Code of Criminal Procedure, 1973 - S. 167(2) - Statutory Bail - Application for extension of time to file chargesheet - Right to grant of statutory bail would have enured to the accused only after rejection of the request for extension of time prayed by the Additional Public Prosecutor.
IN THE SUPREME COURT OF INDIA
CRIMINAL
APPELLATE JURISDICTION
(Dipak Misra, CJI.) (A.M. Khanwilkar, J.) (Dr. D.Y. Chandrachud, J.)
January 31, 2018
CRIMINAL
APPEAL NOS.21812182 OF 2017
(Arising out of SLP(Crl.) Nos.70527053 of
2017)
RAMBEER SHOKEEN …..APPELLANT
:Versus:
STATE
OF NCT OF DELHI …..RESPONDENT
J
U D G M E N T
A.M. Khanwilkar, J.
1. These
appeals, by special leave, question the legality and tenability of the judgment
and order passed by the learned Single Judge of the High Court of Delhi at New
Delhi dated 22nd May, 2017 in Criminal Appeal No.311/2017
and Criminal M. (Bail) No.525/2017.
2. Briefly
stated, the appellant has been named as an accused in FIR No.10 of 2015
registered at the Police Station (Special Cell), Delhi, for offence punishable
under Sections 3 & 4 of the Maharashtra Control of Organized Crime Act,
1999 (hereinafter referred to as the “MCOCA”). He has also been named as an
accused in FIR No.65/2016 for offence punishable under Sections 26 & 27 of
the Arms Act, registered at the same police station. He was declared as a
proclaimed offender in connection with the said case and was later arrested on
27th November,
2016.
3. The
appellant came to be arrested in connection with the present FIR on 1st December,
2016. Before the expiry of 90 days period, the Additional Public Prosecutor on
28th February,
2017 moved an application for extension of time to file chargesheet up to 15th March,
2017. The said application reads thus:
“ANNEXURE P3
IN THE COURT OF SHRI RAKESH PANDIT, LD.ASJ, MCOCA #
25, PATIALA
HOUSE COURTS, NEW DELHI.
FIR No. 10/2015 dated 23.02.2015 U/s 3/4 MCOC Act PS Special
Cell, Lodhi Colony, Delhi.
|
Sl. No.
|
Name, Parentage & address
|
Date of arrest
|
S/ V
|
01
|
RAMBEER SHOKEEN aged – 37 years, S/0 Shri Naval Singh
r/o H.No.151, ExtensionIV, Nangloi, Delhi41 & permanent address – H.No.70,
village Kamruddin Nagar, P.S. Nihal Vihar, Delhi.
|
01.12.2016
|
Subject
: Regarding extension of limitation period upto 15.03.2017
Hon’ble Sir,
It is
submitted that I have perused the report of the Investigating Officer of this
case. The allegations against above Accused Rambeer Shokeen in present case are
that he along with other syndicate members was running an organized crime
syndicate in Delhi & other states by committing a series of sensational
crimes including gruesome and inimical murder, extortion by putting by some businessmen
in fear with criminal intimidation, obstruction of Govt. servants to deter them
from discharge of official duties and offences under the arms act etc.
The
above accused Rambeer Shokeen was continuously evading his arrest and didn’t
join investigation. On 20.04.2015, nonbailable warrant against him was issued
but couldn’t be executed, as not available at his possible hideouts and later
on after further proceedings, he was declared P.O. on
26.08.2015 by this Hon’ble Court. On 27.11.2016, he was arrested in case FIR
No.65/2016 U/s 25/27 Arms Act of P.S. Special
Cell, Delhi and later on 01.12.2016, arrested in this case.
During investigation, several evidences including followings have been
collected against above accused Rambeer Shokeen:
1. Income Tax Return report
(ITR) dated 10.02.2017 from year 20062016, which reflects that he has not filed
ITR during this period, while he has incurred huge expenses during Delhi
Legislative Elections of year 2013 & 2015 apart from other expenses.
2. Reports regarding property details
from the offence of SubRegistrar West, SDMNangloi etc.
3. FORM 26 submitted by him before
Election Officer showing details of moveable & immovable properties etc.
THE
INVESTIGATION OF THE CASE IS TO BE CONDUCTED ON FOLLOWING GROUNDS
1. As per FORM 26 submitted by the
Accused before Election Commission to contest Delhi Legislative Assembly
Election for Assembly Constituency08 in year 2013, he has shown immoveable and
moveable assets of himself & his wife worth Rs. 1.85 (approx.), while he
and his wife Mrs. Reeta Shokeen are not found filing income tax returns during year
20062016, so the investigation on this point is necessarily required.
2. To make further interrogation from
accused to verify the source of huge amount of money in respect of the assets
as mentioned above visà vis the ITR for a period 20062016 (NIL returns), the
details of which were obtained on 10.02.2017.
In
view of above pending investigation points, it is, humbly requested that the
limitation period for filing charge sheet against above accused Rambeer Shokeen
may be extended upto 15.03.2017, so that charge sheet against him may be filed
before the Hon’ble Court as per the time limit fixed by Hon’ble Court.
Submitted
please,
Sd./28.02.17
(RAVINDRA KUMAR)
Addl. Public Prosecutor
Patiala House
Court, New Delhi
Dated: 28.02.2017”
4. On
the same day i.e. 28th February, 2017, the accused moved an
application for grant of statutory bail under Section 167(2) of the Code of
Criminal Procedure read with Section 21(2)(b) of MCOCA. The Special Judge, by
an order dated 28th February, 2017, extended the judicial
custody of the appellant until 1st March, 2017. The said order reads thus:
“An application for further
extension of JC moved on behalf of IO. Copy given.
Report
is also submitted by Ld. APP for State for the purposes of extension of JC
beyond 90 days and for seeking further extension of time for investigation
beyond period of 90 days.
