BIKRAMJIT SINGH v. THE STATE OF PUNJAB

From the Judgment and Order dated 30.10.2019 of the High Court of Punjab and Haryana in CRM-M-19259-2019 (O&M). Colin Gonsalves, Sr. Adv., Ms. Olivia Bang, R. Gopal, Satya Mitra, Ms. Jaspreet Gogia, Karanvir Gogia, Advs. for the appearing parties. The Judgment of the Court was delivered by R. F. NARIMAN, J.

#1. Leave granted.

#2. In an F.I.R dated 18.11.2018, involving Sections 302, 307, 452, 427, 341, 34 of the Indian Penal Code read with Section 25 of the Arms Act, 1959, Sections 3, 4, 5, 6 of the Explosive Substances Act, 1908 and Section 13 of the Unlawful Activities (Prevention) Act, 1967, it was stated as follows: “I am a resident of above address and doing the business of furniture at Nehru Complex, Amritsar. I do my religious services in the Nirankari Bhawan at Rajasansi every Sunday. Today, i.e, on 18.11.2018, Satsang was going on at Satsang Bhawan, where about 200 Satsangis were present. At about 11.30 a.m., I along with my companion Gagandeep Singh son of Balwinder Singh, BIKRAMJIT SINGH v. THE STATE OF PUNJAB [R. F. NARIMAN, J. ] 879 resident of Gumtala, was doing the duty of a Security Guard on the main gate, when two young boys came there on a Pulsar Motor Cycle without number of Black shade. Out of them, one had worn Jean and Jacket and was having turban on his head and he has muffled his face with a cloth of check. He went inside and the other young boy, who was wearing Kurta, Pyjama and Jacket and had muffled his face with a handkerchief, took out a Pistol from the fold of his Pyjama and made us to stand together near the Bathroom. The young boy who had gone inside the Satsang Hall threw a Hand Grenade on the stage with his right hand. An explosion took place and the above-said young boy took out a Pistol and ran towards the gate. Both the young men ran towards Village Adliwal on their Pulsar Motor Cycle. Due to Grenade explosion, about 22 persons from the Sangat sustained serious injuries. The other persons arranged conveyance and carried the injured to IVY Hospital, Amritsar and Guru Nanak Dev Hospital, Amritsar, where Sukhdev Kumar son of Kans Raj, resident of Kohali, now resident of Mirankot, aged about 45 years, Kuldeep Singh son of Joginder Singh, resident of Bagga and Sandeep Singh son of Amarjit Singh, resident of Ward No. 7, Rajasansi died in IVY Hospital, Amritsar. The above young men by throwing a Hand Grenade on the Sangat, have injured 22 persons seriously, out of which three persons have died. Deterrent action be taken against the above-mentioned accused. I have heard my statement. It is correct.”

#3. Pursuant to this F.I.R, the Punjab State Police apprehended the Appellant, one Bikramjit Singh, aged 26 years, on 22.11.2018, on which date he was remanded to custody by the learned Sub-Divisional Magistrate. After 90 days in custody, which expired on 21.02.2019, an application for default bail was made to the Sub-Divisional Judicial Magistrate, Ajnala. This application was dismissed on 25.02.2019 on the ground that the learned Sub-Divisional Judicial Magistrate had, by an order dated 13.02.2019, already extended time from 90 days to 180 days under Section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) as amended by the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as “UAPA”) – See Section 43-D(2). However, this Order was challenged by way of a revision petition by the Appellant and his co-accused, which revision succeeded by an order dated 25.03.2019, by which the learned Additional A B C D E F G H 880 SUPREME COURT REPORTS [2020] 12 S.C.R. A B C D E F G H Sessions Judge being the Special Court set up under the National Investigation Agency Act, 2008 (hereinafter referred to as the “NIA Act”) held as follows: “6. After hearing the Ld Counsel for revision petitioner and Ld PP for State, I am of the view that since Ld PP has not controverted the proposition of law, wherein it is provided that Ilaqa Magistrate has no jurisdiction to entertain any application for extension the period of investigation or granting bail u/s 167 (2) Cr.P.C in default of presentation of Challan u/s 45 D (2) Unlawful Activities (Prevention Act 1967) and in view of the Notification supra passed by Government of Punjab, to deal with the cases of unlawful activities act, court of session or court of Additional Session Judge, in every district has been designated to try the said cases, so the application for seeking extension of time for filing challan was not maintainable before Ilaqa magistrate.

