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2019 DIGILAW 94 (JK)

Suhail Ahmad Dar v. State of J&K

2019-02-26

RASHID ALI DAR

body2019
Judgment 1. FIR No.109/2018 under Sections 18 and 19 of the ULA(P) Act has been registered by Police Station Nowgam, wherein allegation had been levelled that on 10.11.2018 Police Station, Nowgam, received an information through reliable sources to the effect that one Suhail Ahmad Dar (petitioner herein) has afforded shelter and meals to some unknown terrorists in his rented room located near candid school Nowgam. These unknown militants are hiding there and are eager to carry terrorist attack upon security forces etc. Consequent upon said information, case stands registered and investigation taken up by SDPO, Pantha Chowk Srinagar. During the course of investigation, I/O visited place and CASO was launched in the area. The two hiding terrorists escaped from the place by taking advantage of darkness. However, Suhail Ahmad Dar has been apprehended in his rented room and during his personal search one mobile phone J7NXT Samsung has been recovered from his possession and he was arrested under Section 54 Cr. P.C. 2. On arrest of the petitioner during investigation of the case, petitioner approached the Court of learned Sub Judge/Special Mobile Magistrate, Srinagar for grant of bail, who passed an order on 28.11.2018 observing therein that since the offences are exclusively triable by the Court of Sessions, so the application could not be dealt by a Magistrate. The bail application was dismissed for want of jurisdiction. Accordingly, petitioner herein has approached the court of learned Principal Sessions Judge, Srinagar, for grant of bail, who transferred the bail petition for disposal to the Court of 1st Additional Sessions Judge, Srinagar. Learned 1st Additional Sessions Judge, Srinagar, in pursuance of order dated 19.12.2018 dismissed the bail petition with the following observations:— “Thus, from what has been stated above and considering that investigation of the case is in progress, call detail record and FSL report regarding the Samsung mobile phone recovered on the identification of the accused, and the mobile phone recovered from personal search of petitioner is awaited, therefore, at this stage it cannot be stated by this Court that allegations levelled against petitioner are not prima facie true. Consequently, the bar in-terms of proviso to section 43-D(5) of ULA(P) Act is applicable to the case in hand. Hence, the instant application being hit by proviso to section 43-D(5) ULA(P) is rejected and be consigned to records after its due compilation.” 3. Consequently, the bar in-terms of proviso to section 43-D(5) of ULA(P) Act is applicable to the case in hand. Hence, the instant application being hit by proviso to section 43-D(5) ULA(P) is rejected and be consigned to records after its due compilation.” 3. The Division Bench judgment of this Court in “Sumaya Rasool and Another Vs. State of J&K” (CRA No.37/2018), which was referred on behalf of petitioner, was held to be not applicable to the facts of the case. 4. The order passed by learned 1st Additional Sessions Judge, Srinagar, is being assailed by medium of instant revision petition while it being also prayed that the petitioner be admitted to bail. The main grounds as projected in the petition, on which the order is said to bad, are quoted in as under:— (i) There is no allegation against the petitioner that he has, in any manner, conspired or attempted to commit, advocates, abetted, advised or incited or facilitated the commission of a terrorist act or any act preparatory to the commission of a terrorist act, as such, he was entitled to be released on bail. The court below has, however, relied on the case diary and on the basis of the entries made in the case diary, the court has rejected the bail application in a most illegal and improper manner. (ii) The trial court without examining the case diary and making out the reasonable grounds therefrom or stating those grounds in the impugned order has erroneously come to the conclusion that the accusation against the petitioner are prima facie true and on that ground has rejected the bail application of the petitioner. The approach adopted by the court below in rejecting the application of the petitioner is grossly misconceived and unsustainable in law, therefore, deserves to be rejected. (iii) That the petitioner has not made any voluntary disclosure statement before the police. He was, however, falsely implicated in the case. There is no evidence that any terrorist or militant had ever come to the rented room of the petitioner wherein the petitioner had allegedly harboured him/them. According to the report, siege had been laid by the police around the house, where the petitioner was living but the militants escaped. It is totally unbelievable that when the forces lay siege around a house, the person inside the house can escape. According to the report, siege had been laid by the police around the house, where the petitioner was living but the militants escaped. It is totally unbelievable that when the forces lay siege around a house, the person inside the house can escape. It being a concocted story against the petitioner for falsely implicating him in the commission of crime, therefore, the order passed by the court below is legally untenable and deserves to be set aside. (iv) That the telephone call details are also false, frivolous, baseless and fabricated and therefore merit no consideration. The