NEW DELHI: The Supreme Court on Monday held that an accused cannot claim to be released on default bail on the ground that the charge sheet filed within the stipulated time period was not accompanied with valid sanction from the competent authority.
A bench of Chief Justice of India D Y Chandrachud and Justice J B Pardiwala said sanction under the Unlawful Activities (Prevention) Act is accorded, based on the materials collected by the investigating agency which forms the part of the final report under Section 173 of the CrPC.
"The investigating agency gets full 180 days to complete the investigation. To say that obtaining of sanction and placing the same along with the chargesheet should be done within the period of 180 days is something which is not only contrary to the provisions of law, but is inconceivable," the bench said.
The top court dismissed a plea by Judgebir Singh alias Jasbir Singh and others against the Punjab and Haryana High Court's judgement which had rejected their contention for default bail due to absence of valid sanction in the charge sheet.
The court pointed out that the order of sanction passed by the competent authority can be produced and placed on record even after the filing of the chargesheet.
"It may happen that the inordinate delay in placing the order of sanction before the Special Court may lead to delay in trial because the competent court will not be able to take cognizance of the offence without a valid sanction on record. In such an eventuality, at the most, it may be open for the accused to argue that his right to have a speedy trial could be said to have been infringed thereby violating Article 21 of the Constitution. This may at the most entitle the accused to pray for regular bail on the ground of delay in trial," the bench said.
"But the same cannot be a ground to pray for statutory/default bail under the provisions of Section 167(2) of the CrPC," the bench added.
Justice Pardiwala, who authored the judgement on behalf of the judgement, further said maximum period of 180 days which is being granted to the investigating agency to complete the investigation in the case wherein the prosecution is for the offence under the UAPA is not something in the form of a package that everything has to be completed including obtaining of sanction within this period of 180 days.
"The investigating agency has nothing to do with sanction. Sanction is altogether a different process. Sanction is accorded, based on the materials collected by the investigating agency which forms the part of the final report under Section 173 of the CrPC," the bench said.
The court also pointed out Rule 3 of the Rules 2008 makes it explicitly clear that the authority under sub section (2) of Section 45 of the UAPA is obliged in law to apply its mind thoroughly to the evidence gathered by the investigating officer and thereafter, prepare its report containing the recommendations to the Central Government or the State government for the grant of sanction.
"The grant of sanction is not an idle formality. The grant of sanction should reflect proper application of mind," it added.
The court further explained according sanction is the duty of the sanctioning authority who is not connected with the investigation at all.
"In case the sanctioning authority takes some time to accord sanction, that does not vitiate the final report filed by the investigating agency before the Court. Section 173 of the CrPC does not speak about the sanction order at all. Section 167 of the CrPC also speaks only about investigation and not about cognizance by the Magistrate," the bench said.
Therefore, once a final report has been filed, that is the proof of completion of investigation and if final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing of sanction order, the bench said.
Referring to Section 173(5) of the CrPC, the court said, of course, it requires all the documents or the relevant extracts thereof on which the prosecution proposes to rely on, to category of those documents contemplated under clause (5) to Section 173 of the CrPC.
"The grant of sanction is altogether a different act to be performed by the Government concerned under Section 45 of the UAPA," it said.
"Whether the sanction is required or not under a statute, is a question that has to be considered at the time of taking cognizance of the offence and not during inquiry or investigation. There is a marked distinction in the stage of investigation and prosecution," the bench said.
The court also said the prosecution starts when the cognizance of offence is taken.
"It is also to be kept in mind that cognizance is taken of the offence and not of the offender. It cannot be said that obtaining sanction from the competent authorities or the authorities concerned is part of investigation. Sanction is required only to enable the court to take cognizance of the offence. The court may take cognizance of the offence after the sanction order was produced before the court, but the moment, the final report is filed along with the documents that may be relied on by the prosecution, then the investigation will be deemed to have been completed," it said.
Taking cognizance is entirely different from completing the investigation. To complete the investigation and file a final report is a duty of the investigating agency, but taking cognizance of the offence is the power of the court. The court in a given case, may not take cognizance of the offence for a particular period of time even after filing of the final report, the bench said.
In such circumstances, the accused concerned cannot claim their indefeasible right under Section 167(2) of the CrPC for being released on default bail. What is contemplated under Section 167(2) of the CrPC is that the Magistrate or designated Court (as the case may be) has no powers to order detention of the accused beyond the period of 180 days or 90 days or 60 days as the case may be. If the investigation is concluded within the prescribed period, no right accrues to the accused concerned to be released on bail under the proviso to Section 167(2) of the CrPC, the bench added.
