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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