21
of the Constitution. This may at the most entitle the accused to
pray for regular bail on the ground of delay in trial. But the same
cannot be a ground to pray for statutory/default bail under the
provisions of Section 167(2) CrPC. [Para 47][34-C-E]
1.4 The maximum period of 180 days which is being granted
to the investigating agency to complete the investigation in the
case wherein the prosecution is for the offence under the UAPA
is not something in the form of a package that everything has to
be completed including obtaining of sanction within this period
of 180 days. The investigating agency has nothing to do with
sanction. Sanction is altogether a different process. Sanction is
accorded, based on the materials collected by the investigating
agency which forms the part of the final report under Section 173
CrPC. The investigating agency gets full 180 days to complete
the investigation. To say that obtaining of sanction and placing
the same along with the chargesheet should be done within the
period of 180 days is something which is not only contrary to the
provisions of law discussed, but is inconceivable. [Para 49][35D-F]
1.5 It is very much necessary that the evidence collected
by the investigating agency in the form of chargesheet is
thoroughly looked into and thereafter, the recommendations are
made. The investigating agency gets full 180 days to complete
the investigation and file its report before the competent court
in accordance with Section 173(2) of the CrPC. The submission
that the investigating agency may have to adjust the period of
investigation in such a manner that within the period of 180 days,
the sanction is also obtained and placed before the court is
absolutely unpalatable. [Para 53][37-E-G]
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1.6 Once the chargesheet has been filed within the stipulated
time, the question of grant of statutory/default bail does not arise.
Whether cognizance has been taken or not taken is not relevant
for the purpose of compliance of Section 167 CrPC. The mere
filing of the chargesheet is sufficient. [Para 57][41-G]
1.7 Filing of a chargesheet is sufficient compliance with the
provisions of Section 167 CrPC and that an accused cannot claim
any indefeasible right of being released on statutory/default bail
under Section 167(2) CrPC on the ground that cognizance has
not been taken before the expiry of the statutory time period to
file the chargesheet. Grant of sanction is nowhere contemplated
under Section 167 CrPC. [Para 63][47-D-E]
Ritu Chhabaria v. Union of India and Others, Writ
Petition (Crl.) No. 60 of 2023 - distinguished.
Suresh Kumar Bhikamchand Jain v. State of
Maharashtra and Another (2013) 3 SCC 77 : [2013] 1
SCR 1037; K. Veeraswami v. Union of India and Others
(1991) 3 SCC 655 : [1991] 3 SCR 189 - relied on.
Dinesh Dalmia v. CBI (2007) 8 SCC 770 : [2007] 9
SCR 1124; Central Bureau of Investigation v. Ashok
Kumar Aggarwal (2014) 14 SCC 295 : [2013] 14 SCR
983; Mohamed Iqbal Madar Sheikh and others v. State
of Maharashtra (1996) 1 SCC 722 : [1996] 1 SCR
183; M. Ravindran v. Intelligence Officer, Directorate
of Revenue Intelligence (2021) 2 SCC 485 - referred
to.
2.1 The scheme of both the Acts-NIA and UAPA Act makes
it clear that once the investigation is completed, the report under
Section 173 CrPC is to be filed in the Special Court constituted
under the Act. Section 16 of the NIA Act leaves no room for any
doubt, as it empowers the Special Court to 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. Thus, by incorporating
Section 16 in the NIA Act the legislature has made the Special
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR
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Court as the court of original jurisdiction unlike the Sessions
Court, which is a court of committal under the Criminal Procedure
Code. [Para 68][49-B-C]
2.2. The chargesheet could not have been filed in the Court
of the SDJM and the same should have been filed in the Special
Court. Section 16 of the NIA Act empowers the Special Court to
take cognizance of any offence without the accused being
committed to it for trial, upon receiving a complaint of facts that
constitute such an offence or upon a police report of such facts.
