Madras High Court
Sathish vs The State Represented By on 8 February, 2022
Crl.O.P.(MD)No.3225 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 02.03.2022
Delivered on : 17.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
Crl.O.P.(MD)No.3225 of 2022
1.Sathish
2.Prakash ... Petitioners/
Petitioners/
Accused 5&7
vs.
1.The State represented by
The Inspector of Police,
Avaniapuram Police Station,
Madurai City.
(Crime No.668 of 2021)
2.The Inspector of Police,
NIB-CID,
Madurai District.
(Crime No.32 of 2021) ... Respondents/
Respondents/
Complainant
PRAYER : Criminal Original Petition filed under Section 482 r/w 439
Cr.P.C, to set aside the returned order dated 08.02.2022 without
numbering the statutory bail petition filed by the petitioners in
unnumbered Cr.M.P.No._____ of 2022 on the file of the Additional
District Judge / Presiding Officer, Principal Special Court for EC &
NDPS Act Cases, Madurai, in Crime No.32 of 2021 on the file of the
https://www.mhc.tn.gov.in/judis
1/26
Crl.O.P.(MD)No.3225 of 2022
second respondent police and consequently take the said petition on file
and release the petitioners on statutory bail.
For Petitioners : Mr.K.K.Ramakrishnan
For Respondent : Mr.S.Ravi,
Additional Public Prosecutor Assisted by
Mr.M.Muthumanikkam
Government Advocate (Crl. side)
ORDER
This Criminal Original Petition is directed against the order passed in unnumbered Cr.M.P.No._____ of 2022 dated 08.02.2022 passed by the Principal Special Court for EC & NDPS Act Cases, Madurai, returning the petition for statutory bail filed under Section 167(2) Cr.P.C. r/w Section 36-A(4) of NDPS Act.
2.The case of the prosecution is that on 13.06.2021, on receiving a secret information, the police party had intercepted Ape auto bearing Registration No.TN-58-AA-1027 and Apache bike bearing Registration No.TN-37-BQ-2812 at Avaniyapuram Perumalsamy Nagar, CMS mill junction, that on seeing the police party, four accused had escaped from the scene of occurrence, that the police party had then surrounded and arrested the accused 1 to 3 and recovered 60 kgs of Ganja, that subsequently on the basis of the confession given by the first accused, https://www.mhc.tn.gov.in/judis 2/26 Crl.O.P.(MD)No.3225 of 2022 130 kgs of Ganja was recovered from the house of the sixth accused, that on the basis of the confession of the first accused, remaining accused 4, 5 and 7 to 10 were added and that the petitioners were added on the basis of the confession of the first accused and they were arrested on 11.08.2021.
3.It is not in dispute that the accused 1 and 4 were already released on statutory bail. The petitioners have filed statutory bail application on 08.02.2022 and the notice of the bail application was served on the learned Special Public Prosecutor, NDPS Court, Madurai, and the learned Special Judge, by noting that application for extension of period for filing the final report in C.M.P.No.164 of 2022 was pending, has returned the petition for statutory bail vide order dated 08.02.2022 and the relevant portion of the order is extracted hereunder:-
“Hence, as this said petition/report is under consideration before taking any decision on the report, the Court cannot pass orders relating the petitioners/accused on default bail. Since, the prayer for extension of period for filing of final report was moved by the Special Public Prosecutor before the statutory period had lapsed, the right of default bail would be extinguished. Therefore, for the aforesaid reasons the petition is returned.” https://www.mhc.tn.gov.in/judis 3/26 Crl.O.P.(MD)No.3225 of 2022
4.The petitioners, by invoking Section 482 Cr.P.C., has challenged the said order and sought to set aside the same.
