Justice S Vishwajith Shetty of the High Court set aside the order of the Special NIA court which had declined bail while extending time to the National Investigation Agency (NIA) for filing the charge sheet.
"The order dated November 3, 2020, passed on the application filed by the prosecution under the first proviso to Section 43-D(2)(b) of the Unlawful Activities (Prevention) Act, 1967, seeking extension of time for completion of the investigation and also the order dated 05.01.2021 passed by the Special N.I.A. Court, Bangalore (CCH-50) on the application filed by the petitioners under Section 167(2) of the Code of Criminal Procedure, are hereby set aside," the High Court said.
The Court ordered that the accused be released on bail on the execution of a personal bond for Rs 2 lakh along with two sureties of the same amount.
The Court, in its order, also discussed the importance and ambit of Article 21 of the Constitution. "The fundamental right of an individual recognized under Article 21 of the Constitution of India cannot be defeated other than in accordance with the law. Since the order passed by the trial court on the application filed by the prosecution seeking extension of time for completion of the investigation is already held to be bad in law, the statutory right that has accrued to the petitioners/accused immediately after the completion of the first 90 days of the period which right has been availed of by them by filing an application under Section 167(2) of the Code, seeking statutory bail and also offering surety cannot be denied to the petitioners/accused," the order said.
On August 11, 2020, a mob of around 300 people had gathered near DJ Halli Police Station in East Bangalore, protesting against an allegedly derogatory Facebook comment on Prophet Mohammed posted by one P Naveen, nephew of Congress MLA Akhanda Srinivas Murthy. Eventually, clashes broke out between the mob and the police leading to the death of three persons in police firing. Many policemen and journalists were also injured.
The accused Muzzamil Pasha and others were arrested on August 12, 2020, for the offences punishable under various sections of the Unlawful Activities (Prevention) Act, 1967 [UAPA], Indian Penal Code, and the Prevention of Damage to Public Property Act, 1984. In the said case, after 90 days had gone by, the NIA filed an application for an extension of time to file a final report on November 3, 2020, and this was allowed by the NIA special court on the same day.
The accused then filed an application for default bail on November 11, which came to be rejected. Aggrieved by the same, the accused persons approached the High Court. The High Court opined that the special court order extending the time granted for filing the charge sheet cannot be legally sustained since the petitioners were not heard before deciding the application for extension of time.
"Since the petitioners were not given an opportunity of being heard before passing any order on the application filed by the prosecution for extension of time for completion of the investigation and since the petitioners were not kept present before the court when the application filed by the prosecution for extension of time for completion of the investigation was being considered and since the petitioners were not notified that such an application filed by the prosecution was being considered by the court for the purpose of extending the time for completion of the investigation, I am of the considered opinion that the order passed by the trial court on the application filed by the prosecution under the first proviso to Section 43-D(2)(b) of the Act of 1967 extending the time to complete the investigation is legally unsustainable," the High Court said.
After perusing the NIA order, the Court also noted that neither the accused persons nor the advocates representing them were present before the trial court on the said date. "The filing of such an application by the prosecution was not at all notified either to the accused or to their Advocates," the Court pointed out.
The Court also turned down the contention by the prosecution that considering the fact that the charge sheet was already filed by the prosecution during the extended period, the accused can very well apply for regular bail under Section 439 of the CrPC having regard to the fact that the charge sheet has already been filed.
"In view of the law laid down in Bikramjit Singh's case, merely for the reason that the charge sheet has now been filed, it will not take away the indefeasible right of the petitioners, if it has accrued in their favor," the Court said. With these observations, the Court proceeded to grant default bail to all the accused persons and set aside the NIA order.