petitioner had no contact with the alleged militants. The evidence in the form of electronic record is therefore fabricated and baseless, it was not therefore open to the trial court to reject the bail application of the petitioner on the aforesaid ground. It having however done so, the impugned order is therefore legally erroneous and is liable to be set aside. (v) That the petitioner was not the only person who was living in the room. The was another person also, who was living with the petitioner in the said room. The respondents have not however proceeded against the other person but have arrested the petitioner and have booked him falsely in FIR No.109/2018 and the trial court in terms of the impugned order has rejected his bail. Application on surmises and conjectures. The impugned order having not been passed in accordance with law, therefore, the same is liable to be set aside. (vi) That the grant of bail is a rule and the denial is an exception, therefore, while conserving the bail application of the petitioner, the court below had to examine the matter in its entirety and grant bail to the petitioner because he satisfied all the tests laid down by the Courts for grant of bail. It having not done so and instead it having rejected the bail application of the petitioner on flimsy grounds, therefore, the order dated 19.12.2018 is liable to be set aside. (vii) That the petitioner is in custody for the last more than 45 days which has affected his studies adversely. The court below should have taken the said aspect into consideration and granted bail to the petitioner on any condition which it would deem proper. It having not done so, the order impugned is therefore liable to be set aside. (vii) That the petitioner is in custody for the last more than 45 days which has affected his studies adversely. The court below should have taken the said aspect into consideration and granted bail to the petitioner on any condition which it would deem proper. It having not done so, the order impugned is therefore liable to be set aside. (viii) That in case the bail application of the petitioner is not allowed, he will suffer, irreparable loss and injury which cannot be compensated by any method whatsoever. (ix) That the petitioner has a prima-facie case for grant of bail, as such this revision petition deserves to be allowed and while setting aside the order passed by the trial court, he deserves to be granted bail, on any condition which the Hon’ble Court may deem fit and proper under the facts and circumstances of the case. 5. In the reply/objections submitted on behalf of respondent State, the factual background has been narrated and it is prayed that the petition moved on behalf of the petitioner be dismissed. 6. On being heard, learned counsel for the petitioner submitted that the order passed by the court of learned 1st Additional Sessions Judge, Srinagar, was improper and so is required to be set aside. It is also being canvassed that there is change of circumstances in the case and the learned 1st Additional Sessions Judge while dismissing the bail application had taken note of the fact that at the stage of investigation, it was not practicable to frame, prima facie, opinion, as required in terms of Section 43-D(5) of ULA(P) Act. Emphasis is also being laid on the plea that the petitioner is entitled to bail by default as the period of ninety days has elapsed from the date of arrest of the petitioner. Division Bench judgment of this Court in “Sumaya Rasool and another Vs. State of J&K” (CRA No.37/2018) being again referred. 7. While rebutting the argument of learned counsel for the petitioner, learned AAG submitted that the petition is not maintainable as the petitioner, if was aggrieved of the order passed by the court below, was required to file an appeal in terms of Section 43D of the Act which is required to be heard by a bench of two judges. 7. While rebutting the argument of learned counsel for the petitioner, learned AAG submitted that the petition is not maintainable as the petitioner, if was aggrieved of the order passed by the court below, was required to file an appeal in terms of Section 43D of the Act which is required to be heard by a bench of two judges. According to him, even on merits, petitioner is not entitled to bail having regard to the severity of the offence. 8. In rebuttal, learned counsel for the petitioner submitted that the plea raised on behalf of the respondents for rejection of the revision petition/appeal is fallacious. It is being submitted that an appeal can be heard by the Division Bench from the judgment, sentence or order not being an interlocutory order, as referred in Section 21(1)(2) of the National Investigation Agency Act but the order referred in sub-section (4) thereof can be heard by the Single Judge as a distinction is maintained clearly in the provision between the cases covered under sub-section (1) and sub-section (4) thereof. Furthermore, revision filed herein can be converted as an appeal. 9. Considered the rival arguments. 10. For appreciating the contentions raised in the petition and the prayer made therein, it would be proper to have in mind Section18 and 19 of the ULA(P) Act, for which a case has been registered by Police Station, Nowgam:— 18. Punishment for conspiracy, etc.—Whoever conspires or attempts to commit or advocates, abets, advises or incites, directs or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. 19. Punishment for harbouring, etc.