A Judicial Magistrate First Class, in Hubli, recently granted default bail to three Kashmiri students who were arrested in a sedition case over allegedly posting pro-pakistan videos on social media.
The accused Basit Aashiq Sofi, (22), Talib Majeed, (20) and Amir Mohi Uddin Wani, (20), have walked out of prison after being behind bars for over 100 days.
The magistrate court has released the accused on a personal bond of Rs 1 lakh and two sureties of like amount. Further it has imposed the following conditions.
1: The accused shall not intimidate, attempt to influence the witnesses nor shall they tamper with the evidence in any manner.
2. The accused shall not commit similar offenses.
3. The Accused shall submit their address proof documents and cell numbers.
4. The accused shall appear before the court regularly without fail. The accused shall not travel beyond the limits of Hubli City without permission of the court.
The three accused were initially arrested by the police on February 16, and released on execution of a bond under section 169 of the Criminal Procedure Code. A day later they were re-arrested and since February 17, and have been in judicial custody since then. The Principal of the engineering college in which the accused studied has filed the complaint against them. They are charged under section 124-A, 153[A], 153-B, 505(2) r/w Sec.34 of IPC
The prosecution opposed the bail application filed under section 167 (2) of CrPC, on the grounds that the accused have committed the offense of sedition by making slogans in favour of Pakistan, which is a rival nation of India despite getting student scholarship from Central Govt of India. If the accused are released on bail, they may flee from the jurisdiction of this court and may indulge in committing similar types of offenses.
Advocate Maitreyi Krishnan appearing for the accused argued that since the I.O failed to submit final report before 90 days from the day of arrest i.e 17.02.2020, which would end on 16.05.2020, the accused are entitled for default bail as per Sec.167(2) of Cr.P.C.
The court said "Admittedly, the accused are remanded on 17.02.2020 and 90 days would end on 16.05.2020. The accused filed a bail application on 01.06.2020. I.O filed charge sheet on 04.06.2020. So, it is clear that, as on 01.06.2020, on the date of filing bail application U/Sec. 167(2) of Cr.P.C by the accused, the I.O had not filed a charge sheet. As per decisions of Hon'ble High Court and Apex Court, the indefeasible right accrued to the accused U/Sec.167(2) of Cr.P.C will start soon after completing the statutory period of 90 days till filing charge sheet by the I.O. In that intermediate time, the accused is having an indefeasible right of availing default/statutory bail."
Rejecting the objection regarding pendency of bail application before the High Court, the court said "Regular bail applications are being dealt with on merits of the case, whereas, default/statutory bail U/Sec.167 of Cr.P.C being sought on the technical point of not filing charge sheet/challan within statutory period. For consideration of application U/Sec.167(2) of Cr.P.C, this court is not supposed to look into the merits of the case. The point to be considered is, whether the I.O filed charge sheet within the statutory period or not. Wherefore, the defence of pendency of regular bail application before the Hon'ble High Court of Karnataka for consideration needs no consideration for the consideration of present application."
On the aspect of the prosecution relying on the Notification U/Sec.4 of Limitation Act by High Court of Karnataka and Apex Court as well in view of COVID-19, which is still in force. The magistrate said "The plain reading of above provision makes it very clear that the provision is referring only to civil proceedings and not the criminal proceedings."
The court also noted that the chargesheet filed by the IO was incomplete. It said "The charge sheet so submitted is incomplete and seems that the I O filed charge sheet only to defeat the statutory right of the accused provided U/Sec.167(2) of Cr.P.C."
The court concluded by saying "This court is of the opinion that the accused have a clear case that they exercised their statutory right after completing the statutory period of 90 days and before submitting a charge sheet by the accused. Accordingly, the accused are entitled for statutory bail as sought."
Earlier, the Hubli Bar Association has passed a resolution stating that none of its members would represent the accused persons. This was later withdrawn following sharp criticism from the High Court of Karnataka.
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