The error on the part of the investigating agency in filing the
chargesheet in the Court of SDJM and thereafter, committing
the case to the Court of Sessions has again nothing to do with
Section 167 CrPC. The application seeking default bail under
Section 167(2) CrPC read with Section 43D of the UAPA was
filed before the Special Judge, NIA, Mohali, on 14.12.2020 and
by that time, the chargesheet had already been filed and the
proceedings were pending in the court of Special Judge, CBI,
Punjab, SAS Nagar, Mohali. It is not in dispute that at the time
when the Special Court took cognizance of the offence the
sanctions under the UAPA and the 1908 Act had already been
granted. [Para 72][51-D-E; F-H]
2.3 The error on the part of the investigating agency in
filing chargesheet first before the Court of Magistrate has nothing
to do with the right of the accused to seek statutory/default bail
under Section 167(2) CrPC. The committal proceedings are not
warranted, when it comes to prosecution under the UAPA by the
NIA by virtue of Section 16 NIA Act. This is because the Special
Court acts, as one of the original jurisdictions. By virtue of Section
16 NIA Act, the Court need not follow the requirements of Section
193 CrPC. [Para 73][52-A-B]
Abdul Azeez P.V. and Others v. National Investigation
Agency (2014) 16 SCC 543; Fakhrey Alam v. State of
Uttar Pradesh 2021 SCC OnLine 532; Chitra
Ramkrishna v. Central Bureau of Investigation (2022)
SCC OnLine Del 3124; Rambhai Nathabhai Gadhvi
and Others v. State of Gujarat (1997) 7 SCC 744 :
[1997] 3 Suppl. SCR 356; Ashrafkhan v. State of
Gujarat (2012) 11 SCC 606 : [2012] 12 SCR 1033;
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Bikramjit Singh v. State of Punjab (2020) 10 SCC 616;
Sanjay Dutt v. State (1994) 5 SCC 410 : [1994] 3 Suppl.
SCR 263; Serious Fraud Investigation Office v. Rahul
Modi and Others (2022) SCC OnLine 153; Uday
Mohanlal Acharya v. State of Maharashtra (2001) 5
SCC 453 : [2001] 2 SCR 878; Rakesh Kumar Paul v.
State of Assam (2017) 15 SCC 67 : [2017] 8 SCR 785;
Achpal Alias Ramswaroop and Another v. State of
Rajasthan (2019) 14 SCC 599 : [2018] 12 SCR 327;
Central Bureau of Investigation v. R. S. Pai and Another
(2002) 5 SCC 82 : [2002] 2 SCR 889; Narayan Rao v.
State of A.P. AIR 1957 SC 737 : [1958] SCR 283 :
1957 Cri LJ 1320; Satya Narain Musadi and Others v.
State of Bihar (1980) 3 SCC 152; Satish Kumar v. State
of Punjab and Another 2021 SCC OnLine P&H 786 -
referred to.
3.1 The final report under Section 173(2) of the CrPC was
filed in the Court of SDJM on 15.11.2019, was the 161st day
from the date of arrest of two of the appellants. They were the
first to be arrested on 08.06.2019. The Punjab Police applied to
the Court of the Additional Sessions Judge, Amritsar, for
extension of time to complete the investigation invoking the
proviso to Section 43D(2)(b) of the UAPA on 04.09.2019. When
this application for extension of time was filed only two days were
left for 90 days to expire. This is suggestive of the fact that the
91st day would have fallen on 07.09.2019. What is important to
highlight is that the Additional Sessions Judge, Amritsar, looked
into the extension application dated 04.09.2019 filed by the Punjab
Police and ultimately, extended the time limit vide its order dated
17.09.2019 i.e., on the 101st day. By the time, the Additional
Sessions Judge, Amritsar, passed an order extending the time,
the period of 90 days had already expired. Indisputably, there
was no chargesheet before the Court on the 91st day i.e., on
07.09.2019. The reason why this is said to be a grey area is
because what would have happened if the appellants had preferred
an application seeking statutory/default bail under Section 167(2)
CrPC on the 91st day i.e., on 07.09.2019. The application seeking
extension of time was very much pending. The Additional
Sessions Judge could not have even allowed such application
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR
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promptly i.e., on or before the 90th day without giving notice to
the accused persons. [Para 76][52-F-H; 53-A-C]
3.2 An opportunity of hearing has to be given to the accused
persons before the time is extended up to 180 days to complete
the investigation. The only error or lapse on the part of the
appellants was that they failed to prefer an appropriate application
seeking statutory/default bail on the 91st day. If such application
would have been filed, the court would have had no option but to
release them on statutory/default bail. The Court could not have
said that since the extension application was pending, it shall
pass an appropriate order only after the extension application
was decided. That again would have been something contrary to
the well settled position of law. This litigation is an eye opener
for the NIA as well as the State investigating agency that if they
want to seek extension, they must be careful that such extension
is not prayed for at the last moment. [Para 76][53-C-E]
3.3 The right to be released on default bail continues to
remain enforceable if the accused has applied for such bail,
notwithstanding pendency of the bail application or subsequent
filing of the chargesheet or a report seeking extension of time by
the prosecution before the court. However, where the accused
fails to apply for default bail when the right accrues to him, and
subsequently a chargesheet, or a report seeking extension of
time is preferred before the Magistrate or any other competent
court, the right to default bail would be extinguished. The court
would be at liberty to take cognizance of the case or grant further
time for completion of the investigation, as the case may be,
though the accused may still be released on bail under other
provisions of the CrPC. [Para 77][53-F-G]
Jigar Alias Jimmy Pravinchandra Aditya v. State of
Gujarat 2022 SCC OnLine SC 1290; Sayed Mohd.
