Saturday, 24 April 2021

Whether Special court can grant extension of time for filing of chargesheet on the application of Investigating officer?

 In Saquib Abdul Hamid (supra), the Hon’ble Apex Court

dealt with the extension of the period of investigation and the

entitlement of an accused to default bail. The MCOC Act was at issue in this case.

23. We may at this stage, also on a plain reading of clause

(bb) of subsection (4) of Section 20, point out that the

Legislature has provided for seeking extension of time for

completion of investigation on a report of the public prosecutor.

The Legislature did not purposely leave it to an investigating

officer to make an application for seeking extension of time from

the court. This provision is in tune with the legislative intent to

have the investigations completed expeditiously and not to allow

an accused to be kept in continued detention during unnecessary

prolonged investigation at the whims of the police. The

Legislature expects that the investigation must be completed

with utmost promptitude but where it becomes necessary to seek

some more time for completion of the investigation, the

investigating agency must submit itself to the scrutiny of the

public prosecutor in the first instance and satisfy him about the

progress of the investigation and furnish reasons for seeking

further custody of an accused. A public prosecutor is an

important officer of the State Government and is appointed by

the State under the Code of Criminal Procedure. He is not a part

of the investigating agency. He is an independent statutory

authority. The public prosecutor is expected to independently

apply his mind to the request of the investigating agency before

submitting a report to the court for extension of time with a view

to enable the investigating agency to complete the investigation.

He is not merely a post office or a forwarding agency. A public

prosecutor may or may not agree with the reasons given by the

investigating officer for seeking extension of time and may find

that the investigation had not progressed in the proper manner

or that there has been unnecessary, deliberate or avoidable delay

in completing the investigation. In that event, he may not submit

any report to the court under clause (bb) to seek extension of

time. Thus, for seeking extension of time under clause (bb), the

public prosecutor after an independent application of his mind to

the request of the investigating agency is required to make a

report to the Designated Court indicating therein the progress of

the investigation and disclosing justification for keeping the

accused in further custody to enable the investigating agency to

complete the investigation. The public prosecutor may attach the

request of the investigating officer along with his request or

application and report, but his report, as envisaged under clause

(bb), must disclose on the face of it that he has applied his mind

and was satisfied with the progress of the investigation and

considered grant of further time to complete the investigation

necessary. The use of the expression "on the report of the public

prosecutor indicating the progress of the investigation and the

specific reasons for the detention of the accused beyond the said

period" as occurring in clause (bb) in Ss. (2) of Section 167 as

amended by Section 20(4) are important and indicative of the

legislative intent not to keep an accused in custody unreasonably

and to grant extension only on the report of the public

prosecutor. The report of the public prosecutor, therefore, is not

merely a formality but a very vital report, because the

consequence of its acceptance affects the liberty of an accused

and it must, therefore, strictly comply with the requirements as

contained in clause (bb). The request of an investigating officer

for extension of time is no substitute for the report of the public

prosecutor. Where either no report as is envisaged by clause (bb)

is filed or the report filed by the public prosecutor is not accepted  by the Designated Court, since the grant of extension of time under clause (bb) is neither a formality nor automatic, the necessary corollary would be that an accused would be entitled to seek bail and the court shall release him on bail if he furnishes bail as required by the Designated Court. It is not merely the question of form in which the request for extension under clause (bb) is made but one of substance. The contents of the report to be submitted by the public prosecutor, after proper application of his mind, are designed to assist the Designated Court to independently decide whether or not extension should be granted in a given case. Keeping in view the consequences of the grant of extension i.e. keeping an accused in further custody, the Designated Court must be satisfied for the justification, from the report of the public prosecutor, to grant extension of time to

complete the investigation. Where the Designated Court declines

to grant such an extension, the right to be released on bail on

account of the default of the prosecution becomes indefeasible

and cannot be defeated by reasons other than those

contemplated by Ss. (4) of Section 20 as discussed in the earlier

part of this judgment. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD.

CRIMINAL APPEAL NO. 502 OF 2020

Shaikh Moin Shaikh Mehmood,  Vs  State of Maharashtra,


CORAM : RAVINDRA V. GHUGE AND B. U. DEBADWAR, JJ.

DATED : 24TH SEPTEMBER, 2020

ORAL ORDER [ PER Ravindra V. Ghuge, J. ] 

1. By this appeal, the appellant-Original Accused No. 3 has

set out prayer clauses (B), (C) and (D) as under :-

“(B) The Appellant may kindly be enlarged on bail in

connection with the Crime No.92/2020 lodged at

Ramtirth Police Station, Tq. Biloli, Dist. Nanded

for the offence punishable U/sec. 394, 397 of

I.P.C. and section 3/25 of Arms Act and

U/sec.3(1)(ii) of the MCOC Act.


(C) By and order of this Hon’ble Court, kindly

quashed and set aside the Order dated

02.09.2020 (Exhibit-F) passed by the learned

Special Court, Biloli thereby granting extension

of time in view of provisions of Section 21(b) of

MCOC Act r/w Section 167(2) of Cr.P.C.

(D) By and order of this Hon’ble Court, kindly

quashed and set aside the order dated

10.09.2020 (Exhibit-G) passed by the learned

Special Court, Biloli in connection with Crime

No.92/2020 lodged at Ramtirth Police Station

Tq. Biloli, Dist. Nanded for the offence

punishable U/sec. 394, 397 of IPC and Section

3/25 of Arms Act and U/sec.3(1)(ii) of the

MCOC Act and consequently the application may

kindly be allowed and the appellant be enlarged

on bail by putting appropriate conditions and for

that purpose necessary orders be passed.”

2. We have heard the strenuous submissions of the learned

Advocate on behalf of the appellant and the learned APP on behalf of

the State, who has vehemently contended that this appeal deserves to

be rejected. With the assistance of the learned Advocate, we have

gone through the appeal paper book.

3. The learned Advocate for the appellant has placed

reliance upon following judgments :-

i) Mustaq Ahmed Mohammed Isak and Ors. v. State of Maharashtra

[AIR 2009 Supreme Court 2772]

ii) State of Maharashtra Vs. Rahul Ramchandra Taru

[2011 All.M.R.(Cri) 2100]

iii) Union of India through C.B.I. v. Nirala Yadav alias Raja Ram

Yadav @ Deepak Yadav [AIR 2014 SC 3036]

iv) Prasad Shrikant Purohit Vs. State of Maharashtra & Anr.

