FAKHREY ALAM versus THE STATE OF UTTAR PRADESH

Citation: [2021] 2 S.C.R. 1000 · Decided: 15-03-2021 · Supreme Court of India · Bench: SANJAY KISHAN KAUL, R. SUBHASH REDDY · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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FAKHREY ALAM
v.
THE STATE OF UTTAR PRADESH
(Criminal Appeal No. 319 of 2021)
MARCH 15, 2021
[SANJAY KISHAN KAUL AND R. SUBHASH REDDY, JJ.]
Code of Criminal Procedure, 1973 – s.167 – Default bail –
FIR against appellant under provisions of IPC, Arms Act and the
UAPA Act –Appellant, if entitled to default bail under s.167(2) CrPC
in the facts of the case – Held: Entitled – s.167 CrPC provides for
time period within which the investigation should be completed,
depending upon the nature of offences – Since, liberty is a
Constitutional right, time periods are specified in default of which
the accused will have a right to default bail, a valuable right – On
facts, FIR was filed against appellant-accused inter alia u/s.18 of
the UAPA Act – Period of 180 days to file the charge sheet qua
UAPA Act had however elapsed – The State cannot take advantage
of the fact that there is one charge sheet and supplementary charge
sheets are used to extend the time period by seeking to file
supplementary charge sheet qua the offences under the UAPA Act
even beyond the period specified under s.167 CrPC beyond which
default bail will be admissible, i.e, the period of 180 days – Default
bail under first proviso of s.167(2) CrPC is a fundamental right
and not merely a statutory right as it is a procedure established by
law u/Art. 21 of the Constitution – Thus a fundamental right is
granted to an accused person to be released on bail once the
conditions of the first proviso to s.167(2) CrPC are fulfilled – In
fact an oral application for grant of default bail would suffice –
The consequences of the UAPA Act are drastic in punishment and
in that context, it is not a mere statutory right but part of the procedure
established by law u/Art. 21 of the Constitution – IPC – Arms Act –
Unlawful Activities (Prevention) Act, 1967 – Constitution of India,
1950 – Art.21.
Bikramjit Singh v. State of Punjab (2020) 10 SCC 616;
and Vinay Tyagi v. Irshad Ali @ Deepak & Ors. (2013)
5 SCC 762 : [2012] 13  SCR 1005 – relied on.
[2021] 2 S.C.R. 1000
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Case Law Reference
(2020) 10 SCC 616
relied on
Para 6
[2012] 13 SCR 1005
relied on
Para 9
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.319 of 2021
From the Judgment and Order dated 03.11.2020 of the High Court
of Judicature at Allahabad, Lucknow Bench at Lucknow in Bail No.12269
of 2019.
S. Wasim A. Qadri, Sr. Adv., Md. Ali, Mohit Mishra, Advs. for the
Appellant.
V. K. Shukla, Sr. Adv., Adarsh Upadhyay, Ms. Mayuri
Raghuvanshi, Advs. for the Respondent.
The Order of the Court was passed :
ORDER
1. Leave granted.
2. An FIR bearing No. 04/2017 has been registered against the
appellant-accused Fakhrey Alam under Section 420,467, 468, 471 and
120-B, IPC and 3/25/30 of the Arms Act and under Section 18 of the
UAPA Act, 1967.
3. The appellant was arrested on 08.03.2017 and on 03.06.2017,
learned Court of Chief Judicial Magistrate, Lucknow granted a total of
180 days to the police for filing the charge sheet. The police filed charge
sheet on 04.09.2017 under the aforesaid provisions, except under the
UAPA Act as it was mandatory to obtain prosecution sanction from the
State Government which had not been forthcoming till the date of filing
of the charge sheet. Thus, the charge sheet states as under :
“ That the accused are in Judicial Custody and the remand period
of the accused Fakhrey Alam is completing today. Therefore, the
Charge Sheet under Section 420/467/468/471/120-B IPC and
Section 3/25/30 Arms Act is being filed before this Hon’ble Court
against the accused persons. It is requested to summon the
witnesses and commences the Trial of the Case. A separate Charge
Sheet shall be under Section 18 UA (P) Act shall be filed against
obtaining the prosecution sanction.”
FAKHREY ALAM v. THE STATE OF UTTAR PRADESH
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4. Thereafter, a second charge sheet was filed after obtaining
sanction of the State Government on 05.10.2017. We are concerned
with the order passed by the Chief Judicial Magistrate, Lucknow dated
13.10.2017 on an application filed by the appellant on 03.10.2017 for
default bail under Section 167 (2) of the Code of Criminal Procedure,
1973 (hereinafter referred to as “the Cr.P.C.”) two days prior to the
charge sheet having been filed under the UAPA Act.  The case set up
by the appellant was that the charge sheet had been filed after 180 days
and thus he was entitled to de
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