Read Order: Gursewak Singh v. State of Punjab
Chandigarh, May 02, 2022: While observing that an accused is entitled to the benefit of Section 167 (2) Cr.P.C. provided he applied for default bail and exercised his right when it accrued to him, the Punjab and Haryana High Court has asserted that in case the accused fails to apply for release on default bail and subsequently a charge-sheet, additional complaint or a report seeking extension of time is submitted in Court, then the right of default bail would be extinguished.
By this order, the Bench of Justices George Masih and Sandeep Moudgil decided on two criminal appeals which were preferred by the appellant, whose application for grant of regular bail under the Unlawful Activities (Prevention) Act, 1967 (UAPA Act) read with other provisions of the Indian Penal Code, Arms Act and the Prisons Act was dismissed by the Special Court, where he pressed his right for grant of bail under Section 167 (2) of the Code of Criminal Procedure (‘the Cr.P.C.’).
In this case, an FIR was registered under Sections 379-B, 382, 399, 402, 411, 467, 468, 472 and 473 of the Indian Penal Code, 1860, Section 25 of the Arms Act, Sections 15, 16, 17, 18 and 18-B of the UAP Act and Sections 6, 7, 8 of Arms Act (Amended Act 2019) against the appellant on the allegation that Sikandar Singh along with his gang members was involved and wanted in several murders, robberies, extortion and attempt to murder.
It was alleged that they were having relations with the enemy countries and they are planning for the release of gang members Gangadeep Singh @ Juj, Pradeep Singh from the custody of Amritsar police by attacking the police officers inside the precincts of Police Station, State Special Operation Cell, Amritsar with their arms and ammunition.
The appellant was arrested in this case in July 2020 on the basis of the statement of his co-accused who, during interrogation, along with other co-accused, disclosed that some other accomplices committed a robbery of 30 kgs gold, for which FIR under Sections 392, 342, 148 and 149 of the IPC and Section 25 of the Arms Act was already registered.
During the investigation, offences under Sections 411, 467, 468, 472 and 473 of the IPC and Section 16 of the UAP Act and Section 52-A of the Prisons Act, 1894, were added. The police report/challan under Section 173 Cr.P.C. was filed before the Trial Court and the same was committed to the Sessions Court, Amritsar.
The Counsel for the appellants argued that the charge-sheet was submitted before the Judicial Magistrate 1st Class on September 11, 2020, being without appropriate sanction from the competent authority as mandated under the statute i.e. UAP Act, the said charge-sheet has no value in the eyes of law. He contended that as per the provisions of the UAP Act, prior approval from the competent authority for the investigation of an offence is mandatory and as per the provisions of Section 45 of the UAP Act, the Courts cannot take cognizance of certain offences under the said Act without the previous sanction of the competent Government.
The Counsel also submitted that the appellant was entitled to the benefit of the provisions of Section 167 (2) Cr.P.C. i.e. mandatory default bail and the impugned order as passed by the Special Court, Amritsar, on the basis that the challan was presented despite the fact that the appellant already put forth his claim for the grant of default bail under Section 167 (2) Cr.P.C., could not be sustained.
On the contrary, the State Counsel argued on the date of filing of the application under Section 167 (2) Cr.P.C. by the appellant, the challan with the sanction of the competent Government under both the UAP Act as well as the Arms Act was available on the records of the Special Court and, therefore, the benefit of Section 167 (2) Cr.P.C. could not be granted to the appellant and, therefore, prayer has been made for dismissal of the present appeals.
After considering catena of decisions of the Supreme Court, the Court opined that an accused is entitled to the benefit of Section 167 (2) Cr.P.C. provided he had applied for default bail and has exercised his right when it accrued to him. Further, the Court observed that in case the accused fails to apply for release on default bail and subsequently a charge sheet, additional complaint or a report seeking extension of time is submitted in Court, the right of default bail would be extinguished.
Thus, the division bench expounded that the report submitted under Section 173 Cr.P.C. to the competent court having jurisdiction to try the said offence had proper approval from the competent Government/authority as mandated under the statutory provisions on the date when the application for grant of default bail was submitted. Hence, the Court held that in this situation, the right which might have been available to an accused earlier would stand extinguished the moment the challan is complete with the required sanction(s).
Coming to the present case, the Court reiterated the undisputed facts were that although challan was presented on September 11, 2020, along with the sanction under the Arms Act (accorded on August 31, 2020) before the Trial Court, prior to the expiry of the extended period granted by the Special Court, Amritsar, vide order dated June 15, 2020, with the case ultimately committed on March 15, 2021, sanction for prosecution under UAP Act was granted by the Central Government on March 31, 2021, which was received on April 06, 2021.
Further, the Court also noted that a supplementary charge sheet of the sanction which was received under the UAP Act was submitted to the Special Court, Amritsar, on April 20, 2021. The Court added that the claim, if any, under Section 167 (2) Cr.P.C. could have been submitted by the appellant prior to April 20, 2021, and that there was nothing on the record which would indicate that the appellant had earlier filed such an application.
As a matter of fact, the Court observed that the appellant earlier moved two bail applications but both on merits (not for release on default bail) and both were rejected. It was also noted that the first bail application exercising his right of default bail under Section 167 (2) Cr.P.C. was filed in July 2021 by which time not only the challan/charge-sheet under Section 173 Cr.P.C. was pending before the competent Court i.e. the Special Court, Amritsar, but with proper sanction from the competent authority under the Arms Act as also the UAP Act.
Therefore, in the opinion of the Court, the right under Section 167 (2) Cr.P.C. of the appellant did not survive and, therefore, in the Court’s view the dismissal of the same by the Special Court, Amritsar, could not be faulted.
In view of the above, the Court did not find any illegality in the order impugned by the appellant and dismissed both these appeals as being devoid of merit.