Calcutta High Court (Appellete Side)
Saraswati Rai vs Union Of India on 4 May, 2011
Author: Ashim Kumar Roy
Bench: J. N. Patel, Ashim Kumar Roy
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Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Chief Justice Mr. J. N. Patel
And
The Hon'ble Mr. Justice Ashim Kumar Roy
C.R.A. NO. 411 of 2010
Saraswati Rai
Versus
Union of India
For the Appellant : Mr. Sekhar Kr. Basu
Mr. Somopriyo Chowdhury
Mr. Arnab Chatterjee
For Union of India : Mr. B. R. Ghosal
Mr. G. S. Makher
Mr. Sanjoy Bardhan
Heard on: February 14th & February 21st, 2011.
Judgment on: 04-05-2011
ASHIM KUMAR ROY, J.:
This is an appeal under Section 21 (4) of the National Investigating Agency Act, 2008 (hereinafter referred to as NIA Act) against an order refusing to grant bail on default to the appellant Saraswati Rai.
2. The present appellant, aged about 23 years and happened to be a student of Master of Business Administration, pursuing her study at IIAS School 2 of Management, Siliguri was arrested on March 14, 2010 by the State police in connection with Matigara Police Station Case No. 51/2010, under Sections 121/121A/122/124A of the Indian Penal Code.
It is the case of the prosecution that on March 14, 2010 the Deputy Superintendent of Police, Siliguri received a written requisition from the Officer- In-Charge Commando, Imphal, East Monipur police for apprehension of one Ninjthoujam Tomba @ Koireng @ Rajen, a top most extremist group KYKL and MYL of Manipur, wanted in connection with criminal cases registered at Monipur and who was then moving through the Siliguri corridor. When source was engaged and it was learnt that 2/3 persons of the said extremist organization, who were then at Matigara area would move from Sevok Road Construction Side towards the Kurseong area through Khaprail Road in a Scorpio vehicle, registration No. WB/74/P-4775. To work out such information the said Deputy Superintendent of Police with force had been to Khaprail area under Matigara Police Station and positioned near Khaprail Bazar. Soon thereafter the said Scorpio vehicle of off-white colour was found passing through the said road and police intercepted the vehicle and found while a male person was driving the vehicle, one female was sitting with him on the front side. On interrogation of the person, who was driving the vehicle, he disclosed his identity as Ninjthoujam Tomba @ Koireng @ Rajen, while the co-passenger disclosed her identity as Saraswati Rai his close associates. As the identity of the person matched with the information received from the Monipur Police Station both of them were arrested and mobile phones and both Indian and Foreign currencies were 3 recovered from them and the vehicle was seized. Thereafter, the principal accused Ninjthoujam Tomba @ Koireng @ Rajen was thoroughly interrogated when he admitted that he was the Commander-in-Chief of banned extremists group KYKL and MYL of Monipur and for last several months he was staying at Kurseong and running his organization and collecting money by extortion and firearms and also recruiting youths including ladies to wage war against the State.
In the meantime, in exercise of power conferred under sub-section (5) of Section 6 read with Section 8 of the NIA Act, 2008, the Central Government by a notification dated April 8, 2010 suo motu issued a direction entrusting the investigation of the said case to the National Investigating Agency (hereinafter referred to as NIA) as the materials collected during the investigation of the aforesaid case disclosed commission of schedule offences and further authorized them to investigate such other offences which may found to have been committed in connection therewith. Pursuant to such notification NIA/New Delhi Crime No. 6/2010 dated April 24, 2010 was registered and NIA undertook the investigation of the said case and on June 8, 2010 moved the Learned Sessions Judge, Darjeeling for adding Sections 17/20/21 of the Unlawful Activities (Prevention) Act, 1967 as amended by Unlawful Activities (Prevention) Amendment Act, 2008, (hereinafter referred to as U.A. (P) Act) and such prayer was allowed.
Subsequently, on June 9, 2010 the District Public Prosecutor, Darjeeling representing the Investigating Agency, NIA moved an application under sub-section (2) (b) of Section 43D of the U.A. (P) Amendment Act, 2008 4 before the Court below for extension of time and simultaneously on June 18, 2010 an application was moved on behalf of the appellant seeking her release on the ground of non-submission of the charge-sheet within the statutory period. On the prayer of the prosecution the Learned Judge fixed June 22, 2010 for hearing of the appellant's application for statutory bail. On June 22, 2010 both the applications, viz., the application for extension of time as well as the appellant's application for bail were taken up for hearing. When the Learned Judge allowed the prosecution prayer for extension of time and rejected the appellant's prayer for bail as time has been extended.
