Isabella Mariam

The High Court of Punjab and Haryana Division Bench of Justice Gurvinder Singh Gill and Justice Ramesh Kumari condoned a 1415-day delay in filing a statutory appeal and granted default bail to an accused booked in an alleged terrorism case under the Unlawful Activities (Prevention) Act, 1967, directing his release on furnishing bail and surety bonds. The prosecution alleges that during a religious congregation attended by about 200 devotees in Amritsar, two persons arrived on a motorcycle and hurled a hand grenade, injuring 22 people, three of whom later died, with the accused alleged to be one of the assailants. The Bench extended the same default-bail relief earlier granted by the Supreme Court to a co-accused, citing parity and the appellant’s nearly seven-year incarceration amid slow trial progress.

The accused was arrested shortly thereafter and remained in judicial custody for nearly seven years. The FIR invoked provisions of the Indian Penal Code, the Arms Act, the Explosive Act, and the Unlawful Activities (Prevention) Act.

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During investigation, the prosecution sought extension of time for filing the challan from ninety to one hundred eighty days, which was initially granted by the Sub-Divisional Judicial Magistrate. Upon expiry of the original statutory period, the accused jointly applied for default bail, which was rejected on the ground of the granted extension. Subsequent revision petitions challenging the extension order and rejection of default bail were dismissed, though one revision succeeded in holding that the Magistrate lacked jurisdiction to grant such extension.

The challan was thereafter filed, and further applications seeking default bail were rejected on the premise that the right stood extinguished. A co-accused pursued remedies before the High Court and the Supreme Court, eventually securing default bail. The present appellant approached the High Court after a delay of 1415 days, seeking condonation of delay and parity-based relief of default bail.

The Division Bench examined the statutory scheme governing appeals and limitation under the National Investigation Agency Act and the concept of default bail under criminal procedure. The Court observed that “the limitation prescribed for assailing any order passed by the Special Court is thirty days, though the High Court may condone delay up to ninety days”, but noted that exceptional circumstances could warrant consideration.

On the nature of default bail, the Court recorded that “unlike regular bail, default bail is a one-time opportunity available to the accused” and that denial on technical grounds could result in irreversible prejudice. Referring to the earlier proceedings, the Bench observed that “the joint application seeking default bail was dismissed by a common order, and identically situated co-accused was later granted default bail by the Hon’ble Supreme Court”.

The Court took note of prolonged incarceration and trial delay, stating that “the applicant has been in custody for about seven years and only sixty out of one hundred twenty-eight prosecution witnesses have been examined”. On the issue of delay, the Bench accepted the explanation offered, observing that “every person may not be in a position to approach the Hon’ble Supreme Court, and it was only after the co-accused was granted relief that the applicant could mobilize resources”.

Addressing the objection that the appeal amounted to a second revision, the Court stated that “the scheme of the NIA Act provides for an appeal against orders of the Special Court, and the impugned order having been passed by such Court, the appeal is maintainable”. On parity, the Court recorded that “the applicant stands on absolute parity with the co-accused who was granted default bail by the Hon’ble Supreme Court”.

The Bench further observed that “the right to default bail flows from Article 21 of the Constitution and is not a mere statutory privilege”, and held that the subsequent filing of the challan could not defeat an accrued indefeasible right where the application for default bail had already been made within time.

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The Court directed that “the delay of 1415 days in filing the appeal is hereby condoned”. The impugned order dated 11.04.2019 is set aside” and that “the appellant is ordered to be released on bail in terms of Section 167(2) Cr.P.C. (now Section 187 BNSS). The trial court shall insist upon an undertaking from the appellant that he shall cooperate with the proceedings and shall have no objection to recording of evidence in his absence. In case of absence of counsel, the trial court shall be at liberty to appoint legal aid counsel”.

Advocates Representing the Parties

For the Appellant: Mr. Vipul Jindal, Advocate

For the Respondent-State: Mr. Sidharth Attri, Additional Advocate General, Punjab, assisted by ASI Ghanshyam Sundar

For the Complainant: Mr. R.K. Kapoor, Advocate; Mr. Shobit Phutela, Advocate

Case Title: Avtar Singh v. State of Punjab
Neutral Citation: 2025: PHHC:176047-DB
Case Number: CRA-D-260-2022 (O&M)
Bench: Justice Gurvinder Singh Gill, Justice Ramesh Kumari