Punjab-Haryana High Court
Satish Kumar vs State Of Punjab And Another on 5 May, 2021
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
1. CRA-D-28-2021(O&M) Date of Decision : 05.05.2021
Satish Kumar --Appellant
Versus
State of Punjab & another --Respondents
2. CRA-D-57-2021(O&M)
Satish Kumar --Appellant
Versus
State of Punjab & another --Respondents
3. CRA-D-89-2021(O&M)
Pankaj Bansal --Appellant
Versus
State of Punjab & another --Respondents
4. CRA-D-104-2021(O&M)
Pankaj Bansal --Appellant
Versus
State of Punjab & another --Respondents
CORAM:- HON'BLE MR.JUSTICE AJAY TEWARI.
HON'BLE MR. JUSTICE RAJESH BHARDWAJ.
Present:- Mr. Rajiv Malhotra & Mr. Nandan Jindal, Advocates
for the appellants.
Ms. Bhavna Gupta, D.A.G., Punjab.
Mr. Satya Pal Jain, Addl. Solicitor General of India with
Ms. Sharmila Sharma, Advocate for respondent no.2-UOI.
***
RAJESH BHARDWAJ.J
This bunch of appeals consisting of aforementioned four
appeals has been filed by the appellants namely Satish Kumar and Pankaj
Bansal for the grant of bail in case FIR No.246 dated 18.10.2014 under
sections 420, 467, 468, 471, 472, 392 I.P.C and 25 of Arms Act (later on
added sections 120-B I.P.C, Section 16 and 18 of the Unlawful Activities
(Prevention) Act, 1967 and Section 25(6)(7)(8) of Arms Act, 1959,
registered at Police Station, City Faridkot). It is pertinent to mention here
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that CRA-D-28-2021 (Satish Kumar Vs. State of Punjab & another) and
CRA-D-89-2021 (Pankaj Bansal Vs. State of Punjab & another) have been
filed against the impugned orders dated 7.12.2020 and 8.1.2021 wherein
their prayer for the grant of bail under Section 167(2) Cr.P.C has been
rejected by the learned Additional Sessions Judge, Faridkot. So far as rest
of the two appeals are concerned i.e. CRA-D-57-2021 (Satish Kumar Vs.
State of Punjab) and CRA-D-104-2021 (Pankaj Bansal Vs. State of Punjab),
these have been filed against the impugned orders dated 7.10.2020 and
14.9.2020 wherein the prayer of the appellants for the grant of bail under
Section 439 Cr.P.C has been rejected by the learned Additional Sessions
Judge, Faridkot. Out of the aforementioned four appeals, firstly we are
dealing with CRA-D-28-2021 (Satish Kumar Vs. State of Punjab) and CRA-
D-89-2021 (Pankaj Bansal Vs. State of Punjab), which pertain to the grant
of default bail under Section 167(2) Cr.P.C. All these four appeals arise out
of the same FIR. The issue underlying these two appeals is the same as both
deal with the bail under Section 167(2) Cr.P.C, which if found to have been
accrued, becomes an indefeasible right of the accused. For brevity the facts
have been culled out from CRA-D-28-2021.
Adumbrated facts of the case, FIR No.246 dated 18.10.2014
under sections 420, 467, 468, 471, 472, 392 I.P.C and 25 of Arms Act (later
on added sections 120-B I.P.C, Sections 16 & 18 of Unlawful Activities
(Prevention) Act, 1967 and Section 25(6)(7)(8) of Arms Act, 1959),
registered at Police Station, City Faridkot. The investigation having been
completed, challan was filed on 17.1.2015 in the court of J.M.I.C., Faridkot
and the charges were framed on 8.4.2016. However, appellant Satish
Kumar was arrayed as an accused in this FIR vide DDR No.32 dated
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18.8.2020 and he was arrested on 20.8.2020. Section 16 of The Unlawful
Activities (Prevention) Act, 1967 and Section 25(6)(7)(8) of Arms Act,
1959 vide DDR No.8 dated 25.8.2020 and Section 18 of Unlawful
Activities (Prevention) Act, 1967 vide DDR No.38 dated 19.10.2020 were
later on added in the FIR. Similarly accused Pankaj Bansal was arrested on
21.8.2020. Aggrieved by their arrest, appellants preferred the bail under
Section 439 Cr.P.C before the learned Additional Sessions Judge, Faridkot,
which were declined by the court vide order dated 7.10.2020 & 14.9.2020.
As the appellants were arrayed as accused later on, hence, the investigating
agency filed their supplementary challan under Section 173(8) Cr.P.C in the
court of J.M.I.C., Faridkot on 20.10.2020. The appellants preferred
petitions for grant of bail under Section 167(2) Cr.P.C before the learned
Additional Sessions Judge, Faridkot on the premise that they are in custody
since the last 95 days and as the statutory period of 90 days is already over
and the investigating agency has failed to file the challan in the Special
Court thus there accrued an indefeasible right in their favour under Section
167(2) Cr.P.C and therefore, they deserved to be released on bail. Learned
Additional Sessions Judge, Faridkot after hearing the parties and perusing
the record declined the same by observing that although offence under the
Unlawful Activities (Prevention) Act, 1967 is triable by the Special Court
but since before presentation of supplementary challan against the appellant,
the main case was already pending in the said court of J.M.I.C and the
offence under the Unlawful Activities (Prevention) Act, 1967 were added
during investigation and therefore, the filing of the supplementary challan
before the same court suffers from no illegality and hence did not entitle the
appellant for the grant of bail under Section 167(2) Cr.P.C. As a result, the
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petitions filed by the appellants were dismissed vide order dated 7.12.2020
& 8.1.2021.
CRA-D-28-2021& CRA-D-89-2021
The appellants in the present appeals are also accused in the
same FIR as mentioned herein above. They were arrayed as accused
vide DDR No.32 dated 18.8.2020 and the offence under Section 16 of the
Unlawful Activities (Prevention) Act, 1967 and Section 25(6)(7)(8) of Arms
Act, 1959 were added later on vide DDR No.8 dated 25.8.2020. They were
arrested on 20.8.2020 and 21.8.2020. The appellant namely Satish Kumar
in CRA-D-28-2021 & CRA-D-57-2021 preferred petition for grant of bail
under Section 439 Cr.P.C before the learned Additional Sessions Judge,
Faridkot and the same was declined vide his orders dated 7.10.2020.
Similarly, petition under Section 439 Cr.P.C of Pankaj Bansal was declined
on 14.9.2020. Thereafter, the appellants preferred petitions for grant of bail
under Section 167(2) Cr.P.C. Learned Additional Sessions Judge, Faridkot
declined the same vide his orders dated 7.12.2020 and 8.1.2021
respectively.
Both the appellants namely Satish Kumar and Pankaj Bansal
being aggrieved of declining of their prayer for grant of bail under Section
167(2) Cr.P.C vide impugned orders dated 7.12.2020 and 8.1.2021 have
now approached this Court by filing the present appeals.
Before proceeding with the case, it is pertinent to mention here
that after dismissal of their bail petitions under Section 439 Cr.P.C the
appellants approached this High Court, impugning the decline of their
respective petitions by way of filing CRM-M-29733-2020 and CRM-M-
33750-2020. Both these petitions were heard and disposed of vide common
order dated 15.12.2020, passed by learned Single Judge. During the course
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of arguments before the learned Single Judge, learned State counsel
produced a copy of the order dated 7.12.2020 vide which the learned
Additional Sessions Judge, Faridkot had declined the grant of bail under
Section 167(2) Cr.P.C as well to the appellant Satish Kumar. After hearing
the parties, learned Single Judge declined the bail petition filed under
Section 439 Cr.P.C of both the appellants, whereas dismissal of the bail
petition filed under Section 167(2) Cr.P.C qua appellant Satish Kumar vide
order dated 7.12.2020 was also upheld by the learned Single Judge while
disposing of the aforementioned both the petitions.
Counsel representing the appellants Mr. Rajiv Malhotra and
Mr. Nandan Jindal have contended that CRR-1326-2020 was inadvertently
filed but as the offence under the Unlawful Activities (Prevention) Act,
1967 was exclusively triable by the Special Court as defined under Section
2(h) of the National Investigation Agency Act, 2008 and hence as per the
provisions of Section 21 of the National Investigation Agency Act, 2008
only an appeal can be filed before the High Court and thus the present
appeals were filed. Learned counsel for the appellants have vehemently
contended that from the bare perusal of the provisions of Section 2(1)(d) of
Unlawful Activities (Prevention) Act, 1967 as well as the National
Investigation Agency Act, 2008, the challan/charge sheet of the offence has
to be filed within 90 days before the "Special Court". They have vehemently
contended that in view of the provisions of Section 2(1)(d) of the Unlawful
Activities (Prevention) Act, 1967 court means a criminal court having
jurisdiction under the code, to try an offence under this Act (and includes a
Special Court constituted under Section 11 or under section 22 of the
National Investigation Agency Act, 2008). Thus, the sum and substance
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of the arguments advanced by learned counsel for the appellants is that the
charge sheet/challan for the offence under the Unlawful Activities
(Prevention) Act, 1967 had not been filed by the investigating agency in the
Special Court within the prescribed statutory period of 90 days as per the
mandate of Section 43-D of the Unlawful Activities (Prevention) Act, 1967.
They have contended that filing of the challan in the court of J.M.I.C.,
Faridkot amounts to non-filing of the challan in the eyes of law, as the court
of J.M.I.C, Faridkot is not the Special Court under the Act. Mr. Malhotra
has further drawn the attention of this Court to the provisions of Section 45
of the Unlawful Activities (Prevention) Act, 1967 pertaining to the
cognizance of offence. He has vehemently contended that the provisions of
this section completely bar any court from taking the cognizance without
obtaining prior sanction of the Central Govt. or the State Govt. as the case
may be. However, he submits that in the present case no sanction has been
obtained by the prosecution and thus the Trial Court has no jurisdiction to
take the cognizance of the scheduled offences in the absence of prior
sanction of the concerned Govt. They have relied upon various judgements
of the Hon'ble Supreme Court, wherein the law has been settled that the
right accrued under Section 167(2) Cr.P.C is an indefeasible right and the
same cannot be defeated by the investigating agency once it is established
that the investigation could not be completed within the statutory period
granted, as the challan in this case has been filed in the court of J.M.I.C.,
which is not a competent court under the Unlawful Activities (Prevention)
Act, 1967 and thus, the appellants deserve to be released on bail. Counsel
have relied upon the law laid down by the Hon'ble Apex Court in Bikramjit
Singh Vs. State of Punjab, 2020(4) R.C.R (Criminal) 713 and prayed that
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their case is squarely covered by the law settled by the Hon'ble Apex Court
and thus, they should be enlarged on bail under Section 167(2) Cr.P.C.
Ms. Bhavna Gupta learned D.A.G., Punjab has vehemently
argued that the appellants are not entitled for the default bail under Section
167(2) Cr.P.C. She has asserted that the case was already pending before
the court of J.M.I.C., Faridkot since beginning and the appellants were
arrayed as the accused during investigation, on finding the offence under
Sections 16 and 18 of the Act against them. The learned State counsel has
drawn the attention of this Court to the provisions of Section 10 of the N.I.A
Act which empowers the State Govt. to investigate the scheduled offences.
She submitted that as the trial was already pending in the court of J.M.I.C,
hence, the investigating agency was totally justified in submitting the
supplementary challan before the same court which was later on sent to the
Special Court and thus, there was no illegality on the part of the
investigating agency in filing the challan before the J.M.I.C and hence the
learned Additional Sessions Judge, Faridkot has rightly declined the prayer
of the appellants for the grant of bail under Section 167(2) Cr.P.C.
However, learned State counsel could not deny the averments of the learned
counsel for the appellants that no prior sanction as per the mandate of
Section 45 of Unlawful Activities (Prevention) Act, 1967 had been
obtained before filing the challan under Section 173 (8) Cr.P.C when it was
filed before the court of learned J.M.I.C., Faridkot. To buttress her
arguments she has relied upon the view taken by the learned Full Bench of
Patna High Court in Bahadur Kora Vs. State of Bihar (2015) 2 R.C.R
(Criminal) 975 (FB).
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We have heard learned counsel for the parties at length,
perused the records and the law settled by the Hon'ble Apex Court in
plethora of judgements. It is apposite to mention that it is an admitted fact
that the challan in the case in hand has been filed in the court of J.M.I.C.,
Faridkot. From the bare reading of the statutory provisions of the Unlawful
Activities (Prevention) Act, 1967 and that of the National Investigation
Agency Act, 2008, it is clear that the offences under these Acts are to be
tried in the Special Court. In the absence of the notification, the same are
triable by the concerned Court of Sessions. As it is already evident from the
facts narrated by learned counsel for the appellant that they had approached
the learned Single Judge against the impugned orders wherein their bail
under Section 439 Cr.P.C and that under Section 167(2) Cr.P.C had been
rejected. Learned Single Judge as well upheld the view taken by the courts
below. It is appropriate to analyze at this stage that approaching the learned
Single Judge against the orders of the courts below is totally in violation of
the mandate of the statutory provisions of the U.A.P.A Act and the N.I.A
Act. A close look at the various provisions of both the acts is essential for
analyzing this proposition. Section 2(d) of the U.A.P.A Act reads as
follows:-
"2(d) "Court" means a Criminal Curt having
jurisdiction under the Code, to try offences under this Act (and
includes a Special Court constituted under Section 11 or under
Section 22 of the National Investigation Agency Act, 2008).