JC
is extended till 01.03.2017.
Put
up with main file for arguments on this application on 01.03.2017.
Copy
of Order be given dasti.”
5. On
1st March,
2017, the appellant filed his reply to oppose the application filed by the
Additional Public Prosecutor seeking extension of limitation period for filing
of chargesheet against the appellant, upto 15th
March, 2017. Besides,
the appellant was produced before the District & Sessions Judge and as the
Presiding Officer of the Special Court was on leave, the District &
Sessions Judge passed the following order:
“01.03.2017
File is put up before me Shri Rakesh Pandit,
Ld. Spl. Judge, NIA/POCSO/MCOCA, ASJ01, PHC, New Delhi is on leave today on
account of unwellness.
Present
: Shri Devender Kumar, Ld. Chief PP for the State along with Shri Ravindra
Kumar, Ld. Addl. PP and ACP Hridaya Bhushan
Accused produced from JC.
Shri
Mehmood Pracha and Shri R.H.A. Sikander, Ld. Counsels
for the accused Rambeer Shokeen.
Reply
has been filed on behalf of accused Rambeer Shokeen to the application moved on
behalf of the State seeking extension of time for filing the charge sheet. Copy
supplied. An application has been moved on behalf of State seeking extension of
JC of the accused above named.
As
Ld. Presiding Officer is on leave. Judicial custody of the accused Rambeer
Shokeen is extended till 07.03.2017.
Merits
of the application dated 28.02.2017 shall be decided by the concerned court.
Ld.
Chief PP for the State submits that he has not been supplied with the copy of
the application moved on behalf of the accused Rambeer Shokeen under Section
167(2) of Cr.P.C. seeking grant of statutory bail. Ld. Counsel for the accused
is directed to supply the copy of the same during the course of the day against
proper receipt.
Put
up on 07.03.2017 for further proceedings.”
6. On the next day i.e. 2nd March,
2017, the appellant moved another application for grant of statutory bail under
Section 167(2) of Cr.P.C. read with Section 21(2)(b) of MCOCA.
7. On
4th March,
2017, the ACP/Special Cell/NDR, Lodhi Colony, New Delhi, moved an application
before the Special Court for permission to interrogate the appellant in Central
Jail No.3, Tihar, Delhi. The said application reads thus:
“ANNEXURE P8
IN THE COURT OF SHRI RAKESH PANDIT,
LD. ASJ, MCOCA#
25, PATIALA HOUSE COURTS, NEW DELHI.
FIR No.10/2015 dated 23.02.2015 U/s
3/4 MCOC Act PS Special Cell, Lodhi Colony, Delhi.
|
Sl. No.
|
Name, Parentage & address
|
Date of arrest
|
S/ V
|
01
|
RAMBEER SHOKEEN aged – 37 years, S/0 Shri Naval Singh
r/o H.No.151, ExtensionIV, Nangloi, Delhi41 & permanent address – H.No.70,
village Kamruddin Nagar, P.S. Nihal Vihar, Delhi.
|
01.12.2016
|
Subject : Regarding permission for interrogation in Central Jail, Tihar, Delhi.
Hon’ble Sir,
It is submitted that the
present case is pending investigation against accused Rambeer Shokeen and other
syndicate members for running an organized crime syndicate in Delhi & other
states by committing a series of sensational crimes including gruesome and inimical
murder, extortion by putting by some businessmen in fear with criminal
intimidation, obstruction of Govt. servants to deter them from discharge of
official duties and offences under the arms act etc.
On 01.12.2016, accused Rambeer
Shokeen was arrested in this case. During investigation it is revealed that in November
2013, he had filed an affidavit before Election Commission to contest Delhi Legislative
Assembly Election. In this affidavit, he has shown immoveable and moveable
assets of himself & his wife worth Rs.1.85 crores (approx.). As per report
dated 10.02.2017 of Income Tax Department, neither he nor his wife Mrs. Reeta
Shokeen has filed income tax returns during year 20062016.
In view of above, it is humbly
requested that the necessary permission to interrogate accused Rambeer Shokeen
may be granted in Central Jail No.3, Tihar, Delhi. The accused Rambeer Shokeen
is running in judicial custody till 07.03.2017.
Submitted please,
Sd./
( HRIDAYA
BHUSHAN)
ACP/Special Cell/NDR
Lodhi Colony, New Delhi
Dated: 04.03.2017”
The Special Judge considered the said
application on 4th March, 2017 and allowed the prayer for
permission to interrogate the appellant in judicial custody before 7th March,
2017. The order passed by the Special Court reads thus:
“04.03.2017
File is put up before me
as Shri Rakesh Pandit, Ld. Spl. Judge,
NIA/POCSO/MCOCA, ASJ01, PHC has gone to Odisha for National Seminar, Judicial
Academy, Cuttack.
Present
: Shri Ravindra Kumar Ld. Addl. PP for the State ACP Hridaya Bhushan along with
Inspector Ravinder Kumar Tyagi.
Accused
Pankaj Sehrawat, Neeraj Sehrawat, Naveen Dabas and Rahul Dabas produced from JC.
An
application has been moved on behalf of Special Cell seeking permission to
interrogate the accused Rambeer Shokeen in Central Jail No.3, Tihar Delhi
submitting that the accused Rambeer Shokeen was arrested in this case on 01.12.2016
and he is running in JC which is extended till 07.03.2017. During investigation
it is revealed that in November, 2013, he has filed an affidavit before
Election Commission to contest Delhi Legislative Assembly Election and in the
said affidavit, he has shown his immovable and moveable assets as well as of
his wife which is worth Rs.1.85 crores (approx.). It is stated that as per the
report dated 10.02.2017 of Income Tax Department, neither he nor his wife Smt.
