Chattisgarh High Court
B K Lala vs State Of Chhattisgarh on 2 February, 2012
HIGH COURT OF CHATTISGARH BILASPUR
Writ Petition Cr No 7985 of 2011
B K Lala
...Petitioners
Versus
State of Chhattisgarh
...Respondents
! Mr Rahul Tyagi counsel for the petitioner
^ Mr Sushil Dubey Govt Advocate for the State
CORAM: Honble Mr T P Sharma J
Dated: 02/02/2012
: Judgement
ORDER
(2-2-2012) {Writ petition under Articles 226 read with 227 of the Constitution of India}
1. By this writ petition under Article 226/227 of the Constitution of India, the petitioner has challenged legality and propriety of the order dated 12-12-2011 passed by the Sessions Judge, Dantewada in Bail Application No.109/2011 affirming the order dated 9-12-2011 passed by the Judicial Magistrate First Class, Dantewada in remand case, whereby the application filed under Section 43D of the Unlawful Activities (Prevention) Act, 1967 (for short `the Act of 1967') has been allowed and the period of limitation for filing charge sheet provided under Section 167 (2) of the Code of Criminal Procedure, 1973 (for short `the Code'), has been extended to 180 days.
2. As per both the orders impugned, copies of other applications and documents, the petitioner herein was arrested on 9-9-2011 in connection with Crime No.26/2011 registered at Police Station Kuakonda for the offence punishable under Sections 121, 124A, 120B of the IPC; 39 (1), 40 of the Act of 1967 and 8 (2) (3) of the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005, and was produced before the Court for remand under Section 167 of the Code. On 9-12- 2011 again the accused/petitioner was remanded for 12-12- 2011. After the order of remand, the Sub Divisional Officer (Police), Kirandul filed an application for extension of time of detention and for filing charge sheet, under Section 43D of the Act of 1967. After considering the application, the Judicial Magistrate First Class, Dantewada extended the period from 90 days to 180 days. On 10-12-2011, application for release of the petitioner under Section 167 (2) of the Code was filed on the ground that the investigating agency has failed to file charge sheet within 90 days as required under Section 167 (2) of the Code. After hearing the parties, the Judicial Magistrate First Class dismissed the application on the ground that the period of 90 days has already been extended to 180 days. The petitioner filed application before the Sessions Judge, South Bastar Dantewada, under Section 167 (2) of the Code read with Section 43D of the Act of 1967 and Section 399 of the Code, and prayed for release of the applicant/petitioner on bail in terms of Section 167 (2) of the Code and to set aside the order of extension of the period passed by the Judicial Magistrate First Class, dated 9-12-2011.
3. After providing opportunity of hearing to the parties, the Sessions Judge arrived at finding that by extending the period under Section 43D of the Act of 1967 the Judicial Magistrate First Class has not committed any illegality, therefore, the petitioner is not entitled for release on bail, and the application filed on behalf of the petitioner also under Section 399 of the Code, was dismissed.
4. I have heard learned counsel for the parties, perused both the orders impugned, copies of applications, copy of application dated 9-12-2011 filed for extension of the period of detention under Section 43D of the Act of 1967, copy of application under Section 43D of the Act of 1967 for extension of the period of detention relating to other co- accused Lingaram Kodopi, D.V.C.S. Verma & Sodhi Soni, report of the Public Prosecutor for extension of the period of detention of aforesaid three co-accused persons dated 19-12- 2011, orders dated 19-12-2011 & 26-12-2011 passed by the Judicial Magistrate First Class, Dantewada, and also the reply filed on behalf of the State/respondent.
5. Learned counsel for the petitioner submitted that in case of remand and detention of accused under the provisions of the Act of 1967, the provisions of Section 167 of the Code are applicable with modification in terms of Section 43D of the Act of 1967. As per Section 167 (2) of the Code and Section 43D of the Act of 1967, period of police remand would not be for more than 30 days and the total remand/period of detention of accused would not be for more than 90 days, but in case the investigation is not completed within the period of 90 days, the Court on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused may extend the period of 90 days to 180 days. Learned counsel further submitted that the provisions of Section 43D of the Act of 1967 are pari materia to the provisions of sub-section (4) of Section 36-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the NDPS Act'); Section 21 of the Maharashtra Control of Organised Crime Act, 1999 (Maharashtra Act 30 of 1999, dt. 24-4-1999); Section 49 (2) of the Prevention of Terrorism Act, 2002; and clauses (b) & (bb) of Section 20 (4) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short `the TADA') (which has been repealed by the POTA, 2002). Learned counsel also submitted that the question relating to extension of time of detention under Section 167 (2) of the Code has been dealt with by the Supreme Court in the matter of Hitendra Vishnu Thakur and others etc. etc. v. State of Maharashtra and others1 in which the Supreme Court in case of the TADA has held that in case of further extension of period of detention under Section 167 (2) of the Code, at the instance of the report of the Public Prosecutor, in the light of proviso to clause (bb) of Section 20 (4) of the TADA, although it does not specifically provide for issuance of notice, but notice should be issued to the accused before granting such extension so that an accused may have an opportunity to oppose the extension on all legitimate and legal grounds available to him. The Supreme Court has further held that at the time of seeking such extension the Public Prosecutor is required to submit his report after independent application of his mind to the request of the investigating agency and then, after issuance of notice to accused and hearing the parties, the Court may extend the period of detention. In such circumstances, the Public Prosecutor is required to apply his mind and not submit report or forward the report of the investigating agency as a post office.