This makes it clear that the definition of 'Court' includes the
Special Court constituted under Section 11 or under Section 22 of the N.I.A
Act, 2008. A perusal of Section 6 of the N.I.A Act enumerates about the
investigation of the scheduled offences. Scheduled offences under U.A.P.A
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Act are included at Sr. No.2 in the Schedule of the N.I.A Act. Thereafter,
Section 10 prescribes about the power of the State Govt. to investigate the
scheduled offences. Section 11 of the N.I.A Act prescribes about the power
of Central Govt. for constituting the Special Court, whereas Section 22 of
this Act prescribes the power of the State Govt. for constituting the Special
Court for trial of the scheduled offence. Section 13 of the N.I.A Act
contains the details of the jurisdiction of the Special Court. A conjoint
reading of these peculiar provisions of both the Acts reveals the legislative
mandate that the offences under the U.A.P.A Act falls under the scheduled
offences having been included in the Schedule of N.I.A Act. However, the
scheme of N.I.A Act prescribes the procedure for investigating the same
either by the N.I.A or by the concerned State Govt., after following the
statutory provisions meticulously. Section 10 of the N.I.A Act further
clarifies that the State Govt. also has the power to investigate the scheduled
offence in accordance with the procedure prescribed under this Act.
However, there is no ambiguity in the legislative mandate that in both the
situations, whether the investigation is carried out by the N.I.A or by the
State Govt., the trial of the scheduled offence would be conducted only by
the Special Court constituted under this Act. Section 13 of the N.I.A Act is
to be read with Section 11 of this Act when the investigation is carried out
by the N.I.A and in the situation, investigation having been entrusted to the
State Govt., then Section 13 is to be read with 22 of the Act. A combined
reading of both the sections makes it crystal clear that in the situation where
the investigation has been carried out by the State Govt., in that situation as
per Section 22 (2)(ii) the reference to Agency in sub section (1) of Section
13 shall be construed as a reference to "Investigating Agency of the State
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Govt." Thereafter, the relevant section is Section 21, which pertains to the
provisions of filing the appeals. This section clearly mandates that an
appeal shall lie from any judgement, sentence or order not being an
interlocutory order of a Special Court to the High Court both on facts and
law. Sub clause (2) of Section 21 further mandates that the appeal shall be
heard by a Bench of two Judges of the High Court.
Thus, the scheme of both the acts makes it clear that once the
investigation is completed, the report under Section 173 Cr.P.C is to be filed
in the Special Court constituted under the Act. Section 16 of the N.I.A 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
N.I.A Act the legislature has made the Special Court as the court of original
jurisdiction unlike the Sessions Court, which is a court of committal under
the Criminal Procedure Code. Learned counsel for the appellants has drawn
our attention to the notification of the Govt. of Punjab dated 10.6.2014
wherein the Special Courts are constituted by the State Govt. for the trial of
offence as specified in the schedule appended to the N.I.A Act which are
investigated by the State Police. The aforesaid notification is reproduced as
under:-
"NOTIFICATION The 10th June, 2014
No. S.O.141/C.A.34/2008/S.22/2014- In exercise of the powers
conferred under sub section (1) of section 22 of the National
Investigation Agency Act, 2008 (Central Act No.34 of 2008)
and all other powers enabling him in this behalf, the Governor
of Punjab with the concurrence of Hon'ble Chief Justice of the
High Court of Punjab and Haryana, Chandigarh is pleased to
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constitute the courts of Sessions Judge and the first Additional
Sessions Judge (for the area falling within their respective
jurisdiction), at each district headquarter in the State, to be the
Special Courts, for the trial of offences as specified in the
Scheduled appended to the aforesaid Act, which are
investigated by the State Police."
A close look on the statutory provisions further reveals that the
cases in which the investigation has been carried out by the State Police, the
trial of such cases would be conducted out in the Special Court as per the
jurisdiction of the Special Court prescribed under Section 13 of the N.I.A
Act read with Section 22 of the Act. Any order passed by the Special Court
would be challenged only before the High Court which would be heard by a
Bench of two Judges of the High Court as per the mandate of Section 21 of
this Act. Thus, the filing of the earlier petitions before the learned Single
Bench were non-existent in the eyes of law and would have no bearing on
the maintainability of the present petitions before this Court.
The admitted position of the present case is that the charge
sheet/challan had been presented in the court of J.M.I.C., Faridkot on
20.10.2020 which is not a competent court to try the case under the
aforementioned Acts. Hence, the same, even if, filed within the stipulated
period of 90 days, does not come to the rescue of the prosecution.
