Chargesheet Cannot Be Considered Incomplete Simply Because It Was Filed Without Sanction- SC While Denying Default Bail To UAPA Accused

A Supreme Court Bench of Chief Justice Dr. DY Chandrachud and Justice JB Pardiwala has clarified that an accused person will not be entitled to default bail on the ground that the chargesheet was filed without the sanction of valid authority.

The Court also cautioned the investigating agencies against filing applications seeking an extension of time at the last minute.

Senior Counsel Colin Gonsalves and Counsel Satya Mitra appeared for the appellants. ASG Sanjay Jain appeared for the State.

In this case, the accused were charged with offences punishable under the Indian Penal Code, the Unlawful Activities (Prevention) Act and the Explosive Substances Act. An application had been filed seeking to extend the time for investigation, as per Section 43B(2)(b) of the UAPA, when there were 2 days left for the 90 days time limit to expire. The Court extended the time on the 101st day.

It was argued that even though the chargesheet was filed within the statutory prescribed period of 180 days, it was filed without the sanction of valid authority, which rendered the chargesheet incomplete and it was as good as not being filed within the requisite time.

The Apex Court framed the following issues for consideration.

(i) Whether the Court concerned is precluded in any manner for the purpose of Section 167 of the CrPC from taking notice of the chargesheet that the investigating agency might have filed in the absence of a valid order of sanction?

(ii) Whether the grant of sanction is contemplated under Section of the 167 CrPC?

(iii) A Special Court may not be in a position to take cognizance on account of failure on the part of the prosecution to obtain sanction to prosecute the accused under the UAPA and the 1908 Act, but does such failure amount to non-compliance with the provisions of Section 167(2) of the CrPC so as to entitle the accused to seek default bail?

(iv) Whether the error on the part of the investigating agency to file chargesheet for the offence enumerated above, in the Court of Magistrate and not in the Sessions or designated Court would by itself entitle the accused to seek default bail under the provisions of Section 167(2) of the CrPC?

Analysing the issues, the Court said that "the order of sanction passed by the competent authority can be produced and placed on record even after the filing of the chargesheet. It may happen that the inordinate delay in placing the order of sanction before the Special Court may lead to delay in trial because the competent court will not be able to take cognizance of the offence without a valid sanction on record. In such an eventuality, at the most, it may be open for the accused to argue that his right to have a speedy trial could be said to have been infringed thereby violating Article 21 of the Constitution. This may at the most entitle the accused to pray for regular bail on the ground of delay in trial. But the same cannot be a ground to pray for statutory/default bail under the provisions of Section 167(2) of the CrPC."

In furtherance, it was held that "The maximum period of 180 days which is being granted to the investigating agency to complete the investigation in the case wherein the prosecution is for the offence under the UAPA is not something in the form of a package that everything has to be completed including obtaining of sanction within this period of 180 days. As observed above, the investigating agency has nothing to do with sanction. Sanction is altogether a different process. Sanction is accorded, based on the materials collected by the investigating agency which forms the part of the final report under Section 173 of the CrPC. The investigating agency gets full 180 days to complete the investigation. To say that obtaining of sanction and placing the same along with the chargesheet should be done within the period of 180 days is something which is not only contrary to the provisions of law discussed above, but is inconceivable".

Subsequently, it was held that the error on the part of the investigating agency in filing chargesheet first before the Court of Magistrate has nothing to do with the right of the accused to seek statutory/default bail under Section 167(2) of the CrPC. In that context, it was also said that "The committal proceedings are not warranted, when it comes to prosecution under the UAPA by the NIA by virtue of Section 16 of the NIA Act. This is because the Special Court acts, as one of the original jurisdictions. By virtue of Section 16 of the NIA Act, the Court need not follow the requirements of Section 193 of the CrPC".

Stressing that this litigation should be an "eye opener" for the NIA and the police authorities, the Court took the considered view that "The application seeking extension of time was very much pending. The Additional Sessions Judge could not have even allowed such application promptly i.e., on or before the 90th day without giving notice to the accused persons. The law is now well settled in view of the decision of this Court in the case of Jigar alias Jimmy Pravinchandra Aditya v. State of Gujarat reported in 2022 SCC OnLine SC 1290 that an opportunity of hearing has to be given to the accused persons before the time is extended up to 180 days to complete the investigation. The only error or lapse on the part of the appellants Jasbir and Varinder Singh was that they failed to prefer an appropriate application seeking statutory/default bail on the 91st day. If such application would have been filed, the court would have had no option but to release them on statutory/default bail. The Court could not have said that since the extension application was pending, it shall pass an appropriate order only after the extension application was decided. That again would have been something contrary to the well settled position of law. This litigation is an eye opener for the NIA as well as the State investigating agency that if they want to seek extension, they must be careful that such extension is not prayed for at the last moment".

In light of the same, the appeals were dismissed.

Cause Title: Judgebir Singh @ Jasbir Singh Samra @ Jasbir & Ors. v. National Investigation Agency

Click here to read/download the Judgment