The High Court granted default bail to the respondent u/s. 167(2)
of the Code of Criminal Procedure, 1973. Whether the High Court
committed an error in allowing the petition and granting default
bail to the respondent.
Headnotes
Unlawful Activities (Prevention) Act, 1967 – Penal Code, 1860 –
ss.201/120-B – Arms Act, 1959 – ss. 13/18/20 – The High Court
had relied upon the judgment in the case of Hitendra Vishnu
Thakur and others vs. The State of Maharashtra and others
wherein the Supreme Court was dealing with the provisions
of s.20(4) (bb) of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 and had observed that the period for
granting extension of investigation could not be extended in
a casual manner – Propriety:
Held: In the instant case, the period of 90 days expired on
15.09.2020 – Before the expiry of the said period on the
request of the Investigating Officer, the time for investigation
was extended by order dated 11.09.2020 for a further period of
two months till 11.11.2020 – Investigation was not completed –
Public Prosecutor moved another application dated 07.11.2020
requesting for further extension of time for investigation for a
period of 30 days as per the provisions contained in s. 43D (2)
(b) of UAPA – The said application was allowed by the Trial
Court on 10.11.2020 and the period of investigation was further
extended till 30.11.2020 – The respondent moved an application
on 11.11.2020 itself u/s. 167 of the CrPC for release on bail –
The said application was rejected by the Trial Court vide order
dated 17.11.2020 – However, the High Court granted the default
74 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
bail – Reliance placed upon the judgment in the case of Hitendra
Vishnu Thakur by the High Court was misplaced – It was a case
relating to TADA, whereas the present case related to UAPA –
The provisions under UAPA s.43D(2)(b) are different and give
other reasons also for extension of time for investigation – The
High Court also committed an error in recording a finding that
sanction had already been received prior to the date of making
the application for extension in November 2020 – The recording
of the said fact is not correct – The Public Prosecutor in the
application had clearly mentioned that the sanction u/s. 45(1)
of UAPA had been obtained from Government of India, Ministry
of Home Affairs and was attached with the case file – However,
the sanction u/s. 45(2) of UAPA was awaited from GNCT Delhi
and that the sanction u/s. 39 of the Arms Act was to be obtained
after the results from the FSL was received – The High Court
also fell in error in not taking into consideration the reasons
given u/s. 43D(2) (b) were clearly made out and explained in
the extension letter dated 07.11.2020 giving the details of the
progress of the investigation as also the reasons for detaining
the respondent – The High Court also failed to consider that
after completing the investigation, Police report u/s. 173(2) CrPC
had already been submitted prior to 30.11.2020 which was the
last date of the extended period – The High Court committed
an error in allowing the petition and granting default bail to the
respondent – The impugned order passed by the High Court is
set aside. [Paras 3.2, 3.3, 3.4, 3.5, 5, 8, 10, 12]
Unlawful Activities (Prevention) Act, 1967 – s.43D(2)(b):
Held: From a perusal of the provision i.e. 43 D(2)(b), the extension
for investigation could be granted up to a maximum period of 180
days for the following reasons: (i) Completion of the investigation;
(ii) Progress in the investigation was explained; and (iii) Specific
reasons for detention beyond a period of 90 days. [Para 6]
* Author
[2024] 1 S.C.R. 73 : 2024 INSC 11
Case Details
State of NCT of Delhi
v.
Raj Kumar @ Lovepreet @Lovely
(Criminal Appeal No.43 of 2024)
03 January 2024
[Vikram Nath* and Rajesh Bindal, JJ.]
Issue for Consideration
The High Court granted default bail to the respondent u/s. 167(2)
of the Code of Criminal Procedure, 1973. Whether the High Court
committed an error in allowing the petition and granting default
bail to the respondent.
