Jammu & Kashmir High Court - Srinagar Bench
Sheikh Imran And Anr vs Government Through Police Station ... on 11 March, 2022
Bench: Ali Mohammad Magrey, Mohan Lal
S. No. 24
Regular List
HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT SRINAGAR
CrlA(D) 6/2021, CrlM (314/2021)
Sheikh Imran and Anr. .....Petitioner(s)/Appellant(s)
Through: Mr. Shafqat Nazir, Adv.
V/s
Government Through Police Station Bomai .....Respondent(s)
Through: Ms. Asifa Padroo, AAG
CORAM:
HON'BLE MR. JUSTICE ALI MOHAMMAD MAGREY, JUDGE
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
ORDER
11.03.2022
1. Appeal under Section 21 of National Investigation Agency Act 2008 against the order dated 17.02.2021 rendered by the Court of Additional Sessions Judge, Baramulla (Special Judge for Trial of offences under ULA(P) Act 1967) in bail application titled Sheikh Imran & Anr. vs. Union Territory of J&K as well as order dated 16.01.2021 in terms whereof charge-sheet against appellants has been accepted by the Court below beyond the period of 180 days without providing the benefit of Section 167(2) Cr.P.C to the appellants, has been preferred on the grounds that the appellants came to be implicated in FIR No. 58/2020 registered in Police Station Bomai, under Sections 18, 23, 38, 39 of ULA(P) Act and 7/25 Arms Act and came to be apprehended/arrested on 19.07.2020 but the prosecution failed to conclude the investigation of the case within the statutory period of 90 days whereafter the period came to be extended up to 180 days; that the extended statutory period of 180 days expired on 15.01.2021 but the prosecution failed to complete the investigation of the case and even within the extended period of 180 days which gave right of default bail to the appellants in terms of Section 167(2) Cr.P.C; that in view of vacations the subordinate courts remained closed from 01.01.2021 to 15.01.2021, the Principal District and Sessions Judge Baramulla issued an order dated 29.12.2020 for Sessions Division of Baramulla and Sopore and it was provided in the order that Learned Additional Sessions Judge Sopore shall remain on duty from 01.01.2021 to 10.01.2021 and Learned Sub Judge, Pattan shall attend emergent criminal work and remand applications from 11.01.2021 to 15.01.2021, even for the intervening period of vacations, applications seeking extension of investigation under ULA (P) Act will be dealt with by the Principal District & Sessions Judge, Baramulla himself through virtual mode; that the learned Principal District & Sessions Judge was available during the vacation period on virtual mode as per the above order dated 29.12.2020 whereby prosecution was not incapacitated to file the charge sheet within the statutory period of 180 days;that on 16.01.2021 Counsel for the appellants was waiting in the court complex Baramulla with an application seeking bail in default of completion of investigation of 180 days, however, learned Additional Sessions Judge/Special Judge did not report to his duties at the Court, the appellants alongwith the counsel were waiting in the court complex till 6:00 pm on 16.01.2021 and when all the persons working in the court complex Baramulla including the staff of the concerned court left the spot, the appellants and their counsel also left the court premises; that on 17.01.2021 there was a holiday and the appellants on 18.01.2021 filed bail application before the Court below seeking bail under Section 167 (2) Cr.P.C on account of non-submission of the charge sheet by the prosecution on 18.01.2021, the acceptance of charge sheet by the court on 18.01.2021 is beyond the period of 180 days without releasing the appellants on bail in derogation of law governing the field thereby appellants assailed the orders dated 17.02.2021 and 16.01.2021; that even if it is presumed but not admitted that the charge sheet was filed and accepted on 16.01.2021 even the same was illegally and admittedly accepted beyond statutory time on 181 st day which gave indefeasible right to the accused.
2. Respondents have filed response/status report specifically contending therein that on 19.07.2020 on a specific input about the movement of militants, a joint Naka was established by Police of Sopore alongwith Army and CRPF near Lathishort Tujjar crossing where appellants coming from Harwan side were apprehended and from their personal searches one hand grenade, one UBGL was recovered and case under FIR No. 58/2020 under Section 7/25 Arms Act r/w Sections 18, 23, 38, 39 ULA(P) Act was registered, whereafter the investigation was completed and offences under Section 18, 38 of ULA(P) Act were not proved, however, charge sheet against appellants for commission of other offences under Sections 7/25 Arms Act r/w Section 23, 39 ULA(P) Act was presented in the Court of Learned Additional Sessions Judge, Baramulla on 16.01.2021. It is contended, that if the petitioners are released on bail it will boost the morale of ANEs whereby interest of society alongwith the confidence of law abiding citizens would be jeopardize, appellants if enlarged on bail would not only jump the concession but would flee from the UT of J&K, liberty of appellants has not been curtailed but only restricted in order to prevent them from committing identical/similar offences in future, applicants are involved in heinous and non-bailable offences, hence their bail deserves to be dismissed.
3. We have heard learned counsel for the appellants/accused and learned counsel for the respondents and have carefully perused order of Court of Additional Sessions Judge, Baramulla (Special Judge for Trial of offences under ULP Act dated 17.02.2021 and order dated 16.01.2021 (Annexure - 2) in terms of which challan has been presented in the court. It is admitted case of the parties that appellants/accused have been apprehended on 19.07.2020 in FIR No. 58/2020 under Sections 18, 23, 38, 39, of ULA(P) Act and 7/25 Arms Act and the charge sheet has been laid in the Court of Additional Sessions Judge, Sopore who was Duty Judge on 16.01.2021. Order dated 17.02.2021 depict that under Section 43/D of ULA(P) Act the period of investigation has been extended upto 180 days in maximum. It is also admitted case of the appellants that they have indefeasible right to be released on bail in terms of Section 167(2) Cr.P.C after the expiry of period of 180 days. Learned counsel for the appellants has vehemently argued that the period of 180 days would have expired on 15.01.2021, whereas, as the charge sheet/challan has been filed on 16.01.2021, appellants have acquired indefeasible right to be released on default bail. From the record, it clearly transpires that appellants/accused have been taken into custody on 19.07.2020 and the period of investigation has been extended upto 180 days which from the date of custody of appellants/accused on 19.07.2020 would expire on 18.01.2020 on the completion of 180 days. Annexure -2 is a copy of the interim order of the Court of Additional Sessions Judge, Baramulla which clearly demonstrates that on 16.01.2021 charge sheet has been filed in the court against appellants/accused. From the date of arrest of the accused on 19.07.2020, the maximum period of 180 days would expire on 18.01.2021, however, the charge sheet has been produced/presented in the court on 16.01.2021 even two (02) days earlier to the expiry of period of 180 days. The contention of learned counsel for the appellants that the period of 180 days would have expired on 15.01.2021 is factually incorrect and legally unsustainable, as by calculating the period of detention, the appellants/accused would have acquired indefeasible right to be released on default bail after 18.01.2021. However, as the record clearly depicts that the charge sheet has been filed on 16.01.2021 well within the period of 180 days, therefore, the appellants/accused do not appear to have acquired indefeasible right of their release on bail under the provisions of Section 167(2) of the Cr.P.C.
4. In view of the aforesaid matter, we hold that the orders dated 17.02.2021 and 16.01.2021 passed by the Court of Learned Additional Sessions Judge Baramulla do not suffer from any illegality or impropriety or perversity and the same are confirmed and upheld.
5. Appeal filed by the appellants being devoid of any merit is outrightly disallowed, rejected and dismissed.
6. Disposed of accordingly.
(MOHAN LAL) (ALI MOHAMMAD MAGREY)
JUDGE JUDGE
SRINAGAR
11.03.2022
"Amir"