6. Learned counsel for the petitioner further placed reliance in the matter of Sanjay Kumar Kedia alias Sanjay Kedia v. Intelligence Officer, Narcotics Control Bureau and another2 in which while dealing with the question of Section 36-A (4) of the NDPS Act, which is pari materia to clauses
(b) & (bb) of Section 20 (4) of the TADA by further approving the dictum of the Supreme Court in Hitendra Vishnu's case (supra), the Supreme Court has held that period of detention may be extended in four conditions viz., (1) a report of the Public Prosecutor, (2) which indicates the progress of the investigation, and (3) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days, and (4) after notice to the accused.
7. Learned counsel for the petitioner by relying upon the matter of Kamal Narayan v. State of Chhattisgarh3 has contended that in case of NDPS Act, this Court has also taken same view. Learned counsel also placed reliance in the matter of Saraswati Rai v. Union of India (UOI)4 in which the High Court of Calcutta has also taken same view.
8. Sub-section (2) of Section 43D of the Act of 1967 reads as follows: -
"(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),-
(a) the references to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days"
respectively; and
(b) after the proviso, the following provisos shall be inserted, namely:-
"Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days:
Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reason for doing so and shall also explain the delay, if any, for requesting such police custody."."
9. Proviso (bb) to clause (b) of sub-section (4) of Section 20 of the TADA reads as follows: -
"Provided further that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Designated Court shall extend the said period up to one year, on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days:
and...."
10. Sub-section (4) of Section 36-A of the NDPS Act reads as follows: -
"(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27-A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days".
Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days."
11. As per proviso to clause (b) of sub-section (2) of Section 43D of the Act of 1967, for extension of the period of detention from 90 days to 180 days, the Public Prosecutor was required to submit report indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days to the satisfaction of the Court. The TADA also provides identical provisions in proviso (bb) to clause (b) of sub-section (4) of Section 20. Proviso to sub-section (4) of Section 36-A of the NDPS Act also provides identical provisions.
12. Proviso (bb) to clause (b) of sub-section (4) of Section 20 of the TADA and proviso to sub-section (4) of Section 36-A of the NDPS Act are pari materia to proviso to clause (b) of sub-section (2) of Section 43D of the Act of 1967.
13. While dealing with proviso (bb) to clause (b) of sub- section (4) of Section 20 of the TADA relating to extension of period of investigation and detention of the accused, the Supreme Court in Hitendra Vishnu's case (supra) has held that the prosecution was under obligation to file charge sheet within 90 days of arrest of the accused and if prosecution is unable to file charge sheet within the stipulated period, the accused acquires indefeasible and absolute right of his release on bail as per the provisions of Section 20 (4) of the TADA. In case of any extension in terms of proviso (bb) to clause (b) of sub-section (4) of Section 20 of the TADA, the prosecution is required to follow the mandatory procedure prescribed and the investigating agency is required to submit the case showing progress of the case to the Public Prosecutor, in turn, the Public Prosecutor is required to examine the progress of the case and the factum of inability of filing charge sheet within the stipulated time, and after such examination, the Public Prosecutor is required to submit its report before the Court. Considering indefeasible right of bail and absolute right to be released on bail of the accused which he may acquire after stipulated period, notice to the accused to object and contest such report is also the condition prescribed.
14. The Supreme Court in Hitendra Vishnu's case (supra) has observed in para 20 of its judgment as follows:-
"20. ...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 clause (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 prosecutor to the Designated Court for grant of extension under clause (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 clause (b) nor (bb) of sub- section (4) of Section 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 prosecution 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 whatsoever can be caused by the issuance of such a notice to 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 clause (b) of sub- section (4) of Section 20 of TADA or within the extended period as envisaged by clause (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 clause (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-section (4) of Section 20 TADA on account of the 'default' of the prosecution."
The Supreme Court has further observed in para 22 as follows: -
"22. We may, at this stage, also on a plain reading of clause (bb) of sub-section (4) of Section 20, point out that the Legislature has provided for seeking extension of time for completion of investigation on a report of the public prosecutor. The Legislature did not purposely leave it to an investigating officer to make an application for seeking extension of time from the court. This provision is in tune with the legislative intent to have the investigations completed expeditiously and not to allow an accused to be kept in continued detention during unnecessary prolonged investigation at the whims of the police. The Legislature expects that the investigation must be completed with utmost promptitude but where it becomes necessary to seek some more time for completion of the investigation, the investigating agency must submit itself to the scrutiny of the public prosecutor in the first instance and satisfy him about the progress of the investigation and furnish reasons for seeking further custody of an accused. A public prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigation agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A public prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation. In that event, he may not submit any report to the court under clause (bb) to seek extension of time. Thus, for seeking extension of time under clause (bb), the public prosecutor after an independent application of his mind to the request of the investigating agency is required to make a report to the Designated Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation. The public prosecutor may attach the request of the investigating officer along with his request or application and report, but his report, as envisaged under clause (bb), must disclose on the face of it, that he has applied his mind and was satisfied with the progress of the investigation and considered grant of further time to complete the investigation necessary. The use of the expression "on the report of the public prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period" as occurring in clause (bb) in 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. Where either no report as is envisaged by clause (bb) is filed or the report filed by the public prosecutor is not accepted by the Designated Court, since the grant of extension of time under clause (bb) is neither a formality nor automatic, the necessary corollary would be that an accused would be entitled to seek bail and the court `shall' release him on bail if he furnishes bail as required by the Designated Court. It is not merely the question of form in which the request for extension under clause (bb) is made but one of substance. The contents of the report to be submitted by the public prosecutor, after proper application of his mind, are designed to assist the Designated Court to independently decide whether or not extension should be granted in a given case. Keeping in view the consequences of the grant of extension i.e. keeping an accused in further custody, the Designated Court must be satisfied for the justification, from the report of the public prosecutor, to grant extension of time to complete the investigation. Where the Designated Court declines to grant such an extension, the right to be released on bail on account of the 'default' of the prosecution becomes indefeasible and cannot be defeated by reasons other than those contemplated by sub- section (4) of Section 20, as discussed in the earlier part of this judgment. We are unable to agree with Mr. Madhava Reddy or the Additional Solicitor General Mr. Tulsi that even if the public prosecutor `presents' the request of the investigating officer to the court or 'forwards' the request of the investigating officer to the court, it should be construed to be the report of the public prosecutor. There is no scope for such a construction when we are dealing with the liberty of a citizen. The courts are expected to zealously safeguard his liberty. Clause (bb) has to be read and interpreted on its plain language without addition or substitution of any expression in it. We have already dealt with the importance of the report of the public prosecutor and emphasized that he is neither a 'post office' of the investigating agency nor its `forwarding agency' but is charged with a statutory duty. He must apply his mind to the facts and circumstances of the case and his report must disclose on the face of it that he had applied his mind to the twin conditions contained in clause (bb) of sub- section (4) of Section 20. Since, the law requires him to submit the report as envisaged by the section, he must act in the manner as provided by the section and in no other manner. A Designated Court which overlooks and ignores the requirements of a valid report fails in the performance of one of its essential duties and renders its order under clause (bb) vulnerable. Whether the public prosecutor labels his report as a report or as an application for extension would not be of much consequence, so long as it demonstrates on the face of it that he has applied his mind and is satisfied with the progress of the investigation and the genuineness of the reasons for grant of extension to keep an accused in further custody as envisaged by clause (bb) (supra). Even the mere reproduction of the application or request of the investigating officer by the public prosecutor in his report, without demonstration of the application of his mind and recording his own satisfaction would not render his report as the one envisaged by clause (bb) and it would not be a proper report to seek extension of time. In the absence of an appropriate report, the Designated Court would have no jurisdiction to deny to an accused his indefeasible right to be released on bail on account of the default of the prosecution to file the challan within the prescribed time if an accused seeks and is prepared to furnish the bail bonds as directed by the court. Moreover, no extension can be granted to keep an accused in custody beyond the prescribed period except to enable the investigation to be completed and as already stated before any extension is granted under clause (bb), the accused must be put on notice and permitted to have his say so as to be able to object to the grant of extension."
15. While dealing with same question, the Supreme Court in Sanjay Kumar's case (supra) in case of proviso to sub-section (4) of Section 36-A of the NDPS Act, by relying upon the dictum of Hitendra Vishnu's case (supra), the Supreme Court has held that at the time of consideration of report of the prosecutor for extension of period, the courts are required to consider the four conditions and observed in para 12 as follows: -
"12. The maximum period of 90 days fixed under Section 167 (2) of the Code has been increased to 180 days for several categories of offences under the Act but the proviso authorizes a yet further period of detention which may in total go up to one year, provided the stringent conditions provided therein are satisfied and are complied with. The conditions provided are:
(1) a report of the Public Prosecutor, (2) which indicates the progress of the investigation, and (3) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days, and (4) after notice to the accused."