Headnotes
Unlawful Activities (Prevention) Act, 1967 – Penal Code, 1860 –
ss.201/120-B – Arms Act, 1959 – ss. 13/18/20 – The High Court
had relied upon the judgment in the case of Hitendra Vishnu
Thakur and others vs. The State of Maharashtra and others
wherein the Supreme Court was dealing with the provisions
of s.20(4) (bb) of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 and had observed that the period for
granting extension of investigation could not be extended in
a casual manner – Propriety:
Held: In the instant case, the period of 90 days expired on
15.09.2020 – Before the expiry of the said period on the
request of the Investigating Officer, the time for investigation
was extended by order dated 11.09.2020 for a further period of
two months till 11.11.2020 – Investigation was not completed –
Public Prosecutor moved another application dated 07.11.2020
requesting for further extension of time for investigation for a
period of 30 days as per the provisions contained in s. 43D (2)
(b) of UAPA – The said application was allowed by the Trial
Court on 10.11.2020 and the period of investigation was further
extended till 30.11.2020 – The respondent moved an application
on 11.11.2020 itself u/s. 167 of the CrPC for release on bail –
The said application was rejected by the Trial Court vide order
dated 17.11.2020 – However, the High Court granted the default
74 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
bail – Reliance placed upon the judgment in the case of Hitendra
Vishnu Thakur by the High Court was misplaced – It was a case
relating to TADA, whereas the present case related to UAPA –
The provisions under UAPA s.43D(2)(b) are different and give
other reasons also for extension of time for investigation – The
High Court also committed an error in recording a finding that
sanction had already been received prior to the date of making
the application for extension in November 2020 – The recording
of the said fact is not correct – The Public Prosecutor in the
application had clearly mentioned that the sanction u/s. 45(1)
of UAPA had been obtained from Government of India, Ministry
of Home Affairs and was attached with the case file – However,
the sanction u/s. 45(2) of UAPA was awaited from GNCT Delhi
and that the sanction u/s. 39 of the Arms Act was to be obtained
after the results from the FSL was received – The High Court
also fell in error in not taking into consideration the reasons
given u/s. 43D(2) (b) were clearly made out and explained in
the extension letter dated 07.11.2020 giving the details of the
progress of the investigation as also the reasons for detaining
the respondent – The High Court also failed to consider that
after completing the investigation, Police report u/s. 173(2) CrPC
had already been submitted prior to 30.11.2020 which was the
last date of the extended period – The High Court committed
an error in allowing the petition and granting default bail to the
respondent – The impugned order passed by the High Court is
set aside. [Paras 3.2, 3.3, 3.4, 3.5, 5, 8, 10, 12]
Unlawful Activities (Prevention) Act, 1967 – s.43D(2)(b):
Held: From a perusal of the provision i.e. 43 D(2)(b), the extension
for investigation could be granted up to a maximum period of 180
days for the following reasons: (i) Completion of the investigation;
(ii) Progress in the investigation was explained; and (iii) Specific
reasons for detention beyond a period of 90 days. [Para 6]
List of Citations and Other References
Hitendra Vishnu Thakur and others vs. The State
of Maharashtra and others [1994] 1 Suppl. SCR
360:(1994) 4 SCC 602 – held inapplicable.
State of Maharashtra vs. Surendra Pundlik Gadling
and others [2019] 3 SCR 310:(2019) 5 SCC 178 –
referred to.
[2024] 1 S.C.R. 75
STATE OF NCT OF DELHI v.
RAJ KUMAR @ LOVEPREET @LOVELY
List of Acts
Unlawful Activities (Prevention) Act, 1967 – s.43D(2)(b); Penal
Code, 1860 – ss.201/120-B; Arms Act, 1959 – ss. 25/54/59;
Code of Criminal Procedure, 1973 – s. 167(2).
List of Keywords
Default bail; Extension of time for investigation.
Other Case Details Including Impugned Order and
Appearances
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.43
of 2024.
From the Judgment and Order dated 11.02.2021 of the High Court
of Delhi at New Delhi in CRLMC No.2312 of 2020.
Appearances:
Suryaprakash V. Raju, ASG, Ms. Sairica Raju, Ashutosh Ghade,
Guntur Pramod Kumar, Dr. Arun Kumar Yadav, Shreekant Neelappa
Terdal, Advs. for the Appellant.
Ms. Tara Narula, Ms. Supriya Juneja, Advs. for the Respondent.
Judgment / Order of The Supreme Court
Judgment
Vikram Nath, J.
