RAIZ AND OTHERS vs UT OF J AND K TH STATE INVESTIGATION AGENCY, JAMMU
- Court
- Jammu and Kashmir High Court
1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Crl A(D) No.22/2026
Reserved on: 29.09.2026
Pronounced on: 21.10.2026
Uploaded on: 21.10.2026
1. Raiz, Age 24 years
2. Younis, Age 21 years
Both sons of Mohd. Latif
3. Meema, Age 60 years
W/O Mohd. Latif
All residents of village Suffian Bhaddu,
Tehsil & District Kathua.
Presently lodged in District Jail, Jammu,
Through their son-in-law,
Jabbar, Age 38 years,
S/O Farid, R/O Ward No.6,
near GPS Safyan Barnoti,
Tehsil and District Kathua .....Appellant(s)
Through :- Mr. Irfan Khan, Advocate
v/s
Union Territory of J&K through
State Investigating Agency, Jammu.
.....Respondent(s)
Through :- Ms. Priyanka Bhat, Assisting counsel to
Mrs. Monika Kohli, Sr. AAG.
CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON’BLE MR. JUSTICE YASH PAUL BOURNEY, JUDGE
JUDGMENT
Per: Y. P. Bourney-J
01. This appeal, filed under Section 21 of the National Investigation Agency
Act, 2008, is directed against the order dated 28.02.2026 passed by the
rd
learned 3 Additional Sessions Judge, Jammu [Designated Court under
Section 22 NIA Act), whereby the trial court declined to grant default bail
to the appellants in case FIR No.61/2025 registered for offences
punishable under Sections 13/16/18/23/38/39 of the Unlawful Activities
(Prevention) Act, 1967 (UAPA), read with Sections
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61(2)/103/109/147/149/249 BNS and 3/4/5 Explosive Substances Act &
7/27 Arms Act.
02. The precise question for determination is whether right to claim bail in
default of presentation of charge-sheet within the time limit as prescribed
under Section 43-D(2)(a) of the UAPA read with Section 187 of BNSS
has accrued to the appellants/accused?
03. It is admitted case of the appellants that pursuant to the registration of FIR
No. 61/2025 dated 28.03.2025 for offences punishable under Sections
13/16/18/23/38/39 of the Unlawful Activities (Prevention) Act, 1967
(UAPA), read with Sections 61(2)/103/109/147/149/249 BNS and 3/4/5
Explosive Substances Act & 7/27 Arms Act, appellants came to be
arrested on 28.04.2025 and the charge-sheet has also been filed in due
course on 25.10.2025. A claim was laid for default bail by the appellants
before the trial court on the premise that investigation was not complete
and as a matter of fact, an incomplete charge-sheet came to be presented
before the Court just to deprive the appellants of their indefeasible right to
defend its bail. Much stress has been laid on para 18.3 of the charge-sheet
wherein the investigation with respect to certain aspects as detailed
therein was still claimed to be going on and efforts to establish the links of
appellants with the terrorists killed/absconding were still going on,
claiming thereby that investigation was yet to establish any link between
the slain/absconding terrorists and therefore, it was an incomplete charge
sheet since a vital aspect was yet to be investigated. Reliance is placed
upon the ruling of the Hon’ble Supreme Court in ‘ Ritu Chhabaria Vs.
Union of India & Ors.’ reported as 2023 LiveLaw (SC) 352 .
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04. A perusal of the order impugned would show that all these points have
been urged before the Trial Court, which ultimately came to dismiss the
application vide order dated 28.02.2026 by holding that mere reference in
para 18.3 that investigation was going on to establish the links of the
arrested accused persons (appellants) with the slain/absconding terrorists
as well as to find out their involvement in the past in terror related
incident in Kathua does not mean that charge-sheet was incomplete since
in para 18.4, it has been clearly mentioned that offences under Sections
13/19 UAPA stood established against the trio (appellants). In that view
the charge-sheet cannot be said to be incomplete merely because some
supplementary charge-sheet was anticipated in near future to highlight the
links of the arrested accused with the terrorist agencies operating from
across the border. An attempt was also made to make out a case for bail
on merits, however, the trial court found no merit therein and has
proceeded to dismiss the application.