16. This Court in Kamal Narayan's case (supra) and the High Court of Calcutta in Saraswati Rai's case (supra) have also taken same view in the light of dictum of the Supreme Court in Hitendra Vishnu's case (supra).
17. In the light of aforesaid preposition of law, it is clear that extension of time under clause (b) of sub-section (2) of Section 43D of the Act of 1967 is not a mere formality, even the public prosecutor is not a post office. After the stipulated period, the accused acquires indefeasible and absolute right to be released on bail in terms of clause (a) of sub-section (2) of Section 43D of the Act of 1967. In order to claim extension of time under clause (b) of sub-section (2) of Section 43D of the Act of 1967, the prosecution agency is required to produce material before the public prosecutor for enabling it to submit its report after examination of the material for extension of time that too well within the stipulated period of 90 days failing which the accused acquires indefeasible and absolute right to be released on bail which cannot be withdrawn by the subsequent act of the prosecuting agency or of the public prosecutor.
18. A bare perusal of the order impugned passed by the Judicial Magistrate First Class and that of the Sessions Judge reveals that the petitioner has been arrested on 9-9- 2011 and the case was fixed before the Court of Judicial Magistrate First Class, Dantewada for filing charge sheet on 12-12-2011. On 9-12-2011 application under Section 167 (1) read with Section 57 of the Code and Article 22 of the Constitution of India was filed on behalf of the petitioner and the case was adjourned for 12-12-2011 for diary and further hearing for reply on same day. Later on, the Sub Divisional Officer (Police), Kirandul has filed an application under Section 43D of the Act of 1967 for extension of time for investigation. After considering the grounds mentioned in the application, the Judicial Magistrate First Class has extended the period from 90 days to 180 days. On 10-12-2011 another application under Section 167 (2) of the Code was filed on behalf of the petitioner for bail on the ground that charge sheet has not been filed within the period of 90 days, same has been rejected by the court on the ground that period for filing charge sheet has already been extended from 90 days to 180 days vide order dated 9-12-2011. Later part of the order passed on 9-12-2011 reveals that the Sub Divisional Officer (Police), Kirandul, probably the investigating officer, has filed application under Section 43D of the Act of 1967. Annexure P-4, application dated 9-12- 2011, further reveals that the Sub Divisional Officer (Police) has filed such application also counter signed by the District Public Prosecutor, Dantewada.
19. The application filed under Section 43D of the Act of 1967 clearly reveals that the investigating officer has prayed for extension of time on the ground of inability of filing charge sheet within the stipulated period. It does not reflect that the public prosecutor has examined the case and the grounds claimed by the investigating agency for such extension or that he has applied his mind on the material submitted before it. The public prosecutor has not submitted its report for extension of time, even he is not present at the time of extension to prosecute the aforesaid application. The accused was neither present nor noticed. The order has been passed in absence of the accused, even the public prosecutor only on the basis of application submitted by the investigating officer. The aforesaid order in absence of public prosecutor and notice to the accused was not in conformity with the proviso to clause (b) of sub-section (2) of Section 43D of the Act of 1967 and also of the dictum of the Supreme Court in Hitendra Vishnu's case (supra).
20. The order dated 9-12-2011 was challenged before the Sessions Judge and vide order impugned, the Sessions Judge has dismissed the bail application coupled with petition for revision on the ground that the period has already been extended. At the time of passing such order, the Sessions Judge was having jurisdiction to consider the bail application and also to examine legality and propriety of the order dated 19-12-2011 passed by the Judicial Magistrate First Class in exercise of its revisional jurisdiction under Section 399 of the Code. However, the Sessions Judge has not considered non-compliance of the mandatory provisions of clause (b) of sub-section (2) of Section 43D of the Act of 1967 and thereby committed illegality.
21. In the present case, the Judicial Magistrate First Class has not acted in accordance with clause (b) of sub-section (2) of Section 43D of the Act of 1967 in passing the order (later part of the order dated 9-12-2011). The Sessions Judge has also failed to exercise its revisional power in correcting such order passed in violation of clause (b) of sub-section (2) of Section 43D of the Act of 1967 and thereby committed serious illegality.
22. For the foregoing reasons, the petition is allowed. The order impugned dated 12-12-2011 passed by the Sessions Judge and later part of the order dated 9-12-2011 passed by the Judicial Magistrate First Class are hereby quashed. Both the orders relating to extension of period of detention from 90 days to 180 days are also hereby quashed. Consequently, the order dismissing the bail application under Section 167 (2) of the Code by the Sessions Judge and the Judicial Magistrate First Class are also hereby quashed. The Judicial Magistrate First Class shall hear the parties on the application filed under Section 167 (2) of the Code dated 10-12-2011 and pass order afresh, in accordance with law. No order as to costs.
JUDGE