#7. Therefore, in view of the said notification as well as the case laws referred by the Ld Counsel for revision petitioner, only this court being special designated court was competent to pass an order on any application moved u/s 45(D) (2) Unlawful Activities(Prevention) Act 1967. It means, Ilaqa Magistrate was not competent to pass any order on any such application. In case the same has been filed and passed i.e. without its jurisdiction. So because of the said reason order passed by Ilaqa magistrate is not sustainable in the eyes of law and the same is liable to be set aside by way of acceptance of this revision petition. Accordingly this revision is allowed and order of Ilaqa magistrate dated 13.02.2019 is set aside. Trial court record along with copy of this order be sent back to the Trial Court and file of this court be consigned to record room.”

#4. One day later, on 26.03.2019, a charge sheet was filed before the learned Special Judge after police investigation, in which Sections 302, 307, 452, 427, 341, 34 of the Indian Penal Code read with Section 25 of the Arms Act, 1959, Sections 3, 4, 5, 6 of the Explosive Substances Act, 1908 and Sections 13, 16, 18, 18-B and 20 of the Unlawful Activities (Prevention) Act, 1967 were invoked for offences that were committed pursuant to investigation of the FIR lodged on 18.11.2018. Meanwhile, a revision petition that was filed against the order dated 25.02.2019, was dismissed by the Special Judge on 11.04.2019 who, after noticing the BIKRAMJIT SINGH v. THE STATE OF PUNJAB [R. F. NARIMAN, J. ] 881 order dated 25.03.2019 allowing the revision petition against the order dated 13.02.2019 of the Judicial Magistrate, yet refused to grant default bail as follows: “10. No doubt, vide gazette notification issued by Government of Punjab on 10.06.2014, the Session Judge and first Additional Session Judge at each District Head Quarters in the State are designated as special court for the trial of offences of unlawful activities act. However, as per the local arrangement, all the cases pertaining to unlawful activities act are dealt in this court. So, being a special court, this court is competent to directly receive the challan or police report under section 173 Cr PC. Since the challan has already been presented and in the judgement title das Abdul Aziz PV and Other vs National Investigation Agency 2015 (1) RCR (Criminal) 239, it has been held that merely because certain facets of the matter called for further investigation, it does not deem such report anything other than a final report, revisionist are not entitled to statutory bail under section 167 (2)Cr PC. xxx xxxxxx

#12. Since Challan has already been presented, so revision petitioner have lost their right for bail by way of default under section 167(2) Cr PC. Therefore there is no reason to interfere in the order of Ilaqa Magistrate passed under section 167 (2) Cr PC so this revision petition fails and is dismissed. Consign file to the record room.”

