Allahabad High Court
Kumar Vikas vs The State Of U.P. Thru. Prin. Secy. Home ... on 10 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:54494
AFR Reserved on 21.8.2025 Delivered on 10.9.2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
APPLICATION U/S 528 BNSS No. - 908 of 2025
Kumar Vikas
.....Applicant(s)
Versus
The State Of U.P. Thru. Prin. Secy. Home Lko.
.....Opposite Party(s)
Counsel for Applicant(s)
:
Pranjal Jain, Nitin Mathur, Purnendu Chakravarty
Counsel for Opposite Party(s)
:
G.A.
Court No. - 14
HON'BLE SHREE PRAKASH SINGH, J.
1. Heard Sri Purnendu Chakravarty, learned counsel assisted by Ms. Aishwarya Saxena, Mr. Pranajal Jain and Mr. Rohit Kanaujia, learned counsels for the applicant and Sri Shiv Nath Tilhari, learned counsel for the State of U.P.
2. Present application is directed against the order dated 7.7.2025 passed by learned Additional Sessions Judge, Court No.3/Special Judge/NIA, Lucknow whereby the default bail application on account of non-filing of complaint, within ninety days, from the date of arrest, has been rejected.
3. At the very outset, a preliminary objection has been taken by Sri Shiv Nath Tilhari, learned counsel appearing for the State that the F.I.R. No.2/2025 dated 19.3.2025 was registered under Section 148 BNS and Section 3/4/5 of the Official Secrets Act, 2023 (hereinafter referred to as 'the Act 2023'), against the applicant, while alleging that the applicant being an employee of Ordnance Factory, Kanpur, was sharing confidential information and documents through WhatsApp to one Neha Sharma who is said to be an agent of Pakistan, compromising the safety and interest of the Country. He submits that the schedule as prescribed under the National Investigation Agency Act, 2008 (hereinafter referred to as 'the Act 2008') reveals that Chapter VI of the Indian Penal Code [Sections 121 to 130 (both inclusive)] are find mention and, therefore, this is amenable to the jurisdiction of Special Court designated/constituted under the scheme of the Act 2008 read with the Rules 2008 made thereunder. He submits that Section 121A of I.P.C. corresponds to Section 148 in Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as 'the BNS'). He further submits that the order impugned dated 7.7.2025 has admittedly been passed by the Special Court (NIA) wherein default bail application has been rejected. He argued that any order passed by the Special Court (NIA) is appealable as per the provisions given under Section 21 of the Act 2008.
4. For ready reference, Section 21 of the Act 2008 is reproduced hereinunder:-
"21. Appeals. (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.
(2) Every appeal under sub-section (1) shall be heard by a bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.
(3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court.
(4) Notwithstanding anything contained in sub-section (3) of Section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.
(5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from:
Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days:
Provided further that no appeal shall be entertained after the expiry of period of ninety days."
5. Referring to Sub Section (4) of Section 21, he submits that an appeal shall lie to the High Court, against an order of the Special Court, granting or refusing bail and in the present case, the default bail application has been rejected, thus, he submits that the order impugned dated 7.7.2025 passed by the Special Court (NIA) is appealable under the provision of Act 2008 and therefore, being an efficacious and alternative statutory remedy available to the applicant, the present application under Section 482 Cr.P.C. is not maintainable, as such, this application may be dismissed on this ground alone.
6. Per contra, learned counsel for the applicant has opposed the contention aforesaid and submits that Section 167(2) Cr.P.C. (corresponding to Section 187(3) BNS, 2023) is a statutory provision which confers indefeasible right upon accused to be released on bail, on non-filing of charge sheet, within the prescribed time period whereas Section 439 Cr.P.C./Section 483 Bharatiya Nyaya Suraksha Sanhita, 2023 (hereinafter referred to as 'the BNSS') is regular bail procedure and is wholly discretionary in nature. He also submits that Sub Section (1) (2) of Section 21 of Act 2008 provides right to appeal against the Judgment, sentence or order, not being an interlocutory order. Further submitted that Section 21(3) of the Act provides an exclusion clause, restricting appeals against interlocutory orders and Section 21(4) of the Act 2008 prescribes the right to appeal against an order granting or refusing bail which is to be construed with reference to Section 439 Cr.P.C./483 BNSS and does not apply to Section 167 (2) Cr.P.C./187(3) of BNSS 2023.
7. In support of his contention, he has placed reliance on a Judgement of this Court in the case of Harendra Vs. State of U.P. and another reported in 2020 SCC OnLine All 850 and has referred to para 13, which reads as under:-
"13. Thus, on the facts of the case that the applications for default bail were filed prior to the filing of the charge-sheet and following the law as laid down by the Supreme Court in the case of Union of India Through General Bureau of Investigation v. Nirala Yadav alias Raja Ram Yadav alias Deepak Yadav (Supra), I am of the view that the applicants were entitled to be enlarged on statutory bail and non-grant of statutory bail and the rejection of the application for grant of statutory bail was wholly untenable in law."