Reeta Shokeen has filed income tax return during the year 20062016.
Heard.
Keeping in view the fact and circumstances, the application stands allowed by
permitting Special Cell to interrogate the accused Rambeer Shokeen in judicial
custody before 07.03.2017.
Application
stands disposed of accordingly. Copy of this Order be sent to Superintendent,
Tihar Jail, Delhi for compliance.
Copy
of this Order be also given to the Special Cell, as prayed for.
Put
up on 18.03.2017 for further proceedings.”
8. On 7th
March, 2017, the application for
extension of time for filing chargesheet dated 28th
February, 2017 and the application filed
by the appellant for grant of statutory bail dated 2nd March,
2017, were taken up by the Special Court. The
Court after considering the arguments of the parties passed the following
order:
“07.03.2017 Present:
Shri Ravindra Kumar Ld. APP for State.
Shri
Mehmood Pracha and Sh. R.H.A. Sikander counsel for accused.
Accused
Rambeer Shokeen from JC.
IO
ACP Hirdey Bhushan in person.
Arguments
heard on application for extension of time for investigation dated 28.02.2017
and on application u/sec.167 (2) Cr.P.C. dated 02.03.2017 (moved at 10.00 a.m.)
Put up for order on these applications on 08.03.2017.
JC
is extended till 08.03.2017.
Copy
of order be given dasti.”
9. As
directed, the matter was taken up by the Special Court on 8th March,
2017 when the prosecution filed supplementary chargesheet against the
appellant. The Court passed the following order:
“08.03.2017
Present: Shri Ravindra
Kumar Ld. APP for State.
Shri Mehmood Pracha and Sh. R.H.A. Sikander and
Prateek Gupta counsel for accused Rambeer Shokeen.
IO
ACP Hirdey Bhushan in person.
Accused
Rambeer Shokeen from JC.
Supplementary
charge sheet filed with respect to Accused Rambeer Shokeen.
Charge
sheet perused I take cognizance of the offences involved.
Copies
of documents supplied with respect to the charge sheet against Rambeer Shokeen.
Time sought by IO to supply copy of earlier charge sheet against other accused
persons. Same be supplied within 7 working days.
Put
up for scrutiny of documents on 18.03.2017.
Considering
the fact that supplementary charge sheet has already been filed against accused
Rambeer Shokeen, so the application regarding extension of time dated
28.02.2017 become infructuous and thus dismissed as infructuous.
Put
up for arguments/order on application u/sec. 167 (2) Cr.P.C. on 09.03.2017.”
10. Again, the matter was taken up on 9th March,
2017 when the hearing on statutory bail application remained inconclusive. The
Court passed the following order:
“09.03.2017
Present: Shri Ravindra Kumar Ld. APP for State.
Shri
Mehmood Pracha and Prateek Gupta counsel for accused Rambeer Shokeen.
Part
arguments on application u/sec.167 (2) Cr.P.C.
Heard.
Put
up for further arguments on this application on 14.03.2017.”
11. Finally, on 14th March,
2017 the Special Court rejected the statutory bail application dated 2nd March,
2017 filed by the appellant. The relevant extract of the observations/reasons recorded
by the Special Court reads:
“xxx
xxx xxx xxx xxx
So, in these circumstances, the application dated 28.02.2017
i.e. seeking extension of period to file charge sheet/investigation was not
decided on merits (as sought vide order dated 01.03.2017). Moreover, on
08.03.2017, cannot be decided on merits as the chargesheet was already filed
before order on this application.
So,
in these circumstances, the issue before the court in this application is that
whether vide order dated 01.03.2017, the said court of Ld. District &
Session Judge, NDD was within its power to extend the judicial custody of the
accused or not and for that purpose whether there should be a specific order of
extension of period of investigation.
As
far as this issue is concerned, the law says that it is the prerogative of the
investigating agency to file charge sheet/complete investigation, as per their
wishes. The Court cannot interfere in the period/duration of investigation.
However, in Sec.21(2)(b) MCOCA, the rider is that in case if the investigation
is not completed within 90 days and the prosecution/IO wanted that the accused shall
remain in judicial custody, then only he has to move in terms of Sec.21(2)(b)
of MCOCA.
In
this case, the prosecution had moved such application on 28.02.2017 (analogous
to the movement of application u/sec.167(2) Cr.P.C. by accused, before
chargesheet).
The
order could not be passed as the court under Sec.5(5) MCOCA had stated that the
same is to be heard by the concerned court. So, there was no lapse on the part
of IO.
He
had already moved the application on time. As far as the JC is concerned, the
same has been extended by the concerned court after the application
u/sec.28(2)(b) MCOCA is already moved by the IO. So, in these circumstances,
the court had acted in legal way in extending the period of judicial custody
since the application for seeking extension of time was already pending before
the court.
So,
in these circumstances, no ground exists which suggest that there was illegal
custody of accused beyond the period of 90 days from the day of his first
judicial remand and he is entitled for statutory bail u/sec.21(2)(b) of MCOCA.
So,
the application u/sec. 167(2) Cr.P.C. alternatively read as application
u/sec.21(2)(b) of MCOCA is dismissed.
Copy
of order be given dasti.
Put
up for purpose fixed on date already fixed i.e. 18.03.2017.”
12. Aggrieved, the appellant filed Criminal
Appeal No.311/2017 before the High Court of Delhi at New Delhi and challenged
the legality of orders dated 1st March, 2017, 4th March,
2017, 7th March,
2017 and 14th March, 2017. Besides, the appellant
moved an application for grant of interim bail. By
the impugned judgment, the High Court has rejected Criminal Appeal No.311/2017
and Criminal M. (Bail) No.525/2017 on 22nd
May, 2017.