Ahmad Kazmi v. State (Government of NCT of Delhi)
and Others (2012) 12 SCC 1 : [2012] 9 SCR 836 -
referred to.
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Case Law Reference
(2014) 16 SCC 543
referred to
Para 16
[1997] 3 Suppl. SCR 356
referred to
Para 16
[2012] 12 SCR 1033
referred to
Para 16
(2020) 10 SCC 616
referred to
Para 16
[1994] 3 Suppl. SCR 263
referred to
Para 18
[2013] 1 SCR 1037
relied on
Para 57, 63
[2001] 2 SCR 878
referred to
Para 28
[2017] 8 SCR 785
referred to
Para 29
[2018] 12 SCR 327
referred to
Para 30
[2007] 9 SCR 1124
referred to
Para 31
[2002] 2 SCR 889
referred to
Para 46
[1958] SCR 283
referred to
Para 46
(1980) 3 SCC 152
referred to
Para 48
[1991] 3 SCR 189
relied on
Para 48
[2013] 14 SCR 983
referred to
Para 51
[1996] 1 SCR 183
referred to
Para 59
(2021) 2 SCC 485
referred to
Para 59
[2012] 9 SCR 836
referred to
Para 78
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1011 of 2023.
From the Judgment and Order dated 26.04.2022 of the High Court
of Punjab & Haryana at Chandigarh in CRAD No. 47 of 2021.
With
Criminal Appeal No. 1012 of 2023.
Colin Gonsalves, Sr. Adv., Sangram Saron, Ms. Rooh-e-hina Dua,
Ms. Mugdha, Satya Mitra, Advs. for the Appellants.
JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR
v. NATIONAL INVESTIGATION AGENCY
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Sanjay Jain, ASG, Ms. Deepabali Dutta, Annam Venkatesh, Rahul
Mishra, Padmesh Mishra, Samar Singh Kachwaha, Arvind Kumar
Sharma, Advs. for the Respondent.
The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
1. As the issues raised in both the captioned appeals are common
and the challenge is also to the self-same order passed by the High
Court, those were taken up for hearing analogously and are being disposed
of by this common judgment and order.
2. These appeals by special leave are at the instance of five under
trial accused charged with having committed offences punishable under
Section 120B of the Indian Penal Code, 1860 (for short, 'the IPC'),
Sections 17, 18, 18B and 20 respectively of the Unlawful Activities
(Prevention) Act, 1967 (for short, 'the UAPA') and Sections 4 and 5
respectively of the Explosive Substances Act, 1908 (for short, 'the 1908
Act') and are directed against the order passed by the High Court of
Punjab and Haryana at Chandigarh dated 26.04.2022 in CRA-D No. 47
of 2021 (O&M) by which, the High Court dismissed the appeal and
thereby declined to release the accused persons on default bail under
Section 167(2) of the CrPC.
3. The seminal issues falling for the consideration of this Court
may be formulated as under:-
(i) Whether an accused is entitled to seek default bail under the
provisions of Section 167(2) of the Code of Criminal Procedure, 1973
(for short, 'the CrPC') on the ground that although the chargesheet
might have been filed within the statutory time period as prescribed in
law yet the chargesheet sans a valid order of sanction passed by a
competent authority is no chargesheet in the eye of law and therefore, it
is as good as saying that no chargesheet was filed by the investigating
agency within the statutory time period as prescribed in law? To put it
more succinctly, whether the Court concerned is precluded in any manner
for the purpose of Section 167 of the CrPC from taking notice of the
chargesheet that might have been filed by the investigating agency in
the absence of a valid order of sanction?
