In a significant judgment that underscores the fundamental rights of the accused, the Allahabad High Court has reiterated that the right to default bail is an “indefeasible right” which cannot be overridden once the statutory period for investigation has lapsed. The decision came in the case of Kamal K.P. v. State of U.P. & Another (CRIMINAL APPEAL No. – 2217 of 2023), where the court overruled an order by the Special Judge, NIA/ATS, Lucknow, which had denied default bail to the appellant, Kamal K.P. The bench, comprising Justice Attau Rahman Masoodi and Justice Mohd. Faiz Alam Khan, held that any extension of the investigation period post the statutory limit of 90 days does not affect the accused’s right to bail, thereby emphasizing the constitutional guarantee of personal liberty under Article 21.
Background of the Case:
The Allahabad High Court recently delivered a judgment in the matter of Kamal K.P. v. State of U.P. & Another (CRIMINAL APPEAL No. – 2217 of 2023). The case was an appeal under Section 21(4) of the National Investigation Agency Act, 2008, challenging the order dated 26.06.2023 passed by the Additional District and Sessions Judge-5/Special Judge, NIA/ATS, Lucknow, which denied default bail to the appellant, Kamal K.P.
The appellant, Kamal K.P., was arrested on 03.03.2023 in connection with Case Crime No. 199 of 2020 under several sections of the Indian Penal Code (IPC), Unlawful Activities (Prevention) Act (UAPA), and the Information Technology (Amendment) Act, 2008, including Sections 153-A, 295-A, 124-A, 120-B IPC, and Sections 17 and 18 of the UAPA. The appellant’s arrest and subsequent judicial custody raised critical legal questions concerning the right to default bail under Section 167(2) of the Code of Criminal Procedure (Cr.P.C.) and Section 43-D(2) of the UAPA.
Legal Issues Involved:
1. Right to Default Bail under Section 167(2) Cr.P.C.: The appellant’s counsel argued that since the charge sheet was not filed within the mandatory period of 90 days from the date of arrest, Kamal K.P. was entitled to default bail. The application for bail under Section 167(2) Cr.P.C. was moved on 02.06.2023, but the Special Court extended the investigation period to 180 days after the expiry of 90 days.
2. Extension of Investigation Period under UAPA: The prosecution argued that the extension of the investigation period was permissible under Section 43-D(2) of the UAPA, which allows the court to extend the time up to 180 days if the Public Prosecutor submits a report indicating the progress of the investigation and the reasons for the detention beyond 90 days.
Court’s Observations:
The division bench analyzed the provisions of Section 167(2) Cr.P.C. and Section 43-D(2) of the UAPA, along with various legal precedents, to determine whether the appellant was entitled to default bail.
– The court noted that the right to default bail is an “indefeasible right” under Section 167(2) Cr.P.C. and is also a fundamental right flowing from Article 21 of the Constitution of India. This right is enforceable only if it is availed before the filing of the charge sheet.
– The court referred to the Supreme Court’s judgment in Uday Mohanlal Acharya v. State of Maharashtra, which stated that once the statutory period for investigation expires, an accused is entitled to default bail if the charge sheet is not filed, and this right cannot be extinguished by the subsequent filing of the charge sheet.
– It was observed that the Special Court’s decision to extend the investigation period after the 90-day period had already expired was not in accordance with the law, as an indefeasible right to default bail had already accrued in favor of the appellant on 02.06.2023, when the bail application was filed.
Court’s Decision:
The Allahabad High Court set aside the impugned order of the Special Court dated 26.06.2023, stating that the appellant was entitled to default bail as the period for filing the charge sheet had expired before the extension of the investigation period. The court ordered the appellant’s release on default bail, asserting that:
“The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan, and it does not survive or remain enforceable on the challan being filed, if already not availed of.”
Parties Involved:
– Appellant: Kamal K.P.
– Respondents: State of Uttar Pradesh, through the Additional Chief Secretary (Home), Lucknow, and another.
– Counsel for the Appellant: Sheeran Mohiuddin Alavi and Harsh Vardhan Kediya.
– Counsel for the Respondent: Shiv Nath Tilhari, Additional Government Advocate.