—Whoever voluntarily harbours or conceals, or attempts to harbour or conceal any person knowing that such person is a terrorist shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and shall also be liable to fine: Provided that this section shall not apply to any case in which the harbour or concealment is by the spouse of the offender. 11. It may also be relevant to have a glance of Section 43D of the ULA(P) Act, which reads as under:— 43D. 11. It may also be relevant to have a glance of Section 43D of the ULA(P) Act, which reads as under:— 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. 12. Furthermore, it also requires to be noted that National Investigation Agency Act had been enacted for constitution of an investigating agency at national level to investigate and prosecute the offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organizations and for matters connected therewith or incidental thereto. The superintendence of the Agency has to vest in the Central Government under Section 4 of the Act. The mechanism for investigation of a case is provided in Section 6 of the Act which lays an obligation on the SHO Police Station concerned after receiving information under Section 154 of the Code to forward the same to the State Government. The State Government on receipt of said report has to forward it to the Central Government as expeditiously as possible. The State Government on receipt of said report has to forward it to the Central Government as expeditiously as possible. On its receipt, the Central Government has to determine whether offence is a scheduled offence or not and has also to examine gravity of the offence and other relevant factors for determining whether case is required to be investigated by the Agency. The Agency can take investigation of the case if the Central Government is of the opinion that the said case is required to be assigned to the said Agency for investigation. Even the Central Government may, suo motu, direct the Agency to investigate the offence. 13. For appreciation of the argument raised as to applicability of Section 21 of National Investigation Agency Act, it may be proper herein to refer to Section 6 of the said Act:— 6. Investigation of Scheduled Offences.— (1) On receipt of information and recording thereof under section 154 of the Code relating to any Scheduled Offence the officer-in-charge of the police station shall forward the report to the State Government forthwith. (2) On receipt of the report under sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible. (3) On receipt of report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency. (4) Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence. (5) Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence. (5) Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence. (6) Where any direction has been given under sub-section (4) or sub-section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency. (7) For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to continue the investigation. 14. It may also be proper to make a mention of Section 10 of the Act, which provides as:— 10. Power of State Government to investigate Scheduled Offences.—Save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offence or other offences under any law for the time being in force. ...... 15. A conjoint reading of both Sections thus makes it clear that the investigation of the cases which are stated under the Act to be scheduled offences can be made by both National Investigation Agency as well as the State Investigating Agencies. Special Courts for trial of the scheduled offences have to be constituted under Section 11 of the Act which would have jurisdiction under Section 13 of the said Act to try the cases investigated by the Agency. A glance on both the provisions reveals:— 11. Power of Central Government to constitute Special Courts.— (1) The Central Government shall, by notification in the Official Gazette, for the trial of Scheduled Offences, constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification. (2) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the Central Government whose decision in the matter shall be final. (3) A Special Court shall be presided over by a judge to be appointed by the Central Government on the recommendation of the Chief Justice of the High Court. (2) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the Central Government whose decision in the matter shall be final. (3) A Special Court shall be presided over by a judge to be appointed by the Central Government on the recommendation of the Chief Justice of the High Court. (4) The Agency may make an application to the Chief Justice of the High Court for appointment of a Judge to preside over the Special Court. (5) On receipt of an application under sub-section (4), the Chief Justice shall, as soon as possible and not later than seven days, recommend the name of a judge for being appointed to preside over the Special Court. (6) The Central Government may, if required, appoint an additional judge or additional judges to the Special Court, on the recommendation of the Chief Justice of the High Court. (7) A person shall not be qualified for appointment as a judge or an additional judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge in any State. (8) For the removal of doubts, it is hereby provided that the attainment, by a person appointed as a judge or an additional judge of a Special Court, of the age of superannuation under the rules applicable to him in the service to which he belongs shall not affect his continuance as such judge or additional judge and the Central Government may by order direct that he shall continue as judge until a specified date or until completion of the trial of the case or cases before him as may be specified in that order. (9) Where any additional judge or additional judges is or are appointed in a Special Court, the judge of the Special Court may, from time to time, by general or special order, in writing, provide for the distribution of business of the Special Court among all judges including himself and the additional judge or additional judges and also for the disposal of urgent business in the event of his absence or the absence of any additional judge. 