05. Learned counsel for the appellants has laid much stress upon the ruling of
the Hon’ble Supreme Court in Ritu Chhabaria ’s case (supra). In that
case, Hon’ble Apex Court has dealt elaborately with the fundamental right
to life and liberty flowing directly from Article 21 of the Constitution of
India and that any violation thereof, and the rights flowing therefrom, in
case the investigation was not completed within the statutory period as
provided under Section 167(2) Cr.P.C. or other special legislation. The
Hon’ble Apex Court while referring to the precedents, the reports of the
Law Commission came to hold in the ultimate analysis in para 32 that:
“32. In view of the above mentioned discussions, the issues
framed by us stand answered as under:-
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I. Without completing the investigation of a case, a charge-sheet
or prosecution complaint cannot be filed by an investigating
agency only to deprive an arrested accused of his right to default
bail under Section 167(2) of the CrPC.
II. Such a charge-sheet, if filed by an investigating authority
without first completing the investigation, would not extinguish
the right to default bail under Section 167(2) CrPC.
III. The trial court, in such cases, cannot continue to remand an
arrested person beyond the maximum stipulated time without
offering the arrested person default bail.”
06. It was further held emphatically in para 34 of the said judgment that:-
“34. Even at the cost of repetition, we find it pertinent to
mention that the right of default bail under Section 167(2) of the
CrPC is not merely a statutory right, but a fundamental right that
flows from Article 21 of the Constitution of India. The reason for
such importance being given to a seemingly insignificant
procedural formality is to ensure that no accused person is
subject to unfettered and arbitrary power of the state. The process
of remand and custody, in their practical manifestations, create a
huge disparity of power between the investigating authority and
the accused. While there is no doubt in our minds that arrest and
remand are extremely crucial for the smooth functioning of the
investigation authority for the purpose of attaining justice,
however, it is also extremely important to be cognizant of a
power imbalance. Therefore, it becomes essential to place certain
checks and balances upon the Investigation Agency in order to
prevent the harassment of accused persons at their hands.”
07. Shortly after the passing of the aforenoted judgment, the Hon’ble
Supreme Court in SLP(Crl) No. 5724/2023 titled Directorate of
Enforcement Vs. Manpreet Singh Talwar , came to clarify on the
submission of the learned Solicitor General that they were contemplating
and were in the process of filing a review against the said judgment. It
was made clear that trial court or, as the case may be, High Court are not
precluded from considering an application for grant of default bail under
Section 167(2) Cr.P.C. independent of and without relying upon the said
judgment in Ritu Chhabaria ’s case.
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08. In light of the afore noted position of law and upon careful consideration
of the charge-sheet, the material is support and the statements of the
witnesses recorded under Sections 161, 164 CrPC as well as the order
impugned, we find no reason to differ with the findings of trial court that
the investigation was complete vis-à-vis involvement of the accused in the
commission of offences as made out against the appellants in light of the
materials on record including the oral accounts/electronic/forensic
documents and the CDRS etc. collected by the investigating agency. Mere
mentioning that investigating agency was still investigating and trying to
establish the links between the appellants and the slain/absconding
terrorists does not make out a case to project that investigation was
incomplete as argued by the learned counsel for the appellants. Moreover,
the appellants are not entitled to bail on merits also as has been clearly
held by the trial court and we do not find any justification to differ with
the trial court in light of the materials available on record against the
accused persons.
09. For the reasons given hereinabove, this appeal fails and the file be
consigned to records. Let a copy of this order be forwarded to the trial
court for information and proceeding with the trial expeditiously.
( Yash Paul Bourney ) ( Sanjeev Kumar )
Judge Judge
JAMMU
21.10.2026
Narinder
Whether order is speaking? Yes/No
Whether order is reportable? Yes/No
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