#5. On the same day i.e. 11.04.2019, an application for default bail dated 08.04.2019 was also dismissed. By the impugned judgment dated 30.10.2019, the High Court, after setting out Section 167 of the Code of Criminal Procedure, 1973 and some of the provisions of the UAPA and NIA Act, then arrived at the following conclusion: “A joint interpretation of Section 167 (2) Cr.P.C. read with Section 43 (d) UAP Act, Section 6, 13 & 22 of NIA Act would show that in case the investigation is being carried out by the State police, the Magistrate will have power under Section 167 (2) Cr.P.C. read with Section 43 (a) of UAP Act to extend the period of investigation upto 180 days and then, commit the case to the Court of Sessions as per provisions of Section 209 Cr.P.C., whereas in case the investigation is conducted by the agency under the NIA A B C D E F G H 882 SUPREME COURT REPORTS [2020] 12 S.C.R. A B C D E F G H Act, the power shall be exercised by the Special Court and challan will be presented by the agency before the Special Court. xxx xxxxxx It is not case of the petitioner that the investigation was conducted by the agency under Section 6 of the NIA Act and till committal of the case to the Court of Sessions, as per Section 22 (3) of NIA Act, it cannot be said that the Magistrate has no power and therefore, the order dated 25.03.2019 suffers from illegal infirmity. The arguments raised by learned senior counsel for the petitioner that the petitioner is entitled to default bail under Section 167 (2) Cr.P.C., in view of judgment of the Hon’ble Supreme Court in Sanjay Dutt’s case(supra), is not available, once the challan was presented by the prosecution on 25.03.2019, as the application was filed by the petitioner on the next day i.e. 26.03.2019 The Judge, Exclusive Court has recorded a well reasoned finding that mere fact that sanction has not been granted so far, is no ground to grant concession of bail, as it is rightly held that besides the offence committed under the UAP Act, the accused is also facing the trial for committing the offence under Sections 302, 307, 452, 341, 427, 34 IPC read with Section 25/54/59 of Arms Act and Sections 3, 4, 5, & 6 of Explosive Act, for which no sanction is required to prosecute the petitioner. For the reasons recorded above and in view of judgment of the Hon’ble Supreme Court in Hitendra Vishnu Thakur vs. State of Maharashtra, 1994 (3) RCR (Crl.) 156, finding no merit in the present petition, the same is dismissed.”

#6. Shri Colin Gonsalves, learned Senior Advocate appearing on behalf of the Appellant, referred to both the enactments as aforesaid in copious detail and stressed the fact that once the Special Court had been set up as an exclusive Court to try all offences under the UAPA, such offences being scheduled offences relatable to the NIA Act, it was the Special Court alone which had exclusive jurisdiction to extend the period of 90 days to 180 days under Section 43-D (2)(b) of the UAPA. This being the case, on an application having been made prior to the filing of the charge sheet for default bail, his contention was that the indefeasible right to default bail arose immediately after 21.02.2019, when the 90 day period was over. An order that is passed without jurisdiction BIKRAMJIT SINGH v. THE STATE OF PUNJAB [R. F. NARIMAN, J. ] 883 by the learned Sub-Divisional Judicial Magistrate dated 13.02.2019, had been corrected by the learned Additional Sessions Judge/Special Court vide the order dated 25.03.2019, as a result of which his right to default bail sprung into action before filing of the charge sheet dated 26.03.2019. He, therefore, assailed the High Court judgment on both counts – Firstly, that the exclusive jurisdiction to extend time vested only in the Special Court and not in the Ilaqa Magistrate, despite the fact that it was the State Police Agency that investigated these offences. Secondly, he also argued, relying upon a number of judgments, that the Appellant’s right to default bail was not extinguished by the filing of the charge sheet dated 26.03.2019, as was incorrectly held by the High Court.

#7. Smt. Jaspreet Gogia, learned Advocate who appeared on behalf of the State of Punjab, also took us through the provisions of both the aforesaid enactments. She stressed in particular Section 10 of the NIA Act, stating that nothing in the said Act would affect the powers of the State Government to investigate and prosecute any scheduled offence. She also stressed the fact that the entire investigation was done only by the State Police and not by the National Investigation Agency. This being the case, she argued that the Ilaqa Magistrate had jurisdiction to extend time, and having so extended time on 13.02.2019, any application for default bail after the 90 day period was over i.e. after 21.02.2019 had necessarily to be dismissed. She also argued that the first application for default bail which was filed on or before 25.03.2019, had spent its force, having been dismissed, and that the application dated 08.04.2019 filed for default bail was clearly after 26.03.2019, when the charge sheet was filed and, therefore, was correctly dismissed by the order of the learned Special Judge dated 11.04.2019.

#8. Having heard learned counsel for the parties, it is important at this stage to set out all the relevant provisions of the three enactments that we are directly concerned with – the Code, UAPA and NIA Act.

