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Default bail under Section 167(2)(a) CrPC is not maintainable after chargesheet by Magistrate : Allahabad High Court

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The Lucknow Bench of the Allahabad High Court while dismissing an application observed that after filing of charge sheet and by magistrate application for default bail under Section 167(2)(a) CrPC is not maintainable.

A Single Bench of Justice Ajai Kumar Srivastava-I passed this order while hearing an Application under section 482 filed by Sallahuddin.

The application under Section 482 CrPC has been filed praying following reliefs:-

“1. Allow the application and quash and set aside the impugned order dated 27.04.2022 passed by the Additional District and Sessions Judge, ADJ-3, Lucknow, Uttar Pradesh in CMRA number 2823 of 2022;

  1. Release the applicant on default bail in connection with Case Crime number 9 of 2021 registered with ATS Gomtinagar police station, Lucknow pending in the court of the Additional District and Sessions Judge, ADJ-3 in connection with sections 153A, 153B, 295A, 417, 298, 121A, 123 and 120B of the Indian Penal Code, 1860 and sections 3, 5 and 8 of The Prohibition of Unlawful Religious Conversion Act, 2021.
  2. Release the applicant on ad-interim bail during pending admission, hearing and final disposal of the application in the interest of justice.”

The facts of the case are that the applicant, Sallahuddin was arrested on 30.06.2021 from District Ahmedabad, Gujarat in connection with Crime under Sections 420, 120B, 153A, 153B, 295A, 511 IPC and 3/5 Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act 2021. His transit remand was allowed from 18:00 hours on 30.06.2021 upto 17:00 hours on 03.07.2021 by the Magistrate at Ahmedabad.

The accused/ applicant was produced before the Special CJM Custom, Lucknow on 02.07.2021 and his judicial custody remand was granted for 14 days by an order passed by the Special CJM Custom, Lucknow. For a period from 06.07.2021 to 13.07.2021, his first police custody remand was allowed. For a period from 13.07.2021 to 15.07.2021, his second police custody remand was allowed.

Charge sheet dated 13.08.2021, under Sections 471, 120-B, 153-A, 153-B, 295-A, 298-A IPC and Sections 3/5/8 UP Prohibition of Unlawful Conversion of Religion Act, 2021 against the applicant came to be filed in the court below on 18.08.2021 keeping the investigation pending. This charge sheet against the accused/ applicant was filed on 48 th day from the date of first remand, which was well within the prescribed period under proviso (a) to Section 167(2) CrPC.

During the course of further investigation, the offence under Sections 121-A and 123 IPC were added on 31.08.2021 and the remand was obtained on 01.09.2021 for the offence under Sections 121-A and 123 IPC. As the offence under Sections 121-A and 123 IPC are scheduled offences as mentioned in the Schedule to the National Investigation Agency Act, 2008, the information to this effect was sent to the State Government on 02.09.2021 in compliance with the provision contained under Section 6 of NIA Act. The State Government sent the information to the Central Government on 21.09.2021.

The supplementary charge sheet dated 17.09.2021 for the offence under Sections 121-A and 123 IPC came to be filed in the court on 18.09.2021 i.e on 79th day from the date of first remand by competent court at Lucknow and 81st day, inclusive of the time of transit remand too. The sanction for prosecution for the offences under Section 121-A/ 123 IPC appears to have been granted on 22.11.2021. The court below took cognizance of the matter on 18.12.2021.

It is submitted by the counsel for the applicant that the applicant was taken into custody and transit remand for three days was granted by the court of Ahmedabad. However, he was produced before the court at Lucknow on 02.07.2021 and the Chief Judicial Magistrate granted seven days’ remand from 06.07.2021 to 13.07.2021. The applicant has been in judicial custody since 15.07.2021.

His further submission is that on 14.09.2021, the applicant applied for default bail under Section 167(2) CrPC which was disposed of by order dated 22.09.2021. The accused/ applicant again filed an application for default bail by challenging the earlier order dated 22.09.2021 and the Additional District & Sessions Judge was pleased to reject the second application for default bail by the order dated 27.04.2022, both the orders as aforesaid, denying the applicant the benefit of default bail are illegal.

Counsel for the applicant has also submitted that the first charge sheet was filed on 18.08.2021 and thereafter the Investigating Officer filed an application dated 31.08.2021 for adding Sections 121-A and 123 IPC. Thereafter, the supplementary charge sheet came to be filed on 18.09.2021, without obtaining sanction as required by Section 196 CrPC.

