The Court held that there is a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2), CrPC are fulfilled.

The Court has held that right to default bail is not merely a statutory right under the first proviso to Section 167(2) of the CrPC, but that it is part of the procedure established by law under Article 21 of the Constitution of India.

Therefore, it is a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2), CrPC are fulfilled.

The Code of Criminal Procedure (CrPC), through Section 167 (2) provides that the detention of an accused person cannot be authorised beyond a statutory period prescribed to complete the investigation.

Ordinarily, the statutory period to complete investigation and file a charge sheet is a maximum of 90 days in offences punishable with life imprisonment or death. However, for offences under UAPA, this period can be extended up to 180 days.

While dealing with a UAPA case, where the accused was denied a plea for default bail, the Supreme Court said.

"We must not forget that we are dealing with the personal liberty of an accused under a statute which imposes drastic punishments. The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled."

The Court further held that the Special Court alone had jurisdiction to extend time up to 180 days under the first proviso in Section 43-D(2)(b) of the Unlawful Activities (Prevention) Act (UAPA).

The Supreme Court observed that all offences under the UAPA, whether investigated by the National Investigation Agency or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under the NIA Act.

The accused in this case was remanded to custody by a Sub-Divisional Magistrate. After expiry of 90 days in custody, he filed an application for default bail before Sub-Divisional Judicial Magistrate.

This bail application was dismissed as the Sub-Divisional Judicial Magistrate had already extended time for custody from 90 days to 180 days under Section 167 of the Code of Criminal Procedure, 1973 as amended by the UAPA.

This order was set aside by the Special Court, which held that the Special Court alone had jurisdiction to extend the time for custody 180 days under the first proviso in Section 43-D(2)(b), UAPA.

However, the plea for default bail was refused.

The Special Court order was set aside by the Punjab and Haryana High Court, which held that when the probe is being conducted by the State police, the Magistrate has the power under Section 167 (2), CrPC, read with Section 43 (a) of UAPA to extend the period of investigation up to 180 days. The High Court held that in such a case, the Magistrate may then commit the case to the Court of Sessions as per provisions of Section 209, CrPC.

The High Court added that in case the investigation is conducted by the agency under the NIA Act, these powers would be exercised by the Special Court.

On appeal, the Supreme Court first took note that the High Court had got the dates all wrong.

Whereas the bail application was made by February 25, 2019, the High Court had marked it as March 26, 2019. The charge sheet was filed on March 26, while the High Court marked it as March 25.

Referring to the default bail plea first preferred by the accuse, the Supreme Court went on to remark,

"The fact that this application was wrongly dismissed on 25.02.2019 would make no difference and ought to have been corrected in revision. The sole ground for dismissing the application was that the time of 90 days had already been extended by the learned Sub-Divisional Judicial Magistrate, Ajnala by his order dated 13.02.2019. This Order was correctly set aside by the Special Court by its judgment dated 25.03.2019, holding that under the UAPA read with the NIA Act, the Special Court alone had jurisdiction to extend time to 180 days under the first proviso in Section 43-D(2)(b)."

Opining that the accused had a fundamental right to be released on default bail, once the statutory conditions under Section 167 (2), CrPC were fulfilled, the Supreme Court proceeded to set aside the High Court ruling under challenge.

The Court added that

"... so long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted".