FAKHREY ALAM versus THE STATE OF UTTAR PRADESH
[2021] 2 S.C.R. 1000, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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FAKHREY ALAM
v.
THE STATE OF UTTAR PRADESH
(Criminal Appeal No. 319 of 2021)
MARCH 15, 2021
[SANJAY KISHAN KAUL AND R. SUBHASH REDDY, JJ.]
Code of Criminal Procedure, 1973 – s.167 – Default bail –
FIR against appellant under provisions of IPC, Arms Act and the
UAPA Act –Appellant, if entitled to default bail under s.167(2) CrPC
in the facts of the case – Held: Entitled – s.167 CrPC provides for
time period within which the investigation should be completed,
depending upon the nature of offences – Since, liberty is a
Constitutional right, time periods are specified in default of which
the accused will have a right to default bail, a valuable right – On
facts, FIR was filed against appellant-accused inter alia u/s.18 of
the UAPA Act – Period of 180 days to file the charge sheet qua
UAPA Act had however elapsed – The State cannot take advantage
of the fact that there is one charge sheet and supplementary charge
sheets are used to extend the time period by seeking to file
supplementary charge sheet qua the offences under the UAPA Act
even beyond the period specified under s.167 CrPC beyond which
default bail will be admissible, i.e, the period of 180 days – Default
bail under first proviso of s.167(2) CrPC is a fundamental right
and not merely a statutory right as it is a procedure established by
law u/Art. 21 of the Constitution – Thus a fundamental right is
granted to an accused person to be released on bail once the
conditions of the first proviso to s.167(2) CrPC are fulfilled – In
fact an oral application for grant of default bail would suffice –
The consequences of the UAPA Act are drastic in punishment and
in that context, it is not a mere statutory right but part of the procedure
established by law u/Art. 21 of the Constitution – IPC – Arms Act –
Unlawful Activities (Prevention) Act, 1967 – Constitution of India,
1950 – Art.21.
Bikramjit Singh v. State of Punjab (2020) 10 SCC 616;
and Vinay Tyagi v. Irshad Ali @ Deepak & Ors. (2013)
5 SCC 762 : [2012] 13  SCR 1005 – relied on.
[2021] 2 S.C.R. 1000
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Case Law Reference
(2020) 10 SCC 616
relied on
Para 6
[2012] 13 SCR 1005
relied on
Para 9
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.319 of 2021
From the Judgment and Order dated 03.11.2020 of the High Court
of Judicature at Allahabad, Lucknow Bench at Lucknow in Bail No.12269
of 2019.
S. Wasim A. Qadri, Sr. Adv., Md. Ali, Mohit Mishra, Advs. for the
Appellant.
V. K. Shukla, Sr. Adv., Adarsh Upadhyay, Ms. Mayuri
Raghuvanshi, Advs. for the Respondent.
The Order of the Court was passed :
ORDER
1. Leave granted.
2. An FIR bearing No. 04/2017 has been registered against the
appellant-accused Fakhrey Alam under Section 420,467, 468, 471 and
120-B, IPC and 3/25/30 of the Arms Act and under Section 18 of the
UAPA Act, 1967.
3. The appellant was arrested on 08.03.2017 and on 03.06.2017,
learned Court of Chief Judicial Magistrate, Lucknow granted a total of
180 days to the police for filing the charge sheet. The police filed charge
sheet on 04.09.2017 under the aforesaid provisions, except under the
UAPA Act as it was mandatory to obtain prosecution sanction from the
State Government which had not been forthcoming till the date of filing
of the charge sheet. Thus, the charge sheet states as under :
“ That the accused are in Judicial Custody and the remand period
of the accused Fakhrey Alam is completing today. Therefore, the
Charge Sheet under Section 420/467/468/471/120-B IPC and
Section 3/25/30 Arms Act is being filed before this Hon’ble Court
against
the accused persons. It is requested to summon the
witnesses and commences the Trial of the Case. A separate Charge
Sheet shall be under Section 18 UA (P) Act shall be filed against
obtaining the prosecution sanction.”
FAKHREY ALAM v. THE STATE OF UTTAR PRADESH
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4. Thereafter, a second charge sheet was filed after obtaining
sanction of the State Government on 05.10.2017. We are concerned
with the order passed by the Chief Judicial Magistrate, Lucknow dated
13.10.2017 on an application filed by the appellant on 03.10.2017 for
default bail under Section 167 (2) of the Code of Criminal Procedure,
1973 (hereinafter referred to as “the Cr.P.C.”) two days prior to the
charge sheet having been filed under the UAPA Act.  The case set up
by the appellant was that the charge sheet had been filed after 180 days
and thus he was entitled to default bail. The Court, however, opined that
what was stated to be a second charge sheet was really a supplementary
charge sheet and thus default bail would not be admissible. The aforesaid
view was given its imprimatur by the High Court in terms of the impugned
order dated 03.11.2020 which has been assailed before us.
5. Learned senior counsel for the appellant has made a dual
submissions before us:
5.1. Firstly, it is his submission that the Chief Judicial Magistrate,
Lucknow on 03.06.2017 could not have granted 180 days for filing of
the charge sheet as the jurisdiction in respect of offences under the
UAPA Act, which cases are entrusted to NIA, vests only with the special
courts and this aspect was no more res integra in view of judgment of
this Court in the case of Bikramjit Singh vs. State of Punjab.1
5.2. Secondly, it was urged before us that
even within the 180
days period, the charge sheet/supplementary charge sheet under the
UAPA Act was not filed which gave a cause to the appellant to file the
application for default bail on 03.10.2017 and it is only two days thereafter
on 05.10.2017 after a lapse of 211 days that this charge sheet had been
filed.
6. On the other hand, learned counsel for the State submits that
the judgment of this Court in Bikramjit Singh’s case (supra) was in the
given situation prevalent in the State of Punjab, but on the other hand in
State of Uttar Pradesh the competent Court was of the special Chief
Judicial Magistrate and it is only recently now about a month back that
special Courts had been notified.
7. On the second aspect, it is urged that what is called as the
second charge sheet is really a supplementary charge sheet as there is
no restriction on the number of supplementary charge sheets which can
1 (2020) 10 SCC 616
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be filed but there will be only one charge sheet in view of judgment of
this Court in the case of Vinay Tyagi vs. Irshad Ali @ Deepak & Ors.2
8. We have examined the aforesaid pleas.
9. Insofar as the first aspect is concerned, suffice to say that the
situation in the State of Uttar Pradesh is different and it is not as if there
were any notified special courts in existence.
10. On the second aspect we cannot lose sight of the fact that
what was envisaged by the Legislature was that the investigation should
be completed in 24 hours but practically that was never found feasible.
It is in these circumstances that Section 167 of the Cr.P.C. provided for
time period within which the investigation should be completed, depending
upon the nature of offences. Since, liberty is a Constitutional right, time
periods were specified in the default of which the accused will have a
right to default bail, a valuable right.
11. If we look at the scenario in the present case in that conspectus,
the charge sheet under the provisions of law as originally filed on
04.09.2017 were required to be filed within 90 days but was actually
filed within 180 days. This was on the premise of the charge under
Section 18 of the UAPA Act. However, no charge sheet was filed even
within 180 days under the UAPA Act, but post filing of the application
for default bail, it was filed after 211 days. Thus, undoubtedly the period
of 180 days to file the charge sheet qua UAPA Act had elapsed. We
do
not think that the State can take advantage of the fact that in one case
there is one charge sheet and supplementary charge sheets are used to
extend the time period in this manner by seeking to file the supplementary
charge sheet qua the offences under the UAPA Act even beyond the
period specified under Section 167 of the Cr.P.C beyond which default
bail will be admissible, i.e, the period of 180 days. That period having
expired and the charge sheet not having been filed qua those offences
(albeit a supplementary charge sheet), we are of the view the appellant
would be entitled to default bail in the aforesaid facts and circumstances.
12. We need only emphasize what is already observed in Bikramjit
Singh case (supra) that default bail under first proviso of Section 167(2)
of the Cr.P.C. is a fundamental right and not merely a statutory right as
it is, a procedure established by law under Article 21 of the Constitution.
Thus a fundamental right is granted to an accused person to be released
2 (2013) 5 SCC 762
FAKHREY ALAM v. THE STATE OF UTTAR PRADESH
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on bail once the conditions of the first proviso to Section 167(2)of the
Cr.P.C. are fulfilled.
13. In fact in the majority judgment of this Court it has been held
that an oral application for grant of default bail would suffice [See. Rakesh
Kumar Paul vs. State of Assam]3. The consequences of the UAPA Act
are drastic in punishment and in that context, it has been held not to be a
mere statutory right but part of the procedure established by law under
Article 21 of the Constitution of India.
14. We are thus of the view that the impugned order(s) are liable
to be set aside. The appellant is entitled to default bail under Section
167(2)of the Cr.P.C. in the given facts of the case on the terms and
conditions to the satisfaction of the trial Court.
The appeal is accordingly allowed leaving the parties to bear their
own costs.
3 (2017) 15 SCC 67
Bibhuti Bhushan Bose
Appeal allowed.