#9. It is important to note that the expression “Court” is not defined by the Code. On the other hand, Section 6 of the Code refers to classes of Criminal Courts as follows: “6. Classes of Criminal Courts. Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely: A B C D E F G H 884 SUPREME COURT REPORTS [2020] 12 S.C.R. A B C D E F G H (i) Courts of Session; (ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates; (iii) Judicial Magistrates of the second class; and (iv) Executive Magistrates.” The Court of Sessions is then referred to as a Court that is established by the State Government under Section 9(1) of the Code for every Sessions Division.

#10. Section 26 of the Code refers to Courts by which offences are triable. We are concerned directly with Section 26(b) which states as follows: “26. Courts by which offences are triable. Subject to the other provisions of this Code, xxx xxxxxx (b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by— (i) the High Court, or (ii) any other Court by which such offence is shown in the First Schedule to be triable.”

#11. Section 167 of the Code makes it clear that whenever a person is arrested and detained in custody, the time for investigation relating to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, cannot ordinarily be beyond the period of 15 days, but is extendable, on the Magistrate being satisfied that adequate grounds exist for so doing, to a maximum period of 90 days – See first proviso (a)(i) to Section 167(2) of the Code. The said proviso goes on to state that the accused person shall be released on bail if he is prepared to and does furnish bail on expiry of the maximum period of 90 days, and every person so released on bail be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.

#12. The First Schedule to the Code then sets out at the fag end, in Part II thereof, classification of offences against other laws as follows: BIKRAMJIT SINGH v. THE STATE OF PUNJAB [R. F. NARIMAN, J. ] 885 THE FIRST SCHEDULE CLASSIFICATION OF OFFENCES II.—CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS Offence Cognizable or non- cognizable Bailable or non- bailable By what court triable Cognizable Non-bailable Court of Session Ditto Ditto Magistrate of first Non-cognizable Bailable Any Magistrate If punishable with death, imprisonment for life, or imprisonment for more than 7 years punishable with If imprisonment 3 years and upwards and not more than 7 years If punishable with imprisonment for less than 3 years or with fine only

#13. The UAPA deals with “unlawful activity” and “unlawful association”, and interdicts both unlawful activity and unlawful association as defined under Sections 2(o) and 2(p). It further defines what are terrorist acts, terrorist gangs and terrorists organisations under Section 2(k), 2(l) and 2(m) and proscribes each of these in offences which are than fleshed out under its provisions. What is important from our point of view in this case is the definition of “Court” in Section 2(1)(d) of UAPA which is as follows: “2. Definitions.-(1) In this Act, unless the context otherwise requires,- xxx xxxxxx (d) “court” means a criminal court having jurisdiction, under the Code, to try offences under this Act and includes a Special Court constituted under section 11 or under section 21 of the National Investigation Agency Act, 2008" Equally important is the provision contained in Section 43-D(2) of UAPA, which is set out as follows: A B C D E F G H 886 SUPREME COURT REPORTS [2020] 12 S.C.R. “43-D. Modified application of certain provisions of the Code. xxx xxxxxx (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; (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.””

#14. A cursory reading of these provisions would show that the offences under the UAPA under Sections 16, 17, 18, 18-A, 18-B, 19, 20, 22-B, 22-C and 23, being offences which contain maximum sentences of over 7 years, would be exclusively triable by a Court of Sessions when read with Part II of the First Schedule to the Code. It is only after the NIA Act was enacted that the definition of “Court” was extended to include Special Courts that were set up under Section 11 or Section 22 of the NIA Act.

#15. When we come to the NIA Act, the Preamble of the said Act indicates the thrust of the provisions of that Act as follows: A B C D E F G H BIKRAMJIT SINGH v. THE STATE OF PUNJAB [R. F. NARIMAN, J. ] 887 “An Act to constitute an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations and for matters connected therewith or incidental thereto.” Under Section 2(g) “Scheduled Offence” is defined as follows: “2. Definitions.-(1) In this Act, unless the context otherwise requires,- xxx xxxxxx (g) “Scheduled Offence” means an offence specified in the Schedule”” Section 2(h) defines “Special Court” as follows: “2. Definitions.-(1) In this Act, unless the context otherwise requires,- xxx xxxxxx A B C D (h) “Special Court” means a Special Court constituted under section 11 or, as the case may be, under section 22" E

#16. Section 3 constitutes a National Investigation Agency which is a special agency set up for prosecution of offences under the Acts specified in the Schedule by the Central Government. It may be noted that the UAPA is Item 2 of the said Schedule. Section 10, upon which strong reliance is placed by the State, is as follows: “10. Power of State Government to investigate Scheduled Offences.—Save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offence or other offences under any law for the time being in force” Sections 11 and 22 which speak of the power of the Central Government and the State Government respectively, to designate Courts of Sessions as Special Courts, are as follows: F G H 888 SUPREME COURT REPORTS [2020] 12 S.C.R. “11. Power of Central Government to constitute Special Courts.— (1) The Central Government shall, by notification in the Official Gazette, for the trial of Scheduled Offences, constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification. (2) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the Central Government whose decision in the matter shall be final. (3) A Special Court shall be presided over by a judge to be appointed by the Central Government on the recommendation of the Chief Justice of the High Court. (4) The Agency may make an application to the Chief Justice of the High Court for appointment of a Judge to preside over the Special Court. (5) On receipt of an application under sub-section (4), the Chief Justice shall, as soon as possible and not later than seven days, recommend the name of a judge for being appointed to preside over the Special Court. (6) The Central Government may, if required, appoint an additional judge or additional judges to the Special Court, on the recommendation of the Chief Justice of the High Court. (7) A person shall not be qualified for appointment as a judge or an additional judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge in any State. (8) For the removal of doubts, it is hereby provided that the attainment, by a person appointed as a judge or an additional judge of a Special Court, of the age of superannuation under the rules applicable to him in the service to which he belongs shall not affect his continuance as such judge or additional judge and the Central Government may by order direct that he shall continue as judge until a specified date or until completion of the trial of the case or cases before him as may be specified in that order. A B C D E F G H BIKRAMJIT SINGH v. THE STATE OF PUNJAB [R. F. NARIMAN, J. ] 889 (9) Where any additional judge or additional judges is or are appointed in a Special Court, the judge of the Special Court may, from time to time, by general or special order, in writing, provide for the distribution of business of the Special Court among all judges including himself and the additional judge or additional judges and also for the disposal of urgent business in the event of his absence or the absence of any additional judge.

