Courts cannot declare a police investigation complete, holds Supreme Court, undoing default bail
A Division Bench restores a fifteen-day extension for the ATS to file its chargesheet, finds the High Court’s detour into sanction irrelevant, and orders the accused to surrender within 30 days.
Default bail turns on a deadline, and a deadline can be extended if the investigation is genuinely incomplete. Who gets to say whether it is incomplete? On 21 September 2026, the Supreme Court held that the answer is the police, not the court. In State of Maharashtra v. Momin Moiuddin Gulam Hasan @ Moin Mistri, a Division Bench of Justice Prashant Kumar Mishra and Justice Shree Chandrashekhar set aside a Bombay High Court judgment that had granted default bail to two accused in an Unlawful Activities (Prevention) Act case, restored the Special Judge’s order granting the Anti-Terrorism Squad a further fifteen days to file its chargesheet, and directed the first respondent to surrender within thirty days, leaving him free to apply for regular bail.
The case that turned on fifteen days
The prosecution arose from CR No. 19 of 2022, investigated by the Anti-Terrorism Squad, Mumbai, with an offence under Section 13(1)(b) of the Unlawful Activities (Prevention) Act, 1967 among those alleged. The matter was before the Special Judge designated under the MCOCA, POTA, TADA and NIA statutes at Greater Mumbai.
The investigating agency sought more time to file its chargesheet. A first application for extension was made on 13 December 2022 and an extended period was granted. A second application followed, numbered Misc. Application No. 86 of 2023, and by an order dated 18 January 2023 in R.A. No. 946 of 2022 the Special Judge granted a further fifteen days. Two days later, on 20 January 2023, the Special Judge rejected the accused persons’ application for default bail, filed in the same proceeding as Exhibit 44.
The mechanics matter here. Under the first proviso to Section 167(2) of the Code, an accused becomes entitled to be released on bail if the investigation is not completed within the prescribed period. Section 43D of the UAPA modifies that scheme for offences under the Act, allowing the period to be extended on the report of the Public Prosecutor where the investigation could not be completed within time. The right and the extension are therefore in direct competition: if the extension is validly granted, the clock never runs out and no right accrues; if it is not, the right crystallises and, on settled authority, cannot then be taken away by a later rejection.
The accused took both orders to the Bombay High Court in Criminal Appeal No. 214 of 2023. Their primary contention was a narrow one: an extension of time for filing the chargesheet cannot be granted on the ground that the agency needs time to obtain sanction for prosecution. They argued that once they had validly exercised the right under Section 43D of the UAPA read with the first proviso to Section 167(2) of the Code of Criminal Procedure and offered to furnish bail, that right could not be defeated by an erroneous rejection of their application.
How the High Court read it
The High Court formulated two questions: whether the extension of time granted by the trial court for filing the chargesheet was legal and valid; and whether the accused could avail themselves of the indefeasible right of default bail if the order granting the second extension was held invalid. It appointed an amicus curiae to assist it.
The accused relied on a substantial line of authority, including Judgebir Singh v. National Investigation Agency, Hitendra Vishnu Thakur v. State of Maharashtra, Bikramjit Singh v. State of Punjab, State of Maharashtra v. Surendra Pundlik Gadling and Sudha Bharadwaj v. National Investigation Agency. The Public Prosecutor countered with State of NCT of Delhi v. Raj Kumar @ Lovepreet @ Lovely, in which an extension sought on the ground of obtaining sanction and an FSL report had been approved by the Supreme Court. By its judgment dated 15 July 2024, the High Court held the respondents entitled to default bail.
An indefeasible right, and where it comes from
The Supreme Court did not question the strength of the right the accused were asserting. It recorded that the right to default bail is a facet of Article 21 of the Constitution. It quoted Bikramjit Singh, where the Court, speaking through Nariman J., held that once an application for default bail is made on expiry of the stated period before the chargesheet is filed, the right becomes complete, and it is of no moment that the criminal court does not dispose of the application, or disposes of it wrongly, before the chargesheet arrives. The judgment also traced the position through Aslam Babalal Desai, Hitendra Vishnu Thakur and the Constitution Bench in Sanjay Dutt v. State through C.B.I., Bombay, where the indefeasible right was explained as enuring to the accused from the time of default until the filing of the challan.
That framing matters, because it locates the dispute precisely. The question was not whether default bail is a weak statutory concession — it is a fundamental right. The question was whether the deadline had in fact expired, which depended on whether the second extension was validly granted.
The distinction is easy to lose in argument, and the judgment is careful about it. An indefeasible right that has accrued cannot be defeated by a court wrongly rejecting the application; that is the force of Bikramjit Singh. But a right that never accrued, because the period was lawfully extended before it expired, is a different matter altogether. Everything therefore depended on the validity of the order of 18 January 2023, and on the reasons the prosecution had given for needing more time.
The question the Court actually framed
Here the Bench parted company with the High Court on what the case was about. It held that the decisions relied upon, including Judgebir Singh and Suresh Kumar Bhikamchand Jain, did not deal with the question before it. The question that fell for consideration, it said, was whether the High Court can curtail the power of the police to investigate a crime and declare that the investigation in a particular case was complete.
Its answer was unequivocal. “The investigation of a crime is the exclusive domain of the police.” It is “not the jurisdiction of the Court to decide when the investigation” in a case should stop; that must be left to the discretion of the investigating agency, which is entitled to decide the course of investigation and proceed in its own manner. A court cannot curtail the statutory powers vested in the police except in an exceptional case on the facts, or where there is a statutory bar on the police carrying out the investigation.