[(2015) 7 SCC 440]

v) Saquib Abdul Hamid Nachan Vs. State of Maharashtra

[AIR 2017 SC (Supp) 40]

vi) Sachin Ramdeo Rathod and Others Vs. State of Maharashtra

[2019 ALL.M.R.(Cri) 801]

vii) State of Mahrashtra and Ors. Vs. Lalit Somdatta Nagpal & Anr.

[(2007) 4 SCC 171]

viii) Rakesh Kumar Paul Vs. State of Assam

[AIR 2017 SC 3948]

4. It is undisputed that the appellant is original accused

No.3 in FIR bearing Crime No. 0092 of 2020 dated 02-06-2020

lodged at the Ramtirth Police Station, Biloli, Dist. Nanded for the

offences punishable under Sections 394 and 397 of the Indian Penal

Code and Section 3/25 of the Arms Act, 1959. He was arrested on

02-06-2020. The Special Inspector General of Police, Nanded Range

granted approval for applying the provisions of Maharashtra Control

of Organized Crimes Act, 1999, (hereinafter referred to as “MCOC

Act”). On 30-07-2020 the provisions under Section (3)(1)(ii) of the

MCOC Act were added in the FIR.


5. On 31-08-2020, the 90 days period for filing of the

charge-sheet, in view of the arrest of the appellant on 02-06-2020,

expired. On 02-09-2020, the Investigating Officer made an

application under Section 21(2)(b) of the MCOC Act to the Special

Court seeking extension of time for tendering the charge-sheet. The

learned Court perused the application of the prosecutor, report of the

Investigating Officer and say of accused No.4 and heard the parties at

length. The appellant herein contends that he (Accused No.3) was

not served with notice and was not heard.

6. In the above backdrop, the trial Court has allowed the

application dated 02.09.2020 and has extended the time for filing the

charge-sheet against accused nos. 3 & 4, till 30.09.2020 (extension of

30 days). The appellant moved an application on 10.09.2020 praying

for default bail in view of Section 167(2) of the Cr.P.C. By the

impugned order dated 10.09.2020, the said application has been

rejected by the Special Court. It was concluded that the advocate

representing accused no. 4, was also representing accused no. 3 and

had entered a Vakalatnama on behalf of both. He had submitted a

common reply on 02.09.2020 and, therefore, a separate notice was

not issued to the present appellant-accused no. 3 as the same

advocate represented and conducted the matter on behalf of both the

accused. So also, the order of extension of time dated 02.09.2020

was not challenged by the present appellant before this Court.

7. The learned advocate for the appellant has raised the

issue as regards submission of a report by the Public Prosecutor and

that no such report was tendered in compliance of Section 21(2)(b).

He, therefore, submits in the light of the judgment delivered by the

Hon’ble Apex Court in the matter of Nirala Yadav (supra), Saquib

Abdul Hamid (supra), Aslam Babalal Desai Vs. State of Maharashtra,

AIR 1993 SC 1 & Rajnikant Jivanlal and another Versus Intelligence

Officer, Narcotic Control Bureau, New Delhi (1989) 3 SCC 532, to

buttress his contention that unless the public prosecutor submits a

report, the Special Court is not to consider the request for extension

of time. He further submits that, the moment the period of 90 days

for filing a charge-sheet expires, an indefeasible right is created in

favour of the arrested accused and his detention in Jail has to end

instantaneously in the light of Section 167(2) of the Cr.P.C.

8. Shri. Gangakhedkar, learned advocate for the appellant,

tenders an apology with regard to the contention in the appeal memo

that this appellant was not served with notice by the Special Court

when the application u/s 21(2)(b) of the MCOC Act was filed and

heard and that it is now revealed, in the light of the submissions of

the learned APP based on the impugned order of the Special Court

dated 10.09.2020, that Advocate Shri Kulkarni had appeared on

behalf of the appellant as well along with accused no. 4. He regrets

that the said ground has been taken in the appeal on the basis of the

briefing received by him.

9. The learned APP has strenuously opposed the appeal

contending that a hyper technical approach cannot be taken in such

matters, especially when the appellant has a history of commission of

offences of serious nature. His chequered criminal record is available

and the report submitted by the SDPO, Sub-Division, Dharmabad

dated 18.08.2020 and 02.09.2020, reflects the same.

10. He strenuously contends that the learned Prosecutor

tendered an application on 02.09.2020 and annexed the reports of

the SDPO. He has further set out in the application the grounds for

seeking extension of time. Investigation in respect of the pistol and

the place from where the appellant procured it was to be carried out.

The angle of other persons being involved in the crime at issue was

also to be investigated. It is only after such investigation that the

charge-sheet could be filed and this would require an extension of 30

days.

11. In response to the judgments cited, the learned APP

submits that such case law has to be applied to cases based on the

facts and circumstances of each case. Merely because a detailed

report has not been filed by the Public Prosecutor, would not be a

ground for refusing extension of time when a detailed report has been

filed by the SDPO. If bail is granted to such accused, his endeavour

would be to destroy evidence. The history of offences committed by

the present appellant indicates that he has no respect for law and he

does not hesitate in taking the law in his own hands.

12. In the light of the submissions of the learned Advocate,

we have perused the report of the SDPO dated 02.09.2020 insofar as

the progress of the investigation and the reasons for seeking extension

of time for submitting the charge-sheet. However, we find that the

Public Prosecutor has tendered a single page application in which it is

stated as under: -

“Respected Sir,

The prosecution humbly submits as under: -

1. That, in above matter I.O. to investigation in

respect of pistol and place from where accused got that pistol.

Still he has to investigate in respect of involvement of other

persons in crime and these contentions with other persons. The

I.O. has to investigate in respect of property of accused persons.

2. That, the I.O. requires more time to investigate in

respect of above fact and to file charge-sheet in this Hon’ble

Court. So one month time is required for filing charge-sheet in

above matter.

3. That, offence is serious one and accused are

habitual one therefore, detail investigation is required in the

present matter.”

