Ansar Ul Haq Raina vs U. T. Of J&K Through P/S Pulwama
2021 Latest Caselaw 1582 j&K/2

                                                                  Item No. 18
                                                                  Regular List


             HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                            AT SRINAGAR
                                  CrlA (D) No. 10/2019
                                  CrlM No. 586/2021
Ansar Ul Haq Raina.
                                                         ...Petitioner/Appellant(s)

                      Through:    Ms. Asma Rashid, Advocate.

                                            Vs
U. T. of J&K through P/S Pulwama
                                                                 ...Respondent(s)
                      Through:    Mr. Mir Suhail, AAG
CORAM:
HON'BLE MR. JUSTICE ALI MOHAMMAD MAGREY, JUDGE
HON'BLE MR. JUSTICE MOHD. AKRAM CHOWDHARY, JUDGE

                                  JUDGMENT

08.12.2021

1. Appellant has filed the instant appeal under Section 21 of the National

Investigation Act, 2008, challenging the order dated 17.12.2019, passed by

the learned Special Judge, Designated Court, under National Investigating

Agency Act, (for short NIA Act), Srinagar, whereby the application of the

appellant for grant of default bail has been rejected.

2. Briefly put, the grounds raised in the appeal are summarized as under:-

i) The appellant was arrested on 15.11.2018, from Delhi in connection with FIR No. 288/2018, by invoking the provisions of Section 18 of Unlawful Activities (Prevention) Act. It is urged that the appellant was handed over to the Investigating Agency on 22.11.2018 and since then is languishing in custody.

ii) The Detention order under the provisions of Public Safety Act, 1978, was slapped on the appellant on 16.05.2019, which was quashed by this Court in terms of order dated 01.10.2019. It is stated that application for grant of default bail was filed on 09.10.2019, which was put upon on 14.10.2019. The prosecution has filed objections to the application along with challan.

iii) It is stated that no specific allegation is against the appellant and the allegation is vague and incapable. The court below has not appreciated the legal provisions correctly and has confused the situation unnecessarily. Once the accused appellant-accused is arrested in November, 2018, there arises no question of computing the period of 180 days as more than one year has elapsed. The period of detention under PSA has been excluded by the court below which is not permissible in law.

iv) That the default bail is an indefeasible right and the accused has to be released forthwith as the said statutory right cannot be taken away by filing the charge sheet later on. The appellant- accused was produced before the court on 12.10.2019, by the PSA authorities and thus State cannot plead ignorance of the same.

v) it is further stated that on 09.10.2019, when the application was presented before the court below, the Trial court instead of releasing the accused, issued notice for filing the objections and directed its listing on 14.10.2019, giving enough time to the prosecution to file the challan. The course adopted by the court below discouragous and even thereafter the application was decided on 17.12.2019.

3. The respondent filed objections, which inter-alia reveal that an

information received from reliable sources with regard to bullet riddled dead

body of one Imtiyaz Ahmad Mir, who was working as Sub-Inspector in Police

Department is lying at village Wahibugh near Romshi Nala, and on receipt of

the said information, FIR No. 288/2018 under Section 302 RPC, 7/27 Arms

Act was lodged at Police Station Pulwama and during the course of

investigation, CDR of mobile No. 9906403034 of deceased were sought and it

came to fore that on the day the said SI was in frequent contact with one

mobile No. 9682133454; further SDR of phone No. 9682133454 also got

confirmed through CAF and on authentication by the concerned caller agency,

it came to light that the SIM belonged to one Mst. Parveena Akhter W/O

Mohammad Amin Shah R/O Tahab Pulwama who was called for questioning

and it got ascertained that the said SIM card is certainly on her name but was

being used by her daughter namely Saika D/O Mohammad Amin Shah. On

questioning of Mst. Saika she disclosed that she is a student and is in

relationship with SI. On 28.10.2018, she was with SI at Srinagar and they

came back to Pulwama in the Car bearing Reg. No. JK01AD-8352. She also

disclosed that Ansar appellant herein had followed them. Moreover, CDR of

her phone were also sought from the concerned cellular company and it got

ascertained that Mst. Saika was in frequent contact with one phone No.