13. Jurisdiction of Special Courts.— (1) Notwithstanding anything contained in the Code, every Scheduled Offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed. 13. Jurisdiction of Special Courts.— (1) Notwithstanding anything contained in the Code, every Scheduled Offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed. (2) If, having regard to the exigencies of the situation prevailing in a State if,— (a) it is not possible to have a fair, impartial or speedy trial; or (b) it is not feasible to have the trial without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor or a judge of the Special Court or any of them; or (c) it is not otherwise in the interests of justice, the Supreme Court may transfer any case pending before a Special Court to any other Special Court within that State or in any other State and the High Court may transfer any case pending before a Special Court situated in that State to any other Special Court within the State. (3) The Supreme Court or the High Court, as the case may be, may act under this section either on the application of the Central Government or a party interested and any such application shall be made by motion, which shall, except when the applicant is the Attorney-General for India, be supported by an affidavit or affirmation. 16. The order, in terms of which bail has been rejected, has not been passed by the Special Court nor the case of which investigation has been commenced in pursuance of registration of FIR No.109/2018 is being investigated by the National Investigation Agency. It is also not the case pleaded on behalf of respondent State that the Central Government was approached by the State Government for making an arrangement to have investigation of the case by the Agency or otherwise Central Government was of the view that the investigation of the case be assigned to the Agency. The jurisdiction for grant of bail was invoked in terms of the petition presented on behalf of the petitioner before a regular criminal court i.e. learned Sub Judge/Special Mobile Magistrate, Srinagar, who dismissed the same for want of jurisdiction while observing that same is required to be presented before the Sessions Court. Rejection of the bail petition with the observations referred supra thereafter has been made by the 1st Additional Sessions Judge, Srinagar. Rejection of the bail petition with the observations referred supra thereafter has been made by the 1st Additional Sessions Judge, Srinagar. The argument thus raised that the petitioner herein was required to adhere to the mechanism provided under Section 21 of the National Investigation Agency Act to challenge the order of rejection of appeal does not carry any force. At the cost of repetition, it again needs to be stated that it would be only an order which is passed by a Special Court which have to be challenged in an appeal before the High Court under Section 21 of the Act and which is required to be heard by two judges of the High Court. The interpretation made by the learned counsel for the petitioner that in case challenge is thrown to an order of rejection of bail, same can be heard by Single Bench under sub-section (4) of Section 21 of the Act, also melts into insignificance. Same had to be turned down even otherwise to be without merit in the light of the Hon’ble Apex Court judgment in “State of Andhra Pradesh Vs. Md. Hussain and Ors: decided on 13.09.2013. 17. To reiterate herein, the petition for being admitted to bail has been rejected by learned 1st Additional Sessions Judge, Srinagar, on the ground that the case is in progress, call detail record and FSL report regarding the Samsung mobile phone recovered on the identification of the accused, and the mobile phone recovered from personal search of petitioner is awaited, therefore, at this stage (as observed by said Court), it cannot be stated by this Court that allegations levelled against petitioner are not prima facie true. Consequently, the bar in-terms of proviso to section 43-D(5) of ULA(P) Act is, stated by the said Court, applicable to the case in hand. 18. The order was passed on 19.12.2018. Occurrence has taken place allegedly on 10.11.2018. Petitioner has been arrested on the same date. This is admitted position in the case. Having regard to the mandate of Section 167(2) of Cr. P. C, investigation of the case was to be concluded within a period of ninety days. 18. The order was passed on 19.12.2018. Occurrence has taken place allegedly on 10.11.2018. Petitioner has been arrested on the same date. This is admitted position in the case. Having regard to the mandate of Section 167(2) of Cr. P. C, investigation of the case was to be concluded within a period of ninety days. The Investigating Agency, who was asked to apprise the Court about the status of investigation and