Leave granted.
2. The State of NCT of Delhi1
is in appeal assailing the correctness
of the order dated 11.02.2021 passed by the High Court of Delhi
granting default bail to the respondent under section 167(2) of the
Code of Criminal Procedure, 19732
.
3. Relevant facts for appropriate application of this controversy are
briefly stated here under:
1 GNCTD
2 CrPC
76 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
3.1 A First Information Report3
No.154 of 2020 was registered on
16.06.2020 with Police Station, Special Cell, New Delhi against
the respondent for offences under Sections 13/18/20 of the
Unlawful Activities (Prevention) Act, 19674
, Sections 201/120-
B of the Indian Penal Code, 18605
, Sections 25/54/59 of the
Arms Act, 19596
. Pursuant to the said FIR, the respondent was
arrested on 18.06.2020.
3.2 He was initially remanded to Police Custody for a period of three
days and thereafter to Judicial Custody and has since been in
Mandoli Jail, New Delhi. The period of 90 days expired on 15th
September, 2020. Before the expiry of the said period on the
request of the Investigating Officer7
, the time for investigation
was extended by order dated 11.09.2020 for a further period of
two months till 11.11.2020. The investigation was not complete
till 11.11.2020 and no Police report under section 173(2) CrPC
was filed.
3.3 Before the expiry of the extended period of investigation which
was valid until 11.11.2020, the Public Prosecutor moved another
application dated 07.11.2020 requesting for further extension of
time for investigation for a period of 30 days as per the provisions
contained in section 43D (2) (b) of UAPA. The reasons given
for moving the said application were manifold which are noted
as follows:
i) Sanction under section 45(2) of UAPA was awaited from
GNCTD.
ii) FSL results of arms recovered from accused persons were
also awaited; and
iii) Sanction under section 39 of the Arms Act was to be
obtained.
3.4 The said application was allowed by the Trial Court on
10.11.2020 and the period of investigation was further extended
3 FIR
4 UAPA
5 IPC
6 The Arms Act
7 IO
[2024] 1 S.C.R. 77
STATE OF NCT OF DELHI v.
RAJ KUMAR @ LOVEPREET @LOVELY
till 30.11.2020. In the said order of 10.11.2020, although all the
reasons mentioned in the application dated 07.11.2020 seeking
extension of the period of investigation were mentioned but in
the operative portion, the Trial Court noted that the extension
had been sought on the ground of obtaining mandatory
sanction which was still pending before the GNCT Delhi and
had accordingly granted the extension till 30.11.2020. The
investigation has since been completed and Police report under
section 173(2) CrPC was submitted on 26.11.2020 before the
expiry of the period of extension for concluding the investigation
up to 30.11.2020.
3.5 The respondent moved an application on 11.11.2020 itself
under section 167 of the CrPC for release on bail. The said
application was rejected by the Trial Court vide order dated
17.11.2020. Aggrieved by the same, the respondent preferred
a petition under section 482 CrPC for setting aside the order
dated 11.09.2020 and 10.11.2020 which was registered as Crl.
M.C. No.2312 of 2020. This petition has since been allowed by
the impugned order giving rise to the present appeal.
4. Having heard learned counsel for the parties, we are of the view that
the High Court committed an error in allowing the petition and granting
default bail to the respondent. In this connection, the High Court had
relied upon the judgment in the case of Hitendra Vishnu Thakur
and others vs. The State of Maharashtra and others8 wherein
this Court was dealing with the provisions of section 20(4) (bb) of
the Terrorist and Disruptive Activities (Prevention) Act, 19879
and
had observed that the period for granting extension of investigation
could not be extended in a casual manner for reasons other than
those mentioned in the above noted provision which stated that it
could be for completion of investigation only.
5. Reliance placed upon the said judgment in the case of Hitendra
Vishnu Thakur (supra) by the Delhi High Court was misplaced. It
was a case relating to TADA, whereas the present case related to
UAPA. The provisions under UAPA section 43D(2)(b) are different
and give other reasons also for extension of time for investigation.