13. The
principal argument of the appellant before the High Court as noted in paragraph
20 of the impugned judgment is that the report/application submitted by the
Additional Public Prosecutor for extension of time to file chargesheet till 15th March,
2017, was not in conformity with the requirement of proviso to Section 167(2)
of Cr.P.C. The appellant placed reliance on the decision of this Court in Hitendra Vishnu Thakur v. State
of Maharashtra, (1994) 4 SCC 602 to
buttress his submission. After adverting to the legal position expounded in the
said decision, the High Court in paragraph 24 considered the factual matrix
relevant for answering the issue. The contention specifically raised by the
appellant has been dealt with from paragraph 25 of the impugned judgment and
noted thus:
“25.
The request submitted by the public prosecutor on 28.2.2017 seeking extension
of the period for filing charge sheet against him in this case till
15.3.2017, briefly referred to the report of the investigating officer that had
been submitted before him (the public prosecutor) and upon its perusal the
brief background facts were mentioned indicating certain steps that had been
taken to collect evidence with regard to the income and assets of the
appellant. The public prosecutor informed the special court by the said request
in writing that investigation of the case was to be conducted, inter alia, by
his ―’further
interrogation’ as to the source of money for acquiring the assets worth Rs.
1.85 crores as had been declared to be held by him and his wife to the Election
Commission at the time of contesting the election to Delhi Legislative Assembly
in 2013, incometax returns not having been filed by him or his wife during
20062016.
26. Pertinent to mention here that the
request for interrogation of the appellant in custody made by the investigating
officer on 4.3.2017, granted on the same date by the District and Sessions
Judge, was for the same reasons and on the same grounds as were set out by the public
prosecutor in his request submitted on 28.2.2017.
27. It is true that the request of the
public prosecutor submitted on 28.2.2017 is not captioned as ‘report’ nor does it
specifically refer to the provision contained in the second proviso to Section
167 (2) Cr.P.C. But, this cannot be construed as a deficiency. It has to be
borne in mind that it is not a matter of form but one of substance. The request
in writing dated 28.2.2017 of the additional public prosecutor satisfies the
twin criteria of the second proviso to Section 167 (2) Cr.P.C. It indicates that
the public prosecutor had subjected the investigating officer’s report as made
to him to scrutiny and also informed the court the progress of the investigation
and setting out the reasons why the continued detention of the appellant in
custody was necessary. Therefore,
it has to be accepted as a ‘report’ of the public prosecutor satisfying the
requirements of second proviso to Section 167 (2) Cr.P.C. Whether or not, in
the facts and circumstances of the case, as prevailing on the date such report
was submitted to the special court will have to be considered separately.
28. As noted above, the appellant had
moved an application under Section 167(2) Cr.P.C. for release on bail by
default under Section 167(2) Cr.P.C. on 28.2.2017. It is fairly conceded by the
learned counsel for the appellant that such application moved on 28.2.2017 was
premature as ninety days would expire only on 1.3.2017.
29. On 28.2.2017, besides the
application of the investigating officer seeking extension of the custody
period of the appellant, the report of the public prosecutor for extension of the
period of investigation had come be submitted to the special court. Without
doubt, the report could be considered before expiry of the period of ninety
days or on the last day of such period ordinarily available which would be
1.3.2017. The
special court, within its judicial discretion, decided to postpone the
consideration to the following date i.e. 1.3.2017. It
is reflected in the order passed on 1.3.2017 by the District and Sessions Judge,
as extracted earlier, that the additional sessions judge presiding over the
special court was indisposed and, therefore, on leave of absence on 1.3.2017. The
District and Sessions Judge, before whom the file was placed for consideration
of the report of the public prosecutor and the application of the investigating
officer, decided to defer the former to 7.3.2017 for it to be ‘decided by the concerned
court’ while extending the judicial custody for such period. Questions have
been raised as to the competence of the District and Sessions Judge to deal
with this case under MCOCA on the plea that the judicial officer presiding over
the court of District and Sessions Judge was not designated as a special court
in terms of Section 5 MCOCA.”
14. While
dealing with the argument regarding the competence of the District &
Sessions Judge, the High Court referred to the Notification dated 15th September,
2010 and opined that it was regarding conferral of powers of Presiding Officer
of the Special Court under MCOCA ascribable to Section 5 of the special
enactment. Further, the Lieutenant Governor of National Capital Territory of
Delhi was pleased to confer on each member of the Delhi Higher Judicial
Service, inter alia, the powers of Presiding Officer of the Special Court under
MCOCA as extended to NCT of Delhi, with conferral of powers to be exercised “with
effect from the date of assumption of the charge” of such post in pursuance of “transfer
or posting orders by the Chief Justice of the Delhi High Court”.
15. The
High Court then considered the grounds urged by the appellant and after
adverting to Section 5 of MCOCA and Section 15 of the General Clauses Act and
the reported precedents pressed into service by both the sides, answered the
issue against the appellant. The High Court concluded that the validity of
Notification dated 15th September, 2010, issued by the
Lieutenant Governor of NCT of Delhi, inter alia, conferring powers to be
exercised by the members of Delhi Higher Judicial Service, in terms of MCOCA,
such empowerment being “exofficio”, cannot be questioned.
16. As
regards the merits of the application for grant of statutory bail, the High
Court adverted to the decisions relied upon by the parties. In paragraph 69 the
Court then observed:
“69.