7006614404 which on proper authentication was found on the name of one

Ansar Ul Haq (appellant-petitioner herein).

4. By tracing of BTS (Tower Location), it was found that appellant-

accused was in Delhi and accordingly, necessary communication was carried

out and appellant-accused was detained on 22.11.2018, by the Delhi Police

and was brought to Pulwama. During questioning it came to light that

accused-appellant had an affair with Mst. Saika for the last three years and

two months ago on the will of his family he got married to a girl of his native

village but he could not forget the love with Saika. Meanwhile, Saika and SI

had fallen in love with each other which escalated jealously in him. Thus he

convinced Saika and made a plan to kill SI Imtiyaz. On the confession of

accused-appellant, Saika was arrested on 05.12.2018, and on further

questioning she disclosed that she has an affair with accused-appellant. She

also disclosed that appellant called her and told that she is having a relation

with SI Imtiyaz who is providing information about the movement of militants

for SFs and militants have issued death warrant against him. Moreover,

threatened her to kill her, if she continues to talk with the deceased. After

some time through video call on whatsapp, he showed her three unknown

person sitting adjacent him, with guns and threatened her. Due to harassment

she told that she will do whatever he asks for. The appellant-accused told to

arrange a meeting with SI Imtiyaz, as such, she hatched a conspiracy to

eliminate the SI Imtiyaz Ahmad.

5. That on 28.10.2018, appellant-accused took Mst. Saika, from Pulwama

in his unregistered vehicle Grant i10, to Srinagar to meet SI Imtiyaz and since

the appellant-accused had good contact with militants and he told Mst. Saika

about the plan. After sometime deceased in his vehicle reached to Srinagar

and Mst. Saika boarded the vehicle of SI Imtiyaz and left towards Pulwama.

The appellant-accused followed them during movement from Srinagar to

Pulwama the accused-appellant and Mst. Saika remained in contact on phone

and on reaching Karimaabad crossing a Santro Car appeared in front of them,

wherefrom, some armed gunmen came out and de-boarded Saika from the car

of SI Imtiyaz, appellant-accused also reached the spot in his vehicle and

boarded Mst. Saika, and dropped her at Pulwama. In the evening, appellant-

accused sent the photos of the dead body to Saika through social media which

also confirmed their intention of crime.

6. That during investigation it came to light that appellant-accused and

Mst. Saika had made criminal conspiracy to kill SI Imtiyaz and consequently

provisions of sections 13 and 18 UA (P) Act were added in the instant case.

Search for rest of the accused persons involved in the case was set into motion

through police and other security agencies in which militants Wajid Ul Islam,

Mir Liyaqat, Shahid Baba, Showkat Ahmad were active militants at the time

of incident. They got eliminated during different insurgency operations at

different places. Accordingly, charge sheet was filed before the Court of

Additional Sessions Judge (TADA/POTA) Srinagar on 12.10.2019.

7. Heard and considered.

8. In the instant case the accused-appellant is alleged to be involved in not

only offence under Section 302 RPC which carries punishment of death or

imprisonment for life, but is also alleged to have committed offences

punishable under Sections 13 and 18 of the Unlawful Activities (Prevention)

Act, 1967. The plea of default bail has to be considered in the context of

Section 167 (2) of Cr. P.C, and Section 43-D of UA(P) Act 1967.

9. Genesis of the right of „default bail‟ being an indefeasible right is to be traced under section 167(2) of CrPC. The relevant provision thereof is extracted as under:

167: Procedure when investigation cannot be completed in twenty four hours:

1. xxxxxxx

2. xxxxxxxx Provided that

(a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

ii) sixty days, where the investigation relates to any other offence."

10. Bare reading of section 167 of the Code of Criminal Procedure clearly

indicates that if the offence is punishable with death or imprisonment for life,

or a minimum sentence of 10 years, then section 167 (2) (a) (i) will apply and

accused can apply for „default bail‟ only, if the investigating agency does not

file charge sheet within 90 days, however, in all cases, where maximum

sentence is 10 years, then section 167 (2) (a) (ii) will apply and the accused

will be entitled to grant of „default bail‟ after 60 days of being in custody, in

case charge sheet is not filed.