#22. Power of State Government to constitute Special Courts.— (1) The State Government may constitute one or more Special Courts for the trial of offences under any or all the enactments specified in the Schedule. (2) The provisions of this Chapter shall apply to the Special Courts constituted by the State Government under sub-section (1) and shall have effect subject to the following modifications, namely— (i) references to “Central Government” in sections 11 and 15 shall be construed as references to State Government; (ii) reference to “Agency” in sub-section (1) of section 13 shall be construed as a reference to the “investigation agency of the State Government”; (iii) reference to “Attorney-General for India” in sub-section (3) of section 13 shall be construed as reference to “Advocate-General of the State”. (3) The jurisdiction conferred by this Act on a Special Court shall, until a Special Court is constituted by the State Government under sub-section (1) in the case of any offence punishable under this Act, notwithstanding anything contained in the Code, be exercised by the Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this Chapter. (4) On and from the date when the Special Court is constituted by the State Government the trial of any offence investigated by the State Government under the provisions of this Act, which would have been required to be held before the Special Court, shall stand transferred to that Court on the date on which it is constituted.” A B C D E F G H 890 SUPREME COURT REPORTS [2020] 12 S.C.R. A Section 13 speaks of the jurisdiction of the Special Courts as follows: “13. Jurisdiction of Special Courts.— (1) Notwithstanding anything contained in the Code, every Scheduled Offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed. (2) If, having regard to the exigencies of the situation prevailing in a State if,— (a) it is not possible to have a fair, impartial or speedy trial; or (b) it is not feasible to have the trial without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor or a judge of the Special Court or any of them; or (c) it is not otherwise in the interests of justice, the Supreme Court may transfer any case pending before a Special Court to any other Special Court within that State or in any other State and the High Court may transfer any case pending before a Special Court situated in that State to any other Special Court within the State. (3) The Supreme Court or the High Court, as the case may be, may act under this section either on the application of the Central Government or a party interested and any such application shall be made by motion, which shall, except when the applicant is the Attorney-General for India, be supported by an affidavit or affirmation.” Section 14 clarifies that Special Courts may also try offences other than the scheduled offences as follows: “14. Powers of Special Courts with respect to other offences.— (1) When trying any offence, a Special Court may also try any other offence with which the accused may, under the Code be charged, at the same trial if the offence is connected with such other offence. B C D E F G H BIKRAMJIT SINGH v. THE STATE OF PUNJAB [R. F. NARIMAN, J. ] 891 (2) If, in the course of any trial under this Act of any offence, it is found that the accused person has committed any other offence under this Act or under any other law, the Special Court may convict such person of such other offence and pass any sentence or award punishment authorised by this Act or, as the case may be, under such other law.” Section 16 is important and sets out the procedure and powers of Special Courts as follows: “16. Procedure and powers of Special Courts.— (1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts that constitute such offence or upon a police report of such facts. (2) Where an offence triable by a Special Court is punishable with imprisonment for a term not exceeding three years or with fine or with both, the Special Court may, notwithstanding anything contained in sub-section (1) of section 260 or section 262 of the Code, try the offence in a summary way in accordance with the procedure prescribed in the Code and the provisions of sections 263 to 265 of the Code shall, so far as may be, apply to such trial: Provided that when, in the course of a summary trial under this sub-section, it appears to the Special Court that the nature of the case is such that it is not desirable to try it in a summary way, the Special Court shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the Code for the trial of such offence and the said provisions shall apply to, and in relation to, a Special Court as they apply to and in relation to a Magistrate: Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding one year and with fine which may extend to five lakh rupees. (3) Subject to the other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session. A B C D E F G H 892 SUPREME COURT REPORTS [2020] 12 S.C.R. A B C D E F G H (4) Subject to the other provisions of this Act, every case transferred to a Special Court under sub-section (2) of section 13 shall be dealt with as if such case had been transferred under section 406 of the Code to such Special Court. (5) Notwithstanding anything contained in the Code, but subject to the provisions of section 299 of the Code, a Special Court may, if it thinks fit and for reasons to be recorded by it, proceed with the trial in the absence of the accused or his pleader and record the evidence of any witness, subject to the right of the accused to recall the witness for cross-examination.”

#17. The Scheme of the NIA Act is that offences under the enactments contained to the Schedule to the Act are now to be tried exclusively by Special Courts set up under that Act. These may be set up by the Central Government under Section 11 or by the State Government under Section 22 of the Act. On the facts of the present case, we are concerned with Section 22 as Special Courts have been set up within the State of Punjab by a notification dated 10.06.2014, which reads as follows: “PART III GOVERNMENT OF PUNJAB DEPARTMENT OF HOME AFFAIRS AND JUSTICE (JUDICIAL-1 BRANCH) NOTIFICATION The 10th June, 2014 No. S.O. 141/C.A.34/2008/S.22/2014.-In exercise of the powers conferred under sub-section(1) of section 22 of the National Investigation Agency Act, 2008 (Central Act No. 34 of 2008), and all other powers enablinghim in this behalf, the Governor of Punjab, with the concurrence of Hon’ble Chief Justice of the High Court of Punjab and Haryana, Chandigarh, is pleased to constitute the courts of Sessions Judge and the first Additional Sessions Judge (for the area falling within their respective jurisdiction), at each district headquarter in the State, to be the Special Courts, for the trial of offences as specified in the Schedule appended to the aforesaid Act, which are investigated by the State police.” BIKRAMJIT SINGH v. THE STATE OF PUNJAB [R. F. NARIMAN, J. ] 893

