Karnataka High Court

Wajid Pasha K M vs National Investigating Agency on 22 December, 2021

Bench: Sreenivas Harish Kumar

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 22 N D DAY OF DECEMBER, 2021

                          BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

     WRIT PETITION NO.16167 OF 2021(GM-RES)


BETWEEN:


1.    Wajid Pasha K.M.,
      Aged about 45 years,
      S/o Late K.M.Mustafa,
      R/at No.216/2, Shivaraj Road ,
      Periyar Nag ar, D.J.Halli,
      Beng aluru-560045.

2.    Afzal Basha,
      Aged about 36 years,
      S/o Mr. Ahmad Pasha,
      R/at No.144, 5 t h Cross,
      Bang arag irinag ar,
      J.C.Nag ar, Beng aluru-560006.

3.    Suhail Basha,
      Aged about 28 years,
      S/o Amir Basha,
      R/at No.306, 1 s t Cross,
      Ashwathnagar,
      Beng aluru-560077.

4.    Syed Khalid ,
      Aged about 38 years,
      S/o Syed Arif,
      R/at No.136, 1 s t Cross,
      Modern Layout, A.C.Post,
      D.J.Halli, Beng aluru-560045.
                          :: 2 ::


5.   Mr. Fairoz Pasha,
     Aged about 43 years,
     S/o Mr. Anwar Basa,
     R/at No.303, Modi Road ,
     Near Mecca Masjid, Tank Mohala,
     D.J.Halli, Beng aluru-560045.

6.   Firdous Khan,
     Aged about 41 years,
     S/o Iliyas Khan,
     R/at Near Mediscope Hospital,
     K.G.Halli, Beng aluru-560045.

     Petitioners No.1 to 6
     are in Judicial custody
     Represented by son of
     Petitioner No.1 i.e.,
     Tameem Ansari
     S/o Wajid Pasha K.M.,
                                              ...Petitioners
(By Sri Mohammed Tahir, Advocate)

AND:

National Investigating Ag ency
Hyd erab ad,
Represented by their Stand ing Counsel
Office at High Court Complex,
Opp. to Vid hana Soudha,
Beng aluru-560001.
                                              ...Respondent
(By Sri P Prasanna Kumar, Advocate)


     This Writ Petition is filed under Articles 226 and
227 of the Constitution of India read with section 482
of Cr.P.C. praying to set aside the rejection ord er at
Annexure-D   d ated   15.07.2021   ord ered    by   Learned
Special   NIA   Court    in    Sp l.C.C.No.152/2020       in
connection   RC-34/2020/NIA/DLI    under      Sections   15,
                                  :: 3 ::


16, 18, 20 of the UA(P) Act 1967, Sections 143, 147,
148, 353, 333, 332, 436,427, 149 of IPC 1860 and
etc.

       This Writ Petition having been heard & reserved
on 02.12.2021, coming             on for pronouncement this
day, the court p ronounced the following:


                            ORDER

       Accused      No.     4,      5,     6,   9    and      19     in

Spl.C.C.No.152/2021              have      preferred       this    writ

petition seeking to set aside Annexure 'D', the

order dated 15.7.2021 passed by Special NIA

Court (CCH-50), Bengaluru.

2. The background for preferring this writ

petition is as follows:

The petitioners are some of the accused

prosecuted by the National Investigating Agency in

relation to offences punishable under sections 16,

18 and 20 of Unlawful Activities (Prevention) Act,

1967, sections 143, 145, 147, 188, 326, 332, 353,

427, 436, 120B r/w 149 IPC and section 2 of :: 4 ::

Karnataka Prevention of Damage to Public Property

Act. Initially FIR was registered in Crime

No.195/2020 at D.J. Halli Police Station and

thereafter the case was referred to National

Investigation Agency for investigation.

3. Accused 4, 5, 6, 9 and 19 were arrested

respectively on 17.8.2020, 18.8.2020, 15.8.2020,

20.8.2020 and 12.8.2020. The NIA did not file

charge sheet within 90 days from the date of their

arrest. But the Special Public Prosecutor for the

NIA filed an application on 3.11.2020 under

section 43(D)(2)(b) of Unlawful Activities

(Prevention) Act seeking extension of time by

another 90 days to file charge sheet. The charge

sheet was thereafter filed on 5.2.2021 after 90

days, but before expiry of 180 days. Accused no.1

and some of the accused other than the petitioners

herein filed writ petitions 1417/2021 and

connected matters before this court seeking to set :: 5 ::

aside the order passed by the NIA Court on

3.11.2020 and sought bail under section 167(2) of

Cr.P.C. The co-ordinate bench of this court

allowed their writ petitions and held that accused

no.1 and others were entitled to be released on

bail under section 167(2) Cr.P.C. The petitioners,

having come to know of statutory bail given to

accused no.1 and others made an application

before the NIA Court under section 167(2) of

Cr.P.C. and the said application being rejected, the

petitioners are before this court.