Prayer

That, one month permission kindly be granted

against accused i.e. 3. Shaikh Moin & 4. Shaikh Avej in the

matter, till there MCR of accused no. 3 & 4 may kindly be

extended and oblige.

Date : - 02/09/2020 The State

Through Through P.S. Ramtirth

Sd/-”

13. In the light of the rival submissions, we have to first

assess as to whether the above reproduced application of the

prosecutor could be termed as being his report. In Nirala Yadav

(supra), on the expiry of 90 days, the prosecution neither filed a

charge-sheet on or before the 90th day, nor did it file an application

for extension of time. Subsequently, an application was filed after the

expiry of 90 days and the accused was called upon to file a rejoinder

affidavit. The Hon’ble Apex Court concluded that the moment the 90

days have expired, a right is created in favour of the accused and a

court cannot act to extinguish such right which the law so confers

upon him. The law has to prevail and the prosecution cannot avail of

such subterfuges to frustrate or destroy the legal right of the accused.


14. In Saquib Abdul Hamid (supra), the Hon’ble Apex Court

dealt with the extension of the period of investigation and the

entitlement of an accused to default bail. The MCOC Act was at issue in this case and the Hon’ble Apex Court observed in paragraph nos. 6 to 10 as under:

6. We have gone through the orders that are passed by the

High Court as well as the Special Judge, MCOCA. The High

Court has stated the grounds which were taken by the public

prosecutor in the application for extention of time and on that

basis came to the conclusion that the order of the Special Judge

did not adequately deal with those grounds and, therefore,

suffered with non-application of mind. The relevant portion of

the order of the high Court is reproduced below:

“It therefore appears that the Special Court has not considered

the grounds for extension of time in its proper perspective as the

order does not reflect any observation that the grounds set out

by the Public Prosecutor are not justified. It is not even reflected

that the Special Court was satisfied with the manner of

investigation or not. There is nothing to indicate that the Special

Court has considered each and every ground set out by the

Public Prosecutor for seeking extension of time. There is no

finding recorded to show that further investigation is not a

necessary pre-requisite for filing of the charge-sheet.”

7. Learned counsel for the appellant has argued that the

High Court has simply found error in the approach of the Special

Judge with the observations that the grounds stated by the

Public Prosecutor in his application have not been considered

satisfactorily. However, the High Court has not itself gone into

the question as to whether the conditions contained in the

proviso to Section 21(2)(b) were satisfied or not. It is further

argued that while quashing the order of the Special Judge and

allowing the appeal, the High Court has not given any directions

extending the time or allowing the application of the Public

Prosecutor for extention of time. On the basis of the aforesaid

arguments, it is pleaded that since there is no specific extention

and on the expiry of 90 days from the date of arrest since

investigation could not be completed, the appellant got

indefeasible right to get bail under Section 167(2) of the Cr.P.C.

8. Learned counsel for the respondent-State, on the other

hand, submitted that in the detailed order passed by the High

Court, the High Court had even set out the grounds which were

raised by the Public Prosecutor in his application seeking

extention of time and once the order is read in its entirety it

would clearly reveal that the High Court was satisfied with those

grounds warranting extension of time. It is further submitted

that since the order of the Special Judge is set aside by the High

Court, necessary consequence thereof would be that the

application for extension submitted by the Public Prosecutor

stands allowed thereby extending the time for completing the

investigation by another 90 days.

9. Though the order of the High Court does not categorically

record that it is satisfied with the grounds on which the

extension was sought, we ourselves went into each such ground

raised by the Public Prosecutor in his application. After perusing

the same, we are of the view that none of the grounds

mentioned in the application warrant for an extension for

further period of 90 days to complete the investigation.

10. No doubt, in the meantime, chargesheet has been filed.

We are informed that application for discharge submitted by the

appellant has also been dismissed and the trial has commenced.

However, in the instant case, we are only concerned with the

right of the appellant to get statutory bail under Section 167(2)

of the Cr.P.C. read with Section 21(2) of MCOCA. Once we find

that the order of the Special Judge in rejecting the application

for extension of time was proper and there was no reason to set

aside the same, the appellant herein shall be entitled to

consideration of his application filed under Section 167(2) of

the Cr.P.C. which was filed on 02.11.2012. We, thus, set aside

the order of the High Court and direct the Special Judge to

dispose of such application filed by the appellant on its own

merits.

15. In Aslam Babalal Desai (supra), Hon’ble Justice Ahmedi,

speaking for the majority, referred with approval to the law laid down

in Rajnikant Jivanlal (supra) wherein it was observed as under:

"The right to bail under Section 167(2) proviso (a) thereto is

absolute. It is a legislative command and not court's discretion. If

the investigating agency fails to file chargesheet before the

expiry of 90/60 days, as the case may be, the accused in custody

should be released on bail. But at that stage, merits of the case

are not to be examined. Not at all. In fact, the Magistrate has no

power to remand a person beyond the stipulated period of 90/60

days. He must pass an order of bail and communicate the same

to the accused to furnish the requisite bail bonds.”

21...…

22...…

23. WE may at this stage, also on a plain reading of clause

(bb) of subsection (4) of Section 20, point out that the

Legislature has provided for seeking extension of time for

completion of investigation on a report of the public prosecutor.

The Legislature did not purposely leave it to an investigating

officer to make an application for seeking extension of time from

the court. This provision is in tune with the legislative intent to

have the investigations completed expeditiously and not to allow

an accused to be kept in continued detention during unnecessary

prolonged investigation at the whims of the police. The

Legislature expects that the investigation must be completed

with utmost promptitude but where it becomes necessary to seek

some more time for completion of the investigation, the

investigating agency must submit itself to the scrutiny of the

public prosecutor in the first instance and satisfy him about the

progress of the investigation and furnish reasons for seeking

further custody of an accused. A public prosecutor is an

important officer of the State Government and is appointed by

the State under the Code of Criminal Procedure. He is not a part

of the investigating agency. He is an independent statutory

authority. The public prosecutor is expected to independently

apply his mind to the request of the investigating agency before

submitting a report to the court for extension of time with a view

to enable the investigating agency to complete the investigation.

He is not merely a post office or a forwarding agency. A public

prosecutor may or may not agree with the reasons given by the

investigating officer for seeking extension of time and may find

that the investigation had not progressed in the proper manner

or that there has been unnecessary, deliberate or avoidable delay

in completing the investigation. In that event, he may not submit

any report to the court under clause (bb) to seek extension of

time. Thus, for seeking extension of time under clause (bb), the

public prosecutor after an independent application of his mind to

the request of the investigating agency is required to make a

report to the Designated Court indicating therein the progress of

the investigation and disclosing justification for keeping the

accused in further custody to enable the investigating agency to

complete the investigation. The public prosecutor may attach the

request of the investigating officer along with his request or

application and report, but his report, as envisaged under clause

(bb), must disclose on the face of it that he has applied his mind

and was satisfied with the progress of the investigation and

considered grant of further time to complete the investigation

necessary. The use of the expression "on the report of the public

prosecutor indicating the progress of the investigation and the

specific reasons for the detention of the accused beyond the said

period" as occurring in clause (bb) in Ss. (2) of Section 167 as

amended by Section 20(4) are important and indicative of the

legislative intent not to keep an accused in custody unreasonably

and to grant extension only on the report of the public

prosecutor. The report of the public prosecutor, therefore, is not

merely a formality but a very vital report, because the

consequence of its acceptance affects the liberty of an accused

and it must, therefore, strictly comply with the requirements as

contained in clause (bb). The request of an investigating officer

for extension of time is no substitute for the report of the public

prosecutor. Where either no report as is envisaged by clause (bb)

is filed or the report filed by the public prosecutor is not accepted

by the Designated Court, since the grant of extension of time

under clause (bb) is neither a formality nor automatic, the

necessary corollary would be that an accused would be entitled

to seek bail and the court shall release him on bail if he furnishes

bail as required by the Designated Court. It is not merely the

question of form in which the request for extension under clause

(bb) is made but one of substance. The contents of the report to

be submitted by the public prosecutor, after proper application of

his mind, are designed to assist the Designated Court to

independently decide whether or not extension should be

granted in a given case. Keeping in view the consequences of the

grant of extension i.e. keeping an accused in further custody, the

Designated Court must be satisfied for the justification, from the

report of the public prosecutor, to grant extension of time to

complete the investigation. Where the Designated Court declines

to grant such an extension, the right to be released on bail on

account of the default of the prosecution becomes indefeasible

and cannot be defeated by reasons other than those

contemplated by Ss. (4) of Section 20 as discussed in the earlier

part of this judgment. We are unable to agree with Mr. Madhava

Reddy or the Additional Solicitor General Mr. Tulsi that even if

the public prosecutor presents the request of the investigating

officer to the court or forwards the request of the investigating

officer to the court, it should be construed to be the report of the

public prosecutor. There is no scope for such a construction

when we are dealing with the liberty of a citizen. The courts are

expected to zealously safeguard his liberty. Clause (bb) has to

be read and interpreted on its plain language without addition or

substitution of any expression in it. We have already dealt with

the importance of the report of the public prosecutor and

emphasised that he is neither a post office of the investigating

agency nor its forwarding agency but is charged with a statutory

duty. He must apply his mind to the facts and circumstances of

the case and his report must disclose on the face of it that he had

applied his mind to the twin conditions contained in clause (bb)

of Ss. (4) of Section 20. Since the law requires him to submit the

report as envisaged by the section, he must act in the manner as

provided by the section and in no other manner. A Designated

Court which overlooks and ignores the requirements of a valid

report fails in the performance of one of its essential duties and

renders its order under clause (bb) vulnerable. Whether the

public prosecutor labels his report as a report or as an

application for extension, would not be of much consequence so

long as it demonstrates on the face of it that he has applied his

mind and is satisfied with the progress of the investigation and

the genuineness of the reasons for grant of extension to keep an

accused in further custody as envisaged by clause (bb) (supra).

Even the mere reproduction of the application or request of the

investigating officer by the public prosecutor in his report,

without demonstratroi of the application of his mind and

recording his own satisfaction, would not render his report as the

one envisaged by clause (bb) and it would not be a proper report

to seek extension of time. In the absence of an appropriate report

the Designated Court would have no jurisdiction to deny to an

accused his indefeasible right to be released on bail on account

of the default of the prosecution to file the challan within the

prescribed time if an accused seeks and is prepared to furnish the

bail bonds as directed by the court. Moreover, no extension can

be granted to keep an accused in custody beyond the prescribed

period except to enable the investigation to be completed and as

already stated before any extension is granted under clause (bb),

the accused must be put on notice and permitted to have his say

so as to be able to object to the grant of extension.”

16. It is thus obvious that the Hon’ble Apex Court has defined

the role of the Public Prosecutor and has considered it to be a one of

applying mind independently to the request of the Investigation

Agency, before submitting his report to the Special Court approving

the request for extension of time. He is not a mere postman or a

forwarding agency. If he agrees with the reasons cited by the

Investigation Agency, he would prepare his own independent report

to assist the Special Court to decide whether the time period needs to

be extended beyond 90 days and to a maximum of 180 days. If he is

not convinced, he has the freedom to disagree with the reasons cited

by the Investigation Agency and it is within his power in refusing to

forward a report. The essence is that he must be convinced that the

Investigation Agency is rapidly progressing with the investigation and

for justifiable reasons, it is unable to complete the investigation

within the prescribed time frame. This, therefore, indicates that the

satisfaction of the public prosecutor, with regard to the progress in

the investigation is paramount and the reasons being cited for not

having completed the investigation within the time limit, is an

obligation in law.

17. We find that, Section 21(2)(b) of the MCOC Act and

Section 20(4)(bb) of the Terrorist and Disruptive Activities

(Prevention) Act, 1987 are practically identical. So also, Section

49(2)(b) of the Prevention of Terrorism Act, 2002 which replaced the

TAD Act, also carries an identical provision.

18. For the sake of brevity, the above stated provisions are

reproduced as under:

21(2)(b) of the MCOC Act

21(2)(b) after the proviso, the following proviso shall be

inserted, namely :-

"Provided further that if it is not possible to complete the

investigation within the said period of ninety days, the Special

Court shall extend the said period upto one hundred and eighty

days, on the report of the Public Prosecutor indicating the

progress of the investigation and the specific reasons for the

detention of the accused beyond the said period of ninety days"

Section 20(4)(bb) of the Terrorist and Disruptive Activities

(Prevention) Act, 1987

S. 20(4)[(bb) in sub-section (2), after the proviso, the

following proviso shall be inserted, namely:-

‘Provided further that, if it is not possible to complete

the investigation within the said period of one hundred and

eighty days, the Designated Court shall extend the said period

up to one year, on the report of the Public Prosecutor

indicating the progress of the investigation and the specific

reasons for the detention of the accused beyond the said period

of one hundred and eighty days; and’]

Section 49(2)(b) of the Prevention of Terrorism Act, 2002

49(2)(b) after the proviso, the following provisos shall be

inserted, namely:-

"Provided further that if it is not possible to complete the

investigation within the said period of ninety days, the Special

Court shall extend the said period up to one hundred and eighty

days, on the report of the Public Prosecutor indicating the

progress of the investigation and the specific reasons for the

detention of the accused beyond the said period of ninety days:

Provided also that if the police officer making the

investigation under this Act, requests, for the purposes of

investigation, for police custody from judicial custody of any

person from judicial custody, he shall file an affidavit stating the

reasons for doing so and shall also explain the delay, if any, for

requesting such police custody."

19. We are, therefore, of the considered view that the intent

and the object of the legislature in all these enactments was aimed at

protecting the personal liberty of an accused and fetters were imposed

on the investigation agency with regard to completion of investigation

within the time frame. Extension of the time frame was permissible

under stringent conditions.

20. The role of the public prosecutor is therefore obvious and

very much pronounced/significant in view of the above reported

judgments. It is in the backdrop of this significant role that he has to

play, that we are examining the application filed by the prosecutor in

the instant case, which is reproduced in para 12 herein above.

21. Notwithstanding the strenuous submissions of the

learned APP - Shri Sangle, we find in the case in hand, the application

tendered “through the APP” can be hardly said to be a report of the

prosecutor. A representative of the Police Station, Ramtirth is shown

to have signed below the said application. In fact, the certified copy

of the application placed before us indicates that no authority has

signed below the said application and the prosecutor has signed the

said application which hardly could be said to be his report.

22. In the light of the above, we deem it advantageous, for

the benefit of the litigants and the lawyers, to observe that a report as

understood under the above reproduced provisions of the various

enactments, has to be an independent report comprising of

(a) reasons evidencing the personal satisfaction of the public

prosecutor as regards the progress in investigation made, (b) the

reasons for which the investigation could not be completed and

(c) the object to be achieved through investigation for which an

extended period of time is necessary. These ingredients have to form

a part of the report of the prosecutor and he has to tender the said

report to the Special Court under his signature. It cannot be in the

form of a miscellaneous application to be filed for seeking extension

of time. In addition to his report, he should append the report of the

Investigation Agency so as to convince the Special Court that

extension needs to be granted.

23. It is settled by a judgment of this Court in the matter of

Sachin Namdeo Rathod (supra) that the accused has to be served

with a notice and has to be heard before the court passes an order of

granting extension. So also, considering the law laid down in Nirala

Yadav (supra), the request for extension of time has to be filed before

the Special Court on or before the last day of the time frame available

in law for investigation since the moment the time frame expires, the

right to the accused under Section 167(2) of the Cr.P.C. is born and

that right accrues to him instantaneously. Such right in law is an

indefeasible right.

24. The learned APP Shri. Sangle has strenuously canvassed

that the I.O. himself was down with Corona virus infection and was

treated and quarantined. The SDPO has narrated his practical

difficulties in his report dated 02.09.2020 expressing that it was

becoming extremely difficult to continue the investigation at an

expected pace since there was a lock-down, inter-district and across

the border movements were restricted and visiting people for

investigating into the crime was almost difficult for the fear of

physical contact and the spread of the virus.

25. At first blush, we were impressed with the said

submission as the ld. APP had voiced his practical difficulties which

we surely can perceive. However, it was brought to our notice, that

the Hon’ble Apex Court (three Judges bench) has delivered an order

on 19.06.2020 in Criminal Appeal No. 452 of 2020 filed by S. Kasi Vs

State reported in 2020(3) MLJ (Crl) 229. The Madurai Bench had

rejected the default bail application of the accused u/s 439 of the

Cr.P.C. r/w Section 167(2) of the Cr.P.C., in the backdrop of Covid-19

pandemic. It was held by the Apex Court in paragraph nos. 19 to 32

as under:

19. Learned Single Judge in paragraph 13 of the impugned

judgment has also observed that the lockdown announced by the

Government is akin to proclamation of Emergency. Learned

Single Judge has also referred to Financial Emergency under

Article 360 of the Constitution. Learned Single Judge also

noticed that presently though the State is not passing through

Emergency duly proclaimed but the whole nation has accepted

the restrictions for the well-being of the mankind. Let us also

examine as to whether in event of proclamation of Emergency

under Article 352 of the Constitution, whether right to liberty as

enshrined under Article 21 stands suspended?

20. We may recall the Constitution Bench Judgment of this

Court in Additional District Magistrate, Jabalpur versus

Shivakant Shukla, (1976) 2 SCC 521, where majority of the

Judges (Justice H. R. Khanna dissenting) had taken the view that

after proclamation of Emergency under Article 352, no

proceedings can be initiated for enforcement of right under

Article 21. Justice A. N. Ray, C.J., with whom three other

Hon’ble Judges have concurred in paragraph 136 and paragraph

137 laid down following:-

“136. First, In view of the Presidential Order dated

June 27, 1975 under clause (1) of Article 359 of our

Constitution no person has locus standi to move any

writ petition under Article 226 before a High Court

for Habeas Corpus or any other writ or order or

direction to enforce any right to personal liberty of a

person detained under the Act on the grounds that

the order of detention or the continued detention is

for any reason not under or in compliance with the

Act or is illegal or mala fide.

137. Second, Article 21 is the sole repository of rights

to life and personal liberty against the State. Any

claim to a writ of habeas corpus is enforcement of

Article 21 and, is, therefore, barred by the

Presidential Order.”

21. Another Three-Judge judgment of this Court in Union of

India and others versus Bhanudas Krishna Gawde and others ,

(1977) 1 SCC 834, took the same view following the majority of

this Court in ADM, Jabalpur versus Shivakant Shukla. In

paragraph 23, following was observed: -

“23………Accordingly, if a person was deprived of his

personal liberty not under the Defence of India Act or

any rule or order made thereunder but in

contravention thereof, his locus standi to move any

court for the enforcement of his rights, conferred by

Articles 21 and 22 of the Constitution was not barred.

More or less, similar was the pattern and effect of the

presidential Order dated November 16, 1974. The

position with respect to the Presidential Orders dated

27, 1975 and January 8, 1976 is, however, quite

different. These orders are not circumscribed by any

limitation and their applicability is not made

dependent upon the fulfilment of any condition

precedent. They impose a total or blanket ban on the

enforcement inter alia of the fundamental rights

conferred by Articles 19, 21 and 22 of the

Constitution which comprise all varieties or aspects of

freedom of person compendiously described as

personal liberty. [See A.K. Gopalan v. State of

Madras, AIR 1950 SC 27; Kharak Singh v. State of

U.P., AIR 1963 SC 1295 and A.D.M. Jabalpur v.

Shivakant Shukla (supra).] Thus there is no room for

doubt that the Presidential orders dated June 27,

1975, and January 8, 1976, unconditionally suspend

the enforceability of the right conferred upon any

person including a foreigner to move any court for

the enforcement of the rights enshrined in Articles

14, 19, 21 and 22 of the Constitution.”

22. Article 359 of the Constitution was amended by the

Forty-fourth Constitutional Amendment Act, 1978. In sub-Article

(1) of Article 359, the expression “except Articles 20 and 21

have been inserted”. After the amendment, Article 359(1) reads

as follows:-

“Suspension of the enforcement of the rights

conferred by Part III during emergencies.

359(1). Where a Proclamation of Emergency is in

operation, the President may by order declare that

the right to move any court for the enforcement of

such of the rights conferred by Part III (except Article

20 and 21) as may be mentioned in the order and all

proceedings pending in any court for the enforcement

of the rights so mentioned shall remain suspended for

the period during which the Proclamation is in force

or for such shorter period as may be specified in the

order”

23. The sting of the judgment of this Court in Additional

District Magistrate, Jabalpur versus Shivakant Shukla (supra),

and retrograde steps taken in respect of right protected under

Article 21 was, thus, immediately remedied by the Parliament by

the above Constitutional Amendment. The minority judgment of

Justice H.R. Khanna in Additional District Magistrate, Jabalpur

versus Shivakant Shukla (supra) has held that State has no

power to deprive the person of his life or liberty without the

authorities of law. In paragraphs 525 and 530, Justice Khanna

observed:-

“525.… I am of the opinion that Article 21 cannot be

considered to be the sole repository of the right to life

and personal liberty. The right to life and personal

liberty is the most precious right of human beings in

civilised societies governed by the rule of law. Many

modern Constitutions incorporate certain

fundamental rights, including the one relating to

personal freedom. According to Blackstone, the

absolute rights of Englishmen were the rights of

personal security, personal liberty and private

property. The American Declaration of Independence

(1776) states that all men are created equal, and

among their inalienable rights are life, liberty, and

the pursuit of happiness.

xxxxxxxxxxxxx xxxxxxxxxxxxxx

530. Even in the absence of Article 21 in the

Constitution, the State has got no power to deprive a

person of his life or liberty without the authority of

law. This is the essential postulate and basic

assumption of the rule of law and not of men in all

civilised nations. Without such sanctity of life and

liberty, the distinction between a lawless society and

one governed by laws would cease to have any

meaning. The principle that no one shall be deprived

of his life or liberty without the authority of law is

rooted in the consideration that life and liberty are

priceless possessions which cannot be made the

plaything of individual whim and caprice and that

any act which has the effect of tampering with life

and liberty must receive sustenance from and

sanction of the laws of the land. Article 21

incorporates an essential aspect of that principle and

makes it part of the fundamental rights guaranteed in

Part III of the Constitution. It does not, however,

follow from the above that if Article 21 had not been

drafted and inserted in Part III, in that event it would

have been permissible for the State to deprive a

person of his life or liberty without the authority of

law. No case has been cited before us to show that

before the coming into force of the Constitution or in

countries under the rule of law where there is no

provisions corresponding to Article 21, a claim was

ever sustained by the courts that the State can

deprive a person of his life or liberty without the

authority of law………………………………...”

24. We may notice that the Constitution Bench Judgment of

this Court in A.D.M., Jabalpur versus Shivakant Shukla (supra),

foundation of which judgment was knocked out by Forty-fourth

Constitutional Amendment has been formally over-ruled by

Seven - Judges Constitution Bench Judgment in K.S.

Puttaswamy and another versus Union of India and others,

(2017) 10 SCC 1. Dr. D.Y. Chandrachud, J., speaking for the

Court in paragraphs 136 and 139 held:-

“136. The judgments rendered by all the four judges

constituting the majority in ADM Jabalpur are

seriously flawed. Life and personal liberty are

inalienable to human existence. These rights are, as

recognised in Kesavananda Bharati, primordial rights.

They constitute rights under Natural law. The human

element in the life of the individual is integrally

founded on the sanctity of life. Dignity is associated

with liberty and freedom. No civilized state can

contemplate an encroachment upon life and personal

liberty without the authority of law. Neither life nor

liberty are bounties conferred by the state nor does

the Constitution create these rights. The right to life

has existed even before the advent of the

Constitution. In recognising the right, the

Constitution does not become the sole repository of

the right. It would be preposterous to suggest that a

democratic Constitution without a Bill of Rights

would leave individuals governed by the state

without either the existence of the right to live or the

means of enforcement of the right. The right to life

being inalienable to each individual, it existed prior

to the Constitution and continued in force under

Article 372 of the Constitution. Khanna, J. was clearly

right in holding that the recognition of the right to

life and personal liberty under the Constitution does

not denude the existence of that right, apart from it

nor can there be a fatuous assumption that in

adopting the Constitution the people of India

surrendered the most precious aspect of the human

persona, namely, life, liberty and freedom to the state

on whose mercy these rights would depend. Such a

construct is contrary to the basic foundation of the

Rule of Law which imposes restraints upon the

powers vested in the modern state when it deals with

the liberties of the individual. The power of the Court

to issue a Writ of Habeas Corpus is a precious and

undeniable feature of the rule of law.

139. ADM Jabalpur must be and is accordingly

overruled. We also overrule the decision in Union of

India v. Bhanudas Krishna Gawde, which followed

ADM Jabalpur.”

25. We, thus, are of the clear opinion that the learned Single

Judge in the impugned judgment erred in holding that the

lockdown announced by the Government of India is akin to the

proclamation of Emergency. The view of the learned Single

Judge that the restrictions, which have been imposed during

period of lockdown by the Government of India should not give

right to an accused to pray for grant of default bail even though

charge sheet has not been filed within the time prescribed under

Section 167(2) of the Code of Criminal Procedure, is clearly

erroneous and not in accordance with law.

26. We, thus, are of the view that neither this Court in its

order dated 23.03.2020 can be held to have eclipsed the time

prescribed under Section 167(2) of Cr.P.C. nor the restrictions

which have been imposed during the lockdown announced by

the Government shall operate as any restriction on the rights of

an accused as protected by Section 167(2) regarding his

indefeasible right to get a default bail on non-submission of

charge sheet within the time prescribed. The learned Single

Judge committed serious error in reading such restriction in the

order of this Court dated 23.03.2020.

27. There is one more reason due to which the impugned

judgment of the learned Single Judge deserves to be set aside. A

learned Single Judge of Madras High Court in Crl.OP(MD)No.

5291 of 2020, Settu versus the State, had already considered the

judgment of this Court dated 23.03.2020 passed in Suo Moto

W.P (C) No.3 of 2020 and its effect on Section 167(2) of Cr.P.C.

The above was also a case of a bail where the accused was

praying for grant of default bail due to non-submission of charge

sheet. The prosecution had raised objection and had relied on

the order of this Court dated 23.03.2020 passed in Suo Moto

W.P (C) No.3 of 2020 claiming that period for filing charge

sheet stood extended until further orders. The submission of

prosecution was rejected by learned Single Judge. The learned

Single Judge had made following observations in paragraphs 14

and 15:-

“14. Personal liberty is too precious a fundamental

right. Article 21 states that no person shall be

deprived of his personal liberty except according to

procedure established by law. So long as the

language of Section 167(2) of Cr.P.C. remains as it is,

I have to necessarily hold that denial of compulsive

bail to the petitioner herein will definitely amount to

violation of his fundamental right under Article 21 of

the Constitution of India. The noble object of the

Hon'ble Supreme Court's direction is to ensure that

no litigant is deprived of his valuable rights. But, if I

accept the plea of the respondent police, the direction

of the Hon'ble Supreme Court which is intended to

save and preserve rights would result in taking away

the valuable right that had accrued to the accused

herein.


15. Of course, the construction placed by me will

have no application whatsoever in the case of certain

offences under certain special laws, such as Unlawful

Activities (prevention) Act, 1967 and NDPS Act,

1985. For instance, Section 36-A (4) of the NDPS Act

enables the investigation officer to apply to the

special court for extending the period mentioned in

the statute from 180 days to 1 year if it is not possible

to complete the investigation. Thus, under certain

statutes, the prosecution has a right to apply for

extension of time. In those cases, the benefit of the

direction of the Hon'ble Supreme Court made

23.03.2020 in Suo Motu Writ Petition (Civil) No.3 of

2020 will apply. But, in respect of the other offences

for which Section 167 of Cr.P.C. is applicable, the

benefit of the said direction cannot be availed.”

28. The Prayer of the accused in the said case for grant of

default bail was allowed. The claim of the prosecution that by

order of this Court dated 23.03.2020, the period for filing

charge sheet under Section 167 Cr.P.C. stands extended was

specifically rejected.

29. The view taken by learned Single Judge of Madras High

Court in Settu versus The State (supra) that the order of this

Court dated 23.03.2020 passed in Suo Moto W.P (C) No.3 of

2020 does not extend the period for filing charge sheet under

Section 167(2) Cr.P.C. has been followed by Kerala High Court

as well as Rajasthan High Court. Kerala High Court in its

judgment dated 20.05.2020 in Bail Application No. 2856 of

2020 – Mohammed Ali Vs. State of Kerala and Anr. after

noticing the contention raised on the basis of order of this Court

dated 23.03.2020 passed in Suo Moto W.P (C) No.3 of 2020

rejected the said contention and followed the judgment of the

learned Single Judge of Madras High Court in Settu versus The

State (supra). Kerala High Court in paragraph 13 of the

judgment observes: -

“13. I respectfully concur with the exposition of law

laid down by the learned Single Judge of the Madras

High Court in Crl.O.P.(MD) No.5291 of 2020 as well

by the learned Single Judge of Uttarakhand High

Court when their lordships held that the investigating

agency cannot benefit from the directions issued by

the Supreme Court in the Suo moto Writ Petition.”

30. Rajasthan High Court had occasion to consider Section

167 as well as the order of this Court dated 23.03.2020 passed

in Suo Moto W.P (C) No.3 of 2020 and Rajasthan High Court

has also come to the same conclusion that the order of this

Court dated 23.03.2020 has no consequence on the right, which

accrues to an accused on non-filing of charge sheet within time

as prescribed under Section 167 Cr.P.C. Rajasthan High Court in

S.B. Criminal Revision Petition No. 355 of 2020 – Pankaj Vs.

State decided on 22.05.2020 has also followed the judgment of

learned Single Judge of the Madras High Court in Settu versus

The State (supra) and has held that accused was entitled for

grant of the default bail. Uttarakhand High Court in First Bail

Application No.511 of 2020 – Vivek Sharma Vs. State of

Uttarakhand in its judgment dated 12.05.2020 has after

considering the judgment of this Court dated 23.03.2020 passed

in Suo Moto W.P (C) No.3 of 2020 has taken the view that the

order of this Court does not cover police investigation. We

approve the above view taken by learned Single Judge of

Madras High court in Settu versus The State (supra) as well as

the by the Kerala High Court, Rajasthan High Court and

Uttarakhand High Court noticed above.