11. In view of the fact that the appellant has already been booked under the

provisions of the UA (P) Act, 1967, the modified application of Section 167 of

the Code has described under Section 43-D of UA (P) Act, 1967, is to be

applied. The relevant provision is extracted as under:-

43-D. Modified application of certain provisions of the Code.

       (1)     xxxxxxxxxxxxxx
             (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:

12. Hon‟ble Apex Court in a case titled Rajeev Chaudhary Vs. State (NCT)

of Delhi reported as (2001) 5 SCC 34 has held that from the relevant part of

the provision, it is apparent to pending investigation relating to an offence

punishable with imprisonment for a term of "not less than 10 years", the

Magistrate is empowered to authorize the detention of the accused in custody

for not more than 90 days. For the rest of offences, the period prescribed is 60

days. Hence in case where offence is punishable with imprisonment for 10

years or more, the accused could be detained upto a period of 90 days. In this

context, the expression "not less than 10 years" would mean imprisonment

should be 10 years or more and would cover only those offences for which

punishment could be imprisonment for a clear period of 10 years or more.

13. Hon‟ble Apex Court in a case titled Rakesh Kumar Paul vs State of

Assam reported as 2017 AIR (SC) 3948, 2018 Cri. LJ 155 has held that if a

person is charged with the offence which is punishable with death or life

imprisonment, but minimum imprisonment is less than 10 years, then a period

of 90 days will apply. This obviously means that the punishment could be 10

years or more. This cannot include the offences where the maximum

punishment is 10 years. It has been further held that while interpreting any

statutory provision, it has always been accepted as a golden rule of

interpretation, that the words used by legislature should be given the natural

meaning.

14. The sole point for determination in the appeal is that whether the

appellant having been unsuccessful before the Trial Court to seek statutory

bail which is otherwise also known as compulsive/default bail for the fact that

charge sheet was not laid against him within the statutory period of 180 days

since his arrest. The important factors to be noticed for the disposal of this

appeal are as to when the appellant was taken into custody, when he moved

the application for grant of bail and when the charge sheet was laid against

him before the Trial court.

15. The facts culled out from the pleadings are that the appellant was

arrested on 15.11.2018 from Delhi and was handed over to investigating

agency on 22.11.2018. The crucial date to reckon the custody is the first day

of the remand which has been noticed by the Trial court as 23.11.2018.

Therefore, by calculating it comes out that appellant has been in custody for a

period of 324 days before the charge sheet was laid against him. During the

custody, appellant was also detained under PSA by the District Magistrate,

Pulwama, however, the said detention order was stated to have been quashed

by this Court in terms of order dated 01.10.2019.

16. The Trial court while considering the bail application has rejected the

contention raised by the appellant to include the period of his preventive

detention for calculating the total period of custody, holding that after

quashment of PSA the custody of the appellant had not been taken over by the

investigating agency and had filed the charge sheet during the period of his

preventive custody, as such, right to statutory bail did not accrue to him.

17. We are of the view that the Trial court has misdirected itself to exclude

the period of preventive detention on change of appellants custody, for

calculation of period of statutory/default bail under Section 167(2) Cr. P.C.

We find support to take this view in view of the law laid down in the

judgment Trilochan Singh vs. State (Delhi Administration Delhi) (1981 Cri.

L.J. 1773), wherein it was held that accused arrested in connection with one

case but later on was shifted and taken over by the CBI in connection with

other case, the benefit can be extended under proviso sub-section (2) of

Section 167 Cr. P.C, i.e., bail by default while computing the period from the

date of initial arrest. It was held that same is to be computed from the date of

initial arrest.

