Default bail - Filing of a chargesheet is sufficient compliance with the provisions of Section 167 of the CrPC

_THE SUPREME COURT OF INDIA

_*JUDGEBIR SINGH @ JASBIR SINGH SAMRA @ JASBIR AND OTHERS — Appellant
VS
NATIONAL INVESTIGATION AGENCY — Respondent*_

( Before : Dr. Dhananjaya Y. Chandrachud, CJI. and J.B. Pardiwala, JJ. )

Criminal Appeal No. 1011 of 2023 with Criminal Appeal No. 1012 of 2023

DATE OF DECISION;-; 01-05-2023

HEADNOTE

A. Criminal Procedure Code, 1973 (CrPC) - Section 167(2) - Default bail - 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

B. Criminal Procedure Code, 1973 (CrPC) - Section 167(2) - Default bail - 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

JUDGMENT

J. B. Pardiwala, J

- As the issues raised in both the captioned appeals are common and the challenge is also to the self-same order passed by the High Court, those were taken up for hearing analogously and are being disposed of by this common judgment and order

2. These appeals by special leave are at the instance of five under trial accused charged with having committed offences punishable under Section 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.

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?

4. For the purpose of answering the aforesaid issues, it is very much essential to take notice of the following chronology of dates and events:

(a) On 02.06.2019 at around 04:50 in the morning, a team of police officers was patrolling. The vehicles passing through the Harsh Cheena, Kukkarwal bus stop in Raja Sansi, District Amritsar, State of Punjab, were being checked. At that point of time two boys belonging to the Sikh community were noticed to have been travelling on a motorcycle without a number plate. On being asked to stop, they fled away. In the process of running away, one blue coloured bag which was in the hands of the pillion rider fell down. A mobile phone and two hand grenades were recovered from the bag. In such circumstances, FIR No. 90 came to be registered at the Police Station Raja Sansi, District Amritsar (Rural), Punjab, for the offences punishable under the 1908 Act. Thus, the FIR came to be registered on 02.06.2019.

(b) On 05.06.2019, the Punjab Police added Sections 17, 18, 18B and 20 of the UAPA.

(c) On 08.06.2019, accused Jasbir Singh and Varinder Singh came to be arrested by the Punjab Police.

(d) On 27.07.2019, Sukhpreet Singh alias Budda (Accused No. 8) was arrayed as accused in the instant FIR and offence under Section 120B of the IPC was added.

(e) On 18.08.2019, the Appellant No. 3 Kulbir Singh alias Kulbir and Appellant No. 4 Manjit Kaur wife of Darshan Singh (Appellants of Crl. A. No. 1011 of 2023) came to be arrested. It is the case of the prosecution that Kulbir Singh and Manjit Kaur at the relevant point of time were residing at Cambodia. One Harmit Singh and Kulwinder Singh were also arrayed as accused.

(f) On 04.09.2019, the Punjab Police applied for extension of time for completing the investigation under the proviso to Section 43D(2)(b) of the UAPA before the Additional Sessions Judge, Amritsar. It is pertinent to note that the application seeking extension was filed two days prior to the expiry of 90 days from the date of arrest. Section 43D(2)(b) of the UAPA empowers the competent court to extend the period of 90 days as contemplated under Section 167 of the CrPC up to 180 days.

(g) On 07.09.2019, Taranbir Singh (Appellant of Crl. A. No. 1012 of 2023) came to be arrayed as accused in the instant FIR. Taranbir Singh at the relevant point of time was residing in Malaysia.

(h) On 11.09.2019, Taranbir Singh was arrested.

(i) On 17.09.2019, the Additional Sessions Judge, Amritsar, extended the period of completion of investigation from 90 days to 180 days. It is pertinent to note at this stage that the extension was granted by the Additional Sessions Judge after giving an opportunity of hearing to all the accused persons.