Moreover, not obtaining the prior sanction as in accordance with Section 45
of the U.A.P.A Act up to the stage of filing the challan before the court of
learned J.M.I.C., Faridkot has also not been denied by learned State counsel.
We are fortified by the ratio of law settled by the Hon'ble Supreme Court in
Bikramjit Singh's case (supra), wherein their Lordships have categorically
held that all offences under the Unlawful Activities (Prevention) Act,
1967 whether investigated by the National Investigation Agency or by
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investigating agency of the State Govt. are to be tried exclusively by the
Special Court set up under that Act and in the absence of any Special Court
set up by notifications issued by either Central Govt. or State Govt., the fall
back is upon the Court of Sessions alone. Their Lordships have reiterated
that right to default bail is not a mere statutory right but is a part of
procedure established by law under Article 21 of the Constitution of India.
In this regard, their Lordships have held as under:-
"21. Before the NIA Act was enacted, offences
under the UAPA were of two kinds - those with a maximum
imprisonment of over 7 years, and those with a maximum
imprisonment of 7 years and under. Under the Code as
applicable to offences against other laws, offences having a
maximum sentence of 7 years and under are triable by the
Magistrate's Courts, whereas offences having a maximum
sentence of above 7 years are triable by Courts of Sessions.
This Scheme has been completely done away with by the 2008
Act as all scheduled offences i.e. all offences under the UAPA,
whether investigated by the National Investigation Agency or
by the investigating agencies of the State Government, are to
be tried exclusively by Special Courts set up under that Act. In
the absence of any designated Court by notification issued by
either the Central Government or the State Government, the
fall back is upon the Court of Sessions alone. Thus, under the
aforesaid Scheme what becomes clear is that so far as all
offences under the UAPA are concerned, the Magistrate's
jurisdiction to extend time under the first proviso in Section 43-
D(2)(b) is non-existent, "the Court" being either a Sessions
Court, in the absence of a notification specifying a Special
Court, or the Special Court itself. The impugned judgment in
arriving at the contrary conclusion is incorrect as it has missed
Section 22(2) read with Section 13 of the NIA Act. Also, the
impugned judgement has missed Section 16(1) of the NIA Act
which states that a Special Court may take cognizance of any
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offence without the accused being committed to it for trial inter
alia upon a police report of such facts."
xxx xxx xxx xxx xxx
22. xxx xxx xxx xxx
"The right to bail under Section 167(2) proviso (a)
thereto is absolute. It is a legislative command and not court's
discretion. If the investigating agency fails to file charge- sheet
before the expiry of 90/60 days, as the case may be, the
accused in custody should be released on bail. But at that
stage, merits of the case are not to be examined. Not at all. In
fact, the Magistrate has no power to remand a person beyond
the stipulated period of 90/60 days. He must pass an order of
bail and communicate the same to the accused to furnish the
requisite bail bonds."
Applying the laid down parameters to the facts and
circumstances of the present case, we find ourselves in agreement with the
arguments advanced by learned counsel for the appellants that there accrued
an indefeasible right for the grant of bail under Section 167(2) Cr.P.C in
favour of the appellants, once the charge sheet/challan had been filed in the
court having no competence to try the case. This makes the custody of the
appellants beyond the statutory period of 90 days without any sanctity of
law and hence entitles the appellants with an indefeasible right of bail under
Section 167(2) Cr.P.C. As a result, CRA-D-28-2021 and CRA-D-89-2021
are allowed and the appellants therein are held entitled for grant of bail
under Section 167(2) Cr.P.C.
Appellants be enlarged on bail to the satisfaction of Trial
Court/CJM/Duty Magistrate, Faridkot.
It is being clarified that nothing observed herein above shall be
construed having expressed any opinion on the merits of the case pending
before the Trial Court.
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CRA-D-57-2021 & CRA-D-104-2021
Both these appeals have been filed under Section 439 Cr.P.C
seeking bail to the appellants in case FIR No.246 dated 18.10.2014 under
sections 420, 467, 468, 471, 472, 392 I.P.C and 25 of Arms Act (later on
added sections 120-B I.P.C, Sections 16 and 18 of Unlawful Activities
(Prevention) Act, 1967 and Section 25(6)(7)(8) of Arms Act, 1959,
registered at Police Station, City Faridkot.
As we have already granted bail to the appellants under Section
167(2) CR.P.C in CRA-D-28-2021 and CRA-D-89-2021, therefore, the
instant two appeals i.e. CRA-D-57-2021 & CRA-D-104-2021 are disposed
of as having been rendered infructuous.
(AJAY TEWARI) (RAJESH BHARDWAJ)
JUDGE JUDGE
05.05.2021
lucky
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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