As has been held above, the District and Sessions Judge, while dealing with the
matter arising out of, inter alia, the report of the public prosecutor on
01.03.2017, and the additional sessions judge presiding over the special court also
dealing, amongst others, with the said report of the public prosecutor on
07.03.2017 and 08.03.2017, failed to discharge the judicial responsibility
properly. The consideration of the report of the public prosecutor, submitted (on
28.02.2017) well in time before expiry of the period of ninety days ordinary
available, was deferred unnecessarily on 01.03.2017 and beyond till it was
treated, wrongly so, as ―infructuous on 08.03.2017. It is
against this backdrop that the appellant argues that there being no order in
terms of second proviso to Section 167(2) Cr.P.C. enlarging the period of
investigation, a right to bail by default has accrued in his favour which
cannot be defeated by submission of the charge sheet on 07.03.2017. The crucial
question, however, is as to whether such benefit can be extended to the
appellant in a factsituation where the investigating police officer, and the public
prosecutor, had done their part of the duty under the law, well within time,
and the default in consideration of, and decision on, the report of the public
prosecutor was wholly for the reasons (or, shall we say, fault) attributable to
the District & Sessions Judge and the special court.”
17. Again in paragraphs 74 to 77, the Court
observed thus:
“74.
It is clear that the report submitted on 28.02.2017 by the public prosecutor in
terms of second proviso to Section 167(2) Cr. PC seeking enlargement of time
for completion of investigation did not receive due consideration of the court.
If the grounds on which the public prosecutor was recommending extension of
time were sufficient, there would be no justification for its denial and,
resultantly absolutely no justification for the appellant to be released on
bail by default.
If,
on the other hand, the request was unfounded, it should have been rejected and
an appropriate order extending release on bail by default should have been
passed.
75. Since the report did not receive due
consideration and was improperly treated as ‘infructuous’, there are two
options available before this court : one, to remit the matter back to the
special court for a proper decision on the report or, two, to consider the
report and pass appropriate order thereupon. The former course would only
entail further delay. In a case involving questions of personal liberty, such
course is not desirable. In this view, the learned counsel on both sides were also
heard on the merits of the report of the public prosecutor, bearing in mind
that this court is duty bound to secure the ends of justice and to prevent
abuse of the process of court.
76. The background facts and
circumstances of the case against the appellant have already been noted. Certain
assets of the appellant and members of his immediate family had come to light
for which, prima facie, there was no account, particularly in view of the
declaration made on the subject in 2013, when he was a candidate in the
election to Delhi Legislative Assembly. Noticeably, the investigating officer
was seeking opportunity to interrogate the appellant against these facts to
seek his explanation, if any. Under the provisions of the special enactment
(MCOCA), the investigating police officer is entitled to interrogate the
accused in judicial custody. As mentioned earlier, a formal request to this
effect made by the investigating officer was allowed by order dated 04.03.2017. The
report submitted on 28.02.2017 by the public prosecutor, thus, is found to pass
the necessary muster of the second proviso to Section 167(2) as inserted in the
Code of Criminal Procedure by Section 21(2) of MCOCA. The fact that the chargesheet
was filed on 08.03.2017, only reassures that the request for enlargement of time
for completion of investigation made on 28.02.2017 was not with ulterior motive.
77. In above view, in the considered
view of this court, the request made by the public prosecutor should not only
have received due consideration of the special court on 28.02.2017, or the
District & Sessions Judge on 01.03.2017, but also deserved to be allowed.
The trashing of the said report as “infructuous”, by order dated 08.03.2017,
was thus not only incorrect but improper. In these circumstances, in exercise
of the jurisdiction vested in this court to satisfy itself as to the correctness,
legality or propriety of the order passed or as to the regularity of
proceedings of the inferior criminal court (under Section 397 Cr. PC), as
indeed invoking the ‘inherent powers’ of this court to secure the ends of
justice and prevent abuse of the judicial process (under Section 482 Cr. PC),
the order dated 08.03.2017 disposing of the report of the public prosecutor
under second proviso to Section 167(2) Cr. PC is set aside and, instead the
said report is accepted and the period for completion of investigation of the
case at hand against the appellant is extended till 08.03.2017 when the report
under Section 173 Cr. PC (supplementary chargesheet) against him was actually
filed. In this view, the prayer of the appellant for release on bail by default
under Section 167(2) is rendered impermissible and is accordingly declined.”
18. Being aggrieved, the appellant has
approached this Court by way of these appeals. In the course of hearing, the
only argument canvassed by the counsel for the appellant was about the
entitlement of the appellant for grant of statutory bail as, admittedly, the
Special Court did not pass any specific order on the report/application for
extension of time for filing of chargesheet against the appellant preferred by
the Additional Public Prosecutor. In absence of such an order, contends the
appellant, the appellant acquired an indefeasible right. Thus, he ought to have
been granted statutory bail as prayed vide application dated 2nd March,
2017, under Section 167(2) of Cr.P.C. read with Section 21(2)(b) of MCOCA. As
the statutory period of 90 days had already expired and there was no extension
of time granted to the prosecution by the Special Court to file the
chargesheet, filing of the chargesheet against the appellant on 8th March,
2017 could not denude the appellant of statutory bail. In support of his
submission, reliance is placed on the decisions in the case of Union of India v. Nirala Yadav, (2014) 9 SCC 457; Uday Mohanlal Acharya v. State of
Maharashtra, (2001) 5 SCC 453 and
Sanjay Dutt v. State through CBI, (1994) 5 SCC 410. No
other argument has been canvassed by the learned counsel for the appellant in
these appeals.
19. The
respondent on the other hand would support the reasons recorded by the Special
Court and by the High Court to oppose these appeals. According to the
respondent, the Special Court and the High Court have not committed any error
in rejecting the prayer for grant of statutory bail, in view of indisputable
facts of the present case. The appellant was well advised not to pursue his
application for grant of statutory
bail application dated 28th February, 2017. For, by that date, 90
days period for filing chargesheet had not expired. Resultantly, the question
of entertaining prayer for grant of statutory bail did not arise. As regards
the statutory bail application filed on 2nd
March, 2017, the same was also misconceived
as the Additional Public Prosecutor had already filed report/application for
extension of time on 28th February, 2017 itself and the Court had
extended the judicial custody of the appellant pursuant to the said application
until 1st March,
2017. Again on 1st March, 2017, the hearing on report/application
for extension of time preferred by the Additional Public Prosecutor was
deferred and judicial custody was finally extended until 8th March,
2017. Further, merely because no express order was passed on the said report/application
of the Additional Public Prosecutor on 2nd
March, 2017 or for that matter, till 8th March,
2017 when the chargesheet was filed against the appellant, ipso facto did not create any right in favour of
the appellant. For, judicial custody of the appellant was consciously extended
by the competent Court from time to time (from 28th
February, 2017 till the filing of
chargesheet). In
any case, the Special Court, in law, was obliged to first decide the said
report/application for extension of time preferred by the Additional Public Prosecutor,
and only if the same was to be rejected before filing of the chargesheet or
expiry of the period of judicial custody of the appellant, could the appellant
claim that an indefeasible right had accrued in his favour. In other words, application
for grant of statutory bail preferred by the appellant on 2nd March,
2017 was also premature and in any case, the same could not have been taken up
for consideration until the report/application for extension of time to file
chargesheet submitted by the Additional Public Prosecutor dated 28th February,
2017, was finally decided. In support of this submission, reliance has been
placed on the dictum in paragraph 48 of the decision of the Constitution Bench
in Sanjay Dutt’s case (supra). It is contended that the decisions in Uday
Mohanlal Acharya (supra), Nirala Yadav (supra) and Sanjay Dutt will be of no
avail to the appellant as the exposition in those cases was in light of the
facts of those cases. It is contended that the High Court justly considered the
merits of the report of the Additional Public Prosecutor dated 28th February,
2017 for extension of time, and after analysing the relevant aspects, concluded
that the request made by the Additional Public Prosecutor was genuine and appropriate.
The High Court, after hearing both sides, concluded that the time to file
chargesheet against the appellant stood extended till 8th March,
2017 when the same was, in fact, filed. Resultantly, the application for grant
of statutory bail filed by the appellant albeit on 2nd March,
2017, was bound to be dismissed. According to the respondents, these appeals
are devoid of merit and ought to be dismissed.
20. We
have heard Mr. Mehmood Pracha, learned counsel appearing for the appellant and
Ms. Pinky Anand, learned Additional Solicitor General assisted by Mr. Aman
Sinha, learned senior counsel and Mr. B.V. Balaram Das, learned counsel for the
respondent.
21. After
having analysed the facts and events as unfolded from 28th February,
2017 until 8th March, 2017, it is indisputable that on
28th February,
2017, the Additional Public Prosecutor had filed report for extension of time
to file chargesheet against the appellant until 15th March,
2017. The same was filed within time, before the expiry of 90 days from the
date of initial arrest of the appellant in connection with the subject FIR.
Realising this position, the appellant did not pursue his first application for
statutory bail dated 28th February, 2017. Instead, he was advised
to file a fresh statutory bail application on 2nd
March, 2017. Admittedly, on 2nd March,
2017 the report submitted by the Additional Public Prosecutor dated 28th February,
2017 was still undecided. Therefore,
no right can be said to have accrued to the appellant for grant of bail on the
ground of default. In law, only upon rejection of the prayer for extension of
time sought by the Additional Public Prosecutor, right in favour of the appellant
for grant of statutory bail could have ignited. The mere fact that 90 days
period from the date of initial arrest of the appellant in connection with the
subject FIR had lapsed on 2nd March, 2017, could not ineluctably
entail in grant of statutory bail to the appellant. Moreso, when no decision
was taken by the Court on the report/application submitted by the Additional
Public Prosecutor until 8th March, 2017, on which date the
supplementary chargesheet against the appellant was filed in Court. Considering
the effect of filing of the supplementary chargesheet against the appellant,
coupled with the fact that his judicial custody was extended by the Court of
competent jurisdiction until the pendency of consideration of the
report/application for extension of time to file the chargesheet, in law, it is
unfathomable as to how the appellant could claim to have any accrued right to
be released on bail on the ground of default or for that matter, such a right
having become indefeasible.
22. The
legal position has been expounded by the Constitution Bench of the Supreme
Court in the case of Sanjay
Dutt (supra), in particular,
in paragraph 48 as under: “
48. We have no doubt that the common
stance before us of the nature of indefeasible right of the accused to be
released on bail by virtue of Section 20(4)(bb) is based on a correct reading
of the principle indicated in that decision. The indefeasible right accruing
to the accused in such a situation is enforceable only prior to the filing of
the challan and it does not survive or remain enforceable on the challan being
filed, if already not availed of. Once the challan has been filed, the question of
grant of bail has to be considered and decided only with reference to the
merits of the case under the provisions relating to grant of bail to an accused
after the filing of the challan. The
custody of the accused after the challan has been filed is not governed by
Section 167 but different provisions of the Code of Criminal Procedure. If that
right had accrued to the accused but it remained unenforced till the filing of
the challan, then there is no question of its enforcement thereafter since it
is extinguished the moment challan is filed because Section 167 CrPC ceases to
apply. The Division Bench also indicated that if there be
such an application of the accused for release on bail and also a prayer for
extension of time to complete the investigation according to the proviso in
Section 20(4) (bb), both of them should be considered together. It is obvious
that no bail can be given even in such a case unless the prayer for extension
of the period is rejected. In short, the grant of bail in such a situation is
also subject to refusal of the prayer for extension of time, if such a prayer
is made. If
the accused applies for bail under this provision on expiry of the period of
180 days or the extended period, as the case may be, then he has to be released
on bail forthwith. The accused, so released on bail may be arrested and
committed to custody according to the provisions of the Code of Criminal
Procedure. It
is settled by Constitution Bench decisions that a petition seeking the writ of
habeas corpus on the ground of absence of a valid order of remand or detention
of the accused, has to be dismissed, if on the date of return of the rule, the custody
or detention is on the basis of a valid order. (See
Naranjan Singh Nathawan v. State of Punjab [1952 SCR 395 : AIR 1952 SC 106 :
1952 Cri LJ 656] ; Ram Narayan Singh v. State of Delhi [1953 SCR 652 : AIR 1953
SC 277 : 1953 Cri LJ 1113] and A.K. Gopalan v. Government of India [(1966) 2
SCR 427 : AIR 1966 SC 816 : 1966 Cri LJ 602].)”
