"Indefeasible Right": Bombay HC Grants Default Bail To Two Men Accused Of Being PFI Members

The Bombay High Court has granted default bail to two people accused of being members of the banned Popular Front of India (PFI) on the grounds that they had an indefeasible right to default bail since the chargesheet was not filed within the stipulated time.

The Bench of Justice Gauri Godse and Justice Revati Mohite Dere make the following observations in that regard:

(i) The moment the accused files an application, he avails his indefeasible right. 

(ii) Once the accused files an application seeking default bail where the prosecution has not filed the chargesheet, the magistrate has no discretion left. The Court is only required to find out whether the specified period under the statute has elapsed, whether a chargesheet has been filed and whether the accused is ready to furnish bail.

(iii) Even if the application is posted for hearing on a future date or the magistrate refuses the application erroneously and the accused moves to a higher court, then filing of chargesheet at that stage will not take away the indefeasible right of the accused.

Momin Moiuddin Gulam Hasan (alias Moin Mistri) and Asif Aminul Hussain Khan Adhikari were arrested by the Maharashtra Anti-Terrorism Squad (ATS) on September 22, 2022, for allegedly being members of the PFI. The ATS requested an extension to file their chargesheet beyond the initial 90 days due to the need to retrieve data from seized gadgets and obtain prosecution sanctions. The special court granted an additional 30 days and later 15 more days for the ATS to complete these tasks. Despite these extensions, the accused sought default bail, which the special court rejected on January 18, 2023. The accused then appealed to the High Court.

The Court came to the following conclusions:

(i) An extension of time to complete the investigation can be granted only if a legal and valid ground is shown for not completing the investigation within the time specified by law. Granting extension of time to complete the investigation on a flimsy or invalid ground will defeat the accused's right to seek default bail, and as such, would violate his right guaranteed to him under Article 21 of the Constitution of India.

(ii) Under Section 45 of the UAPA, sanction is required for taking cognizance. In view of Section 196 of CrPC and Section 45 of the UAPA, the embargo is on taking cognizance and not on filing a chargesheet. Thus, for the appropriate authority to apply its mind to grant sanction, chargesheet is necessary, as without a chargesheet, the appropriate authority will not be able to apply its mind to the grant of sanction. 

(iii) In the present case, the FSL report has been received. The report of the Investigating Officer and the application by the special PP stated that the investigation was complete and ample evidence was available against the appellants to file the chargesheet; however, a proposal for sanction under Section 45 of the UAPA, was awaited from the appropriate authority.

(iv) Thus, the reason accepted in the impugned order to grant an extension of time to file the chargesheet is only for awaiting sanction, which cannot be termed legal and valid.

(v) Thus, once the order granting extension is held illegal and stands vitiated, the appellants are entitled to default bail.

Cause Title: Momin Moiuddin Gulam Hasan & Anr. vs The State of Maharashtra & Anr. (Neutral Citation: 2024:BHC-AS:27906-DB)

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