(j) On 15.11.2019, a final report under Section 173(2) of the CrPC was prepared by the investigating agency and presented before the Court of the Sub-Divisional Judicial Magistrate, Ajnala. This report (chargesheet) was filed in connection with the FIR No. 90 for the offence enumerated above. A common chargesheet was filed before the Court of Magistrate on 15.11.2019. Since the accused Nos. 1 and 2 respectively were arrested on 08.06.2019, the chargesheet could be said to have been presented on the 161st day from the date of their formal arrest. The accused Nos. 3 & 4 were arrested on 18.08.2019; for them, the chargesheet was filed within 90 days post-arrest, and in the case of the accused No. 5 who was arrested on 11.09.2019, it was filed within 66 days of his arrest. Thus, the chargesheet was filed within the extended period of 180 days so far as Appellant Nos. 1 and 2 are concerned.

(k) On 16.11.2019, the SDJM, Ajnala adjourned the proceedings of all the accused persons.

(l) On 20.11.2019, the SDJM, Ajnala further adjourned the proceedings to 25.11.2019.

(m) On 25.11.2019, the SDJM, Ajnala committed the case to the Court of Sessions under the provisions of Section 209 of the CrPC, as the offences were exclusively triable by the Court of Sessions. The next date fixed was 06.12.2019.

(n) On 06.12.2019, the Additional Sessions Judge, Amritsar, simply registered the case without cognizance being taken.

(o) On 22.02.2020, the NIA, New Delhi re-registered the instant case as RC-07/2020/NIA/DLI under Sections 17, 18, 18B and 20 respectively of the UAPA in compliance with the Government of India, Ministry of Home Affairs, CTCR Division Order No. 11011/22/2020/NIA dated 20.02.2020 in the FIR No. 90 of 2019.

(p) On 09.03.2020, the Special Judge, CBI Punjab, SAS Nagar, Mohali, received the entire file from the Court of Additional Sessions Judge, Amritsar. In this manner, the prosecution ultimately stood transferred to the Special Court constituted under the NIA/UAPA.

(q) On 26.10.2020, the District Magistrate, Amritsar, accorded sanction for prosecution under the 1908 Act.

(r) On 12.11.2020, the Special Judge, NIA recorded that the sanction to prosecute the accused persons for the offences under the 1908 Act had been accorded and the sanction under the UAPA was being awaited.

(s) On 14.12.2020, an application for default bail under Section 167(2) of the CrPC r/w Section 43D of the UAPA was filed before the Special Judge NIA, SAS Nagar, Mohali, essentially on the ground that although the chargesheet had been filed within the extended period of 180 days, yet the same could be termed as incomplete because of want of sanction under the UAPA. In such circumstances, the position was as if there was no chargesheet.

(t) On 16.12.2020, the prosecution produced the order of grant of sanction issued by the District Magistrate, Amritsar, under the 1908 Act before the trial court.

(u) On 17.12.2020, the NIA filed its reply to the application filed by the accused persons seeking default bail.

(v) On 17.12.2020, the Special Court rejected the application filed by the accused persons seeking default bail on the ground that the chargesheet had already been filed.

(w) On 06.01.2021, the Government of Punjab accorded sanction for prosecution under the UAPA.

(x) On 07.01.2021, the Special Court acknowledged the receipt of the sanction under the UAPA from the Home Department of the Punjab Government.

(y) On 18.01.2021, the appellants herein filed appeal before the High Court of Punjab and Haryana against the order dated 17.12.2020 passed by the Special Court rejecting the default bail application.

(z) On 17.03.2021, the Government of India, accorded sanction under Section 45(1) of the UAPA for prosecuting the Appellants.

(aa) On 22.03.2021, a supplementary chargesheet was filed by the NIA before the Special Judge, NIA, Punjab, along with the relevant sanctions for prosecution.

(ab) On 05.04.2021, the Special Court, NIA took cognizance of the offences enumerated above and issued notices to the accused persons.

(ac) On 06.09.2021, the Special Court proceeded to frame charge against the accused persons.

(ad) On 26.04.2022, the High Court of Punjab and Haryana dismissed the appeal filed by the Appellants against the order of the Special Court rejecting the plea of default bail.