(emphasis supplied)
Further, the
conclusion articulated in paragraph 53, makes it clear that the decision in Hitendra Vishnu Thakur (supra) must be understood accordingly.
It observed thus:
“53.
As a result of the above discussion, our answers to the three questions of law
referred for our decision are as under:
(1) xxx xxx xxx xxx
(2)(a) Section
20(4) (bb) of the TADA Act only requires production of the accused before the
court in accordance with Section 167(1) of the Code of Criminal Procedure and
this is how the requirement of notice to the accused before granting extension
beyond the prescribed period of 180 days in accordance with the further proviso
to clause (bb) of sub30 section (4) of Section 20 of the
TADA Act has to be understood in the judgment of the Division Bench of this
Court in Hitendra Vishnu Thakur. The requirement of such notice to the accused before
granting the extension for completing the investigation is not a written notice
to the accused giving reasons therein. Production
of the accused at that time in the court informing him that the question of
extension of the period for completing investigation is being considered, is
alone sufficient for the purpose.
(2)(b)
The ‘indefeasible right’ of the accused to be released on bail in accordance
with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of
Criminal Procedure in default of completion of the investigation and filing of
the challan within the time allowed, as held in Hitendra Vishnu Thakur is a
right which enures to, and is enforceable by the accused only from the time of
default till the filing of the challan and it does not survive or remain
enforceable on the challan being filed. If the accused applies for bail under
this provision on expiry of the period of 180 days or the extended period, as
the case may be, then he has to be released on bail forthwith. The accused, so
released on bail may be arrested and committed to custody according to the
provisions of the Code of Criminal Procedure. The right of the accused to be released
on bail after filing of the challan, notwithstanding the default in filing it
within the time allowed, is governed from the time of filing of the challan
only by the provisions relating to the grant of bail applicable at that stage.”
The aforementioned opinion has been
expressed by the Constitution Bench in the context of question No.2 formulated in
paragraph 2 of the judgment as under:
“2. The questions of law indicated in
the said order of reference, to be decided by us, are three, namely:
(1) xxx
xxx xxx xxx
(2) The proper construction of clause (bb) of subsection (4) of Section
20 of the TADA Act indicating the nature of right of an accused to be released
on bail thereunder, on the default to complete investigation within the time
allowed therein;
(3) xxx xxx xxx xxx”
23. It
is thus clear that no right had accrued to the appellant before filing of the
chargesheet; at best, it was an inchoate right until 8th March,
2017. Resultantly, the question of granting statutory bail after filing of
chargesheet against the appellant and moreso during the pendency of report/application
for extension of time to file chargesheet was impermissible. In other words,
the application for grant of statutory bail filed by the appellant on 2nd March,
2017, even if pending, could have been taken forward only if the prayer for extension
of period was to be formally and expressly rejected by the Court.
24. As
held by the Constitution Bench of this Court, the consideration of application
for grant of statutory bail in a situation, as in the present case, was
dependent on rejection of prayer of the Additional Public Prosecutor for
extension of time. When such prayer is made, it is the duty of the Court to consider
the report/application for extension of period for filing of the chargesheet in
the first instance; only if it was to be rejected could the prayer for grant of
statutory bail be taken forward. In no case, the hearing on statutory bail
application precede the consideration of prayer for extension of the period for
filing of the chargesheet made by the Additional Public Prosecutor.
25. The
Constitution Bench decision in Sanjay Dutt’s case
(supra) also answers the next issue raised by the appellant about the absence
of a valid remand/detention. In that, in the concluding part of the aforequoted
paragraph 48, the Court has opined that a petition seeking a writ of habeas
corpus on the ground of absence of a valid order of remand or detention has to
be dismissed if, on the date of return of the rule, the custody or detention is
on the basis of a valid order. Admittedly,
in the present case, the judicial custody of the appellant was extended by the
Court of competent jurisdiction from time to time pending consideration of
request to extend time to file chargesheet, initially from 28th February,
2017, till 1st March 2017 and so continued from 1st March,
2017, until 7th March, 2017, and again from 7th March,
2017, till 8th March, 2017 on which date the
chargesheet was filed against the appellant in the Court. The order passed by
the Special Court on 8th March, 2017, has been so construed by the
High Court and additionally by explicitly extending the period for filing of
the chargesheet against the appellant until 8th
March, 2017. We find no error in that
approach of the High Court. No interference is warranted in that regard.
