Special Court Committed Material Illegality In Rejecting His Prayer: Allahabad HC Grants Default Bail To Alleged PFI Member Kamal KP

The Allahabad High Court granted default bail to Kamal K.P., an alleged member of the banned organisation Popular Front of India (PFI).

The accused had preferred a criminal appeal before the Lucknow Bench under Section 21(4) of the National Investigation Agency Act, 2008 (NIA Act) against the order of the Special Judge.

A Division Bench comprising Justice Attau Rahman Masoodi and Justice Mohd. Faiz Alam Khan said, “… the Special Court has committed material illegality in rejecting the prayer of default bail of the appellant and in our considered opinion the appellant is entitled for default bail.”

The Bench further clarified that the subsequent extension of time of investigation or filing of charge-sheet may not cure, suppress, vitiate, or extinguish the right of the accused, to be released on default bail, which had already accrued in favour of the accused in the midnight when the same has also been acted upon/availed by him by filing a default bail application.

Advocates Sheeran Mohiuddin Alavi and Harsh Vardhan Kediya appeared for the appellant while Additional Government Advocate (AGA) Shiv Nath Tilhari appeared for the respondents.

In this case, a case was registered under Sections 153-A, 295-A, 124-A, and 120-B of the Indian Penal Code (IPC) and Sections 17 and 18 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) and Sections 65 and 72 of the Information Technology (Amendment) Act, 2008 against the appellant/accused. He was arrested in March 2023 and produced before the Special Judge and was remanded to judicial custody for 14 days.

It was submitted that the investigation of the case remained pending even after competition of 90 days. In this regard, the accused preferred an application under Section 167 of the Criminal Procedure Code (CrPC) for his release on statutory bail but the same was rejected. It was, therefore, contended that the reasoning given by the Special Court in rejecting the prayer of default bail of the accused is not tenable in the eyes of law.

The High Court in view of the above facts, observed, “Thus the period of investigation, as may be inferred from the impugned order dated 26.06.2023 could only be extended vide order dated 05.06.2023 and by that time an indefeasible right to be released on default bail, in our considered opinion, had already occurred in favour of the appellant and he has also availed this right by immediately moving an application for default bail before the Special Court on 02.06.2023, which has been rejected by passing impugned order of date 26.06.2023.”

Justice Attau Rahman Masoodi put on record some further reasons while giving his concurrent opinion that the right of default bail would stand extinguished, particularly when the extension subsequently sought by the Public Prosecutor, through another application was granted by a prospective order.

“The Special Court in its order dated 26.06.2023 has clearly recorded that the extension of time for completing the investigation was granted on 05.06.2023. This clearly shows that there was complete non-application of mind by the Special Court insofar as the application made on 01.06.2023 is concerned”, he noted.

He emphasised that the Special Courts are under a bounden duty to consider and decide the respective applications seeking extension of time for completing investigation within the period of remand prescribed under law.

“The validity to the period of investigation legitimizes the grant of remand without which a judicial remand cannot be said to have obstructed or defeated the right of default bail, as is the case at hand. … The Special Court ought to have applied mind on the pending application seeking extension of time for completing the investigation prior to 02.06.2023 when the period of remand was extended upto 05.06.2023 without there being a qualifying order for completion of investigation on the application seeking extension of time by 90 days”, he remarked.

He enunciated that the right to personal liberty can only be curtailed by following due procedure under law and that the investigating agency is obliged to stand on its toes in the matter of concluding investigation and must remain vigilant to follow the prescribed procedure, deviation whereof, it is well settled would not come to their rescue simply on the ground of procedural lapse.

“To be more clear it can be aptly said that right to life & personal liberty can only be confined by following due procedure but it cannot be taken away. … In the circumstances of the case, this Court would caution the Special Courts to remain careful in future on any such exigency. The administration of justice and any dereliction of duty in the matter of adjudication of such valuable rights cannot be taken a lenient view in ordinary course”, he concluded.

Accordingly, the High Court granted default bail to the accused.

Cause Title- Kamal K.P. v. State of U.P. Thru Addl. Chief Secy. Home Lko. And Another (Neutral Citation: 2024:AHC-LKO:63081-DB)

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