31. Learned Single Judge in the impugned judgment has

taken a contrary view to the earlier judgment of learned Single

Judge in Settu versus The State (supra). It is well settled that a

coordinate Bench cannot take a contrary view and in event there

was any doubt, a coordinate Bench only can refer the matter for

consideration by a Larger Bench. The judicial discipline ordains

so. This Court in State of Punjab and another versus Devans

Modern Breweries Ltd. and another, (2004) 11 SCC 26, in

paragraph 339 laid down following:-

“339. Judicial discipline envisages that a coordinate

Bench follow the decision of an earlier coordinate

Bench. If a coordinate Bench does not agree with the

principles of law enunciated by another Bench, the

matter may be referred only to a Larger Bench. (See

Pradip Chandra Parija v. Pramod Chandra Patnaik,

(2002) 1 SCC 1 followed in Union of India Vs.

Hansoli Devi, (2002) 7 SCC 273. But no decision can

be arrived at contrary to or inconsistent with the law

laid down by the coordinate Bench. Kalyani Stores

(supra) and K.K. Narula (supra) both have been

rendered by the Constitution Benches. The said

decisions, therefore, cannot be thrown out for any

purpose whatsoever; more so when both of them if

applied collectively lead to a contrary decision

proposed by the majority.”

32. Learned Single Judge did not follow the judicial discipline

while taking a contrary and diagonally opposite view to one

which have been taken by another learned Single Judge in Settu

versus The State (supra). The contrary view taken by learned

Single Judge in the impugned judgment is not only erroneous

but also sends wrong signals to the State and the prosecution

emboldening them to act in breach of liberty of a person.

33. We may further notice that learned Single Judge in the

impugned judgment had not only breached the judicial

discipline but has also referred to an observation made by

learned Single Judge in Settu versus The State as uncharitable.

All Courts including the High Courts and the Supreme Court

have to follow a principle of Comity of Courts. A Bench whether

coordinate or Larger, has to refrain from making any

uncharitable observation on a decision even though delivered by

a Bench of a lesser coram. A Bench sitting in a Larger coram

may be right in overturning a judgment on a question of law,

which jurisdiction a Judge sitting in a coordinate Bench does not

have. In any case, a Judge sitting in a coordinate Bench or a

Larger Bench has no business to make any adverse comment or

uncharitable remark on any other judgment. We strongly

disapprove the course adopted by the learned Single Judge in

the impugned judgment.

34. In view of the foregoing discussions, we allow this appeal,

set aside the judgment of learned Single Judge, direct that

appellant be released on default bail subject to personal bond of

Rs.10,000/- with two sureties to the satisfaction of trial court.

[Emphasis supplied]

26. In the case in hand, the impugned order dated

02.09.2020, passed by the Special Court reads as under:

“ORDER

Perused application, report of I.O., say of accused

No.4. Heard both at length. It appears that, the accused No. 1

to 4 are involved in this crime accused N.1 and 2 are released on

default bail as per order dated 31.08.2020. On today accused

No.1 furnished his surety bond on today after releasing accused

No.1. APP filed present application for extension of time of one

month for filing charge sheet against accused No.3 and 4. So in

view of 21 (b) of MCOC Act as per its proviso - “Special Court

shall extend the said period up to one hundred and eighty days,

on the report of public prosecution indicating the progress of

investigation if it is not possible to complete the investigation

within the time. So on present of application and report of IO it

appears that, there is progress in the investigation of accused

No.3 and 4. So in view of Section 21 (b) of the its proviso

considering the nature of offence and short period of present IO

one month time extended for further investigation and filing of

charge sheet against accused No. 3 and 4 as prayed by learned

APP and IO.”

27. In view of the above, we find that the impugned order

dated 02.09.2020, which is a cryptic and unreasoned order, deserves

to be quashed and set aside. Consequentially, the impugned order

dated 10.09.2020 rejecting the default bail application of the

appellant also deserves to be quashed and set aside. While doing so,

we deem it appropriate to note that accused nos. 1 and 2 in the same

crime have been granted default bail by the same Special Court under

certain conditions. We deem it appropriate to maintain parity with

regard to the conditions to be imposed on the present applicant while

granting bail.


28. The Criminal Appeal is, therefore, allowed. The

impugned orders dated 02.09.2020 and 10.09.2020 stand quashed

and set aside. The default bail application dated 10.09.2020 filed in

Crime No. 92 of 2020, stands allowed with the following directions:-

[a] The accused no. 3 - Shaikh Moin Shaikh Mehmood be

released on the ground of default bail under Section

167(2) of the Cr.P.C. in Crime No. 92 of 2020 for the

offences punishable u/s 394, 397 of the Indian Penal

Code, u/s 3/25 of the Arms Act and u/s 3(1)(ii) of the

MCOC Act on his furnishing a Personal Bond and a

Surety Bond of Rs.1,00,000/- (Rupees One Lakh) with

one or more solvent sureties.

[b] The accused no. 3 - Shaikh Moin Shaikh Mehmood

shall not tamper with the prosecution witnesses. He

shall not commit any offence while on bail. He shall

not enter Nanded district except for attending the case,

if any, filed against him in future. He shall give his

address of residence, outside of Nanded and within

Maharashtra State to the concerned Police Station and

he shall not leave that district in the State of

Maharashtra without taking prior permission of the

trial Court.

29. Since we find in several cases that the public prosecutor

appearing before the Special Courts are either casual or are unaware

about the position in law of tendering a Report, as settled by the

Hon’ble Apex Court which we have relied upon in this judgment, we

direct the learned Registrar (Judicial) to place a copy of this order

before the Chief Secretary, State of Maharashtra, the Director General

of Police, State of Maharashtra and the Director of Prosecution for

perusal, so as to issue directions for enlightening the prosecutors for

meticulously following the crystallized position in law of submitting

their report with reasons for seeking extension of time for

investigation.

[ B. U. DEBADWAR ] [ RAVINDRA V. GHUGE ]


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