8. He also argued that non-filing of charge sheet within the prescribed time, mandates release of an accused under statutory remedy of default bail and such release is a deemed release under Chapter XXXIII of Cr.P.C., however, order for the bail can be cancelled under Section 439 (2) of Cr.P.C. which is subject to cancellation and, therefore, any order which is subject to cancellation, withdrawal or recession, would not be a final order. He also added that test of finality has to be seen in terms of Sub Section (2) which bars alteration or review of Judgment or final judgement except of clerical or arithmetical errors and since this Court possesses inherent power to give effect to any order under this Code empowers it to give effect to Section 167 (2) of Cr.P.C. while directing the release of an accused on statutory bail.
9. Concluding his arguments, he submits that the order passed under Section 167(2) Cr.P.C./187(3) BNSS is not passed, on the merits of this case, thus, the same cananot be treated as a final order. and, therefore, the instant application under Section 482 Cr.P.C./582 of BNSS is maintainable and, therefore, the preliminary objection may be rejected.
10. Having heard learned counsel for the parties and after perusal of the record, it transpires that at the very inception, the preliminary objection has been raised by the counsel appearing for the State, on the premises of Section 21 of the Act 2008, while submitting that the appeal is maintainable against any order passed by the Special Court constituted/designated under the provisions of Act 2008.
11. By way of the present application, the order passed under Section 187(3) of BNSS whereby the default bail has been rejected, is under challenge. The provision prescribed under Section 187(3) of BNSS contains the 'statutory bail', which in fact identifies the indefeasible right given to the accused person. In fact, the right of default bail can be exercised once and not likewise the other provision of bail as prescribed under Section 439 of the Cr.P.C. where at the subsequent stage ,more bail applications can be instituted, in form of second, third and fourth bail application and so on.
12. The provision of statutory bail under Section 187(3) BNSS/167(2) Cr.P.C. is whether an interlocutory order or a final order. The test which could be applied, for an order, being interlocutory, intermediary or final, can be summarized in two folds; firstly that any such order, which substantially affects the right of the accused or parties, cannot be termed as an interlocutory order and secondly, any right, which accrue out of some statutory provisions, is also not an interlocutory order. Time and again, this issue has exhaustively been dealt with by the Apex Court starting from a three Judge Bench decision of the Hon'ble Apex Court in the case of Madhu Limaye Vs. the State of Maharashtra, reported in (1977) 4 SCC 551 wherein the ratio drawn in the case of Amar Nath and others Vs. State of Haryana and another, reported in (1977) 4 SCC 137 has partly been affirmed, holding that the term 'interlocutory order' as is used in Section 397 of the Cr.P.C. does not invariably mean the converse of the term of 'final order' and certain guidelines were provided to examine that a particular order is not an 'interlocutory order'.
13. Subsequently, the Apex Court in the case of V.C. Shukla Vs. State reported in 1980 Supp SCC 92, considering the ratio drawn in Amar Nath (supra) and Madhu Limaye (supra), has held that the intermediate, quasi final and final orders are revisable. In this view, the provision of statutory bail under Section 187(3) of BNSS is an intermediary order and the same is revisable, subject to any other provision provided in a special Act.
14. Coming to the crux of the issue of maintainability, it is apparent from the provision of Section 21(4) of the Act 2008 that an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail, notwithstanding contained in Sub Section (3) of Section 378 of the Cr.P.C. This provision is overt in its mandate and while applying this provision in the present case, it is apparent that this does not speak regarding any difference of any kind of refusing or granting bail, meaning thereby that if the Special Court (NIA) grants or refuses the bail, the same is amenable to the provisions of the appeal, prescribed under Section 21 of the Act 2008 and, therefore, in presence of the obvious provisions, no otherwise definition can be given against the intent of the legislature. This Court is also aware of the trite law that a thing should be done in the manner prescribed under the statute, not otherwise. Admittedly, vide order dated 7.7.2025, the learned Special Judge (NIA) has rejected the default bail application of the applicant. Thus, against such order the remedy of appeal is provided under the Special Act, i.e., Act 2008.
15. Further this Court also noticed that the law referred by counsel for the applicant, which is rendered in case of Harendra Vs. State of U.P. and another (supra), is on different factual matrix and this will not apply to the facts and circumstances of the present case as the dispute in question in the above-said case was regarding completion of ninety days as the charge sheet was dispatched on the same day when the application for default bail was moved, therefore, this will not cover the field of the issue in the instant matter.
16. Ergo, this Court is of the considered opinion that the instant application challenging the order dated 7.7.2025 passed by the Special Court (NIA) is not maintainable, thus, preliminary objection taken by counsel for the State; sustains.
17. The present application is hereby dismissed as not maintainable.
18. However, it is open to the applicant to pursue the appropriate remedy, provided under law.
19. Consigned to the records.
(Shree Prakash Singh,J.)
September 10, 2025
Ram Murti