8 (1994) 4 SCC 602
9 TADA
78 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
Section 43D(2) reads as under:
“43D. Modified application of certain provisions of the Code.-
(1) Notwithstanding anything contained in the Code or any other
law, every offence punishable under this Act shall be deemed
to be a cognizable offence within the meaning of clause (c) of
section 2 of the Code, and “cognizable case” as defined in that
clause shall be construed accordingly.
(2) Section 167 of the Code shall apply in relation to a case involving
an offence punishable under this Act subject to the modification
that in sub-section (2),-
(a) the references to “fifteen days”, “ninety days” and “sixty
days”, wherever they occur, shall be construed as
references to “thirty days”, “ninety days” and “ninety days”
respectively; and
(b) After the proviso, the following provisos shall be inserted,
namely: -
“Provided further that if it is not possible to complete the investigation
within the said period of ninety days, the Court may if it is satisfied
with the report of the Public Prosecutor indicating the progress of
the investigation and the specific reasons for the detention of the
accused beyond the said period of ninety days, extend the said
period up to one hundred and eighty days:
Provided also that if the police officer making the investigation under
this Act, requests, for the purposes of investigation, for police custody
from judicial custody of any person in judicial custody, he shall file
an affidavit stating the reasons for doing so and shall also explain
the delay, if any, for requesting such police custody.
xxxxxx ”
6. From a perusal of the above provision i.e. 43 D(2)(b), the extension
for investigation could be granted up to a maximum period of 180
days for the following reasons:
● Completion of the investigation;
● Progress in the investigation was explained; and
● Specific reasons for detention beyond a period of 90 days.
[2024] 1 S.C.R. 79
STATE OF NCT OF DELHI v.
RAJ KUMAR @ LOVEPREET @LOVELY
7. Provisions of section 43D(2)(b) were considered by this Court in the
case of State of Maharashtra vs. Surendra Pundlik Gadling and
others10. In the said case, the FSL report was awaited and it also
required the detention of the accused wherein financial details of the
respondent were still being ascertained in view of the huge conspiracy
spreading over a number of cities were being investigated. The High
Court failed to take into consideration the above judgment of 2019
relating to UAPA. It had relied upon a judgment of 1994 relating to
provisions of TADA.
8. The High Court also committed an error in recording a finding that
sanction had already been received prior to the date of making the
application for extension in November 2020. The recording of the
said fact is not correct. The Public Prosecutor in the application had
clearly mentioned that the sanction under section 45(1) of UAPA had
been obtained from Government of India, Ministry of Home Affairs
and was attached with the case file. However, the sanction under
section 45(2) of UAPA was awaited from GNCT Delhi and that the
sanction under section 39 of the Arms Act was to be obtained after
the results from the FSL was received.
9. We are, therefore, of the view that the reason mentioned in the
impugned order that the application had been filed for extension
without any valid basis as the sanction had already been granted,
was not correct.
10. The High Court also fell in error in not taking into consideration
the reasons given under section 43D(2) (b) were clearly made out
and explained in the extension letter dated 07.11.2020 giving the
details of the progress of the investigation as also the reasons for
detaining the respondent. The Public Prosecutor had mentioned in
the request that major investigation of the case had been completed
and the draft chargesheet had been prepared. However, for want of
remaining sanctions and FSL report some more time was required
for completing the investigation.
11. Insofar as the reasons for detention are concerned, it was mentioned
that during the course of investigation one Mr. Gurtej Singh had
been arrested who had links with Pakistan based terrorists and had
been planning to go to Pakistan for weapons training along with his
associate respondent No.2 Rajkumar alias Lovely and others.
10 (2019)5 SCC 178
80 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
12. The High Court also failed to consider that after completing the
investigation, Police report under section 173(2) CrPC had already
been submitted prior to 30.11.2020 which was the last date of the
extended period.
13. One more aspect to be considered is the nature of offence which
involved terrorist activities having not only Pan India impact but also
impact on other enemy States. The matter should not have been
taken so lightly.
14. Accordingly, the appeal is allowed. The impugned order passed
by the High Court is set aside. The respondent No.2 be taken into
custody forthwith, if not already in custody.
Headnotes prepared by: Ankit Gyan Result of the case: Appeal allowed.