Now, in this appeal both the orders, one allowing the prayer of the prosecution for extension of time as well as the order rejecting the appellant's prayer for bail are under challenge.
3. Mr. Sekhar Basu, the learned Counsel appearing on behalf of the appellant vehemently contended that in connection with the aforesaid case when no charge-sheet was submitted within the statutory period of 90 days from the date of arrest of the appellant and there was no order of extension of time in terms of sub-section (2)(b) of Section 43D of the U.A. (P) Amendment Act, 2008 read with Section 167 (2) of the Code of Criminal Procedure (hereinafter referred to as CrPC), and the appellant having moved the Court concerned for statutory bail invoking default clause and as was ready to furnish the bail bond, as required by the Court, in such circumstances the Court was left with no option but to release her on bail. It was further contended that the right of the accused to avail the statutory bail on default of the prosecution in filing charge-sheet 5 within the statutory period of 90 days cannot be denied by extending the time of completion of investigation, by making an order long after the expiry of statutory period. It was further contended that extension of time was granted not only long after the expiry of statutory period but without any prior notice to the accused and on a "Bandh day" when the learned advocate of the appellant through whom she was all through represented in the matter could not be present in Court. In this connection the reliance have been placed on an observation of the Hon'ble Supreme Court at paragraph 21 in the decision, viz., Hintendra Vishnu Thakur & Ors. Vs. State of Maharashtra & Ors., reported in 1994 SCC (Cri) 1087, where the Apex Court observed;
"It is true neither Clause (b) nor Clause (bb) of sub-section (4) of Section 20 TADA specifically provide for issuance of such a notice but in our opinion the issuance of such a notice must be read into this 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 principle of natural justice and issuance of notice to the accused or the public prosecutor, as the case may be, would accord with fair play in action, which Courts have always engaged 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 6 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."
Lastly, it was contended such extension of time in terms of sub- section (2)(b) of Section 43D of the U.A. (P) Act, 2008, if at all can only be made on the basis of a report of the Public Prosecutor, appointed under sub-section (1) of Section 15 of the NIA Act, indicating the progress of investigation and the specific reason for detention of the accused beyond the period of 90 days and not on the report of anyone else. It was submitted in this case extension of time was allowed on the report of the District Public Prosecutor, Darjeeling, who was never a Public Prosecutor appointed in terms of the provision of sub-section (1) of Section 15 of the NIA Act. The Learned Counsel of the appellant in support of his submissions heavily relied on the decision of the Hon'ble Supreme Court, in the case of Sanjay Kumar Kedia @ Sanjay Kedia Vs. Intelligence Officer, Narcotic Control Bureau and Anr., reported in E Cr. N 2010 (1) SC 862.
4. On the other hand, Mr. D. C. Sarkar along with Mr. Shyamal Kumar Ghosh appeared on behalf of the Prosecuting Agency, NIA. They produced a notification issued under sub-section (1) of Section 15 of the NIA Act, 2008 appointing them as the Special Public Prosecutor and Public Prosecutor, respectively for conducting the cases instituted by the NIA in the Trial Court or before the revisional or Appellate Court within the territory of State of West Bengal and the same was taken on record.
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At the very outset the Counsel of the NIA conceded that the District Public Prosecutor, Darjeeling on whose report the extension of time was granted by the Court below was never appointed as the Public Prosecutor in terms of provisions of sub-section (1) of Section 15 of the NIA Act. Still according to them since such application was moved by the District Public Prosecutor, Darjeeling appointed under Section 24 CrPC for the District of Darjeeling by the State of West Bengal, no mistake has been committed by the Court below in entertaining such report and extending the time for investigation on the basis thereof. They contended the Learned Court below very rightly extended the time and thereupon rejected the appellant's prayer for statutory bail and the order impugned does not suffer from any legal infirmities. It was further contended as, by now charge- sheet has been submitted against the present appellant showing her complicity in the commission of offences punishable under the U.A. (P) Act and under Indian Penal Code, the question of her release on statutory bail for non- submission of charge-sheet does not at all arise since such issue has become infructuous. Lastly, it was submitted considering the nature of accusation and seriousness of the offences, question of release of the accused on bail at this stage when the trial is likely to commence very soon does not at all arise.
5. The learned Counsel appearing on behalf of Union of India while adopting submissions of the learned Counsel of NIA submitted before this Court before granting extension of time under sub-section (2)(b) of Section 43 of the U.A. (P) Act, no written notice is required to be served upon the accused and it would be sufficient if such prayer for extension of time is considered in presence 8 of the accused and in the case at hand on the date on which the order of extension of time was made the accused was very much present in the Court. In this regard, the learned Counsel draws our attention to the observation made by a Constitutional Bench of the Hon'ble Supreme Court in paragraph 53 (2)(a) in the case of Sanjay Dutt Vs. State through C.B.I., Bombay (II), reported in (1994) 5 SCC 410.
6. We have given our anxious consideration to the rival submissions of the parties. Perused the Lower Court Records as well as other materials on record and the case laws cited on behalf of the parties.
7. Thus, on the face of the rival stands of the parties, the following questions arise for decision;
(a) When in a case relating to the offences punishable under U.A. (P) Act, neither charge-sheet is submitted within the statutory period prescribed under sub-section (2)(a) of Section 43D of the said Act, nor there was any extension of time in terms of the provision of sub-section (2)(b) thereof, whether an indefeasible right of an accused to be released on bail accrued due to non- submission of charge-sheet within the statutory period can be denied by extending the time for investigation, by keeping the accused's application for statutory bail pending for days together, although the accused was prepared to furnish bail?
(b) Whether a written notice to the accused before granting extension of time beyond the prescribed period of 90 days for conclusion of investigation is necessary?
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(c) Whether a Court is justified in keeping the prosecution's application for extension of time pending, although filed much before the expiry of statutory period, similarly the accused's application for statutory bail which was also filed immediately after expiry of statutory period with an offer to furnish bail and then disposed of both the application together after the period prescribed for conclusion of investigation under sub-section 2 (a) of Section 43D of the U.A. (P) Act has expired?
(d) Whether the question of extension of time beyond the prescribed period of 90 days under sub-section (2)(b) of Section 43D of the U.A. (P) Act, 2008 can be considered on the report of a Public Prosecutor not being a Public Prosecutor appointed under Section 15 (1) of the NIA Act?
8. However, before adverting to the core issues involved in this appeal more effectively, it would always be appropriate to mark the factual scenario of the case, which are beyond the realm of any dispute and are noted below;
(a) The appellant was arrested on March 14, 2010 and on the next day, i.e. on March 15, 2010 she was produced in Court and on the day itself the first order of remand was made. Thus, from the date of her first remand 90 days was completed on June 12, 2010.
(b) Before expiry of 90 days of remand on June 9, 2010 the District Public Prosecutor, Darjeeling submitted a report before the Court seeking extension of time.
(c) The Public Prosecutor, who moved such application for extension of time was happened to be the District Public Prosecutor, appointed 10 under Section 24 (5) CrPC for the District of Darjeeling by a State notification and was never a Public Prosecutor appointed under sub-section (1) of Section 15 of the NIA Act.
(d) On June 18, 2010 the accused for the first time moved the Court seeking bail on default and that was a stage when already 90 days from the date of first remand was expired and there was no extension of time in terms of sub-section (2)(b) of Section 43D of the U.A. (P) Act, however, the Court without making any order on such application, fixed the matter for hearing six days after.
(e) Thereafter, on June 22, 2010 both the applications for extension of time moved on the report of the Public Prosecutor as well as the appellant's/accused's application seeking bail on default both were taken up for consideration.
(f) On June 22, 2010 the Court extended the time and rejected the appellant's prayer for statutory bail on the ground the time for investigation has been extended.
9. The provision of Section 43D has been inserted after Section 43 of the Principal Act, i.e. the Unlawful Activities (Prevention) Act, 1967 by enacting the Unlawful Activities (Prevention) Amendment Act 2008, and by virtue of such amendment, amongst other, the application of the provision of Section 167 CrPC in a case involving offences punishable under the U.P. (P) Act, 1967 have been modified. To avoid prolixity, only the relevant portion of the provision of Section 11 167 CrPC and Section 43D of U.A.(P) Amendment Act, which are necessary for just decision of the case are referred below;
S. 167 Cr.P.C.
(1) .......
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
[(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for dong so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed 12 to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] [(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;]
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
[Explanation I. - For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph
(a), the accused shall be detained in custody so long as he does not furnish bail.] [Explanation II. - If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.] [Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.] (3) .........