He then contended that the applicant was entitled to default bail as investigation was not concluded within sixty days. The investigating agency, only to deprive the applicant of his right of getting default bail, moved an application for adding Section 121A and 123 IPC with a view to extend the time limit of investigation upto 90 days. There is no provision in the Code of Criminal Procedure, 1989 for addition/ subtraction/ alteration in the charge sheet once submitted and as such the application dated 31.08.2021 for adding Sections 121A and 123 IPC was not liable to be allowed by the Magistrate.

Per contra, AGA has opposed the prayer by submitting that the first charge sheet for the offence under Sections 471, 120B, 153A, 153B, 295A, 298A IPC and Sections 3/5/8 of UP Prohibition of Unlawful Conversion of Religion Act, 2021 was filed in the court below on 18.08.2021 keeping the investigation pending and as such the first charge sheet was filed on the 48th day from the date of first remand and keeping the investigation pending in respect of alleged anti national activities committed by the accused person. Thereafter, the supplementary charge sheet dated 17.09.2021 was filed in respect of the offence under Sections 121A and 123 IPC on 79th day from the date of first remand.

His further submission is that both the charge sheets were filed well within the time prescribed under Section 167 CrPC and, therefore, the applicant has no right to claim default bail. The prayer for default bail itself is not maintainable as the charge sheet was filed well within time. The right of being enlarged on bail under Section 167 CrPC, arises only when the charge sheet is not filed within time.

AGA for the State has also submitted that the contention of the applicant to the effect that the addition/ alteration of the other sections during investigation is not permissible under CrPC, is neither acceptable nor tenable in the eyes of law as Section 173(8) CrPC permits the further investigation in respect of an offence even after the report under sub Section 2 of Section 173 CrPC has been forwarded to the Magistrate.

The Court observed that,

Having heard the counsel for the applicant, AGA for the State and upon perusal of record, it transpires that the applicant, Sallahuddin was arrested on 30.06.2021 from District Ahmedabad, Gujarat in connection with Crime under Sections 420, 120B, 153A, 153B, 295A, 511 IPC and 3/5 Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act 2021. His transit remand was allowed from 18:00 hours on 30.06.2021 upto 17:00 hours on 03.07.2021 by the learned Magistrate at Ahmedabad.

The accused/ applicant was produced before the Special CJM Custom, Lucknow on 02.07.2021 and his judicial custody remand was granted for 14 days by an order passed by the Special CJM Custom, Lucknow. For a period from 06.07.2021 to 13.07.2021, his first police custody remand was allowed. For a period from 13.07.2021 to 15.07.2021, his second police custody remand was allowed.

Thereafter, his judicial custody remand was granted from time to time i.e from 15.07.2021 to 26.07.2021, from 26.07.2021 to 09.08.2021 and from 09.08.2021 to 18.08.2021. Charge sheet dated 13.08.2021, under Sections 471, 120-B, 153-A, 153-B, 295-A, 298-A IPC and Sections 3/5/8 UP Prohibition of Unlawful Conversion of Religion Act, 2021 against the applicant came to be filed in the court below on 18.08.2021 keeping the investigation pending. This charge sheet against the accused/ applicant was filed on 48 th day from the date of first remand, which was well within the prescribed period under proviso (a) to Section 167(2) CrPC.

During the course of further investigation, the offence under Sections 121-A and 123 IPC were added on 31.08.2021 and the remand was obtained on 01.09.2021 for the offence under Sections 121-A and 123 I.P.C. As the offence under Sections 121-A and 123 IPC are scheduled offences as mentioned in the Schedule to the National Investigation Agency Act, 2008, the information to this effect was sent to the State Government on 02.09.2021 in compliance with the provision contained under Section 6 of NIA Act. The State Government sent the information to the Central Government on 21.09.2021.

The supplementary charge sheet dated 17.09.2021 for the offence under Sections 121-A and 123 IPC came to be filed in the court on 18.09.2021 i.e on 79th day from the date of first remand by competent court at Lucknow and 81st day, inclusive of the time of transit remand too. The sanction for prosecution for the offences under Section 121-A/ 123 IPC appears to have been granted on 22.11.2021. The court below took cognizance of the matter on 18.12.2021.

“In view of the above, this matter may be viewed from another perspective also. The impugned order rejecting the application seeking default bail was passed on 27.04.2022 by the Additional District & Sessions Judge-3/ Special Judge NIA/ATS, Lucknow.

Thus, on the basis of aforesaid, it can safely be said that rejection of application seeking default bail by Special Court vide order dated 27.04.2022 is an appealable order in view of the provisions contained in Section 21(4) NIA Act.

In this view of matter also, the Court does not find the application to be maintainable.

In view of the aforesaid discussion, the Court does not see any illegality, impropriety and incorrectness in the impugned order. There is no abuse of the court’s process either. Therefore, the application lacks merit, which deserves to be dismissed”, the Court further observed while dismissing the application.

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