Gujarat High Court
Qamar Ghani Usmani S/O Shabibuddin ... vs State Of Gujarat on 23 September, 2022
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi, A. P. Thaker
R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1216 of 2022
With
R/CRIMINAL APPEAL NO. 1215 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI : Sd/-
and
HONOURABLE DR. JUSTICE A. P. THAKER : Sd/-
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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QAMAR GHANI USMANI S/O SHABIBUDDIN USMANI
Versus
STATE OF GUJARAT
=======================================================
Appearance:
MR MEHMOOD PRACHHA with MR AAYUSHMAN AGGARWAL with MS
RATNA VORA(2251) for the Appellant(s) No. 1
MR MITESH AMIN, PP with MR HARDIK SONI APP for the
Respondent(s) No. 1
=======================================================
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE DR. JUSTICE A. P. THAKER
Date : 23/09/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI) Page 1 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022
1. Since the issue involved in the present appeals are arising out of same FIR, both these appeals are heard together at the joint request of learned advocates appearing for the parties and are being decided by this common judgment.
2. Criminal Appeal No.1216/2022 has been filed by the appellant under Section 13 of the Gujarat Control of Terrorism & Organized Crime Act, 2015 ("GUJCTOC" for short) read with Section 482 of the Criminal Procedure Code, 1973 challenging the order dated 22.04.2022 passed by the learned Principal District & Sessions Judge & Designated Special Judge (GCTOC), Ahmedabad (Rural) at Mirzapur in Criminal Misc. Application No.1318/2022, by which, the application filed by the prosecution for the grant of 90 days for filing of chargesheet has been partly allowed and 30 days time is granted to complete the investigation.
3. Criminal Appeal No.1215/2022 has been filed by the appellant under Section 13 of the GUJCTOC read with Section 21 of the National Investigation Agency Act, 2008 read with Section 482 of the Criminal Procedure Code, 1973 challenging the order dated 25.05.2022 passed by the learned Principal District & Sessions Judge & Designated Special Judge (GCTOC), Ahmedabad (Rural) at Mirzapur in Criminal Misc. Application No.1318/2022, by which, the application for default bail filed by the appellant has been Page 2 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 rejected.
4. Heard learned advocate, Mr. Mehmood Prachha with learned advocate, Mr. Aayushman Aggarwal assisted by learned advocate, Ratna Vora for the appellant and learned Public Prosecutor, Mr. Mitesh Amin assisted by learned APP Mr. Hardik Soni for the respondent - State of Gujarat.
5. Learned advocate for the appellant submitted that an FIR being C.R. No.11192018220020/2022 is registered under Sections 302, 307, 201 and 120(B) of the Indian Penal Code, under Section 25(1b)(a) of the Arms Act, under Section 135 of the Gujarat Police Act, under Sections 3(1)(1) and 3(2) of the GUJCTOC and under Sections 13(1)(A)(B), 16(1)(A), 17, 18 and 20 of the Unlawful Activity (Prevention) Act on 26.01.2022 and in connection with the said FIR, the appellant was arrested on 29.01.2022 from Delhi. Learned advocate submitted that after his arrest, the appellant was produced before the court of learned Additional Chief Magistrate, Dhandhuka on 31.01.2022, who granted 7 days police custody of the appellant vide order dated 31.01.2022. It is submitted that statutory period of 90 days custody of the appellant expired on 29.04.2022, however before that i.e. on 22.04.2022, learned Special Public Prosecutor submitted a report dated 22.04.2022 before the learned Designated Court for the purpose of extension of custody of the arrested accused persons under Section 20(2)(b) of the GUJCTOC read Page 3 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 with Section 167 of the Criminal Procedure Code, 1973 ("Code" for short) for providing further period of 90 days for filing chargesheet. At this stage, it is submitted that on 22.04.2022, learned Designated Court, by an order dated 22.04.2022, granted extension of 30 days for the purpose of investigation and for filing chargesheet and also for the custody of the appellant. It is submitted that the said order dated 22.04.2022 is challenged by filing above Criminal Appeal No.1216/2022.
6. At this stage, learned advocate further submitted that thereafter, the appellant filed an application for default bail being Criminal Misc. Application No.1318/2022 under Section 167(2) of the Code on 10.05.2022 before the learned Designated Court seeking statutory/ default bail on the ground that the statutory period of 90 days custody has expired and no chargesheet has been filed. Further, it was stated in the said application that since there is no legal and valid order granting extension of period of limitation/ filing of the chargesheet, the appellant is entitled to his indefeasible right to be released on statutory bail. It is submitted that the Investigating Officer has filed an affidavit and opposed the said application and, thereafter, the learned Designated Court, by an order dated 25.05.2022, rejected the said application seeking statutory/ default bail. It is submitted that the said order dated 25.05.2022 is challenged by Page 4 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 filing above Criminal Appeal No.1215/2022.
7. Learned advocate for the appellant has mainly contended that as per the decision rendered by the Hon'ble Supreme Court in case of Hitendra Vishnu Thakur & Ors. Vs. State of Maharashtra & Ors., reported in (1994) 4 SCC 602, learned Designated Court was required to issue notice to the appellant before granting extension for the purpose of investigation and for filing chargesheet. Learned advocate has more particularly referred to and placed reliance upon the observations made in Paragraph Nos.20, 21, 39 and 40 of the said decision.
8. Learned advocate for the appellant, thereafter, referred to the decision rendered by the Hon'ble Supreme Court in case of Sanjay Dutt Vs. State Through C.B.I. Bombay, reported in (1994) 5 SCC
410. Learned advocate has referred to Paragraph No.57 of the said decision and contended that the production of the accused in the court at the time of considering the question of extension of period for completing investigation is must. Learned advocate for the appellant, thereafter, placed reliance upon the decision rendered by the Hon'ble Supreme Court in case of Uday Mohanlal Acharya Vs. State of Maharashtra, reported in (2001) 5 SCC 453 and more particularly has referred to Paragraph No.7 of the said decision. It is submitted that when there is no legal and valid order extending the period of limitation beyond 90 days, the Page 5 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 appellant is having indefeasible right to be released on statutory/ default bail on completion of period of 90 days.
9. Learned advocate for the appellant has, thereafter, placed reliance upon the decision of the Hon'ble Supreme Court in case of Rakesh Kumar Paul Vs. State of Assam, reported in (2017) 15 SCC 67 and more particularly has referred to Paragraph No.59 of the said decision. Lastly, learned advocate has placed reliance upon the decision of the Hon'ble Supreme Court in case of M. Ravindran Vs. The Intelligence Officer, Directorate of Revenue Intelligence, reported in (2021) 2 SCC 485 and referred to Paragraph Nos.11.6, 11.7 and 15.3 of the said decision.
10. After referring to the aforesaid decisions, learned advocate has mainly contended that before granting extension for the purpose of investigation beyond a period of 90 days, the learned Designated Court has not issued notice to the appellant - accused nor he was produced before the Court when the impugned order of extension was passed on 22.04.2022 pursuant to the application submitted by learned Special Public Prosecutor. It is, therefore, urged that the impugned order dated 22.04.2022 be quashed and set aside.
11. At this stage, it is further submitted that if there is no valid order of extension for the purpose of completion of investigation, on 29.04.2022, the appellant was required to be Page 6 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 released on statutory/ default bail as the period of 90 days was over. It is, therefore, submitted that the appellant - accused is having indefeasible right as per the aforesaid decisions and, therefore, the impugned order passed by the learned Designated Court rejecting the default bail application filed by the appellant - accused is also required to be quashed and set aside and, thereby the appellant be released on default bail.
12. On the other hand, learned Public Prosecutor has vehemently opposed this appeals. Learned PP has referred to the averments made in the affidavit- in-reply filed by the Deputy Superintendent of Police, ATS, copy of which is placed on record at Page No.110 of the compilation. It is submitted that the Investigating Officer had preferred an application for extension of period for investigation under Section 20(2)(b) of the GUJCTOC on 22.04.2022 and the learned Designated Court extended the said period vide order dated 22.04.2022. It is submitted that the appellant was immediately informed on 23.04.2022. At this stage, learned PP has pointed out from the record that the appellant was arrested on 30.01.2022 and remand was granted on 30.01.2022 upto 07.02.2022, which was further extended on 16.02.2022 and, hence, the appellant could be entitled for filing an application for default bail only after 30.04.2022, however in the meantime, the learned Designated Court extended the period of Page 7 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 investigation and in fact, on 23.04.2022, the appellant was aware about the extension granted by the learned Designated Court and during the period between 23.04.2022 to 30.04.2022, the appellant did no prefer any application and thus, the appellant has failed to show any prejudice caused to him.
13. Learned PP at this stage submitted that the object of provision of law is that the accused had knowledge of the report for extension of period of investigation. The purpose is merely to inform the accused of the report submitted by the Investigating Officer so that the accused may have an opportunity to oppose the extension on all legitimate and legal grounds available to him.
14. At this stage, it is also contended that the Investigating Officer had sought for further of the investigation by submitting application dated 22.05.2022, which the learned Designated Court granted vide order dated 24.05.2022 and the appellant has not challenged the order dated 24.05.2022 and now the chargesheet is already filed on 20.06.2022.
15. Learned PP has thereafter contended that the decision rendered by the Hon'ble Supreme Court in case of Hitendra Vishnu Thakur (supra) would not be applicable. It is submitted that the default bail can be granted to the accused if the chargesheet is not filed within a period of 90 days, however in the present case, before expiry Page 8 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 of 90 days, report for extension for the purpose of investigation was submitted, which was granted by learned Designated Court. It is also contended at this stage that while considering the case of Sanjay Dutt (supra), the Hon'ble Supreme Court has also taken into consideration the judgment rendered by the Hon'ble Supreme Court in case of Hitendra Vishnu Thakur (supra) and, thereafter, passed the judgment.
16. Learned PP has placed reliance upon the decision rendered by the Hon'ble Supreme Court in case of Rambeer Shokeen Vs. State (NCT of Delhi), reported in (2018) 4 SCC 504. Learned PP has more particularly referred to Paragraph Nos.17 to 19, 26, 31, 34, 37 and 38. After referring to relevant paragraphs, it is contended by learned PP that unless the report/ application filed by the prosecutor for extension of time was rejected, no right was accrued in favour of the accused much less to consider his application for the grant of statutory/ default bail. It is submitted that in the present case, the application for extension was already granted by the concerned Court prior to right accrued in favour of the appellant.
17. Learned PP has, thereafter, placed reliance upon the decision rendered by this Court in case of Nilesh Mansukhlal Tolia Vs. State of Gujarat, reported in 2022 (1) GLR 250. Learned PP at this stage submitted that the issue involved in the present appeals is covered by the said decision.
Page 9 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 Learned PP has, therefore, urged that both these appeals be dismissed as the learned Designated Court has not committed any error while passing impugned orders.
18. We have considered the submissions canvassed by learned advocates for the parties. We have also perused the material placed on record and the decisions upon which reliance has been placed by learned advocates for the parties.
19. As could be seen from the facts narrated hereinabove, the appellant was arrested on 29.01.2022 from Delhi and, thereafter, he was produced before the concerned Court at Dhandhuka on 31.01.2022, where the concerned Court granted 7 days police custody of the appellant and thus, statutory period of 90 days of the appellant was expired on 29.04.2022, however before that on 22.04.2022, learned Special Public Prosecutor submitted a report before the learned Designated Court for the purpose of extension of the custody of the arrested accused under Section 20(2)(b) of the GUJCTOC read with Section 167 of the Code for granting further period of 90 days for filing chargesheet. The learned Designated Court, by an order dated 22.04.2022, granted extension of 30 days for the purpose of investigation and for filing chargesheet and also for the custody of the appellant. It is not in dispute that the statutory period of 90 days of the appellant was expired on 29.04.2022 and before that, learned Designated Page 10 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 Court passed an order of extension.
20. At this stage, this Court would like to refer to the decision rendered by the Hon'ble Supreme Court in case of Hitendra Vishnu Thakur (supra), wherein the Hon'ble Supreme Court has observed in Paragraph Nos.20, 21 and 39 as under, "20. Section 57 of the Code of Criminal Procedure provides that a person arrested shall not be detained in custody by the police for a period longer than that which is reasonable but that such period shall not exceed 24 hours exclusive of the time necessary for journey from the place of arrest to the Court of the Magistrate in the absence of a special order u/s. 167 of the Code. The Constitution of India through Art. 22(2) mandates that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for journey from the place of arrest to that Court and that no person shall be detained in custody beyond that period without the authority of the Magistrate. Thus, the Constitution of India as well as the Code of Criminal Procedure expect that an arrested person, who has been detained in custody, shall not be kept in detention for any unreasonable time and that the investigation must be Page 11 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 completed as far as possible within 24 hours. Where the investigation of the offence for which accused has been arrested cannot be completed within 24 hours and there are grounds for believing that the accusation or information against the accused is well founded, the police is obliged to forward the accused along with the case diary to the nearest Magistrate for further remand of the accused person. The Magistrate, on the production of the accused and the case diary, must scrutinise the same carefully and consider whether the arrest was legal and proper and whether the formalities required by law have been complied with and then to grant further remand, if the Magistrate is so satisfied. The law enjoins upon the investigating agency to carry out the investigation, in a case where a person has been arrested and detained, with utmost urgency and complete the investigation with great promptitude in the prescribed period. Sub-sec. (2) of sec. 167 of the Code lays down that the Magistrate to whom the accused is forwarded may authorise his detention in such custody, as he may think fit, for a term specified in that section. The proviso to sub-sec. (2) fixes the outer limit within which the investigation must be completed Page 12 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 and in case the same is not completed within the said prescribed period, the accused would acquire a right to seek to be released on bail and if he is prepared to and does furnish bail, the Magistrate shall release him on bail and such release shall be deemed to be grant of bail under Chapter XXXIII of the Code of Criminal Procedure. The said chapter comprises of Sections 436 to 450 but for our purposes it is only Sections 437 and 439 of the Code which are relevant. Both these Sections empower the Court to release an accused on bail. The object behind the enactment of sec. 167 of the Code was that the detention of an accused person should not be permitted in custody pending investigation for any unreasonably longer period. However, realising that it may not be possible to complete the investigation in every case within 24 hours or even 1S days, as the case may be, even if the investigating agency proceeds with utmost promptitude, the Parliament introduced the proviso to sec. 167(2) of the Code, prescribing the outer limit within which the investigation must be completed. sec. 167 read with sec. 20(4) of TADA, thus, strictly speaking is not a provision for 'grant of bail' but deals with the maximum period during which Page 13 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 a person accused of an offence may be kept in custody and detention to enable the investigating agency to complete the investigation and file the charge sheet, if necessary, in the Court. The proviso to sec. 167(2) of the Code read with sec. 20(4)(b) of TADA, therefore, creates an indefeasible right in an accused person, on account of the 'default' by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail. It is for this reason that an order for release on bail under proviso (a) of sec. 167(2) of the Code read with S.20(4) of TADA is generally termed as an "order-on- default" as it is granted on account of the default of the prosecution to complete the investigation and file the challan within the prescribed period. As a consequence of the amendment, an accused after the expiry of 180 days from the date of his arrest becomes entitled to bail irrespective of the nature of the offence with which he is charged, where the prosecution fails to put up challan against him on completion of the investigation. With the amendment of clause
(b) of sub-sec. (4) of sec. 20 read with the proviso to sub-sec. (2) of S.167 of Page 14 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 Cr.P.C., an indefeasible right to be enlarged on bail accrues in favour of the accused, if the police fails to complete the investigation and put up a challan against him in accordance with law u/s. 173, Code of Criminal Procedure An obligation, in such a case, is cast upon the Court, when after the expiry of the maximum period during which an accused could be kept in custody, to decline the police request for further remand except in cases governed by Cl. (bb) of sec. 20(4). There is yet another obligation also which is cast on the Court and that is to inform the accused of his right of being released on bail and enable him to make an application in that behalf. [Hussainara Khatoon's case, AIR 1979 SC 1369]. This legal position has been very ably stated in Aslam Babalal Desai V/s. State of Maharashtra, AIR 1993 SC 1: (1992 AIR(SCW) 2621) where speaking for the majority, Ahmadi, J. referred with approval to the law laid down in Rajnikant Jivanlal Patel V/s. Intelligence Officer, Narcotic Control Bureau, New Delhi, AIR 1990 SC 71 wherein it was held that :
"The right to bail u/s. 167(2) proviso
(a) thereto is absolute. It is a legislative command and not Court's Page 15 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 discretion. If the investigating agency fails to file charge-sheet 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."
Thus, we find that once the period for filing the charge sheet has expired and either no extension under Cl. (bb) has been granted by the Designated Court or the period of extension has also expired, the accused person would be entitled to move an application for being admitted to bail under sub-sec. (4) of sec. 20 TADA read with sec. 167 of the Code and the Designated Court shall release him on bail, if the accused seeks to be so released and furnishes the requisite bail. We are not impressed with the argument of the learned counsel for the appellant that on the expiry of the period during which investigation is required to be completed u/s. 20(4) TADA read with sec. 167 of the Page 16 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 Code, the Court must release the accused on bail on its own motion even without any application from an accused person, on his offering to furnish bail. In our opinion as an accused is required to make an application if he wishes to be released on bail on account of the 'default' of the investigating / prosecuting agency and once such an application is made, the Court should issue a notice to the public prosecutor, who may either show that the prosecution has obtained the order for extension for completion of investigation from the Court under Cl. (bb) or that the challan has been filed in the Designated Court before the expiry of the prescribed period or even that the prescribed period has actually not expired and, thus resist the grant of bail on the alleged ground of 'default'. The issuance of notice would avoid the possibility of an accused obtaining an order of bail under the 'default' clause by either deliberately or inadvertently concealing certain facts and would avoid multiplicity of proceedings. It would, therefore, serve the ends of justice if both sides are heard on a petition for grant of bail on account of the prosecution's 'default'. Similarly, when a report is submitted by the public Page 17 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 prosecutor to the Designated Court for grant of extension under Cl. (bb), its notice should be issued to the accused before granting such an extension so that an accused may have an opportunity to oppose the extension on all legitimate and legal grounds available to him. It is true that neither Cl. (b) nor (bb) of sub-sec. (4) of sec. 20 TADA specifically provide for the issuance of such a notice but in our opinion the issuance of such a notice must be read into these provisions both in the interest of the accused and the prosecution as well as for doing complete justice between the parties. This is a requirement of the principles of natural justice and the issuance of notice to the accused or the public prosecutor, as the case may be, would accord with fair play in action, which the courts have always encouraged and even insisted upon. It would also strike a just balance between the interest of the liberty of an accused on the one hand and the society at large, through the prosecuting agency on the other hand. There is no prohibition to the issuance of such a notice to the accused or the public prosecutor in the scheme of the Act and no prejudice what so ever can be caused by the issuance of such a notice to Page 18 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 any party. We must as already noticed reiterate that the objection to the grant of bail to an accused on account of the 'default' of the prosecution to complete the investigation and file the challan within the maximum period prescribed under Cl. (b) of sub-sec. (4) of sec. 20 of TADA or within the extended period as envisaged by Cl. (bb), has to be limited to the cases where either the factual basis for invoking the 'default' clause is not available or the period for completion of investigation has been extended under Cl. (bb) and the like. No other condition, like the gravity of the case, seriousness of the offence or character of the offender etc. can weigh with the Court at that stage to refuse the grant of bail to an accused under sub-sec. (4) of sec. 20 TADA on account of the 'default' of the prosecution.
21. An application for grant of bail u/s. 20(4) has to be decided on its own merits for the default of the prosecuting agency to file the charge sheet within the prescribed or the extended period for completion of the investigation uninfluenced by the merits or the gravity of the case. The Court has no power to remand an accused to custody beyond the period prescribed by Cl. (b) of sec. 20(4) or extended under Cl. (bb) of Page 19 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 the said section, as the case may be, if the challan is not filed only on the ground that the accusation against the accused is of a serious nature or the offence is very grave. These grounds are irrelevant for considering the grant of bail u/s. 20(4) of TADA. The learned Additional Solicitor General rightly did not subscribe to the argument of Mr. Madhava Reddy (both appearing for the State of Maharashtra) that while considering an application for release on bail u/s. 20(4), the Court has also to be guided by the general conditions for grant of bail as provided by sec. 20(8) of TADA. Considering the ambit and scope of the two provisions, we are of the opinion that it is totally inconceivable and unacceptable that the considerations for grant of bail u/s. 20(8) would be applicable to and control the grant of bail u/s. 20(4) of the Act. The two provisions operate in different and independent fields. The basis for grant of bail u/s. 20(4), as already noticed, is entirely different from the grounds on which bail may be granted u/s. 20(8) of the Act. It would be advantageous at this stage to notice the provisions of sec. 20(8) and (9) of the Act.
"(8) Notwithstanding anything contained in Page 20 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 the Code, no person accused of an offence punishable under this Act or any rule made thereunder shall, "if in custody", be released on bail or on his own bond unless-
(a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(9) The limitations on granting of bail
specified in sub-sec. (8) are in
addition to the limitations under the Code or any other law for the time being in force on granting of bail."
As would be seen from the plain
phraseology of sub-sec. (8) of sec.
20, it commences with a non-abstante clause and in its operation imposes a ban on release of a person accused of an offence punishable under TADA or any rule made thereunder on bail unless the twin conditions contained in Cls. (a) and (b) thereof are satisfied. No bail can be granted u/s.
20(8) unless the Designated Court is Page 21 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 satisfied after notice to the public prosecutor that there are reasonable grounds for believing that the accused is not guilty of such an offence and that he is not likely to commit any offence while on bail. Sub-sec. (9) qualifies sub-sec. (8) to the extent that the two conditions contained, in Cls (a) and (b) are in addition to the limitations prescribed under the Code of Criminal Procedure or any other law for the time being in force relating to the grant of bail. Strictly speaking sec. 20(8) is not the source of power of the Designated Court to grant bail but it places further limitations on the exercise of its power to grant bail in cases under TADA, as is amply clear from the plain language of Section 20(9). The Constitution Bench in Kartar Singh's case (1994 Cri LJ 3139 (SC)) (supra). While dealing with the ambit and scope of sub-secs. (8) and (9) of sec. 20 of the Act, quoted with approval the following observations from Usmanbhai's case (AIR 1988 SC 922) (supra) :
"Though there is no express
provision excluding the
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applicability of sec. 439 of the
Code similar to the one contained in Section 20(7) of the Act in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder, but that result must, by necessary implication, follow. It is true that the source of power of a Designated Court to grant bail is not sec. 20(8) of the Act as it only places limitations on such power. This is made explicit by sec. 20(9) which enacts that the limitations on granting of bail specified in sec. 20(8) are 'in addition to the limitations under the Code or any other law for the time being in force'. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to sec.
439 of the Code. It cannot be
doubted that a Designated Court
is 'a Court other than the High
Court or the Court of Session'
within the meaning of sec. 437 of
the Code. The exercise of the
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power to grant bail by a
Designated Court is not only
subject to the limitations
contained therein, but is also
subject to the limitations placed by sec. 20(8) of the Act."
and went on to add :
"Reverting to sec. 20(8), if either of the two conditions mentioned therein is not satisfied the ban operates and the accused person cannot be released on bail but of course it is subject to sec. 167(2) as modified by sec. 20(4) of the TADA Act in relation to a case under the provisions of TADA."
Thus, the ambit and scope of sec. 20(8) of TADA is no longer res integra and from the above discussion it follows that both the provisions i.e. Ss. 20(4) and 20(8) of TADA operate in different situations and are controlled and guided by different considerations.
39. From the above discussion and the admitted fact situation (date of arrest and period for completion of investigation and not filing of challan within the prescribed period not being in dispute), in the case of Hitendra Vishnu Thakur, we find that the extension of custody under clause (bb) was erroneously granted by an improper exercise Page 24 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 of the jurisdiction by the Designated Court by placing an incorrect interpretation on the requirements as contemplated by clause (bb) by treating the application of the investigating officer read with his objections to the bail application as a report of the Public Prosecutor though without effecting the validity of further investigation. In the absence of grant of valid extension of custody to complete the investigation and file the challan, Hitendra Vishnu Thakur had acquired an indefeasible and absolute right to be released on bail as per the provisions of Section 20(4) of the Act, since the accused had offered to be released on bail on such terms as the Designated Court may prescribe. The Designated Court was, therefore, under an obligation to admit and release the appellant on bail under Section 20(4) of TADA read with Section 167(2), Code of Criminal Procedure on the merits of the application under Section 20(4) itself uninfluenced by any other considerations.
21. Thus in the aforesaid decision, the Hon'ble Supreme Court has observed that when a report is submitted by the public prosecutor to the Designated Court for grant of extension, its notice should be issued to the accused before Page 25 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 granting such an extension so that an accused may have an opportunity to oppose the extension on all legitimate and legal grounds available to him. The Hon'ble Supreme Court has further observed that in absence of grant of valid extension of custody to complete the investigation and file the challan, the accused had acquired an indefeasible and absolute right to be released on bail.
22. However thereafter, the Hon'ble Supreme Court in case of Sanjay Dutt (Supra) after considering the decision rendered by the Hon'ble Supreme Court in case of Hitendra Vishnu Thakur (supra), has observed in Paragraph Nos.46, 47, 48 and 53 as under,
46. On the other aspect, Shri Kapil Sibal conceded that the indefeasible right for grant of bail on expiry of the initial period of 180 days for completing the investigation or the extended period prescribed by Sec. 20(4)(bb) as held in Hitendra Vishnu Thakur is a right of the accused which is enforceable only upto the filing of the challan and does not survive for enforcement on the challan being filed in the court against him. Shri Sibal submitted that the decision of the Division Bench in Hitendra Vishnu Thakur cannot be read to confer on the accused an indefeasible right to be released on bail under this provision once the challan has Page 26 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 been filed if the accused continues in custody. He stated unequivocally that on filing of the challan, such a right which accrued prior to filing of the challan has no significance and the question of grant of bail to an accused in custody on filing of the challan has to be considered and decided only with reference to the provisions relating to grant of bail applicable after filing of the challan, since Sec. 167 CrPC has relevance only to the period of investigation.
47. Learned Additional Solicitor General, in reply, agreed entirely with the above submission of Shri Sibal and submitted that the principle enunciated by the Division Bench in Hitendra Vishnu Thakur must be so read. However, the grievance of the learned Additional Solicitor General is that the direction for grant of bail by the Division Bench in Hitendra Vishnu Thakur, on the facts of that case, is not in consonance with such reading of that decision and indicates that the indefeasible right of the accused to be released on bail on expiry of the time allowed for completing the investigation survives and is enforceable even after the challan has been filed, without reference to the merits of the case or the material produced in the Page 27 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 court with the challan. He further submitted that it should be clarified that the direction to grant bail under this provision on this ground alone in Hitendra Vishnu Thakur after the challan had been filed was incorrect. Such a clarification, he urged, is necessary because the decision in Hitendra Vishnu Thakur is being construed by the Designated Courts to mean that the right of the accused to be released on bail in such a situation is indefeasible in the sense that it survives and remains enforceable, without reference to the facts of the case, even after the challan has been filed and the court has no jurisdiction to deny the bail to the accused at any time if there has been a default in completing the investigation within the time allowed. Bail is being claimed by every accused under the TADA Act for this reason for seeking a fresh decision of this question by a larger Bench.
48. We have no doubt that the common stance before us of the nature of indefeasible light 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 Page 28 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 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 Sec. 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 Sec. 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in Page 29 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 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 of detention is on the basis of a valid order. (See Naranjan Sigh Nathawan V/s. The State of Punjab, 1952 SCR 395; Ram Narayan Singh V/s. The State of Delhi and Others, 1953 SCR 652; and A. K Gopalan V/s. The Government of India, (1966) 2 SCR 427).
53. As a result of the above discussion, our answers to the three questions of law referred for our decision are as under :
(1) In the prosecution for an offence punishable under Sec. 5 of the TADA Act, the prosecution is required to prove that the accused was in conscious Page 30 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 'possession', 'unauthorisedly', in 'a notified area' of any arms and ammunition specified in columns 2 and 3 of Category I or Category III (a) of Schedule I to the Arms Rules, 1962 or bombs, dynamite or other explosive substances. No further nexus with any terrorist or disruptive activity is required to be proved by the prosecution in view of the statutory presumption indicated earlier. The accused in his defence is entitled to prove the non-
existence of a fact constituting any of these ingredients. As a part of his defence, he can prove by adducing evidence, the non-existence of facts constituting the third ingredient as indicated earlier to rebut the statutory presumption. The accused is entitled to prove by adducing evidence, that the purpose of his unauthorised possession of any such arms and ammunition, etc. was wholly unrelated to any terrorist or disruptive activity. If the accused succeeds in proving the absence of the said third ingredient, then his mere unauthorised possession of any such arms and ammunition, etc. is punishable only under the general law by virtue of Section 12 of the TADA Act and not under Page 31 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 Sec. 5 of the TADA Act.
(2)(a). Sec. 20(4)(bb) of the TADA Act only requires production of the accused before the court in accordance with Sec. 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 sub- sec. (4) of Sec. 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 the investigation is being considered, is alone sufficient for the purpose.................................."
23. Thus, the Hon'ble Supreme Court has in the aforesaid decision has specifically held that the requirement of such notice to the accused before granting extension for completing the investigation is not a written notice to the accused giving reasons therein. The production of Page 32 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 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 alone sufficient for the purpose.
24. In the decision of the Hon'ble Supreme Court in case of Uday Mohanlal Acharya (supra), it has been observed in Paragraph No.7 as under,
7. In Sanjay Dutt's case (supra) the Constitution Bench examined this question also along with some other questions and the Constitution Bench explained the meaning of the expression "indefeasible right" of the accused made in Hitendra Vishnu Thakur (supra). It appears that the Counsel for the accused in Sanjay Dutt's case concerned before the Court that indefeasible right for grant of bail on expiry of the initial period of 180 days for completing the investigation or the extended period prescribed by Sec. 20 (4) (bb), as held in Hitendra Vishnu Thakur (supra) is a right of the accused which is enforceable only upto the filing of the challan and does not survive for enforcement on the challan being filed in the court against him. In fact Mr. Sibbal, learned Senior Counsel appearing for the accused had submitted, that the decision of the Division Bench in Hitendra Vishnu Thakur cannot be read to confer on the Page 33 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 accused an indefeasible right to be released on bail under this provision once the challan has been filed if the accused continues in custody."
25. In the decision of the Hon'ble Supreme Court in case of Rakesh Kumar Paul (supra), it has been observed in Paragraph No.59 as under, "59. Before dealing with Section 167 of the Code, I would like to refer to Section 57, which provides that any person arrested by the police should not be detained for more than 24 hours unless an order is obtained from the magistrate under Section 167 of the Code. The Code was originally enacted in the year 1898. We must remember that at that time, the means of communication were very primitive; the means of telecommunications barely existed. Despite that, in the Code as originally enacted, the police was expected to complete investigation within 15 days and the magistrate did not have any jurisdiction to pass an order detaining him beyond 15 days if investigation was not completed. This system worked well enough for more than seven decades. After the country attained independence, we enacted and gave to ourselves the Constitution of India, which came into force on 26.01.1950. Article 21 of the Constitution provides that "no man Page 34 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 shall be deprived of his life and personal liberty except in accordance with the procedure established by law". Right of personal liberty is not only a legal right but it is a human right, which is inherent in every citizen of any civilised society. Article 21 only recognises this right. We can read Section 57 and 167 to be the procedure established by law which curtails this right."
26. In the decision of the Hon'ble Supreme Court in case of M. Ravindran (supra), it has been observed in Paragraph No.11.7 as under, "11.7 We may also refer with benefit to the recent judgement of this Court in S. Kasi vs. State Through The Inspector of Police Samaynallur Police Station Madurai District (Criminal Appeal No. 452 of 2020 dated 19th June, 2020), 2020 SCC OnLine SC 529 , wherein it was observed that the indefeasible right to default bail under Section 167(2) is an integral part of the right to personal liberty under Article 21, and the said right to bail cannot be suspended even during a pandemic situation as is prevailing currently. It was emphasized that the right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a chargesheet."
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27. In the decision of the Hon'ble Supreme Court in case of Rambeer Shokeen (supra), it has been observed in Paragraph Nos.31, 34 and 37 as under, "31. 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 charge-sheet made by the Additional Public Prosecutor.
34. In the present case, however, the prayer for extension of period for filing charge- sheet was moved by the Additional Public Prosecutor before the statutory period had lapsed, but the same remained pending until 8th March, 2017, when charge-sheet 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 Page 36 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 infructuous on 8th March, 2017, after filing of the charge-sheet 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 charge-sheet 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.
37. 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 charge-sheet 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 charge- sheet was already filed on that date, the Page 37 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 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."
28. Thus from the aforesaid decision of the Hon'ble Supreme Court in case of Rambeer Shokeen (supra), it is clear that the 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 this decision, the Hon'ble Supreme Court has specifically held that 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 accrued.
In the present case, prayer for extension of time sought by learned Special Public Prosecutor has not been rejected by the learned Designated Court and in fact, the said application for extension was allowed by the learned Designated Page 38 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 Court before the right of filing the statutory bail could have accrued.
29. In the decision of this Court in case of Nilesh Mansukhlal Tolia (supra), it has been observed in Paragraph No.18 as under,
18. In the case of present petitioners, when the report of the Public Prosecutor were considered the physical production of the accused was not permissible due to Covid-19 pandemic and since all the accused were in different jails the feasibility of Video Conferencing would have been slow. In Ateef Nasir Mulls s case (supra), it was held that there is no statutory requirement to give any notice to the accused in any particular terms. Here, in the present matters, the applicant in Cr. Misc. Application No.4901 of 2021 had filed regular bail application as Cr. Misc. application No.61 of 2021 on the very same day before the Special Court, the bail application came to be rejected on 19.01.2021, and in the order of the Special Court, the mention is there of the report of the Public Prosecutor dated 08.01.2021. It is submitted that other accused too had the knowledge, as their advocates on record had prayed for the certified copies of the order below the report prior to the filing of the default bail application. So, when Page 39 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022 R/CR.A/1216/2022 JUDGMENT DATED: 23/09/2022 the right accrued and when the accused actually availed their right for default bail, they had sufficient knowledge of the order of extension of time to 180 days for filing charge-sheet. The purpose of production of the accused and information is to protect his right to avail the benefit of default bail and it is quite obvious that no bail can be given unless the prayer to extend time is rejected. Unless the period of 90 days is extended for a further period of 90 days, the Special Court is not empowered to remand the accused to custody even though the investigation is incomplete. So, as observed in Rambeer Shokeen s case (supra), 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."
30. This Court in the aforesaid decision of Nilesh Mansukhlal Tolia (supra) has considered all aforesaid decisions rendered by the Hon'ble Supreme Court and, thereafter, observed that the purpose of production of the accused and information is to protect his right to avail the benefit of default bail and it is quite obvious that no bail can be given unless the prayer to extend time is rejected.
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31. Thus in the decision rendered by this Court, it has been observed that the purpose of production of the accused and information is to protect the right of the accused to avail benefit of default bail and no default bail can be given unless the prayer for extension of time is rejected. Keeping in view the aforesaid decision, if the facts of the present case are examined, it is clear that an application was given by the Special Public Prosecutor for extension for the purpose of investigation and for filing chargesheet on 22.04.2022 and the applicant had immediately informed on 23.04.2022. Further on 29.04.2022, the right is accrued in favour of the appellant - accused for filing an application for default bail. However prior to that, he was informed about the order of extension. Thus in the facts of the present case, we are of the view that no error is committed by the learned Designated Court while passing an order of extension on 22.04.2022 as well as while passing an order dated 25.05.2022 rejecting an application for default bail.
32. In the result, both these appeal devoid of merits and is hereby dismissed. Notice is discharges.
Sd/-
(VIPUL M. PANCHOLI, J.) Sd/-
(DR. A. P. THAKER, J.) Gautam Page 41 of 41 Downloaded on : Mon Sep 26 20:45:05 IST 2022