(4) .........
(5) .........
(6) .........
S. 43D of U.A. (P) Amendment Act.
13(1) .........
(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 reasons for doing so and shall also explain the delay, if any, for requesting such police custody."
(3) .........
(4) .........
(5) .........
(6) .........
(7) .........
10. On a bare perusal of the amended provisions, viz. Section 43D of the U.A. (P) Amendment Act, one thing is absolutely clear that the true legislative 14 intent behind such amendment is to empower the Court to authorize detention of an accused in custody, involved in the commission of the offences punishable under the said Act pending conclusion of investigation, for a larger period than the maximum period prescribed under Section 167 Cr.P.C., by extending time so as to enable the investigating agencies to more effectively investigate those cases relating to terrorism and other acts which have national ramification, involving complex inter-state and international linkages. While such amendment empowered the Court, defined under Section 2 (d) of the U.A. (P) Act to authorize detention of an accused in custody brought before it, for having committed an offence punishable under the said Act upto a period of 90 days in the whole, but for authorizing detention of an accused beyond the statutory period of 90 days in terms of Section 167 of the Code upto a total period of 180 days, makes it incumbent upon the Court, before extending the time it must be satisfied on the report of the Public Prosecutor indicating the progress of the investigation and the specific reason for detention of the accused beyond the said period of 90 days, is necessary to do so. According to such amendment the decision for moving the Court for extension of time does not depend on the discretion of the investigating agency but rests on the opinion of the Public Prosecutor, a statutory functionary and holder of a public office, who is to act in the administration of justice for public purposes and is neither a part of the investigating agency nor its mouthpiece. In bringing into the statute book the aforesaid amendment, no remote attempt has been made by the legislature to nullify the indefeasible right of an accused which has been accrued to him due to non-submission of charge- 15 sheet within the statutory period and when the accused moving Court for his release is prepared to furnish bail as may be required by the Court. It is of considerable significance besides as above the amended provisions of the U.A. (P) Act has also not altered or modified the application of the rest of the provisions of Section 167 CrPC. in respect of an offence punishable under U.A. (P) Act, 1967.
11. Indisputably, after the authoritative judicial pronouncement of the Hon'ble Supreme Court in the case of Sanjay Dutt Vs. State through, CBI, Bombay (II) (supra), a decision of a Constitution Bench and then again in the case of Uday Mohonlal Acharya Vs. State of Maharashtra, reported in (2001) 5 SCC 453, above issues in this appeal, are no longer res-integra. The decisions are squarely applicable. Thus, in our opinion, it would be enough to refer the conclusions arrived at in the aforesaid two decisions, and then on the ratio of the same to arrive at our findings, as to whether impugned orders were lawful or not.
12. In the case of Sanjay Dutt Vs. State through CBI, Bombay (II) (supra), it is the conclusion of the Hon'ble Supreme Court;
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 Section 5 of the TADA Act, the prosecution is required to prove that the accused was in conscious '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 16 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 Section 5 of the TADA Act. (2)(a) Section 20 (4)(bb) of the TADA Act only requires production of the accused before the court in accordance with Section 167 (1) of the code of Criminal Procedure and this is how the requirement of notice to the accused before granting extension beyond the prescribed period of 180 days in accordance with the further proviso to clause (bb) of sub- section (4) of Section 20 of the TADA Act has to be understood in the judgment of the Division Bench of this Court in Hitendra Vishnu Thakur. The requirement of such notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. Production of the accused at that time in the court informing him that the question of extension of the period for completing the investigation is being considered, is alone sufficient for the purpose.
(2)(b) The "indefeasible right" of the accused to be released; on bail in accordance with Section 20 (4)(bb) of the TADA Act read with Section 167 (2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision 17 on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage.
(3) In view of the decision of the Constitution Bench in Kartar Singh on the meaning and scope of sub-section (8) of Section 20 of the TADA Act as extracted earlier, this question does not require any further elucidation by us."
Similarly, in the case of Uday Mohonlal Acharya Vs. State of Maharashtra (supra), the Apex Court observed as follows;
"1. Under sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days on the whole.
2. Under the proviso to the aforesaid sub-section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than in the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence.
3. On the expiry of the aid period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period 18 prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.
4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated.