(ii) Whether cognizance of the chargesheet is necessary to prevent
the accused from seeking default bail or whether mere filing of the
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chargesheet would suffice for the investigation to be deemed complete?
To put it in different words, whether the grant of sanction is contemplated
under Section of the 167 CrPC?
(iii) A Special Court may not be in a position to take cognizance
on account of failure on the part of the prosecution to obtain sanction to
prosecute the accused under the UAPA and the 1908 Act, but does
such failure amount to non-compliance with the provisions of Section
167(2) of the CrPC so as to entitle the accused to seek default bail?
(iv) Whether filing of the chargesheet for the offences as
enumerated above, in the Court of the Magistrate and the Magistrate
thereafter, committing the case to the Court of Sessions or designated
Court would vitiate all subsequent proceedings on the ground that Section
16 of the National Investigation Agency Act, 2008 (for short, 'the NIA
Act') empowers the Special Court to take cognizance of any offence
without the accused being committed to it for trial upon receiving a police
report? To put it in other words, whether the error on the part of the
investigating agency to file chargesheet for the offence enumerated above,
in the Court of Magistrate and not in the Sessions or designated Court
would by itself entitle the accused to seek default bail under the provisions
of Section 167(2) of the CrPC?
4. For the purpose of answering the aforesaid issues, it is very
much essential to take notice of the following chronology of dates and
events:
(a) On 02.06.2019 at around 04:50 in the morning, a team of police
officers was patrolling. The vehicles passing through the Harsh Cheena,
Kukkarwal bus stop in Raja Sansi, District Amritsar, State of Punjab,
were being checked. At that point of time two boys belonging to the Sikh
community were noticed to have been travelling on a motorcycle without
a number plate. On being asked to stop, they fled away. In the process
of running away, one blue coloured bag which was in the hands of the
pillion rider fell down. A mobile phone and two hand grenades were
recovered from the bag. In such circumstances, FIR No. 90 came to be
registered at the Police Station Raja Sansi, District Amritsar (Rural),
Punjab, for the offences punishable under the 1908 Act. Thus, the FIR
came to be registered on 02.06.2019.
(b) On 05.06.2019, the Punjab Police added Sections 17, 18, 18B
and 20 of the UAPA.
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(c) On 08.06.2019, accused Jasbir Singh and Varinder Singh came
to be arrested by the Punjab Police.
(d) On 27.07.2019, Sukhpreet Singh alias Budda (Accused No.
8) was arrayed as accused in the instant FIR and offence under Section
120B of the IPC was added.
(e) On 18.08.2019, the Appellant No. 3 Kulbir Singh alias Kulbir
and Appellant No. 4 Manjit Kaur wife of Darshan Singh (Appellants of
Crl. A. No. 1011 of 2023) came to be arrested. It is the case of the
prosecution that Kulbir Singh and Manjit Kaur at the relevant point of
time were residing at Cambodia. One Harmit Singh and Kulwinder Singh
were also arrayed as accused.
(f) On 04.09.2019, the Punjab Police applied for extension of time
for completing the investigation under the proviso to Section 43D(2)(b)
of the UAPA before the Additional Sessions Judge, Amritsar. It is
pertinent to note that the application seeking extension was filed two
days prior to the expiry of 90 days from the date of arrest. Section
43D(2)(b) of the UAPA empowers the competent court to extend the
period of 90 days as contemplated under Section 167 of the CrPC up to
180 days.
(g) On 07.09.2019, Taranbir Singh (Appellant of Crl. A. No. 1012
of 2023) came to be arrayed as accused in the instant FIR. Taranbir
Singh at the relevant point of time was residing in Malaysia.
(h) On 11.09.2019, Taranbir Singh was arrested.
(i) On 17.09.2019, the Additional Sessions Judge, Amritsar,
extended the period of completion of investigation from 90 days to 180
days. It is pertinent to note at this stage that the extension was granted
by the Additional Sessions Judge after giving an opportunity of hearing
to all the accused persons.