5. To make it more explicit and clear, we trim down the aforesaid chronology of dates and events as under:

(i) 02.06.2019 - FIR was registered;

(ii) 08.06.2019 - arrest of the first and second Appellants;

(iii) 18.08.2019 - arrest of the third and fourth Appellants;

(iv) 11.09.2019 - arrest of Taranbir Singh (Appellant of Crl. A. No. 1012 of 2023)

(v) 17.09.2019 - extension of the period of investigation from 90 to 180 days;

(vi) 15.11.2019 - chargesheet presented;

(vii) 14.12.2020 - application for default bail;

(viii) 16.12.2020 - sanction order dated 26.10.2020 under the 1908 Act filed;

(ix) 06.01.2021 - sanction order was issued under the UAPA;

(x) 17.03.2021 - sanction by the Ministry of Home Affairs under Section 45(1), UAPA following the transfer of investigation to NIA; and

(xi) 22.03.2021 - supplementary chargesheet has been presented by NIA.

6. In such circumstances referred to above, the Appellants (original accused persons) are here before this Court with the present appeals.

SUBMISSIONS ON BEHALF OF THE ACCUSED PERSONS

7. Mr. Colin Gonsalves, the learned Senior Counsel and Mr. Satya Mitra, the learned Counsel appearing for the respective appellants vehemently submitted that the High Court committed a serious error in declining to grant the benefit of default bail to the appellants.

8. According to both the learned counsel, the chargesheet filed without sanction is an incomplete chargesheet and on the basis of such incomplete chargesheet no cognizance can be taken. It was submitted that the final report is filed so as to enable the court concerned to apply its mind as to whether cognizance of the offence should be taken or not. The sum and substance of the submission canvassed on behalf of the accused persons is that there cannot be a part chargesheet. A chargesheet filed without sanction is an incomplete chargesheet and does not meet the requirement of a police report within the meaning of Section 173(2) of the CrPC. Such a chargesheet would also not be in consonance with sub section (5) of Section 173 of the CrPC.

9. Such incomplete chargesheet cannot be used as a tool or device by the police to defeat an application seeking statutory/default bail. It was argued that a chargesheet filed under the UAPA must be complete in all respects. The emphasis put by both the learned counsel was on the fact that the sanction order must accompany the chargesheet to enable the court concerned to take cognizance.

10. It was further argued that mere gathering of evidence by the investigating agency is not sufficient when it comes to comparing usual criminal cases with the cases under the UAPA. The investigation cannot be said to be complete until the facts gathered are scrutinised by the authority appointed by the Central Government and such authority submits its report.

11. Our attention was drawn by both the learned counsel to Rules 3 and 4 respectively of the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 (for short, Rules 2008), which provide a time limit for making recommendation by the authority and a time limit thereafter, for sanction of the prosecution. It was argued that the provisions of the UAPA and Rules 2008 framed thereunder make the grant of sanction, time bound.

12. It was vociferously submitted by both the learned Counsel that the extension of time from 90 to 180 days read together with Rules 3 and 4 respectively of the Rules 2008 referred to above, makes the grant of sanction mandatorily time bound. The same leads to only one conclusion that the sanction order must accompany for it to be considered a final report.

13. It was argued that since the chargesheet in the case on hand was filed on 15.11.2019, the material collected by the investigating agency should have been received by the competent authority on 15.11.2019 itself. The report of the competent authority should have been ready seven days thereafter, i.e., by 22.11.2019. In view of Rule 4, the sanction should have been granted by 29.11.2019. However, according to both the learned counsel, the report was filed only on 12.03.2021 i.e., after a delay of one year and three months. The sanction was granted on 17.03.2021 i.e., beyond the period of 180 days which expired on 10.03.2020. The default bail application was instituted on 14.12.2020.

14. It was further argued that the NIA after taking over the investigation on 22.01.2020 was left with 49 days to file or place on record the appropriate sanction before the expiry of the limit of 180 days. The default bail application was filed on 14.12.2020. The sanction, which was granted only on 17.03.2021, ought to have been granted on 29.11.2019 in view of the time period prescribed by Rules 3 and 4 respectively of the 2008 Rules referred to above. In such circumstances, both the learned counsel submitted that such a delayed sanction even if otherwise valid cannot defeat the indefeasible right of the accused persons to seek default bail.