5. If the accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in para (a) will not be unauthorised, and therefore, if during that period the investigation is complete and the charge-sheet if filed then the so-called indefeasible right of the accused would stand extinguished.
6. The expression "if not already availed of" used by this Court in Sanjay Dutt case must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.19
With the aforesaid interpretation of the expression "availed of" if the charge- sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished, necessarily therefore, if an accused entitled to be released on bail by application of the proviso to sub-section (2) of Section 167, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge-sheet if filed, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail. Such an accused, who thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge-sheet being filed in accordance with Section 209 and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail, already granted in accordance with the law laid down by this Court in the case of Mohd. Iqbal V. State of Maharashtra."
13. In the case at hand, admittedly 90 days from the first order of remand was completed on June 12, 2010 and much prior to that on June 9, 2010 the Public Prosecutor submitted a report seeking extension of time but the learned Court passed no order thereupon and in the meantime of June 18, 2010, when six days after the expiry of initial period of 90 days, the accused/appellant moved for his release on default on the part of the investigating agency to conclude investigation and offered to furnish bail, the learned Court concerned made no order on the same and fixed June 22, 2010 for consideration of both the applications and then by allowing the prosecution prayer for extension of time 20 rejected the accused's/appellant's prayer for bail. Thus, the facts remain during the period from June 18, 2010 to June 22, 2010 for six days the detention of the accused/appellant in custody was without any authority of law.
14. Now, examining the impugned orders in the light of the conclusions arrived at by the Apex Court in the aforesaid cases, undoubtedly in our opinion the approach of the Learned Court below is wholly erroneous and illegal. We do not find any justification on the part of the learned Court below in not passing any order when extension of time for completion of investigation was sought for on the report of the Public Prosecutor, despite such prayer was made by the prosecution three days prior to the expiry of the statutory period of 90 days. Even on the date the accused was produced in Court after completion of his remand in custody after 90 days the learned Court remain silent and at that stage also passed no order as regards to the prosecution's prayer for extension of time. Then again six days thereafter when the accused seeking enforcement of his indefeasible right of bail, accrued due to non-submission of charge-sheet for the first time, applied to the Court for his release and was prepared to furnish bail still the learned Court below without considering the accused's prayer for bail and the prayer of the prosecution for extension of time then pending before it fixed a date for hearing of the same four days after. In a situation like this where the accused moved the Court for enforcement of his right to be released on bail due to non-submission of charge-sheet and is prepared to furnish bail and at the same time the prosecution has also moved for extension of time, as indicated in the case of Hitendra Vishnu Thakur & Ors. Vs. State of Maharashtra & Ors. 21 (supra) and then approved by the Constitution Bench in the case of Sanjay Dutt Vs. State through CBI, Bombay (II) (supra), both the said applications should be considered by Court together. It is obvious that no bail can be given in such a case unless the prayer for extension of the period is rejected. The grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. In any event, the detention of the accused in custody from the date when he applied to the Court for his release due to non-submission of charge-sheet, in absence of any extension of time, is absolutely without any authority of law, since after expiry of statutory period prescribed for submission of charge-sheet, when no charge-sheet is submitted and there was no order for extension of time for completion of investigation the Court concerned does not possess any legal competence to authorize detention of an accused any further in custody. In short, after expiry of statutory period and in absence extension of time, the Court concerned denudes of its power to authorize detention of an accused in custody and has no option but to release him on bail if the accused is prepared and ready to furnish the bail as may be required by the Court. It goes without saying once the accused moved the Court for enforcement of his right to be released on bail on default and was otherwise ready to furnish bail bond, subsequent filing of challan will not take away the accrued right of the accused merely because the Court has not passed the order and even after furnishing of bail accused has not been factually released. However, where in a case no charge-sheet is filed even after expiry of statutory period, still the accused has not moved the Court for his release then in that case after submission of charge- 22 sheet the indefeasible right accrued by the accused to be released on bail due to non-submission of charge-sheet during the statutory period will no more survive for enforcement and the accused cannot be permitted to claim statutory bail on the ground charge-sheet was not filed within the specified period. In other words, the indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of challans and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once challan has been filed and the question of bail has to be considered and decided only with reference to merits of the case, if not earlier availed of, inasmuch as such accrued rights remain enforceable till the filing of the challan and as soon as charge-sheet is submitted there cannot be any question of the enforcement of such rights since it stand extinguished the moment the charge-sheet is submitted as the provisions of Section 167 CrPC ceases to apply.
