2. These appeals by special leave are at the instance of five under trial accused charged with having committed offences punishable under Section CRIMINAL APPEAL NO. 1011 OF 2023 Page 2 of 53 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.
Issues raised
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 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?
Submissions on behalf of the accused persons
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.
Submissions on behalf of the NIA/UNION of India
24. In the last, Mr. Jain pointed out that the trial of all the accused persons is in progress and twelve witnesses have been examined so far. The accused persons are facing trial for very serious offences relating to National security. If the accused persons have anything to say in regard to the legality and validity of the sanctions or the mode and manner in which the cognizance was taken then such issues could be raised before the trial court. According to Mr. Jain, there is no scope for the accused persons at this point of time to say that they be released on default bail.
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Sanction is required only to take cognizance by courts and not to file final reports before such courts
43. We find no merit in the principal argument canvassed on behalf of the appellants 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 of the CrPC. It was conceded by the learned counsel appearing for the appellants that the chargesheet was filed well within the statutory time period i.e., 180 days, however, the court concerned could not have taken cognizance of such chargesheet in the absence of the orders of sanction not being a part of such chargesheet. 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 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) of the CrPC for being released on default bail. What is contemplated under Section 167(2) of the 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) of the CrPC.
Investigation officer has to sent for sanction only after filing the final report before the concerned court
44. 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 of the 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.
45. Section 173(5) of the CrPC, of course, requires all the documents or the relevant extracts thereof on which the prosecution proposes to rely on, to accompany the final report. Sanction order cannot be brought within the category of those documents contemplated under clause (5) to Section 173 of the CrPC. The grant of sanction is altogether a different act to be performed by the Government concerned under Section 45 of the UAPA.
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47. From the aforesaid, 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) of the CrPC.
Charge sheet explained
48. The chargesheet is nothing but a final report of police officer under Section 173(2) of the CrPC. Section 173(2) of the CrPC provides that on completion of the investigation, the police officer investigating into a cognizable offence shall submit a report. The report must be in the form prescribed by the State Government, stating therein
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom
(e) whether the accused has been arrested;
(f) whether he had been released on his bond and, if so, whether with or without sureties; and
(g) whether he has been forwarded in custody under Section 170.
As observed by this Court in Satya Narain Musadi and Others v. State of Bihar reported in (1980) 3 SCC 152 at 157 that the statutory requirement of the report under Section 173(2) of the CrPC would be complied with if the various details prescribed therein are included in the report. This report is an intimation to the magistrate that upon investigation into a cognizable offence the Investigating Officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. In fact, the report under Section 173(2) of the CrPC purports to be an opinion of the Investigating Officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5) of the CrPC. Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e., in the course of the trial of the case by adducing acceptable evidence. (See K. Veeraswami v. Union of India and Others, (1991) 3 SCC 655).
Cognizance not taken is not a ground to release the accused on statutory bail and mere charge sheet is enough to keep him in custody
56. It is clear from the decision of this Court in Suresh Kumar Bhikamchand Jain (supra) that filing of a chargesheet is sufficient compliance with the provisions of Section 167 of the CrPC and that an accused cannot demand release on default bail under Section 167(2) of the CrPC on the ground that cognizance has not been taken before the expiry of the statutory time period. The accused continues to be in the custody of the Magistrate till such time cognizance is taken by the court trying the offence, which assumes custody of the accused for the purpose of remand after cognizance is taken. 57. The aforesaid decision of this Court makes the position of law very clear that 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 of the CrPC. The mere filing of the chargesheet is sufficient. 58. The decision of Suresh Kumar Bhikamchand Jain (supra) has been referred to and relied upon by this Court in the case of Serious Fraud Investigation Office (supra). In the said decision, the very same point fell for the consideration of the Court, whether the accused is entitled for statutory/default bail under Section 167(2) of the CrPC on the ground that cognizance had not been taken before the expiry of 60 days or 90 days from the date of remand?
Answer to issue no.1
63. Thus, we answer Issue No. 1 holding that filing of a chargesheet is sufficient compliance with the provisions of Section 167 of the CrPC and that an accused cannot claim any indefeasible right of being released on statutory/default bail under Section 167(2) of the CrPC on the ground that cognizance has not been taken before the expiry of the statutory time period to file the chargesheet. We once again, reiterate what this Court said in Suresh Kumar Bhikamchand Jain (supra) that grant of sanction is nowhere contemplated under Section 167 of the CrPC.
Investigation agency filed charge sheet within time before the magistrate court instead of special court is not ground for default bail
73. Thus, we answer Issue No.2 holding that 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) of the CrPC. The committal proceedings are not warranted, when it comes to prosecution under the UAPA by the NIA by virtue of Section 16 of the NIA Act. This is because the Special Court acts, as one of the original jurisdictions. By virtue of Section 16 of the NIA Act, the Court need not follow the requirements of Section 193 of the CrPC.
Accused has to apply for default bail
77. 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.
Party
JUDGEBIR SINGH @ JASBIR SINGH vs. NATIONAL INVESTIGATION AGENCY – CRIMINAL APPEAL NO. 1011 OF 2023 – MAY 1, 2023.
https://main.sci.gov.in/supremecourt/2022/24236/24236_2022_1_1501_44060_Judgement_01-May-2023.pdf