5.The learned counsel for the petitioners would submit that when the petitioners/accused filed the statutory bail petition, after expiry of the period prescribed for filing the final report, the duty of the learned Special Judge is that to release the accused, that the learned Special Judge without granting extension of time to complete the investigation in Cr.M.P.No.164 of 2022, has no authority to refuse the statutory bail and as such, the petitioners' custody is to be considered as illegal, that there was no judicial order of extension of time to complete the investigation as on 08.02.2022 and in the said circumstances, after expiry of 180 days, they ought to have been released on bail, that the learned Special Public Prosecutor ought to have obtained the order of extension of period for completion of the investigation before expiry of 180 days by giving notice to the accused, that mere filing of the application did not make any hindrance to deal with this statutory bail application, that the learned Special Judge has wrongly presumed that mere filing of the extension petition extinguished the indefeasible right of statutory bail and that therefore the order of the learned Special Judge is liable to be set aside.
https://www.mhc.tn.gov.in/judis 4/26 Crl.O.P.(MD)No.3225 of 2022
6.The learned counsel for the petitioners would further submit that the learned Special Public Prosecutor filed the petition without any bona fide and without any reason to grant time and the same was apparent from the non-filing of the similar extension petition before the statutory bail granted to the accused 1 to 3 on 10.12.2021 and that the petitioners' right to get statutory bail after expiry of 180 days without order of extension of time limit to complete the investigation is automatic.
7.It is evident from the records that the petitioners, who are the accused 5 and 7, were arrested on 10.08.2021 and on production before the jurisdictional Magistrate Court, both of them were remanded to judicial custody on 11.08.2021, that the case was transferred from Avaniyapuram Police to NIB-CID Madras on 05.12.2021, that the Inspector of Police, NIB-CID, registered a case in Crime No.32 of 2021 on 06.12.2021, that the prosecution has presented the petition seeking extension of time under Proviso to Sub Section (4) of 36-A of NDPS Act and the same was taken on file in Cr.M.P.No.164 of 2022 and adjourned to 14.02.2022, that both the petitioners have been produced through video conference and their remand was ordered to be extended upto 16.02.2022 vide order dated 02.02.2022, that thereafter the petitioners have filed the petition for statutory bail under Section 167(2) Cr.P.C. r/w https://www.mhc.tn.gov.in/judis 5/26 Crl.O.P.(MD)No.3225 of 2022 Section 36-A(4) of NDPS Act and the same was returned and that subsequently the learned Special Judge has granted extension of time till 15.05.2022 for filing the final report.
8.The learned counsel for the petitioners would mainly contend that the learned Special Judge, without passing any order extending the time for investigation and for filing of the final report, has no right to extend the remand of the petitioners and that since the charge sheet has not been filed till the expiry of the period contemplated under Section 167 Cr.P.C., the learned Special Judge has no other option but to grant the statutory bail. He would further submit that mere pendency of the application for extension is not sufficient and that since no order was passed on 08.02.2022 extending the period, the learned Special Judge without considering the petition for default bail, has committed grave error in returning the said petition.
9.The learned counsel for the petitioners has mainly relied on the decision of the Hon'ble Supreme Court in M.Ravindran vs. Intelligence Officer, Directorate of Revenue Intelligence reported in (2021) 2 SCC 485 and the relevant passage is extracted hereunder:-
https://www.mhc.tn.gov.in/judis 6/26 Crl.O.P.(MD)No.3225 of 2022 “14.2 It must also be added and it is well settled that issuance of notice to the State on the application for default bail filed under the Proviso to Section 167(2) is only so that the Public Prosecutor can satisfy the Court that the prosecution has already obtained an order of extension of time from the Court; or that the challan has been filed in the designated Court before the expiry of the prescribed period; or that the prescribed period has actually not expired. The prosecution can accordingly urge the Court to refuse granting bail on the alleged ground of default. Such issuance of notice would avoid the possibility of the accused obtaining default bail by deliberate or inadvertent suppression of certain facts and also guard against multiplicity of proceedings.”(emphasis supplied)
10.No doubt, the Hon'ble Apex Court, while considering the petition for statutory bail, has held that the prosecution can satisfy that they have already filed the charge sheet before the expiry of the prescribed period or that they have already obtained necessary orders extending time for completing the investigation and for filing of the final report or that the prescribed period has actually not expired.