(j) On 15.11.2019, a final report under Section 173(2) of the CrPC
was prepared by the investigating agency and presented before the Court
of the Sub-Divisional Judicial Magistrate, Ajnala. This report
(chargesheet) was filed in connection with the FIR No. 90 for the offence
enumerated above. A common chargesheet was filed before the Court
of Magistrate on 15.11.2019. Since the accused Nos. 1 and 2 respectively
were arrested on 08.06.2019, the chargesheet could be said to have
been presented on the 161st day from the date of their formal arrest.
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The accused Nos. 3 & 4 were arrested on 18.08.2019; for them, the
chargesheet was filed within 90 days post-arrest, and in the case of the
accused No. 5 who was arrested on 11.09.2019, it was filed within 66
days of his arrest. Thus, the chargesheet was filed within the extended
period of 180 days so far as Appellant Nos. 1 and 2 are concerned.
(k) On 16.11.2019, the SDJM, Ajnala adjourned the proceedings
of all the accused persons.
(l) On 20.11.2019, the SDJM, Ajnala further adjourned the
proceedings to 25.11.2019.
(m) On 25.11.2019, the SDJM, Ajnala committed the case to the
Court of Sessions under the provisions of Section 209 of the CrPC, as
the offences were exclusively triable by the Court of Sessions. The next
date fixed was 06.12.2019.
(n) On 06.12.2019, the Additional Sessions Judge, Amritsar, simply
registered the case without cognizance being taken.
(o) On 22.02.2020, the NIA, New Delhi re-registered the instant
case as RC-07/2020/NIA/DLI under Sections 17, 18, 18B and 20
respectively of the UAPA in compliance with the Government of India,
Ministry of Home Affairs, CTCR Division Order No. 11011/22/2020/
NIA dated 20.02.2020 in the FIR No. 90 of 2019.
(p) On 09.03.2020, the Special Judge, CBI Punjab, SAS Nagar,
Mohali, received the entire file from the Court of Additional Sessions
Judge, Amritsar. In this manner, the prosecution ultimately stood
transferred to the Special Court constituted under the NIA/UAPA.
(q) On 26.10.2020, the District Magistrate, Amritsar, accorded
sanction for prosecution under the 1908 Act.
(r) On 12.11.2020, the Special Judge, NIA recorded that the
sanction to prosecute the accused persons for the offences under the
1908 Act had been accorded and the sanction under the UAPA was
being awaited.
(s) On 14.12.2020, an application for default bail under Section
167(2) of the CrPC r/w Section 43D of the UAPA was filed before the
Special Judge NIA, SAS Nagar, Mohali, essentially on the ground that
although the chargesheet had been filed within the extended period of
180 days, yet the same could be termed as incomplete because of want
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of sanction under the UAPA. In such circumstances, the position was
as if there was no chargesheet.
(t) On 16.12.2020, the prosecution produced the order of grant of
sanction issued by the District Magistrate, Amritsar, under the 1908 Act
before the trial court.
(u) On 17.12.2020, the NIA filed its reply to the application filed
by the accused persons seeking default bail.
(v) On 17.12.2020, the Special Court rejected the application filed
by the accused persons seeking default bail on the ground that the
chargesheet had already been filed.
(w) On 06.01.2021, the Government of Punjab accorded sanction
for prosecution under the UAPA.
(x) On 07.01.2021, the Special Court acknowledged the receipt
of the sanction under the UAPA from the Home Department of the
Punjab Government.
(y) On 18.01.2021, the appellants herein filed appeal before the
High Court of Punjab and Haryana against the order dated 17.12.2020
passed by the Special Court rejecting the default bail application.
(z) On 17.03.2021, the Government of India, accorded sanction
under Section 45(1) of the UAPA for prosecuting the Appellants.
(aa) On 22.03.2021, a supplementary chargesheet was filed by
the NIA before the Special Judge, NIA, Punjab, along with the relevant
sanctions for prosecution.
(ab) On 05.04.2021, the Special Court, NIA took cognizance of
the offences enumerated above and issued notices to the accused persons.
(ac) On 06.09.2021, the Special Court proceeded to frame charge
against the accused persons.
(ad) On 26.04.2022, the High Court of Punjab and Haryana
dismissed the appeal filed by the Appellants against the order of the
Special Court rejecting the plea of default bail.
