Court grants bail to lawyer accused in a NIA case over delay in filing of charge sheet

New Delhi [India], July 15 (ANI): A Delhi Court has granted default bail to a lawyer accused in a Nation Investigation Agency (NIA) case in view of the delay in filing of the charge sheet.

This case was lodged for alleged terror activities under sections related to Criminal Conspiracy and Unlawful Activities Prevention Act (UAPA) by the Special Cell of Delhi police. Later on, the investigation was taken up by the Nation Investigation Agency (NIA).

The accused was arrested on October 18, 2022, and illegal weapons were recovered from him. This matter is related to Arshdeep Singh alias Dalla and others. He is hiding in Canada.

Special judge Shailender Malik of Patiala House Court granted bail to Asif Khan, a resident of Delhi, in view of the delay in filing the charge sheet by the NIA.

The accused was charge-sheeted under Section 25 of the Arms Act read with Section 120-B of the Indian Penal Code.

“Admittedly charge sheet against the applicant has been filed on March 21 only for offences under section 120 b IPC and 25 arms act whereas investigation was completed after more than the 90 days period since when the accused was arrested,” the judge said in the order on July 13.

The judge said, “Law expects that the investigation must be completed within the described period under section 167(2) of CrPC even under section 43D (2) of UAPA, Period from 90 to 180 days cannot be extended as a routine.”

“So as at the stage of expiry of 60 or 90 days, investigating agency has the legal onus to check whether there is evidence to carry on Investigation from 60 to 90 days as well as in cases of UAPA from 90 days to further time,” the judge observed.

The court said that it is evident that the accused has been evidently arrested on 18 October 2022 in the present case, FIR was registered for offences under UAPA as well as other offences. The investigation has been carried out for those offences as well as offences under section IPC and Arms Act.

The accused has been arrested for offences under section 25 arms act and substantive offences of conspiracy under section 120B IPC which is maximum punishable up to 3 to 7 years, the judge said.

“Going by the offences for which the accused has been charged stated investigation for the offences against the accused ought to have been completed within 60 days of time from the time of his arrest,” the judge said in the order.

The court said that One can understand that accused has been arrested on the basis of recovery of Arms etc for offences mentioned as the FIR, in this case, was filed under UAPA.

“But at the same time, I am of the considered view that it is the legal responsibility of Investigation Agency to ensure that if by the time of expiry of prescribed period of 60/ 90 days under section 167( 2) CrPC, no sufficient evidence has been collected for offences of UAPA or for other offences for which investigation could carry out for more than 90 days, then the onus is on the Investigation Agency to charge sheet him within the period prescribed under section 167(2) Cr.PC,” the court said.

The Judge said that the Provision of section 167(2) CrPC is not to be taken lightly as it has been laid down many times by the Supreme Court as well as by the High Court in different judgements.

It was argued by advocate Shivendra Kumar Sharma and Chirag Madan that the NIA could not complete the investigation within the prescribed period of 90 days and sought extension on two occasions and thereafter chargesheet was filed against Asif Khan, Arshdeep Singh Gill alias Arsh Dalla, Gaurav Patyal alias Sourav Thakur alias Lucky, Amit Dagar, Kaushal alias Naresh Choudhary etc.

During the course of the investigation, Asif Khan was arrested with an alleged recovery of one Automatic Pistol along with 1 magazine, 10 empty cartridges, one Country made pistol along with its 10 live rounds, one country made pistol along with its 9 live rounds, one country made pistol/desi Katta, one Pistol body, 3 Magazines, 2 Slides 3 Barrel, 11 But grip, 20 Live rounds 7.62 25 mm, 16 Live round KF, one Knife along with cover were seized from his house.

It was argued by the NIA that the accused ought to have invoked relief of default bail under section 167 to CrPC at the earliest point of time at least the date when the charge sheet against the accused was filed.

It was submitted that one such right has not been avail or exhausted at the earliest point of time would deem to have been waved off.

The judge rejected the submissions and said, “I do not agree with such submissions. No doubt earlier there have been the certain judgement of the Supreme Court acknowledging such proposition of law, but the legal proposition as exists presently to the knowledge of the undersigned that once there is a relief of bail made out under section 167 to CrPC, the mere failure of accused or applicant for moving an application under the said provision subsequently cannot be a reason to deprive him of such relief.”