11.The learned counsel for the petitioners has then relied on the judgment of the Hon'ble Apex Court in Bikramjit Singh vs. State of Punjab reported in 2020 SCC Online SC 824 and the relevant paragraph https://www.mhc.tn.gov.in/judis 7/26 Crl.O.P.(MD)No.3225 of 2022 is extracted hereunder:-
“A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.”
12.The learned counsel for the petitioners has also relied on the judgment of the Hon'ble Supreme Court in Sanjay Kumar Kedia @ Sanjay Kedia vs. Intelligence Officer, Narcotic Control Bureau and another reported in 2009 17 SCC 631, wherein, the Hon'ble Apex Court, while considering the applications for extension of time, has quoted another judgment of the Hon'ble Supreme Court in Hitendra Vishnu Thakur and others vs. State of Maharashtra reported in 1994 (4) SCC 602 and the same is extracted hereunder:-
https://www.mhc.tn.gov.in/judis 8/26 Crl.O.P.(MD)No.3225 of 2022 “11. Mr. Lalit, has further contended that the two applications for extension of time could not, by any stretch of imagination, be said to be reports of the public prosecutor as envisaged under Section 36A (4) and has again referred us to the case ibidem:
“23. ... A public prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A public prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation. In that event, he may not submit any report to the court under clause (bb) to seek extension of time. Thus, for seeking extension of time under clause (bb), the public prosecutor after an independent application of his mind to the request of the investigating agency is required to make a report to the Designated Court indicating therein the progress of the https://www.mhc.tn.gov.in/judis 9/26 Crl.O.P.(MD)No.3225 of 2022 investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation. The public prosecutor may attach the request of the investigating officer along with this request or application and report, but his report, as envisaged under clause (bb), must disclose on the face of it that he has applied his mind and was satisfied with the progress of the investigation and considered grant of further time to complete the investigation necessary. The use of the expression "on the report of the public prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period" as occurring in clause (bb) in sub- section (2) of Section 167 as amended by Section 20(4) are important and indicative of the legislative intent not to keep an accused in custody unreasonably and to grant extension only on the report of the public prosecutor. The report of the public prosecutor, therefore, is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements as contained in clause (bb). The request of an investigating officer for extension of time is no substitute for the report of the public prosecutor.”
13.In M.Ravindran's case cited supra, the accused therein filed the application for statutory bail on the 181st day of his arrest and the Public https://www.mhc.tn.gov.in/judis 10/26 Crl.O.P.(MD)No.3225 of 2022 Prosecutor had filed the additional complaint at 04.25 p.m., on that day after the completion of the arguments on the statutory bail application and the Hon'ble Supreme Court, by observing that the prosecution had not filed any application seeking extension of time to investigate into the crime prior to 31.01.2019 and only after filing of the petition for statutory bail on the 181st day the additional charge sheet came to be filed, has held that the accused was entitled to be enlarged on bail.
14.In Bikramjit Singh's case, the accused therein filed the application for statutory bail on 21.02.2019 and charge sheet was filed on 26.03.2019, that though the time of 90 days had already been extended by the learned Sub-Divisional Judicial Magistrate, the same was set aside by the Special Court holding that under the UAPA r/w NIA act, the Special Court alone had jurisdiction to extend time to 180 days and the Hon'ble Supreme Court by setting aside the judgment of the High Court, has held that the accused is entitled to be released on default bail.
15.In Sanjay Kumar Kedia @ Sanjay Kedia's case, the Hon'ble Apex Court, by referring to the observation made in Hitendra Vishnu Thakur's case that the report of the Public Prosecutor is not a formality and it must strictly comply with the requirements as contained in clause https://www.mhc.tn.gov.in/judis 11/26 Crl.O.P.(MD)No.3225 of 2022 (bb) in Sub-section (4) of Section 20 of TADA and that request of the Investigating Officer for extension of time is no substitute for the report of the Public Prosecutor, has observed that the extensions granted to the Investigating department under the Proviso to Section 36-A(4) did not satisfy the conditions laid down therein and both the extensions, therefore, being contrary to law, must be struck down accordingly.
