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The Court held that there's a fundamental right granted to an accused person to be released on bail once the conditions of the primary proviso to Section 167(2), CrPC are fulfilled.
A three-judge bench of the Supreme Court containing Justices Rohinton Fali Nariman, Navin Sinha and KM Joseph has held that right to default bail isn't merely a statutory right under the first proviso to Section 167(2) of the CrPC, but that it is a part of the procedure established by law under Article 21 of the Constitution of India (Bikramjit Singh v. State of Punjab).
Therefore, it's a fundamental right granted to an accused person to be released on bail once the conditions of the primary proviso to Section 167(2), CrPC are fulfilled.
The Code of Criminal Procedure through Section 167 (2) states that the detention of an accused person cannot be authorised beyond a statutory period prescribed to complete the investigation.
Ordinarily, the statutory period to finish the investigation and file a blotter may be a maximum of 90 days in offences punishable with captivity or death. However, for offences under UAPA, this era is often extended up to 180 days.
The Supreme Court said.
"It is a component of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the primary proviso to Section 167(2) are fulfilled."
The Court further held that the Special Court alone had jurisdiction to increase the time up to 180 days under the primary proviso in Section 43-D(2)(b) of the Unlawful Activities (Prevention) Act (UAPA).
The Supreme Court observed that each one offences under the UAPA, whether investigated by the National Investigation Agency or by the investigating agencies of the government, are to be tried exclusively by Special Courts acknowledged under the NIA Act.
The accused during this case was remanded to custody by a Sub-Divisional Magistrate. He filed an application for default bail before Sub-Divisional Judicial Magistrate after expiry of 90 days in custody
This bail application was disbanded because the Sub-Divisional Judicial Magistrate had already extended time for custody from 90 days to 180 days under Section 167 of the Code of Criminal Procedure, 1973 as amended by the UAPA.
This order was forgotten by the Special Court, which held that the Special Court alone had jurisdiction to extend the time for custody 180 days under the first proviso in Section 43-D(2)(b), UAPA.
However, the plea for default bail was refused.
The Special writ was forgotten by the Punjab and Haryana HC, which held that when the probe is being conducted by the State police, the Magistrate has the facility under Section 167 (2), CrPC, read with Section 43 (a) of UAPA to extend the quantity of investigation up to 180 days.
The high court added that just in case the investigation is conducted by the agency under the NIA Act, these powers would be exercised by the Special Court.
The blotter was filed on March 26, while the high court marked it as Annunciation.
The Supreme Court went on to remark,
"The unquestionable fact that this application was wrongly disbanded on 25.02.2019 would make no difference and wish to be corrected in revision. The only ground for dismissing the appliance was that the time of 90 days had already been extended by the learned Sub-Divisional Judicial Magistrate, Ajnala by his order dated 13.02.2019. This Order was correctly set aside by the Special Court by its judgment dated 25.03.2019, holding that under the UAPA read with the NIA Act, the Special Court alone had jurisdiction to increase time to 180 days under the first proviso in Section 43-D(2)(b)."
Supreme Court
Proposing that the accused had a fundamental right to be let out on default bail, once the statutory conditions under Section 167 (2), CrPC were fulfilled, the Supreme Court proceeded to line aside the high court ruling under challenge.
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