the steps, if any taken, consequent thereupon, has submitted a communication through learned AAG bearing No.563/SA/18/NGM dated 19.02.2019 in presence of investigating officer, wherein it is stated that the case is being investigated by SDPO, Pantha Chowk and the case file has been submitted to PHQ vide DPO letter No.CRB/RDR/Sanction/2019/4283-87 dated 12.02.2019 for further submission to Home Department for obtaining sanction. The final report, as such, has not been filed till date before the concerned court. There appears to be force in submissions made by learned counsel for the petitioner that the petitioner herein is entitled to default bail. The question about the permissibility of exercise of revisory jurisdiction need not to be gone into and so the petition herein is thus treated as petition for grant of bail in terms of Section 497/498 Cr. P. C read with Section 167(2) Cr. P.C. 19. In the light of principle of law laid down by the Hon’ble Apex Court in “Rakesh Kumar Paul vs. State of Assam” ( AIR 2017 SC 3948 ), the request for being admitted to bail for default of investigating agency need not to be made by a specific written motion in this regard. An oral submission would be sufficient. It would be proper herein to refer to Section 167(2) Cr. P.C: 167. An oral submission would be sufficient. It would be proper herein to refer to Section 167(2) Cr. P.C: 167. Procedure when investigation cannot be completed in twenty-four hours.— (1) xxx xxx xxx (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorize 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 authorize the detention of the accused person, otherwise than in 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 authorize the detention of the accused person in custody under this section for a total period exceeding ninety days and on the expiry of the said period of ninety days, 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 authorize detention of the accused in custody of the police under this section unless the accused is produced before him (c) no Magistrate of the second class, not specially empowered in this behalf by the Government or the High Court, as the case may be, shall authorize detention in the custody of the police. 20. In “Rakesh Kumar Paul vs. State of Assam” ( AIR 2017 SC 3948 ), a three Judge Bench of the Hon’ble Apex Court had an occasion to interpret Section 167(2)(i) of Cr. P. C. His lordship Hon’ble Mr. Prafulla C. Pant had his dissenting opinion in the matter and did not concur with the majority view of their Lordships Hon’ble Mr. Justice Madan B. Lokur and Hon’ble Mr. Justice Deepak Gupta. It would be proper herein to refer to the observations made by their Lordships:— Hon’ble Mr. Justice Madan B. Lokur 1. P. C. His lordship Hon’ble Mr. Prafulla C. Pant had his dissenting opinion in the matter and did not concur with the majority view of their Lordships Hon’ble Mr. Justice Madan B. Lokur and Hon’ble Mr. Justice Deepak Gupta. It would be proper herein to refer to the observations made by their Lordships:— Hon’ble Mr. Justice Madan B. Lokur 1. In Measure for Measure the Duke complains (in the given situation): “And liberty plucks justice by the nose”. 1 The truth is that personal liberty cannot be compromised at the altar of what the State might perceive as justice – justice for one might be perceived as injustice for another. We are therefore unable to agree with learned counsel for the State that the petitioner is not entitled to his liberty through what is commonly referred to as ‘default bail’ or that the justice of the case should persuade us to decide otherwise. 2. The facts in these petitions are not in dispute and we need not go into them in any great detail since we are really concerned with the interpretation of the words “imprisonment for a term not less than ten years” appearing in clause (i) of proviso (a) to Section 167(2) of the Code of Criminal Procedure, 1973 as amended in 1978. A few facts 3. A First Information Report No. 936 of 2016 was lodged on 27th October, 2016 in respect of allegations made under the provisions of the Prevention of Corruption Act, 1988 (PC Act) and the Indian Penal Code, 1860 (IPC). Although the petitioner was not named in the First Information Report, investigations seemed to implicate him in a very large and structured conspiracy. Accordingly, on 5th November, 2016 the petitioner was taken into custody pending further investigation. 4. Ordinarily, the maximum period of detention during the course of investigation (without a charge sheet or challan being filed) would be 60 days in terms of clause (ii) of proviso (a) to Section 167(2) of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’). In the petitioner’s case, this period would come to an end on 3rd January, 2017. Ordinarily, the maximum period of detention during the course of investigation (without a charge sheet or challan being filed) would be 60 days in terms of clause (ii) of proviso (a) to Section 167(2) of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’). In the petitioner’s case, this period would come to an end on 3rd January, 2017. However according to the State, since the petitioner had committed offences which could result in “imprisonment for a term not less than ten years” he could be kept in custody for a period of 90 days in terms of clause (i) of proviso (a) to Section 167(2) of the Cr.P.C. Therefore, the question before us is whether, pending investigation, the petitioner could be kept in custody for a maximum period of 60 days in terms of clause (ii) of proviso (a) to Section 167(2) of the Cr.P.C. or for 90 days in terms of clause (i) of proviso (a) to Section 167(2) of the Cr.P.C. without a charge sheet being filed. 