15. The second limb of the submission canvassed by both the learned counsel appearing for the accused persons is that the chargesheet could not have been filed in the Court of SDJM, Ajnala as the proceedings under the NIA are to be conducted in the Special Court only notified under Section 22 of the NIA Act. If there is no Special Court notified then before the Sessions Judge. However, in any event, the chargesheet could not have been filed before the Court of Magistrate. It was argued that in view of Section 16 of the NIA Act read with Section 22 of the NIA Act, the provisions of Section 193 of the CrPC would not come into play. It was argued that the error on the part of investigating agency in filing the chargesheet before the Court of Magistrate and the Magistrate thereafter, committing the case to the Court of Sessions was absolutely contrary to the provisions of the NIA Act and also the provisions of the UAPA, which rendered all subsequent proceedings to be without jurisdiction and hence, a nullity.

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

17. In such circumstances referred to above, both the learned counsel prayed that there being merit in their appeals, those may be allowed and the accused persons be ordered to be released on default bail.

SUBMISSIONS ON BEHALF OF THE NIA/UNION OF INDIA

18. Mr. Sanjay Jain, the learned ASG, on the other hand, while vehemently opposing both the appeals submitted that it is settled law that the indefeasible right under Section 167(2) of the CrPC accrues to an accused only if the chargesheet is not filed within the time prescribed therein or within the time extended by a competent court under a special statute. He would submit that the right ceases to be available if the chargesheet is filed within the time indicated above or if the chargesheet is filed prior to preferring an application under Section 167(2) of the CrPC. Mr. Jain sought to fortify his submission by placing reliance on the Constitution Bench decision of this Court in the case of Sanjay Dutt v. State reported in (1994) 5 SCC 410 (paras 48 and 53(2)(b)) and in the case of Serious Fraud Investigation Office v. Rahul Modi and Others reported in (2022) SCC OnLine 153 (para 16).

19. Mr. Jain vehemently submitted that there is no merit in the submission canvassed on behalf of the accused persons that a chargesheet without requisite sanction under the UAPA or the 1908 Act is incomplete. In other words, according to Mr. Jain, there is no merit in the contention canvassed on behalf of the accused persons that although the chargesheet was filed within the period of 180 days, yet the same being without sanction, it could be said to be as good as not filing the chargesheet within the statutory time period.

20. In the aforesaid context, Mr. Jain invited the attention of this Court to the following aspects:

a. The act of grant of sanction for prosecution, in several statutes, is entrusted upon an authority other than the Investigating Agency and as such it is not within the domain of the Investigating Agency to grant such Sanction.

b. In the present case, at the time of filing of the first chargesheet by the State Investigating Agency (SIA), the SIA had already sought sanction for prosecution from the appropriate Governments.

c. The cognizance of the offence was taken by the Special Court NIA/UAPA on 05.04.2021, only after the sanctions under the 1908 Act and UAPA were granted by the appropriate governments and communicated to the Court, as is evident from the timeline indicated above.

d. The question of grant of sanction for prosecution is relevant only at the stage of taking cognizance, which is altogether a separate stage distinct from the stage of investigation. [Reliance is placed on Suresh Kumar Bhikamchand Jain v. State of Maharashtra and Another, (2013) 3 SCC 77 @ Paras 17 - 19]

21. Mr. Jain submitted that as some of the accused persons were declared as absconders, the request for extension of time to file chargesheet was made by the investigating agency on 04.09.2019 (i.e., within the period of 90 days), the said application was finally heard on 17.09.2019 and the hearing was in conformity with the principles of natural justice as all the accused persons were duly represented and arguments on behalf of the accused as well as prosecution were heard on the application seeking extension of time

22. Mr. Jain further submitted that the investigation was being carried out by the State Police and in view of the same, the State Police proceeded with filing of the chargesheet on 15.11.2019 before the JMFC, where the accused persons were first produced at the time of their arrest and in view thereof, the original chargesheet was presented before the Magistrate, which at the relevant time had the custody of the accused persons and thus, the same cannot be termed as noncompliance of Section 167 of the CrPC. [Reliance: Suresh Kumar Bhikamchand Jain (Supra) @Paras 13 - 17 and Rahul Modi (supra) @ Para 16].