16.The learned counsel for the petitioners has then relied on the decision of this Court passed in K.Muthuirul vs. The Inspector of Police, Samayanallur Police Station in Crl.O.P.(MD)No.18273 of 2021 reported in 2022 (1) MWN (Crl.) 196 and the relevant passages are extracted hereunder:-
“24.Considering the above, the moot point that arises is as to what is the time available for the accused to apply statutory bail, after the expiry of the period prescribed for filing the final report by the investigating agency.
25.As already pointed out, the investigating agency is duty bound to file their final report before expiry of 60 or 90 or 180 days, as the case may be, and on the next day i.e, 61 st or 91st or 181st day only, the right to apply for statutory bail gets accrued to the accused and there must be some reasonable time limit enabling him to apply for the default bail. In Tamil Nadu, all the Courts shall ordinarily sit at 10.30.am. If the https://www.mhc.tn.gov.in/judis 12/26 Crl.O.P.(MD)No.3225 of 2022 investigating agency files the charge sheet by 10.30 am, on the next day, after the expiry of the period prescribed under Section 167(2) Cr.P.C, can we say that the accused has lost his right of filing the petition for default bail subsequently, on the same day. In my considered view, the accused can exercise his right to apply the default bail on the whoe day, on which, the indefeasible right to apply the statutory bail accrues to him.
26.In the case on hand, admittedly both the bail petition as well as the charge sheet were filed on 18.10.2021. As rightly contended by the learned counsel for the petitioner, the period of 180 days got expired before 18.10.2021 and as such, the respondent police has failed to file the charge sheet within the prescribed period of 180 days. But on the other hand, the petitioner only after expiry of prescribed period of 180 days has filed the petition by invoking his indefeasible right under Section 36(A)(4) of NDPS Act r/w Section 167(2) of Cr.P.C.
Hence, the observation of the learned trial Judge that she had verified with the concerned staffs of E-filing Section as to the time, at which the charge sheet was filed and that since the concerned staffs had informed that there was no practice to enter the time at which, the petitions or cases are being filed, pales into insignificance. Since the prosecution has laid the charge sheet, after expiry of period prescribed, the time of filing the charge sheet cannot be considered as a relevant criteria for deciding the statutory bail.
https://www.mhc.tn.gov.in/judis 13/26 Crl.O.P.(MD)No.3225 of 2022
27.The Hon'ble Supreme Court in M.Ravindran's case, cited supra, while considering the points as to whether the indefeasible right accruing to the accused under Section 167(2) Cr.P.C gets extinguished by subsequent filing of an additional complaint by the investigating agency, after referring to the various decisions on the subject, has concluded as follows:
“18. Therefore, in conclusion:
18.1 Once the accused files an application for bail under the Proviso to Section 167(2) he is deemed to have ‘availed of’ or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2)Cr.P.C read with Section 36 A, NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency.
18.2 The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the charge sheet or a report seeking extension of time by the https://www.mhc.tn.gov.in/judis 14/26 Crl.O.P.(MD)No.3225 of 2022 prosecution before the Court; or filing of the charge sheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.
18.3 However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the Cr.P.C.
18.4 Notwithstanding the order of default bail passed by the Court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the Court, his continued detention in custody is valid.”
17.In the said decision case, the petition for statutory bail and charge sheet were filed on the same day and admittedly, there was no application for extension of time for filing the final report.
https://www.mhc.tn.gov.in/judis 15/26 Crl.O.P.(MD)No.3225 of 2022
18.To counter the arguments of the learned counsel for the petitioners, the learned Additional Public Prosecutor has relied on the judgments of the Hon'ble Supreme Court reported in 2018 4 SCC 405 and of this Court reported in CDJ 2018 MHC 3612:-
(I) Rambeer Shokeen vs. State (NCT of Delhi) “26. ...... 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 charge-sheet 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 charge-sheet made by the Additional Public Prosecutor.
27. ....... 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, https://www.mhc.tn.gov.in/judis 16/26 Crl.O.P.(MD)No.3225 of 2022 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 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.