5. On 20th December, 2016 (before the expiry of 60 days), the petitioner applied for bail before the Special Judge dealing with cases relating to offences under the PC Act. His application was rejected. 6. Subsequently, on or about 11th January, 2017 (after the expiry of 60 days of detention but before the expiry of 90 days of detention), the petitioner applied for bail before the Gauhati High Court, but that application was rejected on 11th January, 2017. The prayer made in the application for bail was for grant of “regular bail” under Section 439 of the Cr.P.C. This is of some importance because, according to learned counsel for the State, assuming the petitioner could be detained only for a maximum period of 60 days during investigations, he had not applied for ‘default bail’, that is bail in default of the prosecution filing a charge sheet against him soon after that 60 day period of detention, but had only applied for “regular bail”. 7. At this stage, it may be mentioned that even though the petitioner had not applied for ‘default bail’ he did contend before the High Court that he was entitled to ‘default bail’ since no charge sheet had been filed against him within 60 days of his arrest during investigations. 7. At this stage, it may be mentioned that even though the petitioner had not applied for ‘default bail’ he did contend before the High Court that he was entitled to ‘default bail’ since no charge sheet had been filed against him within 60 days of his arrest during investigations. This submission was considered by the High Court but rejected, not on the ground that the petitioner had not applied for ‘default bail’ but on the ground that he could be detained for 90 days without a charge sheet being filed and that period of 90 days had not yet come to an end. (The period of 90 days would come to an end on or about 2 nd February, 2017). 8. To complete the narration of essential facts, it may be mentioned that a charge sheet was filed against the petitioner on 24 th January, 2017 that is after 60 days of his detention but before completion of 90 days of detention. 9. In view of the charge sheet having been filed, the modified question before us is whether the petitioner was entitled to ‘default bail’ with effect from 3rd or 4th January, 2017 onwards and, in any case on 11th January, 2017 when his application for “regular bail” was rejected by the Gauhati High Court. 28. We may also look at the entire issue not only from the narrow interpretational perspective but from the perspective of personal liberty. Ever since 1898, the legislative intent has been to conclude investigations within twenty-four hours. This intention has not changed for more than a century, as the marginal notes to Section 167 of the Cr.P.C. suggest. However, the Legislature has been pragmatic enough to appreciate that it is not always possible to complete investigations into an offence within twenty-four hours. Therefore initially, in the Cr.P.C. of 1898, a maximum period of 15 days was provided for completing the investigations. Unfortunately, this limit was being violated through the subterfuge of taking advantage of Section 344 of the Cr.P.C. of 1898. The misuse was recognized in the 41 st Report of the Law Commission of India and consequently the Law Commission recommended fixing a maximum period of 60 days for completing investigations and that recommendation came to be enacted as the law in the Cr.P.C. of 1973. The misuse was recognized in the 41 st Report of the Law Commission of India and consequently the Law Commission recommended fixing a maximum period of 60 days for completing investigations and that recommendation came to be enacted as the law in the Cr.P.C. of 1973. Subsequently, this period was also found to be insufficient for completing investigations into more serious offences and, as mentioned above, the period for completing investigations was bifurcated into 90 days for some offences and 60 days for the remaining offences. 38. This Court also dealt with the decision rendered in Sanjay Dutt 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 Mohamed Iqbal Madar Sheikh v. State of Maharashtra 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 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. Procedure for obtaining default bail. Procedure for obtaining default bail 40. In the present case, it was also argued by learned counsel for the State that the petitioner did not apply for ‘default bail’ on or after 4th January, 2017 till 24th January, 2017 on which date his indefeasible right got extinguished on the filing of the charge sheet. Procedure for obtaining default bail. Procedure for obtaining default bail 40. In the present case, it was also argued by learned counsel for the State that the petitioner did not apply for ‘default bail’ on or after 4th January, 2017 till 24th January, 2017 on which date his indefeasible right got extinguished on the filing of the charge sheet. Strictly speaking this is correct since the petitioner applied for regular bail on 11th January, 2017 in the Gauhati High Court – he made no specific application for grant of ‘default bail’. However, the application for regular bail filed by the accused on 11th January, 2017 did advert to the statutory period for filing a charge sheet having expired and that perhaps no charge