23. Mr. Jain further submitted that the case was eventually committed to the Court of Sessions and finally to the Special Court constituted for NIA/UAPA (after taking over of investigation by NIA on 22.02.2020 re-registered by NIA as RC-07/2020/NIA/DLI) and finally the cognizance was also taken by the Special Court only, after examining the prosecution sanctions. The sanction under the 1908 Act was received on 26.10.2020 by the District Magistrate, Amritsar, which was duly recorded by the Special Judge, NIA on 12.11.2020. The sanction under the UAPA by the Punjab Government was granted on 06.01.2021. The Special Court recorded the same on 07.01.2021. Further, the Government of India accorded the sanction under Section 45(1) of UAPA on 17.03.2021.

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.

FEW RELEVANT STATUTORY PROVISIONS

25. Before adverting to the rival submissions canvassed on either side, we must look into the few relevant statutory provisions of the CrPC, the UAPA, the 1908 Act and the NIA Act.

26. In the earlier Code of Criminal Procedure, 1898 (for short, the CrPC, 1898), Section 167 laid down the procedure to be followed in the event the investigation of an offence was not completed within 24 hours. Section 167 in the CrPC, 1898, was premised on the conclusion of investigation within 24 hours or within 15 days on the outside, regardless of the nature of the offence or the punishment.

27. The Law Commission of India, in its Forty-first Report, recommended increasing the time-limit for completion of investigation to 60 days. The new CrPC gave effect to the recommendation of the Law Commission. Section 167 as enacted provided for time-limit of 60 days regardless of the nature of offence or the punishment. In the year 1978, Section 167 was amended. Section 167(2) which is relevant for the present case existing as of now is to the following effect:

"167(2). The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that, -

(a) the Magistrate may authorise 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, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. "

28. A three-Judge Bench of this Court in Uday Mohanlal Acharya v. State of Maharashtra reported in (2001) 5 SCC 453, has noticed the object of enacting the provisions of Section 167 of the CrPC. Section 57 of the CrPC contains the embargo on the police officers to detain in custody, a person arrested beyond 24 hours. The object is that the accused should be brought before a Magistrate without delay within 24 hours, which provision is, in fact, in consonance with the constitutional mandate engrafted under Article 22(2) of the Constitution. The provision of Section 167 is supplementary to Section 57. The power under Section 167 is given to detain a person in custody while police goes on with the investigation. Section 167 is, therefore, a provision which authorises the Magistrate permitting the detention of the accused in custody prescribing the maximum period. In Uday Mohanlal Acharya (supra) this Court while dealing with Section 167 laid down the following:

"5. ... This provision of Section 167 is in fact supplementary to Section 57, in consonance with the principle that the accused is entitled to demand that justice is not delayed. The object of requiring the accused to be produced before a Magistrate is to enable the Magistrate to see that remand is necessary and also to enable the accused to make a representation which he may wish to make. The power under Section 167 is given to detain a person in custody while the police goes on with the investigation and before the Magistrate starts the enquiry. Section 167, therefore, is the provision which authorises the Magistrate permitting detention of an accused in custody and prescribing the maximum period for which such detention could be ordered. Having prescribed the maximum period, as stated above, what would be the consequences thereafter has been indicated in the proviso to sub-section (2) of Section 167. The proviso is unambiguous and clear and stipulates that the accused shall be released on bail if he is prepared to and does furnish the bail which has been termed by judicial pronouncement to be "compulsive bail " and such bail would be deemed to be a bail under Chapter 33. The right ofan accused to be released on bail after expiry of the maximum period of detention provided under Section 167 can be denied only when an accused does not furnish bail, as is apparent from Explanation I to the said section. The proviso to sub-section (2) of Section 167 is a beneficial provision for curing the mischief of indefinitely prolonging the investigation and thereby affecting the liberty of a citizen.... "

