The Supreme Court has held that Prosecution cannot take advantage by filing one charge sheet first and then filing supplementary charge sheet for extending time limit under Section 167(2) Cr.P.C., 1973.
The order came out in a case titled as Fakhrey Alam vs. State of Uttar Pradesh.
In the oresent case, FIR was registered against the appellant under multiple sections of IPC, the Arms Act and section 18 of UAPA. The appellant was arrested and the Chief Judicial Magistrate, Lucknow granted 180 days to the police to file the charge sheet. The police filed the charge sheet under aforesaid Acts except for charges under UAPA which required state government’s sanction. The second supplementary charges sheet under UAPA was filed after 211 days after obtaining state government’s sanction. The appellant moved to the Court of Chief Judicial Magistrate seeking default bail since the time period of 180 days had been elapsed. However the Court rejected the plea for default bail on the grounds that the second charge sheet was a supplementary charge sheet in addition to the previous charge sheet, similar view was given by the High Court after which the appellant moved to the Apex Court.
The counsel for appellant contended that the Chief Judicial Magistrate, Lucknow did not have any jurisdiction in the matter of offences related to UAPA since same was only with the Special Courts. The counsel further submitted that the Charge sheet/supplementary Charge sheet under UAPA was filed after the lapse of 180 days due to which the appellant was rightfully entitled to the default bail.
The counsel appearing for the state contended that the Court of Chief Judicial Magistrate was competent to initiate the proceedings, since the special courts had been notified recently only a month back in State of UP. The counsel further submitted that the second charge sheet is a supplementary charge sheet as there is no restriction on the number of Supplementary Charge sheets which can be filed but there will be only one chargesheet, thus plea for default bail was liable to fail.
The division bench of Justice Sanjay Kishan Kaul and Justice R. Subhash Reddy observed that the Court of Chief Judicial Magistrate was the only competent court since there wasn’t any Special Courts in existence in the state. The Court then remarked that, 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
The court noted that, 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 2 (2013) 5 SCC 762 5 211 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.
Read Order here: