Karnataka High Court
Sayeed Majid Ahamed vs State Of Karnataka on 5 October, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.4398 OF 2020
C/W
CRIMINAL PETITION NO.4522 OF 2020
IN CRIMINAL PETITION NO.4398 OF 2020
BETWEEN:
SAYEED MAJID AHAMED
S/O SAYEED ISMAIL
AGED ABOUT 54 YEARS
R/O NO.13/1, IST CROSS
IST MAIN, BHUVANESHWARINAGAR
R T NAGAR
BENGALURU-560092
(PETITIONER PRESENTLY IN JUDICIAL CUSTODY)
...PETITIONER
(BY SRI. ABHISHEK K, ADVOCATE FOR
SRI. DIWAKARA K, ADVOCATE)
AND:
STATE OF KARNATAKA
BY KEMPEGOWDA NAGAR POLICE
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU-560001
...RESPONDENT
(BY SRI. R D RENUKARADHYA, HCGP )
2
THIS CRIMINAL PETITION IS FILED U/S 439 CR.PC PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN CR.NO.127/2019 OF
KEMPEGOWDA NAGAR P.S., BANGALORE FOR THE OFFENCE P/U/S
22(b), 22(c) OF NDPS ACT.
IN CRIMINAL PETITION NO.4522 OF 2020
BETWEEN:
RAMESH KUMAR
S/O HANUMANTHACHAR
AGE 47 YEARS
R/O NO.1, MAIN ROAD
OPP VEERANJANEY TEMPLE
IYYANUR FARM ROAD
ANJANEYA TEMPLE LAYOUT
DEVARACHIKKANAHALLI
BENGALURU
...PETITIONER
(BY SRI. ARVIND KUMAR, ADVOCATE, FOR
SRI. SUBIT KUMAR SINGH, ADVOCATE)
AND:
STATE OF KARNATAKA
THROUGH K G NAGAR POLICE STATION
(THROUGH PUBLIC PROSECUTOR)
...RESPONDENT
(BY SRI. R D RENUKARADHYA, HCGP)
THIS CRIMINAL PETITION IS FILED U/S.439 CR.P.C. PRAYING
TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.127/2019
REGISTERED BY KEMPEGOWDA NAGAR POLICE STATION, BENGALURU
FOR THE OFFENCE P/U/S 22(b) AND 22(c) OF N.D.P.S. ACT.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 01.10.2020 AND COMING ON FOR
PRONOUNCEMENT OF ORDER, THROUGH VIDEO CONFERENCE, THIS
DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
Whether the indefeasible right of the petitioners for grant of compulsive bail under section 167(2) of Cr.P.C. is defeated by the unilateral extension of time by the court? is the question that falls for consideration in these two petitions.
2. The outline facts of the case are that the petitioners/ accused Nos. 2 and 3 in Crime No.127/2019 were arrested and produced before the court on 28.12.2019 on the charge of committing offences punishable under sections 22(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act"). The case of the prosecution is that, petitioners were in possession of 257 ecstasy pills, 10 grams of MDMA crystal, 57 ecstasy tablets, 30 grams of brown sugar and 25 ecstasy pills.
3. As per the provision of sub-section (4) of section 36A of the NDPS Act, the respondent was required to file charge sheet by 27.06.2020. But an application was filed by the Investigating Officer before the learned Special Judge for NDPS Cases (Court of XXXIII Addl. City Civil and Sessions Judge and 4 Special Judge for NDPS Cases at Bengaluru) apparently under the proviso to Section 36A(4) seeking extension of time. This application was allowed by a cryptic order dated 1.6.2020 which reads as under:-
Case advanced.
Learned PP filed application U/s 36A(4) of NDPS Act for extension of another 180 days for file charge sheet.
Perused the same.
Heard.
Prosecution has filed application U/s 36A(4) of NDPS Act to extend further 180 days time for further investigation stating that FSL report is not yet received and due to Covid-19 all the police official are on emergency duty.
On perusal of the material placed before the court, prosecution apprehended the accused and seized contraband which comes under commercial quantity. The statutory period for filling charge sheet in this type of cases is 180 days. Accused is in judicial custody since 28.12.2019. Still 180 days has not been completed as on today. Thus, prosecution has 5 filed this application within the statutory period.
In view of the Covid-19 the reasons stated in the application is genuine and reasonable. As such, the application deserves to be partly allowed. Accordingly, I proceed to pass the following.
Order Application filed by the prosecution U/s 36(a)(4) of NDPS Act is partly allowed.
Prosecution is granted another 90 days to complete investigation and file charge sheet. Call for production of A1 to A4 from Judicial Custody by 21.7.2020 Sd/- (1.6.2020) XXXIII ACC & SJ & SPL. JUDGE (NDPS): BANGALORE
4. In the case of HITENDRA VISHNU THAKUR & Others vs. STATE OF MAHARASTRA & Others (1994) 4 SCC 602, while dealing with section 20 of the TADA, the Hon'ble Supreme Court has held that, when a report is submitted by the Public Prosecutor to the designated court for extension under clause (bb), notice shall be issued to the accused before granting such an extension so that the accused may have an opportunity to 6 oppose the extension of time on legitimate grounds available to him.
5. In SANJAY DUTT VS. STATE THROUGH CBI, BOMBAY, (1994) 5 SCC 410, it is laid down that 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 the investigation is being considered is sufficient for the purpose.
6. In SANJAY KUMAR KEDIA @ SANJAY KEDIA vs. INTELLIGENCE OFFICER, NARCOTICS CONTROL BUREAU & Another, 2010 (1) SCR 555, relying on the law laid down in HITENDRA VISHNU THAKUR's case, while holding that the proviso inserted as clause (bb) in sub-section (4) of section 20 of TADA was pari materia with proviso to sub-section (4) of section 36A of NDPS Act, it is held that extension of 180 days could be granted subject to satisfaction of certain conditions. 7
7. In the instant case, there is nothing in the above order to indicate that either a prior notice was issued to the accused or that they were produced before the Court on the date of extending the time for completing the investigation. The order dated 1.6.2020 extracted above does not disclose any reasons for extension of time. The only reason assigned in the impugned order is that, in view of Covid-19, the application moved by the prosecution is genuine and reasonable and as such, it deserves to be partly allowed and accordingly, an additional 90 days were given to the prosecution to complete investigation and file the charge sheet.
8. This reasoning once again is fallacious in view of the exposition made by the Hon'ble Supreme Court in the case of S.KASI vs. STATE Through The Inspector of Police in Criminal Appeal No.452 of 2020 dated 19.06.2020, wherein considering the extension given by the High Court of Madras on the ground that the time period under section 167(2) of Cr.P.C. is eclipsed by the judgment of the Hon'ble Apex Court dated 23.03.2020 in 8 Suo Motu W.P.(C) No.3 of 2020, the Hon'ble Apex Court has held thus:
"This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/ applications/ suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.
We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for 9 being communicated to all subordinate Courts/Tribunals within their respective jurisdiction."
In para 17 of the said judgment, the position of law has been explained in the following words:
17. The limitation for filing petitions/ applications/ suits/ appeals/all other proceedings was extended to obviate lawyers/litigants to come physically to file such proceedings in respective Courts/Tribunals. The order was passed to protect the litigants/lawyers whose petitions/ applications/ suits/ appeals/all other proceedings would become time barred they being not able to physically come to file such proceedings. The order was for the benefit of the litigants who have to take remedy in law as per the applicable statute for a right. The law of limitation bars the remedy but not the right. When this Court passed the above order for extending the limitation for filing petitions/ applications/ suits/ appeals/all other proceedings, the order was for the benefit of those who have to take remedy, whose remedy may be barred by time because they were unable to come physically to file such proceedings. The order dated 23.03.2020 cannot be read to mean that it ever intended to 10 extend the period of filing charge sheet by police as contemplated under Section 167(2) of the Code of Criminal Procedure. The Investigating Officer could have submitted/filed the charge sheet before the (Incharge) Magistrate.
Therefore, even during the lockdown and as has been done in so many cases the charge-sheet could have been filed/submitted before the Magistrate (Incharge) and the Investigating Officer was not precluded from filing/submitting the charge-sheet even within the stipulated period before the Magistrate (Incharge).
(underlining supplied)
9. Thus, it is clarified by the Hon'ble Apex Court that the order dated 23.03.2020 was never meant to curtail any provisions of the Code of Criminal Procedure or any other Statute which was enacted to protect the personal liberty of a person. It has further reiterated in para 18 that, "The prosecution can very well file a charge sheet after 60 days/90 days but without filing a charge sheet they cannot detain an accused beyond a said period when the accused prays to the court to set him at liberty due to non-filing of the charge sheet within the period prescribed. 11
The right of prosecution to carry on investigation and submit a charge sheet is not akin to right of liberty of a person enshrined under Article 21 and reflected in other statutes including Section 167, Cr.P.C."
(underlining supplied) It is also significant to note that the Hon'ble Apex Court affirmed the observations of the learned Single Judge in para 15 of his order to the effect that section 36A(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 one 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 on 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 and finally in para 28 has held that the "prayer of the accused in the said case for grant of default bail was allowed. The claim of the prosecution 12 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." In the light of the above decision, the extension granted by the learned Special Judge on the ground that the Investigating Agency was disabled to file the charge sheet within the statutory period on account of Covid-19 cannot be countenanced.
10. Be that as it may, even the subsequent applications filed by the petitioners for their release under section 167(2) Cr.P.C. have been rejected by the learned Special Judge for NDPS cases, Bengaluru, on the specious ground that the applications in question have been made before the expiry of the extended time of 90 days granted by it. But it is submitted by learned Public Prosecutor appearing for the respondent that till date, charge sheet has not been submitted to the court eventhough the extended period of 90 days has elapsed.
11. In the said circumstances, the only question that needs to be decided in these petitions is, 13 Whether the petitioners are entitled for grant of bail as per Section 167(2) Cr.P.C. read with Section 36A(4) of NDPS Act due to non-completion of the investigation?
12. Learned counsel for petitioners has referred to a series of decisions on the entitlement of the accused for the benefit of default bail under section 167(2) of Cr.P.C. I do not find it necessary to burden the record by considering each of these decisions as the proviso to section 167(2) of the Code in unambiguous and clear terms stipulates that the accused shall be released on bail if he is prepared to and does furnish the bail.
13. It is now well settled that the right of the accused to be released on bail after expiry of the maximum period of detention provided under section 167 of Cr.P.C. can be denied only when the accused does not furnish bail is borne from Explanation I to the said section. It is consistently held by the Hon'ble Apex Court as well as by the various High Courts that the proviso to section (2) of section 167 of Cr.P.C. is a beneficial provision for curing the mischiefs of preliminary investigation 14 and thereby affecting the liberty of the citizen. In S.KASI, referred supra, the Hon'ble Apex Court has noted that, apart from the possibility of the prosecution frustrating the indefeasible right, there are occasions when even the court frustrates the indefeasible right of the accused.
14. This is one of the instance where on account of the order passed by the learned Special Judge mechanically extending the time for filing the charge sheet without even notifying the accused and without insisting on the production of the accused, the indefeasible right of the petitioners / accused has been frustrated indirectly. It is really shocking to note that even after the expiry of the extended period of 90 days, neither the charge sheet has been filed nor the accused have been produced before the court. As a result, even the custody of the petitioners after the expiry of the extended period of 90 days has rendered illegal. As laid down by the Hon'ble Supreme Court in the above decision, 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 15 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. As the records indicate that the petitioners have already availed their indefeasible right to be released on default bail by making necessary applications and offering surety and charge sheet having not been filed even after the extended period of 90 days, there is no other alternative than to direct the release of the petitioners on default bail subject to each of them furnishing a personal bond of Rs.5,00,000/- with two sureties each to the satisfaction of the trial Court. Ordered accordingly.
Petitions allowed.
Sd/-
JUDGE Bss