sheet had in fact being filed. In any event, this issue was argued by learned counsel for the petitioner in the High Court and it was considered but not accepted by the High Court. The High Court did not reject the submission on the ground of maintainability but on merits. Therefore, it is not as if the petitioner did not make any application for default bail – such an application was definitely made (if not in writing) then at least orally before the High Court. In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for ‘default bail’ or an oral application for ‘default bail’ is of no consequence. The concerned court must deal with such an application by considering the statutory requirements namely, whether the statutory period for filing a charge sheet or challan has expired, whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail. 49. The petitioner is held entitled to the grant of ‘default bail’ on the facts and in the circumstances of this case. The Trial Judge should release the petitioner on ‘default bail’ on such terms and conditions as may be reasonable. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the petitioner on cogent grounds in respect of the subject charge and upon arrest or re-arrest, the petitioner is entitled to petition for grant of regular bail which application should be considered on its own merit. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the petitioner on cogent grounds in respect of the subject charge and upon arrest or re-arrest, the petitioner is entitled to petition for grant of regular bail which application should be considered on its own merit. We also make it clear that this will not impact on the arrest of the petitioner in any other case. 50. We allow the petition and set aside the judgment and order of the High Court. 51. The companion petition, being S.L.P. (Crl.) No. 2176 of 2017 is rendered infructuous and is dismissed as such. Hon’ble Mr. Justice Deepak Gupta: 113. In view of the above discussion, my findings are as follows 113(1). I agree with both my learned brothers that the amendment made to the Prevention of Corruption Act,1988 by the Lokpal and Lokayuktas Act, 2013 applies to all accused charged with offences under this Act irrespective of the fact whether the action is initiated under the Lokpal and Lokayuktas Act, 2013, or any other law; 113(2). Section 167(2)(a)(i) of the Code is applicable only in cases where the accused is charged with (i) offences punishable with death and any lower sentence; (ii) offences punishable with life imprisonment and any lower sentence and (iii) offences punishable with minimum sentence of 10 years; 113(3). In all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment then Section 167(2)(a)(ii) will apply and the accused will be entitled to grant of ‘default bail’ after 60 days in case charge-sheet is not filed. 113(4). The right to get this bail is an indefeasible right and this right must be exercised by the accused by offering to furnish bail. On issues 2 to 4, I agree and concur with my learned brother Lokur J. and with due respect I am unable to agree with learned brother Pant J. I agree and concur with the conclusions drawn and directions given by learned brother Lokur J. in Paras 49 to 51 of his judgment. Hon’ble Mr. Justice Prafulla C. Pant: 72. On issues 2 to 4, I agree and concur with my learned brother Lokur J. and with due respect I am unable to agree with learned brother Pant J. I agree and concur with the conclusions drawn and directions given by learned brother Lokur J. in Paras 49 to 51 of his judgment. Hon’ble Mr. Justice Prafulla C. Pant: 72. From the above analogy, I am of the opinion that the intention of the legislature was that if an offence was punishable with imprisonment upto ten years, then it falls within the provision of Section 167(2)(a)(i) of the Code, and the permissible period for investigation is ninety days. The intention of the Legislature in extending the permissible time period from sixty days to ninety days for investigation is to include the offences in which sentence awardable is at least ten years or more. Therefore, as discussed above, though the expression “not less than ten years” used in Section 167(2)(a)(i) of the Code has created some ambiguity, the real intention of the legislature seems to include all such offences wherein an imprisonment which may extend to ten years is an awardable sentence. In other words, for offences wherein the punishment may extend to ten years imprisonment, the permissible period for filing charge sheet shall be ninety days, and only after the period of ninety days, the accused shall be entitled to bail on default for non-filing of the charge sheet. (In the present case, admittedly the charge sheet is filed within ninety days). I may further add that, since the expression “not less than ten years” has caused ambiguity in interpretation, the best course for the legislature would be to clear its intention by using the appropriate words. Answer to Question II: 73. The second issue which requires to be addressed is whether the appellant is entitled to statutory bail under Section 167(2) of the Code though he has not made any application under Section 167(2) of the Code before the Magistrate (or Special Judge) prior to the filing of the charge sheet. The record of the case reveals that the appellant was arrested on 4.11.2016 and produced before the Magistrate on 5.11.2016 and he was remanded to custody for the first time. The period of sixty days for filing charge sheet expired