#18. It will be seen that the aforesaid notification has been issued under Section 22(1) of the NIA Act. What is important to note is that under Section 22(2)(ii), reference to the Central Agency in Section 13(1) is to be construed as a reference to the investigation agency of the State Government – namely, the State police in this case. Thereafter, what is important to note is that notwithstanding anything contained in the Code, the jurisdiction conferred on a Special Court shall, until a Special Court is designated by the State Government, be exercised only by the Court of Sessions of the Division in which such offence has been committed vide sub-section (3) of Section 22; and by sub-section (4) of Section 22, on and from the date on which the Special Court is designated by the State Government, the trial of any offence investigated by the State Government under the provisions of the NIA Act shall stand transferred to that Court on and from the date on which it is designated.

#19. Section 13(1) of the NIA Act, which again begins with a non- obstante clause which is notwithstanding anything contained in the Code, read with Section 22(2)(ii), states that every scheduled offence that is investigated by the investigation agency of the State Government is to be tried exclusively by the Special Court within whose local jurisdiction it was committed.

#20. When these provisions are read along with Section 2(1)(d) and the provisos in 43-D(2) of the UAPA, the Scheme of the two Acts, which are to be read together, becomes crystal clear. Under the first proviso in Section 43-D(2)(b), the 90 day period indicated by the first proviso to Section 167(2) of the Code can be extended up to a maximum period of 180 days if “the Court” is satisfied with the report of the public prosecutor indicating progress of investigation and specific reasons for detention of the accused beyond the period of 90 days. “The Court”, when read with the extended definition contained in Section 2(1)(d) of the UAPA, now speaks of the Special Court constituted under Section 22 of the NIA Act. What becomes clear, therefore, from a reading of these provisions is that for all offences under the UAPA, the Special Court alone has exclusive jurisdiction to try such offences. This becomes even clearer on a reading of Section 16 of the NIA Act which makes it clear that the Special Court may take cognizance of an offence without the accused being committed to it for trial upon receipt of a complaint of facts or upon a police report of such facts. What is equally clear from a reading of Section 16(2) of the NIA Act is that even though offences A B C D E F G H 894 SUPREME COURT REPORTS [2020] 12 S.C.R. may be punishable with imprisonment for a term not exceeding 3 years, the Special Court alone is to try such offence – albeit in a summary way if it thinks it fit to do so. On a conspectus of the abovementioned provisions, Section 13 read with Section 22(2)(ii) of the NIA Act, in particular, the argument of the learned counsel appearing on behalf of the State of Punjab based on Section 10 of the said Act has no legs to stand on since the Special Court has exclusive jurisdiction over every Scheduled Offence investigated by the investigating agency of the State.

#21. Before the NIA Act was enacted, offences under the UAPA were of two kinds – those with a maximum imprisonment of over 7 years, and those with a maximum imprisonment of 7 years and under. Under the Code as applicable to offences against other laws, offences having a maximum sentence of 7 years and under are triable by the Magistrate’s Courts, whereas offences having a maximum sentence of above 7 years are triable by Courts of Sessions. This Scheme has been completely done away with by the 2008 Act as all scheduled offences i.e. all offences under the UAPA, whether investigated by the National Investigation Agency or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under that Act. In the absence of any designated Court by notification issued by either the Central Government or the State Government, the fall back is upon the Court of Sessions alone. Thus, under the aforesaid Scheme what becomes clear is that so far as all offences under the UAPA are concerned, the Magistrate’s jurisdiction to extend time under the first proviso in Section 43-D(2)(b) is non-existent, “the Court” being either a Sessions Court, in the absence of a notification specifying a Special Court, or the Special Court itself. The impugned judgment in arriving at the contrary conclusion is incorrect as it has missed Section 22(2) read with Section 13 of the NIA Act. Also, the impugned judgement has missed Section 16(1) of the NIA Act which states that a Special Court may take cognizance of any offence without the accused being committed to it for trial inter alia upon a police report of such facts.