29. Again, there has been a very detailed consideration of Section 167 by a three-Judge Bench of this Court in Rakesh Kumar Paul v. State of Assam, reported in (2017) 15 SCC 67. This Court in the above case has traced the legislative history of the provision of Section 167. This Court in the above case emphasised that the debate on Section 167 must also be looked at from the perspective of expeditious conclusion of investigation and from the angle of personal liberty. This Court also held that the right of default bail is an indefeasible right which cannot be allowed to be frustrated by the prosecution. Following was laid down in paras 37, 38 and 39:

"37. This Court had occasion to review the entire case law on the subject in Union of India v. Nirala Yadav [Union of India v. Nirala Yadav, (2014) 9 SCC 457: (2014) 5 SCC (Cri) 212]. In that decision, reference was made to Uday Mohanlal Acharya v. State of Maharashtra [Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760] and the conclusions arrived at in that decision. We are concerned with Conclusion (3) which reads as follows : (Uday Mohanlal Acharya case [Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760], SCC p. 473, para 13)

"13. ... (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate. "

38. This Court also dealt with the decision rendered in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410: 1994 SCC (Cri) 1433] and noted that the principle laid down by the Constitution Bench is to the effect that if the charge-sheet is not filed and the right for "default bail" has ripened into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext. The accused can avail his liberty by filing an application stating that the statutory period for filing the charge-sheet or challan has expired and the same has not yet been filed and therefore the indefeasible right has accrued in his or her favour and further the accused is prepared to furnish the bail bond.

39. This Court also noted that apart from the possibility of the prosecution frustrating the indefeasible right, there are occasions when even the court frustrates the indefeasible right. Reference was made to Mohd. Iqbal Madar Sheikh v. State of Maharashtra [Mohd. Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1 SCC 722 : 1996 SCC (Cri) 202] wherein it was observed that some courts keep the application for "default bail" pending for some days so that in the meantime a charge-sheet is submitted. While such a practice both on the part of the prosecution as well as some courts must be very strongly and vehemently discouraged, we reiterate that no subterfuge should be resorted to, to defeat the indefeasible right of the accused for "default bail" during the interregnum when the statutory period for filing the charge-sheet or challan expires and the submission of the charge-sheet or challan in court. "

30. One more judgment of this Court on Section 167 of the CrPC be noticed i.e., Achpal alias Ramswaroop and Another v. State of Rajasthan, reported in (2019) 14 SCC 599. After referring to several earlier judgments of this Court including the judgments of this Court in Uday Mohanlal Acharya (supra) and Rakesh Kumar Paul (supra), this Court had laid down that the provisions of the CrPC do not empower anyone to extend the period within which the investigation must be completed. This Court held that no court either directly or indirectly can extend such period. Following are the observations of this Court in para 20 of Achpal (supra):

"20. We now turn to the subsidiary issue, namely, whether the High Court could have extended the period. The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality. There are enactments such as the Terrorist and Disruptive Activities (Prevention) Act, 1985 and the Maharashtra Control of Organised Crime Act, 1999 which clearly contemplate extension of period and to that extent those enactments have modified the provisions of the Code including Section 167. In the absence of any such similar provision empowering the Court to extend the period, no court could either directly or indirectly extend such period. In any event of the matter all that the High Court had recorded in its order dated 3-7-2018 [Mahaveer v. State of Rajasthan, 2018 SCC OnLine Raj 1] was the submission that the investigation would be completed within two months by a gazetted police officer. The order does not indicate that it was brought to the notice of the High Court that the period for completing the investigation was coming to an end. Mere recording of submission of the Public Prosecutor could not be taken to be an order granting extension. We thus reject the sub-missions in that behalf advanced by the learned counsel for the State and the complainant. "

31. The scheme of the CrPC as noticed above clearly delineates that the provisions of Section 167 of the CrPC give due regard to the personal liberty of a person. Without submission of chargesheet within 60 days or 90 days as may be applicable, an accused cannot be detained by the police. The provision gives due recognition to the personal liberty. However, as explained by this Court in Dinesh Dalmia v. CBI reported in (2007) 8 SCC 770, such a right of default bail although a valuable right, yet the same is a conditional one, the condition precedent being pendency of the investigation. Therefore, once the investigation is complete with the filing of the police report, containing the details specified under Section 173(2) of the CrPC, the question of a claim or grant for default bail does not arise.

