Lack of sanction won’t ensure default bail: Supreme Court

The Supreme Court on Monday held that the lack of sanction to prosecute an accused will not vitiate the charge sheet filed within time by a probe agency and shall not entitle an accused to seek default bail.

The Supreme Court on Monday held that the lack of sanction to prosecute an accused will not vitiate the charge sheet filed within time by a probe agency and shall not entitle an accused to seek default bail under the Code of Criminal Procedure (CrPC).

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The court was dealing with an appeal by five accused charged under the Unlawful Activities Prevention Act (UAPA) who were arrested with explosives in Punjab in 2019. The accused sought default bail under Section 167(2) of the CrPC on grounds that the National Investigation Agency (NIA) failed to obtain sanction within the extended 180-day period for completion of investigation under UAPA.

Deciding whether grant of sanction is relevant for deciding statutory or default bail of an accused, the bench of Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justice JB Pardiwala said, “To say that obtaining of sanction and placing the same along with the charge sheet should be done within the period of 180 days is something which is not only contrary to the provisions of law discussed above, but is inconceivable.”

The judgment held a clear distinction between investigation and prosecution and 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 decision came on a day the Enforcement Directorate rushed to court seeking a stay on a recent Supreme Court order opening the doors for accused to get default bail in cases where investigation is pending and the probe agency files supplementary charge sheets from time to time. Solicitor general Tushar Mehta appearing for the ED pointed out that multiple applications citing this decision were being filed across the country and the decision required to be stayed.

He said the Centre was in the process of filing an application to recall the judgment that should be considered at the earliest. In one such case, the ED filed an appeal challenging the grant of default bail by the Delhi high court to one Manpreet Singh Talwar, accused of laundering ₹700 crore in Singapore and Hong Kong entities.

The decision in Ritu Chhabaria v Union of India decided on April 26 was passed on a writ petition filed by a woman seeking default bail for her husband in a case involving alleged large-scale fraud being probed by the Central Bureau of Investigation (CBI).

Mehta said, “The view in Ritu Chhabaria is contrary to a 3-judge ruling in Vipul Agarwal v Gujarat (2013) where it is laid down that right to default bail gets extinguished with the filing of charge sheet.” According to him, the April 26 decision was “per incuriam” as it failed to consider the prior binding decision of a co-equal bench in the Dinesh Dalmia case (2007) and Abdul Azeez case (2014), which lays down a contrary principle of law that has held the field for the past 16 years.

A bench of the CJI and justice Pardiwala took note of Mehta’s request and decided to post the matter on Thursday before a three-judge bench.

Dealing with the facts in the UAPA case, the court noted that the FIR was registered under various provisions of the Indian Penal Code, the UAPA and Explosives Act. In September 2019, the Punjab Police, which initially conducted the investigation till the case was handed over to NIA in 2020, at the end of 90 days sought additional time of 90 days to complete its probe.

The final investigation report was filed in November 2019 but the sanction to prosecute the accused under UAPA from the Punjab government was obtained only in January 2021. Later in March 2021, the Centre granted sanction as the investigation was being handled by NIA, which subsequently filed a supplementary charge sheet in the case. The accused claimed that the charge sheet filed against them had no sanctity in the eyes of the law as it was filed without sanction. They sought default bail on this ground but the Punjab and Haryana high court rejected their petition for default bail on April 26 last year. Against this order, the five accused appealed in the top court.

Justice Pardiwala, writing the judgment for the bench, said, “Whether cognizance has been taken or not taken is not relevant for the purpose of compliance of Section 167 of the CrPC. The mere filing of the charge sheet is sufficient.”