The Bench anchored this in long-standing authority: the Privy Council in The King Emperor v. Khawaja Nazir Ahmad, that a court cannot interfere with the statutory right of the police to investigate a cognizable crime; and State of Bihar v. J.A.C. Saldanha, which described a clear-cut and demarcated sphere of activity between crime detection and crime punishment. On that view, the duty of the police to investigate ends when a report is submitted asking the court to take cognizance under Section 190 of the Code, subject to further investigation under Section 173(8).
Why a complete chargesheet matters
The Court then explained why an incomplete investigation cannot simply be wrapped up to meet a date. A chargesheet is the final report of investigation under Section 173(2) of the Code, which requires the investigating officer to submit a report in the prescribed form on completion of the investigation. It is the gist of the prosecution’s case: a summary of the materials collected, a narration of the allegations, and an account of how the accused is sought to be roped in on the strength of that material. It is therefore necessary, the Bench said, that the agency submits its report after a full and complete investigation.
On the facts, the prosecution had specifically pleaded in its second application that it required time to analyse scientific data collected during the investigation and to furnish a complete report to the Government. Against that, the Court said it was not possible — indeed imaginary — to think that the ATS investigation was complete in all respects.
Sanction comes at cognizance, not at filing
On one point the accused were on firm ground, and the Court said so. The requirement of producing sanction for prosecution arises at the stage of cognizance, and a chargesheet can be forwarded to the court without a sanction order from the appropriate Government. The Bench recorded that this legal position is very clear and has been reaffirmed in both Judgebir Singh and Suresh Kumar Bhikamchand Jain v. State of Maharashtra.
In Judgebir Singh, the issue was whether a chargesheet filed without sanction is incomplete, so that the accused becomes entitled to bail under the first proviso to Section 167(2) on expiry of the statutory period. The Court held that no right to default bail accrues where the investigation is concluded within the prescribed period and a final report is filed. In Suresh Kumar Bhikamchand Jain, it was held that the investigation ends with the filing of the chargesheet, and whether cognizance is taken or not is immaterial so far as Section 167 is concerned. That judgment put it directly: the grant of sanction is nowhere contemplated under Section 167, which is concerned with completion of investigation within the stipulated period and the accused’s right to be released on the prosecution’s failure to meet it.
Read together, those authorities mean that an agency cannot buy time merely because a sanction order has not yet issued. Had this genuinely been a case of a completed investigation awaiting sanction, the accused would have had a strong claim. The Supreme Court’s point is that it was not that case — and that the High Court decided it as though it were.
What sanction under Section 45 actually requires
Because the High Court had decided the case largely on sanction, the Bench set out what Section 45 of the UAPA does. No court shall take cognizance of an offence under Chapter III without the previous sanction of the Central Government or an officer authorised by it; for offences under Chapters IV and VI, the previous sanction of the Central Government or, as the case may be, the State Government is mandatory; and where the offence is committed against the Government of a foreign country, the previous sanction of the Central Government must be obtained before cognizance. Sub-section (2) requires the appropriate Government to consider the recommendation made by an Authority appointed to make an independent review of the evidence gathered in the course of the investigation.
That last requirement is the hinge, and it is where the Court turned the High Court’s reasoning against itself. The requirement of filing a complete chargesheet, the Bench held, is not a mere formality, because an order granting sanction for prosecution depends entirely on the materials collected in the course of the investigation. The sanctioning authority may refuse sanction if it thinks the materials on record are not sufficient to send the accused to trial. The prosecution has to satisfy that authority by producing the entire relevant facts, and the grant of sanction is not a mechanical exercise — the authority is required to apply its mind to the materials placed before it.
It follows that sanction cannot sensibly be treated as a step that happens after the investigation is notionally over, to be slotted in while the clock runs. If the independent review and the sanctioning authority’s satisfaction both depend on the completeness of the material, then an agency still analysing scientific data has not produced the record on which sanction could be granted at all.
Where the High Court went off-route
The Bench’s criticism of the judgment under appeal was pointed. The High Court, it held, had considered an aspect that was not germane to deciding the legality of the second extension. The entire discussion on sanction for prosecution was, in the Court’s word, off-route: a detour that bypassed the gist of the prosecution’s case for more time, and proceeded as though the investigation were already complete and a chargesheet ready to be filed. Whether an extension can be granted merely to obtain sanction under Section 45 of the UAPA was, on this analysis, not the issue that decided the case. The High Court’s decision to interfere with the order of 18 January 2023 was held to be “palpably wrong” and liable to be set aside.
Order
The Court set aside the High Court’s judgment dated 15 July 2024 in Criminal Appeal No. 214 of 2023 and held the Special Judge’s order dated 18 January 2023 in R.A. No. 946 of 2022, granting the second extension, legal and valid. Consequently, the application dated 20 January 2023 filed by the respondents as Exhibit 44 stands dismissed. The first respondent was directed to surrender within thirty days and may pray for regular bail, if so advised. The criminal appeal was allowed in those terms, and pending applications disposed of.
Two things survive the order. The accused loses the statutory route out of custody, but not every route: the liberty to apply for regular bail on the merits is expressly preserved. And nothing in the judgment decides the truth of the allegations under the UAPA, which remain to be tested at trial.