32. However, Section 43D of the UAPA operates as a special provision vis a vis the applicability of rights granted under Section 167(2)(a) of the CrPC. Section 43D is reproduced hereinbelow:

"43D. Modified application of certain provisions of the Code. -(1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code, and "cognizable case" as defined in that clause shall be construed accordingly.

(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:

Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.

(3) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that-

(a) the reference in sub-section (1) thereof

(i) to "the State Government" shall be construed as a reference to "the Central Government or the State Government.";

(ii) to "order of the State Government" shall be construed as a reference to "order of the Central Government or the State Government, as the case may be "; and

(b) the reference in sub-section (2) thereof, to "the State Government" shall be construed as a reference to "the Central Government or the State Government, as the case may be ".

(4) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act.

(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail.

(7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing. "

33. Thus, a plain reading of the abovementioned provision of the UAPA makes it clear that the benefit of default bail shall be available to the accused for the offences alleged to have been committed under the UAPA where the investigation has not concluded within 90 days of arrest of the accused irrespective of the punishment of the offences alleged to have been committed by him. At the same time, the provision also gives right to the investigating agency to seek further period of 90 days to complete the investigation by filing a report to the public prosecutor indicating the progress of investigation. Thus, by virtue of Section 43D of the UAPA, the investigating agency gets 90+90 days = 180 days to complete the investigation.

34. We shall now look into Section 45 of the UAPA. Section 45 of the UAPA is with respect to cognizance of offences. Section 45 of the UAPA reads thus:

"45. Cognizance of offences.

(1) No court shall take cognizance of any offence-

(i) under Chapter III without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf;

(ii) under Chapter IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and if such offence is committed against the Government of a foreign country without the previous sanction of the Central Government.

(2) Sanction for prosecution under sub-section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation, within such time as may be prescribed, to the Central Government or, as the case may be, the State Government. "

35. A close look at Section 45 of the UAPA referred to above would indicate that sub section (1) deals with the authority who can accord sanction for the offence committed under the UAPA whereas sub section (2) deals with the procedure to be followed by the authority at the time of granting sanction. It is evident from Section 45(1) of the UAPA that if the offence falls under Chapter III of the UAPA, the Court shall not take cognizance of the offence unless previous sanction is accorded either by the Central Government or by any other officer authorised by the Central Government in this behalf. If the offence alleged to have been committed falls under Chapters IV and VI resply, the Court shall not take cognizance of the offence unless previous sanction is granted by the Central Government or the State Government as the case may be. However, if the offence committed as alleged is against the Government of a foreign country, the Court shall not take cognizance without the previous sanction of the Central Government. It is pertinent to mention here that for the offence enumerated under Chapters IV and VI resply, only the Central or State Government, as the case may be, are authorised to grant sanction.

36. We must read Section 45 of the UAPA referred to above along with the Rules 3 and 4 respectively of the 2008 Rules. We quote Rules 3 and 4 respectively as under:

"3. Time limit for making a recommendation by the Authority . - The Authority shall, under sub-section (2) of section 45 of the Act, make its report containing the recommendations to the Central Government or, as the case may be, the State Government within seven working days of the receipt of the evidence gathered by the investigating officer under the Code.

4. Time limit for sanction of prosecution.-The Central Government or, as the case may be, the State Government shall, under sub-section (2) of section 45 of the Act, take a decision regarding sanction for prosecution within seven working days after receipt of the recommendations of the Authority. "

37. The Rules 2008 referred to above, would indicate that the authority shall, under sub section (2) of Section 45 of the UAPA make its report containing the recommendations to the Central Government (or as the case may be, the State Government) within 7 working days of the receipt of the evidence gathered by the investigating officer under the CrPC. The Central Government (or as the case may be, the State Government) is obliged under sub section (2) of Section 45 of the UAPA to take a decision regarding sanction for prosecution within 7 working days after receipt of the recommendations of the authority.