26. The
appellant, however, relies on the observations in Uday Mohanlal Acharya (supra) rendered by a threeJudge Bench
of this Court. In the said case, the accused had himself surrendered in Court
and was remanded to judicial custody. The
period for filing of chargesheet (60 days in that case) expired on 16th August,
2000. The accused moved an application on 17th
August, 2000, for grant of statutory
bail on the ground of default in filing of chargesheet within the statutory
period of 60 days. That bail application was rejected by the Magistrate on the
same day, holding that the provisions of Section 167(2) of Cr.P.C. had no
application to the cases pertaining to the special enactment i.e. Maharashtra Protection
of Interest of Depositors (in Financial Establishments) Act, 1999. The accused
then approached the High Court. When the matter was pending before the High Court,
chargesheet was filed before the Trial Judge on 30th August,
2000. The High Court refused to grant relief on the ground that by the time the
High Court could consider the correctness of the order on the statutory bail
application passed by the competent Court, a chargesheet was filed against the
accused before the Magistrate and, therefore, the so called enforceable right
did not survive or remained enforceable. In this backdrop, this Court
considered the matter and answered the issue in favour of the accused on the finding
that before the chargesheet was filed, the accused had invoked the remedy of
statutory bail. Thus, the factum of filing of chargesheet subsequently cannot
defeat the right accrued to him. In the present case, before the appellant
instituted the subject application for grant of statutory bail on 2nd March,
2017, the Additional Public Prosecutor had already filed his report/application
for extending the period for filing of chargesheet against the appellant until
15th March,
2017, but decision thereon was deferred. As held by the Constitution Bench in
the case of Sanjay
Dutt (supra), unless the report/application
filed by the Additional Public Prosecutor for extension of time was rejected,
no right would accrue in favour of the accused much less to consider his
application for grant of statutory bail. Further, in such cases it is the duty
of the concerned Court to first deal with the prayer for extension of period to
file chargesheet made by the Additional Public Prosecutor. The High Court, in
the impugned judgement, thus answered the issue against the appellant and
additionally considered the justness of the prayer made by the Additional Public
Prosecutor for extension of period for filing chargesheet. It
recorded an express finding that the said request was genuine and appropriate
and thus extended the time for that purpose till 8th March,
2017.
27. Reverting
to the decision in the case of Nirala Yadav (supra)
rendered by twoJudge Bench, the accused in that case was arrested and sent to
judicial custody on 5th December, 2006. After lapse of the
statutory period of 90 days on 14th
March, 2007, the accused filed
application for grant of statutory bail on the ground of default. The prosecution
(CBI), however, on 15th March, 2007, moved an application for
extension of time for a period of 30 days. Since the application for grant of
statutory bail filed by the accused preceded the filing of application for
extension of time, the issue was answered in favour of the accused. In the
present case, however, the prayer for extension of period for filing chargesheet
was moved by the Additional Public Prosecutor before the statutory period had
lapsed, but the same remained pending until 8th
March, 2017, when chargesheet was filed
in Court. Until the said request was formally and expressly rejected by the
competent Court, in view of the exposition in the case of Sanjay Dutt (supra), the concerned Court could not
have assumed jurisdiction to consider the prayer for grant of statutory bail of
the appellant. The request made by the Additional Public Prosecutor was
formally disposed of as infructuous on 8th
March, 2017, after filing of the
chargesheet against the appellant. That was not an order of rejection of the request
of the Additional Public Prosecutor as such. The High Court has examined this
aspect and, in our opinion, rightly answered the issue against the appellant
for the reasons recorded in paragraphs 75 to 77 of the impugned judgment, including
by explicitly extending the time to file chargesheet till 8th March,
2017.We affirm the said view of the High Court. Therefore,
even this decision relied upon by the appellant will be of no avail in the fact
situation of the present case.
28. Taking
overall view of the matter, therefore, it is noticed that the Additional Public
Prosecutor had submitted his report to the concerned Court for extending time
until 15th March,
2017, to file the chargesheet. That
report was submitted on 28th February, 2017, before expiry of the
initial statutory period of 90 days for filing of the chargesheet against the appellant.
That request was disposed of by the Special Court on 8th March,
2017 as infructuous, after the chargesheet against the appellant was submitted
in Court. Until 8th March, 2017, the appellant was sent to
judicial custody by the competent Court pending consideration of request of the
Additional Public Prosecutor for extension of time to file the chargesheet. The
Court, in law, could not have considered the prayer for grant of statutory bail
of the appellant until 8th March, 2017, on which date the
chargesheet was already filed against the appellant in the concerned Court.
Further, the High Court considered the circumstances in which the order came to
be passed by the Special Court on 8th
March, 2017. In our opinion, it rightly
held that the said request could not have been closed as having become
infructuous. Rather, it was the duty of the Court to decide the request on its
merits and only upon its rejection, proceed to consider the prayer for grant of
statutory bail. The High Court, therefore, noticed that it had two options:
first, to remit the matter back to the Special Court for a proper decision on
the said report of the Additional Public Prosecutor dated 28th February,
2017 or second, to consider the same itself and pass appropriate orders
thereupon. It chose to adopt the second option, which was thought desirable and
not objected to by the appellant as can be discerned from the noting in
paragraph 75 of the impugned judgment. The High Court, in paragraph 76 of the impugned
judgment, then proceeded to consider the prayer for extension of time made in
the report submitted by the Additional Public Prosecutor on 28th February,
2017, and, for tangible reasons, found the same to be genuine and appropriate. Having
thus held, it allowed the said request by extending the time to file
chargesheet till 8th March, 2017. We find no infirmity in the
said approach of the High Court. Having
extended the time till 8th March, 2017 and as the chargesheet was
already filed on that date, the question of considering the prayer for grant of
statutory bail of the appellant vide application dated 2nd March,
2017, on the ground of default, did not survive for further consideration. Right
to grant of statutory bail would have enured to the accused only after
rejection of the request for extension of time prayed by the Additional Public
Prosecutor. As a result, the High Court rightly rejected the prayer for grant
of statutory bail pursued by the appellant vide application dated 2nd March,
2017. We are in full agreement with the said conclusion reached by the High
Court.
29. A
priori, these appeals must
fail. Indeed, rejection of the prayer for grant of statutory bail will not come
in the way of the appellant in pursuing his remedy for grant of regular bail on
merit. The appellant is free to pursue that remedy which may be considered on
its own merits in accordance with law.
30. Accordingly,
these appeals are dismissed being devoid of merits.
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