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 charge-sheet. That report was submitted on 28th February, 2017, before expiry of the initial statutory period of 90 days for filing of the charge-sheet against the appellant. That request was disposed of by the Special Court on 8th March, 2017 as infructuous, after the charge-sheet 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 https://www.mhc.tn.gov.in/judis 17/26 Crl.O.P.(MD)No.3225 of 2022 request of the Additional Public Prosecutor for extension of time to file the charge-sheet. 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 charge- sheet 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.” (II) Thiruselvam and others vs. State represented by the Deputy Superintendent of Police, Hyderabad “22. Under Section 43-D of the UAP Act read with Section 167 Cr.P.C., the maximum period of detention is 90 days, however, the proviso to Section 43(2) states that the period of 90 days can be extended to a period of 180 days, https://www.mhc.tn.gov.in/judis 18/26 Crl.O.P.(MD)No.3225 of 2022 if the Court is satisfied that the report of the Public Prosecutor indicates the progress of the investigation and the specific reasons for the detention of the accused. Under the general law, the police is required to file the final report under Section 173(2) Cr.P.C. in the Court before the expiry of the 60/90 days period to prevent the accused from seeking statutory bail. However, under Section 43(2) of the UAP Act, the Parliament, in its wisdom, has empowered the Public Prosecutor to file a report seeking extension, since it is considered that the Public Prosecutor, being an Officer of the Court and a public functionary, would have unbiasedly assessed the necessity for seeking extension of time for completing the investigation. In the opinion of this Court, the filing of the Report by the Public Prosecutor within 90 days would initially stop the time period from running out and it is, of course, contingent to the Special Judge accepting or rejecting the report. If the Special Judge rejects the Report, statutory bail to the accused is the only consequence. If the Report is accepted, the accused cannot claim statutory bail immediately after the expiry of the 90-day period.
[....]
30. To recapitulate the facts, the 90-day period qua Thiruselvam [A1], Kaviarasan [A3] and Kalailingam [A4] was to expire on 08.07.2014 and qua Karthik [A5] and John Martin [A6], it was to expire on 06.08.2014 and in https://www.mhc.tn.gov.in/judis 19/26 Crl.O.P.(MD)No.3225 of 2022 the meantime, the Special Public Prosecutor filed the report under the proviso to Section 43-D(2) of the UAP Act for extending the period upto 180 days on 30.06.2014, on which, docket order was passed on 04.07.2014. Only thereafter, the accused filed the petition for statutory bail on 11.07.2014, which was not entertained by the trial Court. The charge sheet was filed by the NIA against all the accused on 30.09.2014. Therefore, in the light of the recent judgment of the Supreme Court in Rambeer Shokeen (supra), which is binding on this Bench under Article 141 of the Constitution of India, this Court is unable to persuade itself to follow the order of this Court in Thangaraj (supra) for granting relief to the appellants.
[....]
32. The question is, will the accused be entitled to default bail on this ground? As explained above, default bail is a sort of a rap on the knuckles of the police for not completing the investigation and filing the final report within 90/60 days of first remand of the accused. For the failure of the Judge to pass a formal judicial order of extension of remand on the application of the prosecution, default bail is not the remedy. The maxim, Actus Curiae Neminem Gravabit - An act of the Court shall prejudice no one, cannot be ignored. Such a ground for bail cannot be founded either u/s 167(2) or u/s 437 Cr.P.C. This Court cannot hold that, failure of the Magistrate/Judge to pass https://www.mhc.tn.gov.in/judis 20/26 Crl.O.P.(MD)No.3225 of 2022 judicial orders on extension of remand applications would entail default bail to the accused and thus invent an hitherto unknown new category of default bail.”
19.In the above decision cases, even before the expiry of the period prescribed for filing the final report under Section 167 Cr.P.C., the prosecution had filed applications seeking extension of time for completing the investigation and for filing of the final report and during the pendency of the above said extension application, petitions for statutory bail came to be filed and that the Hon'ble Supreme Court as well as the Division Bench of this Court have specifically held that granting of statutory bail during the pendency of report/application for extension of time to file charge sheet was impermissible and that the consideration of the application for grant of statutory bail was dependent on rejection of prayer of the prosecution for extension of time.
20.In the present case, as already pointed out, since the petitioners were remanded to judicial custody on 11.08.2021, 180 days of their judicial custody expires on 07.02.2022 and no doubt, the petitioners are entitled to invoke Section 167(2) Cr.P.C. for default bail on 08.02.2022 and accordingly, they have filed the petition for default bail on that day, but more importantly, as already pointed out, the prosecution has filed https://www.mhc.tn.gov.in/judis 21/26 Crl.O.P.(MD)No.3225 of 2022 the extension petition on 23.01.2022 well before the expiry of 180 days of judicial custody of the petitioners.
21.As rightly contended by the learned Additional Public Prosecutor, at the time of filing of the application of statutory bail on 08.02.2022, the application of extension of time filed by the prosecution was very much pending before the concerned Court.
22.It is not in dispute that the learned Special Judge, after returning the petition filed for statutory bail on 08.02.2022, has passed an order dated 14.02.2022 in Cr.M.P.No.164 of 2022 granting extension of time till 15.05.2022 for filing the final report. Thereafter, the wife of the first petitioner and the father of the second petitioner have filed petitions in H.C.P.(MD)Nos.211 and 213 of 2021 alleging that the detention of the petitioners beyond the statutory period of 180 days is illegal and hence, they will have to be set at liberty and the Division Bench of this Court, by relying on the judgment of the Hon'ble Supreme Court in Rambeer Shokeen's case and M.Ravindran's case cited supra, by observing that on the day when the application for default bail was filed in the Court, the application filed by the prosecution seeking extension of time in Cr.M.P.No.164 of 2022 was pending on the file of the Special Court, that https://www.mhc.tn.gov.in/judis 22/26 Crl.O.P.(MD)No.3225 of 2022 though the learned Special Judge erred in returning the application for default bail on the ground that the application for extension of time is pending, that may not afford a ground to the petitioners therein to seek immediate release of the accused persons invoking the constitutional power of this Court under Article 226 of the Constitution of India, has dismissed the same.
23.As rightly contended by the learned Additional Public Prosecutor, the judgments of the Hon'ble Supreme Court in Rambeer Shokeen's case and of this Court in Thiruselvam's case are squarely applicable to the case on hand and the legal position stated therein has been reiterated by the Division Bench of this Court in H.C.P.(MD)Nos.
211 and 213 of 2021, which were, filed for setting the present petitioners at liberty.
24.Since the petition in Cr.M.P.No.164 of 2022 filed for extension of time for filing the final report was pending, the application for statutory bail filed on 08.02.2022, as per the legal position above referred, cannot be proceeded with and the application for default bail has to be decided only after the disposal of the extension petition or atleast simultaneous with the extension petition.
https://www.mhc.tn.gov.in/judis 23/26 Crl.O.P.(MD)No.3225 of 2022
25.Considering the above, this Court has no hesitation to hold that the petitioners are not entitled to be enlarged on statutory bail and as such, the impugned order of the learned Special Judge cannot be found fault with. Hence, this Court concludes that the Criminal Original Petition is devoid of merits and the same is liable to be dismissed.
26.In the result, this Criminal Original Petition is dismissed.
17.03.2022 Index : Yes/No Internet : Yes/No CSM Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis 24/26 Crl.O.P.(MD)No.3225 of 2022 To
1.The Additional District Judge / Presiding Officer, Principal Special Court for EC & NDPS Act Cases, Madurai.
2.The Inspector of Police, Avaniapuram Police Station, Madurai City.
(Crime No.668 of 2021)
3.The Inspector of Police, NIB-CID, Madurai District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 25/26 Crl.O.P.(MD)No.3225 of 2022 K.MURALI SHANKAR, J.
CSM Pre-delivery order made in Crl.O.P.(MD)No.3225 of 2022 17.03.2022 https://www.mhc.tn.gov.in/judis 26/26