5. To make it more explicit and clear, we trim down the aforesaid
chronology of dates and events as under:
(i) 02.06.2019 - FIR was registered;
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(ii) 08.06.2019 - arrest of the first and second Appellants;
(iii) 18.08.2019 - arrest of the third and fourth Appellants;
(iv) 11.09.2019 - arrest of Taranbir Singh (Appellant of Crl. A.
No. 1012 of 2023)
(v) 17.09.2019 - extension of the period of investigation from 90
to 180 days;
(vi) 15.11.2019 - chargesheet presented;
(vii) 14.12.2020 - application for default bail;
(viii) 16.12.2020 - sanction order dated 26.10.2020 under the 1908
Act filed;
(ix) 06.01.2021 - sanction order was issued under the UAPA;
(x) 17.03.2021 - sanction by the Ministry of Home Affairs under
Section 45(1), UAPA following the transfer of investigation to NIA; and
(xi) 22.03.2021 - supplementary chargesheet has been presented
by NIA.
6. In such circumstances referred to above, the Appellants (original
accused persons) are here before this Court with the present appeals.
SUBMISSIONS ON BEHALF OF THE ACCUSED
PERSONS
7. Mr. Colin Gonsalves, the learned Senior Counsel and Mr. Satya
Mitra, the learned Counsel appearing for the respective appellants
vehemently submitted that the High Court committed a serious error in
declining to grant the benefit of default bail to the appellants.
8. According to both the learned counsel, the chargesheet filed
without sanction is an incomplete chargesheet and on the basis of such
incomplete chargesheet no cognizance can be taken. It was submitted
that the final report is filed so as to enable the court concerned to apply
its mind as to whether cognizance of the offence should be taken or not.
The sum and substance of the submission canvassed on behalf of the
accused persons is that there cannot be a part chargesheet. A chargesheet
filed without sanction is an incomplete chargesheet and does not meet
the requirement of a police report within the meaning of Section 173(2)
of the CrPC. Such a chargesheet would also not be in consonance with
sub section (5) of Section 173 of the CrPC.
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9. Such incomplete chargesheet cannot be used as a tool or device
by the police to defeat an application seeking statutory/default bail. It
was argued that a chargesheet filed under the UAPA must be complete
in all respects. The emphasis put by both the learned counsel was on the
fact that the sanction order must accompany the chargesheet to enable
the court concerned to take cognizance.
10. It was further argued that mere gathering of evidence by the
investigating agency is not sufficient when it comes to comparing usual
criminal cases with the cases under the UAPA. The investigation cannot
be said to be complete until the facts gathered are scrutinised by the
authority appointed by the Central Government and such authority submits
its report.
11. Our attention was drawn by both the learned counsel to Rules
3 and 4 respectively of the Unlawful Activities (Prevention)
(Recommendation and Sanction of Prosecution) Rules, 2008 (for short,
'Rules 2008'), which provide a time limit for making recommendation
by the authority and a time limit thereafter, for sanction of the prosecution.
It was argued that the provisions of the UAPA and Rules 2008 framed
thereunder make the grant of sanction, time bound.
12. It was vociferously submitted by both the learned Counsel
that the extension of time from 90 to 180 days read together with Rules
3 and 4 respectively of the Rules 2008 referred to above, makes the
grant of sanction mandatorily time bound. The same leads to only one
conclusion that the sanction order must accompany for it to be considered
a final report.
13. It was argued that since the chargesheet in the case on hand
was filed on 15.11.2019, the material collected by the investigating agency
should have been received by the competent authority on 15.11.2019
itself. The report of the competent authority should have been ready
seven days thereafter, i.e., by 22.11.2019. In view of Rule 4, the sanction
should have been granted by 29.11.2019. However, according to both
the learned counsel, the report was filed only on 12.03.2021 i.e., after a
delay of one year and three months. The sanction was granted on
17.03.2021 i.e., beyond the period of 180 days which expired on
10.03.2020. The default bail application was instituted on 14.12.2020.
14. It was further argued that the NIA after taking over the
investigation on 22.01.2020 was left with 49 days to file or place on
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record the appropriate sanction before the expiry of the limit of 180
days. The default bail application was filed on 14.12.2020. The sanction,
which was granted only on 17.03.2021, ought to have been granted on
29.11.2019 in view of the time period prescribed by Rules 3 and 4
respectively of the 2008 Rules referred to above. In such circumstances,
both the learned counsel submitted that such a delayed sanction even if
otherwise valid cannot defeat the indefeasible right of the accused
persons to seek default bail.
