While taking potshots at the investigating agencies for its increasing tendency to seek extension of time for investigation and that too at the last moment, the Apex Court in a most pragmatic, pertinent, persuasive and powerful judgment titled Judgebir Singh @ Jasbir Singh Samra @ Jasbir & Ors vs National Investigation Agency in Criminal Appeal No. 1011 of 2023 With Criminal Appeal No. 1012 of 2023 and cited in 2023 LiveLaw (SC) 377 that was pronounced as recently as on May 1, 2023 in the exercise of its criminal appellate jurisdiction has been unsparing in cautioning the investigating agencies against filing of applications seeking extension of time for completing the investigation at the last moment. It must be noted that a Bench of Apex Court comprising of Chief Justice of India Dr DY Chandrachud and Justice JB Pardiwala made this critical observation after noting that the Punjab Police (investigation later taken over by the NIA) had filed an application seeking to extend the time for investigation as per Section 43D(2)(b) of the UAPA only when there was two days left for 90 days time to expire. The Court extended the time on the 101st day.
At the very outset, this learned, laudable, landmark and latest judgment authored by Justice JB Pardiwala for a Bench of the Apex Court comprising of CJI Dr DY Chandrachud and himself sets the ball in motion by first and foremost putting forth in para 1 that:
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.
To put things in perspective, the Bench envisages in para 2 that:
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.
While elaborating on the sequence of events, the Bench enunciates in para 4 that:
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 RC07/2020/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.
Briefly stated, the Bench then states in para 5 that:
To make it more explicit and clear, we trim down the aforesaid chronology of dates and events as under:
- 02.06.2019 – FIR was registered;
- 08.06.2019 – arrest of the first and second Appellants;
- 18.08.2019 – arrest of the third and fourth Appellants;
- 11.09.2019 – arrest of Taranbir Singh (Appellant of Crl. A. No. 1012 of 2023)
- 17.09.2019 – extension of the period of investigation from 90 to 180 days;
- 15.11.2019 – chargesheet presented;
- 14.12.2020 – application for default bail;
- 16.12.2020 – sanction order dated 26.10.2020 under the 1908 Act filed;
- 06.01.2021 – sanction order was issued under the UAPA;
- 17.03.2021 – sanction by the Ministry of Home Affairs under Section 45(1), UAPA following the transfer of investigation to NIA; and
- 22.03.2021 – supplementary chargesheet has been presented by NIA.
An Eye-Opener Litigation For The Nia/State Police
Most significantly, the Bench then propounds in para 76 holding that:
As is evident from the chronology of dates and events referred to in the earlier part of our judgment, the final report under Section 173(2) of the CrPC was filed in the Court of SDJM, Ajnala on 15.11.2019. 15.11.2019 was the 161st day from the date of arrest of two of the appellants before us, namely, Jasbir Singh and Varinder Singh. They were the first to be arrested on 08.06.2019. The Punjab Police applied to the Court of the Additional Sessions Judge, Amritsar, for extension of time to complete the investigation invoking the proviso to Section 43D(2)(b) of the UAPA on 04.09.2019. When this application for extension of time was filed only two days were left for 90 days to expire. This is suggestive of the fact that the 91st day would have fallen on 07.09.2019.
What is important to highlight is that the Additional Sessions Judge, Amritsar, looked into the extension application dated 04.09.2019 filed by the Punjab Police and ultimately, extended the time limit vide its order dated 17.09.2019 i.e., on the 101st day. By the time, the Additional Sessions Judge, Amritsar, passed an order extending the time, the period of 90 days had already expired. Indisputably, there was no chargesheet before the Court on the 91st day i.e., on 07.09.2019. The reason why we say that this is a grey area is because what would have happened if the appellants Jasbir Singh and Varinder Singh had preferred an application seeking statutory/default bail under Section 167(2) of the CrPC on the 91st day i.e., on 07.09.2019.
The application seeking extension of time was very much pending. The Additional Sessions Judge could not have even allowed such application promptly i.e., on or before the 90th day without giving notice to the accused persons. The law is now well settled in view of the decision of this Court in the case of Jigar alias Jimmy Pravinchandra Aditya v. State of Gujarat reported in 2022 SCC OnLine SC 1290 that an opportunity of hearing has to be given to the accused persons before the time is extended up to 180 days to complete the investigation.
The only error or lapse on the part of the appellants Jasbir and Varinder Singh was that they failed to prefer an appropriate application seeking statutory/default bail on the 91st day. If such application would have been filed, the court would have had no option but to release them on statutory/default bail. The Court could not have said that since the extension application was pending, it shall pass an appropriate order only after the extension application was decided. That again would have been something contrary to the well settled position of law. This litigation is an eye opener for the NIA as well as the State investigating agency that if they want to seek extension, they must be careful that such extension is not prayed for at the last moment.
Equally significant is what is then held in para 77 that:
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.
Briefly stated, the Bench makes it clear in para 78 that:
Our observations in paras 76 and 77 respectively as above are keeping in mind the decision of this Court rendered by a three-Judge Bench in the case of Sayed Mohd. Ahmad Kazmi v. State (Government of NCT of Delhi) and Others reported in (2012) 12 SCC 1, paras 25, 26 and 27 respectively.
As a corollary, the Bench directs in para 79 that:
In view of the aforesaid discussion, both the appeals fail and are hereby dismissed.
Finally, the Bench then concludes by holding in para 80 that:
Pending application(s), if any, shall stand disposed of.
In essence, the Apex Court has clearly sent a loud and clear message to investigating agencies not to seek extension of time for investigation at last moment. It was also made clear that in such cases, the accused will get the right to default bail. Very rightly so!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