on 04.01.2017. The charge sheet came to be filed on 24.1.2017. The record of the case reveals that the appellant was arrested on 4.11.2016 and produced before the Magistrate on 5.11.2016 and he was remanded to custody for the first time. The period of sixty days for filing charge sheet expired on 04.01.2017. The charge sheet came to be filed on 24.1.2017. Initially the appellant had applied for regular bail before the Sessions Court which came to be rejected on 20.12.2016. Thereafter he moved bail application No. 23/2017 for bail under Section 439 of the Code before the High Court of Guwahati. This bail application was disposed on 11.01.2017 which was after sixty days of arrest, but prior to filing of charge sheet. A perusal of this bail application shows that this bail application was moved under Section 439 of the Code for regular bail on merits and not as a bail claiming the statutory right under Section 167 of the Code. In none of the grounds taken in the bail application, the appellant has pleaded for default bail as a result of non filing of the charge sheet. All the grounds urged are on merits. The prayer is also for regular bail. It appears that, prior to the time of hearing, the counsel for the appellant has realised that the accused was entitled for default bail under Section 167(2) and has taken the plea in the oral arguments in the High Court that since sixty days for filing charge sheet has expired, he is entitled to bail as matter of right under Section 167(2) of the Code. The question thus arises, whether such application on merits can be equated to be an application seeking enforcement of statutory right under Section 167(2) of the Code and whether such practice of taking such oral arguments directly before the High Court in a pending regular bail application without having taken such grounds in the application or having approached the Magistrate (or Special Court) should be entertained. 78. The law laid down as above shows that the requirement of an application claiming the statutory right under Section 167(2) of the Code is a prerequisite for the grant of bail on default. In my opinion, such application has to be made before the Magistrate for enforcement of the statutory right. 78. The law laid down as above shows that the requirement of an application claiming the statutory right under Section 167(2) of the Code is a prerequisite for the grant of bail on default. In my opinion, such application has to be made before the Magistrate for enforcement of the statutory right. In the cases under the Prevention of Corruption Act or other Acts where Special Courts are constituted by excluding the jurisdiction of the Magistrate, it has to be made before such Special Court. In the present case, for the reasons discussed, since the appellant never sought default bail before the court concerned, as such not entitled to the same. 81. I may hasten to add that in the present case, the allegations do not disclose merely an economic offence but it shows a transgression of the constitutional rights of the victims of the crime. The Chairman of the APSC has the responsibility on behalf of the State for enforcement of the Fundamental Rights of equality in matters of public employment enshrined under Articles 14 and 16 of the Constitution of India. If the allegations are found to be true, then the offence cannot merely be considered as an economic offence, but a fraud on the Constitution itself by the persons appointed to enforce it. 82. In the above circumstances, without expressing any views on the merits of the case pending before the trial court, looking into the nature of allegations, the role attributed to the appellant, the fact that further investigation regarding the offence is underway, possibility of tampering evidence and influencing witnesses, I am of the opinion that it is not a fit case for grant of bail at this stage even on merits. 21. Since the investigating agency has omitted to file final report in terms of Section 173 Cr. P.C within the time prescribed under Section 167(2) of Cr. P. C, the petitioner is held entitled to default bail. The bar created u/s 43 ULA(P) Act would not come in the way of petitioner to seek enforcement of default bail, as his further detention is not permissible. It may need a passing reference herein that in the set of allegations levelled against the petitioner, the particulars of two persons who, in the estimation of investigating agency were terrorists or which act of terrorism was facilitated by the petitioner, has not been quoted. It may need a passing reference herein that in the set of allegations levelled against the petitioner, the particulars of two persons who, in the estimation of investigating agency were terrorists or which act of terrorism was facilitated by the petitioner, has not been quoted. Accordingly, petitioner is admitted to interim bail in case FIR No.109/2018 of Police Station, Nowgam, subject, however, to the following conditions:— 1. The petitioner shall furnish bail to the tune of Rs.50,000/ (rupees fifty thousand only) with one surety in the like amount to the satisfaction of the SHO concerned. 2. He shall not leave the State, without permission of this Court; 3. He shall appear before this Court on the next date of hearing. 22. The investigating agency is left free to produce the material, if any, it may desire to submit for consideration of the Court in case concession granted herein is required to be withdrawn. 23. List again on 18th March, 2019, in the regular cause list.