Excelsior Correspondent
Srinagar, Dec 11 : High Court has held that the accused involved in offense of Unlawful Activities cannot seek default bail after filing of the charge sheet and granted liberty to the accused for apply of regular bail before the trial court with the direction to consider the same on merits.
Accused-Ansar ul Haq Raina had approached the High Court with an appeal under Section 21 of the National Investigation Act challenging therein the order of rejection of his bail by the Special Judge, Designated Court under NIA Srinagar whereby his grant for default bail was rejected.
“We are of the considered view that the appellant’s right to seek default bail after filing of the charge sheet against him did not survive and he was not entitled to the grant of default bail. The appeal is thus found to be without merit and substance and is, accordingly, dismissed. The appellant, however, is at liberty to seek regular bail which shall be considered by the Trial court on its own merits”, Division Bench of Justice Ali Mohammad Magrey and Justice M Akram Chowdhary concluded.
The appellant-Haq was arrested on 15.11.2018, from Delhi in connection with killing of a Sub Inspector, by invoking the provisions of Section 18 of Unlawful Activities (Prevention) Act and was handed over to the Investigating Agency on 22.11.2018.
The prosecution in opposition to his bail in default stated that an information received from reliable sources with regard to bullet riddled dead body of one Imtiyaz Ahmad Mir, who was working as Sub-Inspector in Police Department is lying at village Wahibugh near Romshi Nala, and on receipt of the information, FIR No. 288/2018 under Section 302 RPC, 7/27 Arms Act was lodged at Police Station Pulwama and during the course of investigation, it was disclosed that on questioning of a witness disclosed that she was with deceased at Srinagar and they came back to Pulwama and during the travel appellant-Haq had followed them.
Court on perusal of section 167 of the Code of Criminal Procedure said it clearly indicates that if the offense is punishable with death or imprisonment for life, or a minimum sentence of 10 years, then section 167 (2) (a) will apply and accused can apply for ‘default bail’ only, if the investigating agency does not file charge sheet within 90 days, however, in all cases, where maximum sentence is 10 years, then section 167 (2) (a) (ii) will apply and the accused will be entitled to grant of ‘default bail’ after 60 days of being in custody, in case charge sheet is not filed.
DB said the appellant moved the application seeking default bail on 14.10.2019, when the charge sheet against him had already been laid before the Designated court on 12.10.2019. The indefeasible right of the accused to be released on bail in accordance with Section 167(2) of Cr. P.C, in default of completion of the investigation and filing of the charge sheet within the time allowed is a right which ensures to and is enforceable by the accused only from the time of default till the filing of the charge sheet and it does not survive or remain enforceable when the challan is meanwhile, filed.
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