4. I have heard the arguments of Sri.

Mohammed Tahir, learned counsel for the

petitioners and Sri. P.Prasanna Kumar, learned

counsel for the respondent.

5. The main argument of Sri. Mohammed

Tahir is that if the charge sheet is not filed within

the time prescribed under section 167(2) of

Cr.P.C. or any other special law, the accused gets :: 6 ::

an indefeasible right to be released on bail. This

is a statutory right and now it has been held to be

a fundamental right. In the case on hand, the NIA

did not file charge sheet within 90 days, rather it

sought extension of time by making an application

on 3.11.2020, before expiry of 90 days. The court

below granted extension on the very same day

without hearing the accused. Therefore accused

no.1 and some others challenged the order dated

3.11.2020 and this court set aside the said order.

Resultantly accused no.1 and some other accused

were released on bail. The same benefit should

also be extended to the petitioners. He submitted

that once the order dated 3.11.2020 is set aside,

and as it is evident that the charge sheet was

filed beyond 90 days, obviously the petitioners

also become entitled to bail. He argued that it is

the duty of the Magistrate or the Special Court to

bring to the notice of the accused about the right

available to an accused under section 167(2) of :: 7 ::

Cr.P.C. and non compliance of the same amounts

to violation of Article 21 of the Constitution of

India. He also argued that as has been held by

the High Court of Madhya Pradesh in the case of

Nitin Khandelwal and Another vs State of

Madhya Pradesh [2021 SCC Online MP 768],

the court must presume that the accused has

made an application under section 167(2) Cr.P.C.

and release him on bail. Lastly he submitted that

since the other accused have been released on

statutory bail, the petitioners would also be

entitled to be released on the same ground though

they did not apply for bail either by making oral or

written application. In support of his argument he

has placed reliance on some judgments to which I

will refer later.

6. Sri. P.Prasanna Kumar submitted that the

petitioners cannot try to place themselves at par

with accused no.1 and some others who have been :: 8 ::

released on bail under Section 167(2) Cr.P.C. He

submitted that those accused did make an

application under section 167(2) Cr.P.C. and once

the co-ordinate bench of this court held that the

order dated 3.11.2020 granting extension was

illegal, even though charge sheet had been filed by

that time, they became entitled to be released on

bail. But in the case on hand, the petitioners did

not apply for bail at all and that they chose not to

apply for bail for their safety reasons. It is not

disputed that charge sheet was filed on 5.2.2021

and till then the petitioners had not applied for

bail, nor there was any oral application by them.

They waived the right on their own accord. The

petitioners are represented by a counsel in the

trial court and nothing prevented the counsel from

advising to the petitioners about their right. This

being the situation, it is not proper on the part of

the petitioners to blame the trial court. He

submitted that the Magistrates and the judges :: 9 ::

presiding over the Special Courts are over

burdened and working in a charged atmosphere.

Without ignoring the practicalities, it is too much

to expect everything to be done by the Magistrates

or the Special Court Judges. In this view the

petitioners are not entitled to be released on bail

under section 167(2) Cr.P.C. Ground of parity

cannot be applied. Rightly the court below

dismissed the application of the petitioners and

therefore this petition also deserves to be

dismissed.

7. The Court below did not accept the

grounds urged by the petitioners for the reasons

that the other accused who were given the benefit

of default bail on account of the order dated

03.11.2020 being set-aside by this Court, had

actually made an application under Section 167(2)

of Cr.P.C. In M.Ravindran vs Intelligence

Officer, Directorate of Revenue Intelligence :: 10 ::

[(2021) 2 SCC 485] and Bikramjit Singh vs

State of Punjab [(2020) 10 SCC 616], the

Supreme Court held that the accused should put

forth their desire to be released on bail. But the

petitioners herein did not make any application

and thus they would not be entitled to claim

default bail. These are the observations of the

court below.

8. The point that would actually emanate

for consideration is whether the petitioners can

place themselves at par with accused No.1 and

some other accused benefited by default bail.

9. Grant of bail to an accused under Section

167(2) of Cr.P.C. emerges for consideration

consequent to investigator's failure to file charge

sheet within the time prescribed in 167(2) Cr.P.C.

or any other special law. It is a legal right, it can

be very well understood given a careful reading to

Section 167(2) of Cr.P.C., that if charge sheet is :: 11 ::

not filed within the prescribed time, an accused

gets an indefeasible right to be released on bail if

he exercises that right before the charge sheet is

filed. There is no denial of the fact that unless the

right is exercised by an accused, he cannot be

given that benefit. And it is held by the Supreme

Court in RAKESH KUMAR PAUL VS. STATE OF

ASSAM [(2017)15 SCC 67], that even an oral

application suffices the requirement; it is not

necessary that a written application must be filed.

Indeed this approach meets the intent of Section

167(2) of Cr.P.C. and going a step further, it is

also held in the same judgment that it would

equally be the duty and responsibility of the Court

to apprise an accused of his right to default bail.

This principle is reiterated in M.RAVINDRAN

(supra). Perhaps, this dictate is in the

background of the fact that the Court which

remands an accused to custody would obviously be

in the know of the date when the prescribed time :: 12 ::

for filing charge sheet expires, and of course, as

has been argued by Sri P.Prasanna Kumar, this

dictate can be effectively implemented if the public

prosecutor or the defence counsel ably assists the

Court. Especially when an accused is represented

by an Advocate, he has to shoulder a greater

responsibility in bringing into the notice of the

Court about the right accrued to accused on

account of charge sheet being not filed within the

prescribed time.

10. The argument of Sri Mohammed Tahir

was to the extent that even without application,

either oral or written, the petitioners should be

released on bail presuming that they are ready to

offer bail. In this regard, he placed reliance on

the judgment of the High Court of Madhya Pradesh

in the case of NITIN KHANDELWAL (supra). It

is true that in the cited judgment, an opinion has

been expressed by the High Court of Madhya :: 13 ::

Pradesh that, it has to be presumed that the

accused was already willing and ready to furnish

the bail. That observation appears to have been

made in the background of the facts therein that

the accused had filed an application for bail after

expiry of 60 days. The Magistrate admitted the

accused to statutory bail, and the State preferred

a revision petition to the Sessions Court

contending that the time available to file charge

sheet was 90 days, and not 60 days, in view of

one of the offences invoked in the FIR being under

Section 467 of IPC, maximum sentence imposable

was life imprisonment. Ultimately, when the

matter reached the High Court, it was held after

elaborate discussion that even if it was assumed

that 90 days time was available to file charge

sheet, it could be presumed that the accused did

apply for default bail. The High Court of Madhya

Pradesh presumed so as the accused had already

made an application soon after expiry of 60 days, :: 14 ::

and probably one more application was

unnecessary. The facts are thus distinguishable.

11. In BIKRAMJIT SINGH (supra), the

Hon'ble Supreme Court, by referring to earlier

decisions, has extracted an observation found in

para 21 in the case of RAJNIKANT JIVANLAL

PATEL vs. INTELLIGENCE OFFICER, NARCOTIC

CONTROL BUREAU, NEW DELHI [1989)3 SCC

532], and it is as follows:

21. Thus, we find that once the period for filing the charge- sheet has expired and either no extension under clause (bb) has been granted by the Designated Court or the period of extension has also expired, the accused person would be entitled to move an application for being admitted to bail under sub-section (4) of Section 20 TADA read with Section 167 of the Code and the Designated Court shall release him on bail, if the accused seeks to be so released and furnishes the requisite bail. We are not impressed with the argument :: 15 ::

of the learned counsel for the appellant that on the expiry of the period during which investigation is required to be completed under Section 20(4) TADA read with Section 167 of the Code, the court must release the accused on bail on its own motion even without any application from an accused person on his offering to furnish bail. In our opinion an accused is required to make an application if he wishes to be released on bail on account of the 'default' of the investigating/ prosecuting agency and once such an application is made, the court should issue a notice to the public prosecutor who may either show that the prosecution has obtained the order for extension for completion of investigation from the court under clause (bb) or that the challan has been filed in the Designated Court before the expiry of the prescribed period or even that the prescribed period has actually not expired and thus resist the grant of bail on the alleged ground of 'default'. The issuance of notice would avoid the possibility of an accused obtaining an :: 16 ::

order of bail under the 'default' clause by either deliberately or inadvertently concealing certain facts and would avoid multiplicity of proceedings. It would, therefore, serve the ends of justice if both sides are heard on a petition for grant of bail on account of the prosecution's 'default'... No other condition like the gravity of the case, seriousness of the offence or character of the offender etc. can weigh with the court at that stage to refuse the grant of bail to an accused under sub-section (4) of Section 20 TADA on account of the 'default' of the prosecution."

(emphasis supplied)

12. Therefore the position is very clear that

unless accused shows his inclination to get

released on default bail either by making an

application at least orally, the Court need not

release him.

13. Harking back to the case on hand, it is to

be stated that the petitioners never made an :: 17 ::

application either written or oral. They chose to

remain inside the jail for their own reasons. The

petitioners also did not challenge the order dated

03.11.2020 of granting extension of time to file