#22. The second vexed question which arises on the facts of this case is the question of grant of default bail. It has already been seen that once the maximum period for investigation of an offence is over, under the first proviso (a) to Section 167(2), the accused shall be released on bail, this being an indefeasible right granted by the Code. The extent of this indefeasible right has been the subject matter of a number of A B C D E F G H BIKRAMJIT SINGH v. THE STATE OF PUNJAB [R. F. NARIMAN, J. ] 895 judgments. A beginning may be made with the judgment in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602, which spoke of “default bail” under the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as “TADA”) read with Section 167 of the Code as follows: “19. Section 20(4) of TADA makes Section 167 of CrPC applicable in relation to case involving an offence punishable under TADA, subject to the modifications specified therein…while clause (b) provided that reference in sub-section (2) of Section 167 to ‘15 days’, ‘90 days’ and ‘60 days’ wherever they occur shall be construed as reference to ‘60 days’, ‘one year’ and ‘one year’ respectively. This section was amended in 1993 by the Amendment Act 43 of 1993 with effect from 22-5-1993 and the period of ‘one year’ and ‘one year’ in clause (b) was reduced to ‘180 days’ and ‘180 days’ respectively, by modification of sub-section (2) of Section 167. After clause (b) of sub-section (4) of Section 20 of TADA, another clause (bb) was inserted which reads: “(bb) in sub-section (2), after the proviso, the following proviso shall be inserted, namely:— ‘Provided further that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Designated Court shall extend the said period up to one year, on 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 one hundred and eighty days; and’ ’’

#20. …Sub-section (2) of Section 167 of the Code lays down that the Magistrate to whom the accused is forwarded may authorise his detention in such custody, as he may think fit, for a term specified in that section. The proviso to sub-section (2) fixes the outer limit within which the investigation must be completed and in case the same is not completed within the said prescribed period, the accused would acquire a right to seek to be released on bail and if he is prepared to and does furnish bail, the Magistrate shall release him on bail and such release shall be deemed to be grant of bail under Chapter XXXIII of the Code of Criminal Procedure…Section 167 read with Section 20(4) of TADA, thus, A B C D E F G H 896 SUPREME COURT REPORTS [2020] 12 S.C.R. A B C D E F G H strictly speaking is not a provision for “grant of bail” but deals with the maximum period during which a person accused of an offence may be kept in custody and detention to enable the investigating agency to complete the investigation and file the charge-sheet, if necessary, in the court. The proviso to Section 167(2) of the Code read with Section 20(4)(b) of TADA, therefore, creates an indefeasible right in an accused person on account of the ‘default’ by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail. It is for this reason that an order for release on bail under proviso (a) of Section 167(2) of the Code read with Section 20(4) of TADA is generally termed as an “order-on-default” as it is granted on account of the default of the prosecution to complete the investigation and file the challan within the prescribed period. As a consequence of the amendment, an accused after the expiry of 180 days from the date of his arrest becomes entitled to bail irrespective of the nature of the offence with which he is charged where the prosecution fails to put up challan against him on completion of the investigation. With the amendment of clause (b) of sub-section (4) of Section 20 read with the proviso to sub- section (2) of Section 167 of CrPC an indefeasible right to be enlarged on bail accrues in favour of the accused if the police fails to complete the investigation and put up a challan against him in accordance with law under Section 173 CrPC. An obligation, in such a case, is cast upon the court, when after the expiry of the maximum period during which an accused could be kept in custody, to decline the police request for further remand except in cases governed by clause (bb) of Section 20(4). There is yet another obligation also which is cast on the court and that is to inform the accused of his right of being released on bail and enable him to make an application in that behalf. (Hussainara Khatoon case [Hussainara Khatoon v. Home Secy., State of Bihar, (1980) 1 SCC 98 : 1980 SCC (Cri) 40 : AIR 1979 SC 1369] ). This legal position has been very ably stated in Aslam Babalal Desai v. State of Maharashtra [(1992) 4 SCC 272 : 1992 SCC (Cri) 870 : AIR 1993 SC 1] where speaking for the majority, Ahmadi, J. referred with approval to the law laid down in Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic BIKRAMJIT SINGH v. THE STATE OF PUNJAB [R. F. NARIMAN, J. ] 897