15. The second limb of the submission canvassed by both the
learned counsel appearing for the accused persons is that the chargesheet
could not have been filed in the Court of SDJM, Ajnala as the proceedings
under the NIA are to be conducted in the Special Court only notified
under Section 22 of the NIA Act. If there is no Special Court notified
then before the Sessions Judge. However, in any event, the chargesheet
could not have been filed before the Court of Magistrate. It was argued
that in view of Section 16 of the NIA Act read with Section 22 of the
NIA Act, the provisions of Section 193 of the CrPC would not come into
play. It was argued that the error on the part of investigating agency in
filing the chargesheet before the Court of Magistrate and the Magistrate
thereafter, committing the case to the Court of Sessions was absolutely
contrary to the provisions of the NIA Act and also the provisions of the
UAPA, which rendered all subsequent proceedings to be without
jurisdiction and hence, a nullity.
16. In support of the aforesaid submissions, reliance has been
placed on the following case law:
(i) Fakhrey Alam v. State of Uttar Pradesh, 2021 SCC OnLine
532
(ii) Abdul Azeez P.V. and Others v. National Investigation
Agency, (2014) 16 SCC 543
(iii) Chitra Ramkrishna v. Central Bureau of Investigation,
(2022) SCC OnLine Del 3124
(iv) Rambhai Nathabhai Gadhvi and Others v. State of
Gujarat, (1997) 7 SCC 744
(v) Ashrafkhan v. State of Gujarat, (2012) 11 SCC 606
(vi) Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616
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17. In such circumstances referred to above, both the learned
counsel prayed that there being merit in their appeals, those may be
allowed and the accused persons be ordered to be released on default
bail.
SUBMISSIONS ON BEHALF OF THE NIA/UNION OF
INDIA
18. Mr. Sanjay Jain, the learned ASG, on the other hand, while
vehemently opposing both the appeals submitted that it is settled law
that the indefeasible right under Section 167(2) of the CrPC accrues to
an accused only if the chargesheet is not filed within the time prescribed
therein or within the time extended by a competent court under a special
statute. He would submit that the right ceases to be available if the
chargesheet is filed within the time indicated above or if the chargesheet
is filed prior to preferring an application under Section 167(2) of the
CrPC. Mr. Jain sought to fortify his submission by placing reliance on
the Constitution Bench decision of this Court in the case of Sanjay Dutt
v. State reported in (1994) 5 SCC 410 (paras 48 and 53(2)(b)) and in the
case of Serious Fraud Investigation Office v. Rahul Modi and Others
reported in (2022) SCC OnLine 153 (para 16).
19. Mr. Jain vehemently submitted that there is no merit in the
submission canvassed on behalf of the accused persons that a chargesheet
without requisite sanction under the UAPA or the 1908 Act is incomplete.
In other words, according to Mr. Jain, there is no merit in the contention
canvassed on behalf of the accused persons that although the
chargesheet was filed within the period of 180 days, yet the same being
without sanction, it could be said to be as good as not filing the chargesheet
within the statutory time period.
20. In the aforesaid context, Mr. Jain invited the attention of this
Court to the following aspects:
a. The act of grant of sanction for prosecution, in several statutes,
is entrusted upon an authority other than the Investigating Agency and
as such it is not within the domain of the Investigating Agency to grant
such Sanction.
b. In the present case, at the time of filing of the first chargesheet
by the State Investigating Agency (SIA), the SIA had already sought
sanction for prosecution from the appropriate Governments.
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c. The cognizance of the offence was taken by the Special Court
NIA/UAPA on 05.04.2021, only after the sanctions under the 1908 Act
and UAPA were granted by the appropriate governments and
communicated to the Court, as is evident from the timeline indicated
above.
d. The question of grant of sanction for prosecution is relevant
only at the stage of taking cognizance, which is altogether a separate
stage distinct from the stage of investigation. [Reliance is placed on
Suresh Kumar Bhikamchand Jain v. State of Maharashtra and
Another, (2013) 3 SCC 77 @ Paras 17 - 19]
21. Mr.