In the case of Muzammil Pasha v. National Investigation Agency, the Karnataka High Court has granted default bail under Section 167(2) of the Criminal Procedure Code (CrPC) to 115 persons accused in cases registered in connection with the Bangalore Riots of August 2020
By: Gurleen Kaur Anand, Amity University, Mumbai
Justice S. Vishwajith Shetty passed the order while allowing petitions filed by Muzamil Pasha and 115 others who were arrested on August 12, 2020.
It was observed that “The order dated 03.11.2020 passed on the application filed by the prosecution under the first proviso to Section 43-D(2)(b) of the Unlawful Activities (Prevention) Act, 1967, seeking extension of time for completion of the investigation and also the order dated 05.01.2021 passed by the Special N.I.A. Court, Bangalore (CCH-50) on the application filed by the petitioners under Section 167(2) of the Code of Criminal Procedure, are hereby set aside.”
The court observed “The fundamental right of an individual recognized under Article 21 of the Constitution of India cannot be defeated other than in accordance with law. Since the order passed by the trial court on the application filed by the prosecution seeking extension of time for completion of the investigation is already held to be bad in law, the statutory right that has accrued to the petitioners/accused immediately after the completion of the first 90 days of period which right has been availed of by them by filing an application under Section 167(2) of the Code, seeking statutory bail and also offering surety cannot be denied to the petitioners.
The High Court set aside a special court’s order giving the National Investigation Agency (NIA) an additional 90 days for completing the investigation. The court said such extension of time without the accused being notified is legally unsustainable.
The High Court opined that the special court order extending the time granted for filing chargesheet cannot be legally sustained since the petitioners were not heard before deciding the application for extension of time.
“Since the petitioners were not given an opportunity of being heard before passing an order on the application filed by the prosecution for extension of time for completion of the investigation and since the petitioners were not kept present before the court when the application filed by the prosecution for extension of time for completion of the investigation was being considered and since the petitioners were not notified that such an application filed by the prosecution was being considered by the court for the purpose of extending the time for completion of investigation, I am of the considered opinion that the order passed by the trial court on the application filed by the prosecution under the first proviso to Section 43-D(2)(b) of the Act of 1967 extending the time to complete the investigation is legally unsustainable,” the High Court said.
The Court also turned down the contention by the prosecution that considering the fact that charge sheet was already filed by the prosecution during the extended period, accused can very well apply for a regular bail under Section 439 of the CrPC having regard to the fact that charge sheet has already been filed.
“In view of the law laid down in Bikramjit Singh’s case, merely for the reason that the charge sheet has now been filed, it will not take away the indefeasible right of the petitioners, if it has accrued in their favour,” the Court said.
With these observations, the Court proceeded to grant default bail to all the accused persons and set aside the NIA order.