18. The intention of legislature enacting the proviso to section 167 (2)

appears to be to ensure that every investigation must be completed without

unnecessary delay and for that purpose a time limit has been fixed. This Court

in a judgment reported as 1983 J&K Law Reporter 1082, has held that words

„authorized custody‟ would mean police custody and judicial custody in a

particular case. Such custody cannot be diverted or transferred except in

accordance with provisions of law and the period of limitation which

commences to run in a particular case for the purposes of proviso (a) to sub-

section (2) of Section 167 of the Cr. P.C, can neither be transferred nor

diverted or stopped. It is further held that period of detention has to be

computed in a particular case uninterruptedly from the date when an accused

is produced before the Magistrate and cannot be tagged or separated if the

accused person is involved in more than one case.

19. In case grant of bail is sought in terms of proviso to sub-section (2) of

Section 167 Cr. P.C, the matter is to be addressed in the same background i.e.,

compulsory bail or bail in default, as it may be called, is a right which accrues

to the accused on the expiry of the period prescribed for filing of final report

under section 173 Cr. P.C, and such right is to be availed well in time and

necessary orders are to be passed so as to avoid deprivation of an accrued

right, hardly matters it may take effect immediately or afterwards.

20. On a cumulative reading of the Code as well as Act of 1967, it comes

out that charge sheet against the accused had to be filed within 90 days from

the date of his arrest or within 180 days, in case it was not possible to

complete the investigation within such period and the court may have

authorized the extension of the period to 180 days.

21. In this case, there is nothing on record to suggest that the period was

extended by the Trial Court for completion of the investigation to 180 days

instead of 90 days. Therefore, the investigating agency was under an

obligation to produce the charge sheet against the appellant herein within 90

days.

22. A Constitutional Bench of Hon‟ble Apex court in case titled Sanjay

Dutt vs. State reported as (1994) 5 SCC 410, has made it clear that an

indefeasible right accruing to the accused is enforceable only prior to filing of

charge sheet and it does not survive or remain enforceable thereafter, if

already not availed of. In other words, the Constitutional Bench took view that

indefeasible right of default bail continues till charge sheet or challan is filed

and it gets extinguished thereafter. The Hon‟ble Supreme Court again

reviewing the case law on the subject, in Union of India Vs. Nirala Yadav

reported as 2014 9 SCC 457 held as under: "On the expiry of said period of

90 days or 60 days, as the case may be, indefeasible right accrues in favour of

the accused for being released on bail on account of default by the

investigating agency on completion of investigation within the prescribed

period and accused is entitled to be released on bail, if he is prepared to and

furnishes the bail as directed by the Magistrate." Hon‟ble Apex Court and

other Constitutional courts have taken the view that in matters concerning

personal liberty and penal statutes, it is the obligation of the court to inform

the accused that he or she is entitled to free legal assistance as a matter of

right.

23. Having taken above view, the appellant was entitled to seek default bail

on expiry of 90 days, if he had laid motion therefor till the charge sheet was

laid. In this case, as noticed earlier, the appellant moved the application

seeking default bail on 14.10.2019, when the charge sheet against him had

already been laid before the Designated court on 12.10.2019. The indefeasible

right of the accused to be released on bail in accordance with Section 167(2)

of Cr. P.C, in default of completion of the investigation and filing of the

charge sheet within the time allowed is a right which ensures to and is

enforceable by the accused only from the time of default till the filing of the

charge sheet and it does not survive or remain enforceable when the challan is

meanwhile, filed.

24. In the case of the appellant, charge sheet has been filed earlier in point

of time of his moving the motion for grant of bail, as such, such right had

extinguished by filing of the charge sheet.

25. Having regard to the aforesaid discussion on factual as well as legal

aspects of the matter, we are of the considered view that the appellant‟s right

to seek default bail after filing of the charge sheet against him did not survive

and he was not entitled to the grant of default bail. The appeal is thus found to

be without merit and substance and is, accordingly, dismissed.

26. The appellant, however, is at liberty to seek regular bail which shall be

considered by the Trial court on its own merits. Copy of the judgment be

endorsed to the Trial Court for information.

                (MOHD. AKRAM CHOWDHARY)                   (ALI MOHAMMAD MAGREY)
                               JUDGE                                 JUDGE


SRINAGAR
08.12.2021
Ab. Rashid

                       Whether the order is reportable:      Yes/No.