38. In the aforesaid context, our attention was drawn by the learned counsel appearing for the appellants to the speech of the Honble Home Minister while moving the draft Bills in the Rajya Sabha and in his speech, the Honble Home Minister clearly stated as under:

"Finally, Sir, we have incorporated a very salutary provision. To the best of our knowledge-I don t know, I may be corrected by the Law Minister or the Law Secretary later - it is the first time we are introducing this. In a prosecution under the UAPA, now, it is the executive Government which registers the case through a police officer. It is the executive Government which investigates the case through an investigating agency, namely, the police department. It is the executive Govt. which sanctions U/s.45. Therefore, there is a fear that a vindictive or a wrong executive Govt. could register a case, investigate and sanction prosecution. There is a fear. May be, it is not a fear that is entirely justified but you cannot say that it is entirely unjustified. So what are we doing? The executive Govt. can register the case because no one else can register a case. The executive Govt., through its agency, can investigate the case. But, before sanction is granted under 45(1) we are interposing an independent authority which will review the entire evidence, gathered in the investigation, and then make a recommendation whether this is a fit case of prosecution. So, here, we are bringing a filter, a buffer, an independent authority who has to review the entire evidence that is gathered and, then, make a recommendation to the State Govt. or the Central Govt. as the case may be, a , fit case , for sancHon. I think, this is a very salutary safeguard. All sections of the House should welcome it. This is a biggest buffer against arbitrariness which many Members spoke about. Sir, these are the features in the Bill. " (Emphasis supplied)

39. We shall now proceed to look into the provisions of the NIA Act. Section 16 of the NIA Act relates to the procedure and powers of Special Courts. Sub section (1) of Section 16 is relevant for our purpose. The same reads thus:

" 16. Procedure and powers of Special Courts. -

(1) A Special Court may 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. "

40. Section 18 of the NIA Act relates to sanction for prosecution. Section 18 reads thus:

"18. Sanction for prosecution.-

No prosecution, suit or other legal proceedings shall be instituted in any court of law, except with the previous sanction of the Central Government, against any member of the Agency or any person acting on his behalf in respect of anything done or purported to be done in exercise of the powers conferred by this Act. "

41. Section 22 of the NIA Act is with respect to the power of the State Government to designate the Court of Sessions as Special Courts. Section 22 of the NIA Act reads thus:

"22. Power of State Government to designate Court of Session as Special Courts. - (1) The State Government may designate one or more Courts of Session as Special Courts for the trial of offences under any or all the enactments specified in the Schedule.

(2) The provisions of this Chapter shall apply to the Special Courts designated by the State Government under sub-section (1) and shall have effect subject to the following modifications, namely-(i) references to "Central Government" in sections 11 and 15 shall be construed as references to State Government;

(ii) reference to "Agency" in sub-section (1) of section 13 shall be construed as a reference to the "investigation agency of the State Government";

(iii) reference to "Attorney-Generalfor India" in sub-section (3) of section 13 shall be construed as reference to "Advocate-General of the State ".

(3) The jurisdiction conferred by this Act on a Special Court shall, until a Special Court is designated by the State Government under sub-section (1) in the case of any offence punishable under this Act, notwithstanding anything contained in the Code, be exercised by the Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this Chapter.

(4) On and from the date when the Special Court is designated by the State Government the trial of any offence investigated by the State Government under the provisions of this Act, which would have been required to be held before the Special Court, shall stand transferred to that Court on the date on which it is designated. "

42. We shall now look into the 1908 Act. Section 7 of the 1908 Act imposes restriction on trial of offences under the 1908 Act except with the consent of the District Magistrate. Section 7 reads thus:

"7. Restriction on trial of offences.-

No court shall proceed to the trial of any person for an offence against this Act except with the consent of the District Magistrate. "

FINAL ANALYSIS

Issue No. 1

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