15. The last and the most vital question which is still awaiting our adjudication in this appeal as to whether the impugned order of extension of time is in accordance with the provisions of sub-section (2)(b) of Section 43D of the U.A. (P) Act or not?
We have already noted this case is an outcome of a FIR suo motu lodged by an officer of the State police in the rank of Deputy Superintendent relating to the offences punishable under the Indian Penal Code. After initial investigation by the police pursuant to a notification issued by the Central Government under sub-section (5) of Section 6 read with Section 8 of the NIA Act, the charge of investigation was assumed by the NIA and the offences punishable 23 under the U.A. (P) Act were tagged with the case. Thereafter as investigation could not be concluded within the statutory period of 90 days the learned Public Prosecutor, who happened to be the District Public Prosecutor, Darjeeling invoking sub-section 2 (b) of Section 43D of the U.A. (P) Amendment Act, 2008 submitted a report for extension of time and the Court below extended the time for conclusion of investigation and extended the time for detention of the accused beyond the period of 90 days.
We are now confronting with the question whether at all the Public Prosecutor on whose report time for investigation has been extended and Court assume the jurisdiction to authorize detention of the accused in custody beyond the period of 90 days was legally competent to move the Court and the Court concerned was justified in entertaining such application and making such order in terms of provisions of sub-section 2 (b) of Section 43D of the U.P. (P) Act, read with Section 2 (e) and Section 15 of the NIA Act.
Now, in our endeavour to determine the issues we are confronting with we are of the view the relevant provisions the aforesaid two statutes be taking into consideration and the same are quoted below.
(a) Section 43D : Modified application of certain provisions of the Code.
(1) ............
(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), -
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(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 reasons for doing so and shall also explain the delay, if any, for requesting such police custody."
(3) ............
(4) ............
(5) ............
(6) ............
(7) ............
(b) Section 2 (e) of NIA Act, 2008.
"Public Prosecutor" means a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor appointed under section 15;
(c) Section 15 of NIA Act, 2008.25
Public Prosecutor -
(1) The Central Government shall appoint a person to be the Public Prosecutor and may appoint one or more persons to be the Additional Public Prosecutor or Additional Public Prosecutors:
Provided that the Central Government may also appoint for any case or class or group of cases a Special Public Prosecutor.
(2) A person shall not be qualified to be appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practice as an Advocate for not less than seven years or has held any post, for period of not less than seven years, under the Union or a State, requiring special knowledge of law.
(3) Every person appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under this Section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code, and the provisions of the Code shall have effect accordingly.
In this regard, in our opinion, it would be quite relevant to also refer the relevant provisions of the Code of Criminal Procedure, a general statute, which lays down the procedure for a trial of all offences unless provided otherwise by any other special statute, which defines "Public Prosecutor" as well as prescribe the procedure for appointment of Public Prosecutor.
(a) S. 2 (u) Cr.P.C.
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"Public Prosecutor" means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor;
(b) S. 24 Cr.P.C.
(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. (2).........
(3) .........
(4) .........
(5) .........
(6) .........
(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.
(9) .........27
16. The National Investigating Agency, i.e. NIA is constituted by enacting a special statute, the National Investigating Agency Act, 2008 and the underlying object of such enactment is to make more effective provisions for investigation as well as for prosecution of offences specified in the schedule of the said Act, in order to combat and cope with the offences related to terrorism and other Acts which have National ramification. The said special statute not only provides for constitution of National Investigating Agency under Section 3 of the NIA Act for the effective investigation of the offences prescribed in the schedule at the same time prescribed the appointment of Public Prosecutor under Section 15 of the said Act for effective prosecution as well as the other procedures, viz., the constitution of a Special Court for a trial of a case investigated by the NIA, jurisdiction of such Special Court, the procedure and powers of the Special Court provisions for protection of witnesses, sanction for prosecution and provisions for appeal etc. Whereas the Unlawful Activities (Prevention) Amendment Act, 2008 has been brought into statute book with the same object to combat and to cope with the offences relating to terrorism and other acts which have national ramification. While the parent Act defines offences as well as the punishment for Terrorist Act now by introducing the Amendment Act amongst other modified the application of the Code with the regards to the trial of the offences punishable under the said Act and by virtue of inserting Section 43D after the parent Section 43 prescribes modified application of the Code with regards to a case relating to any offence punishable under the said Act. Now by inserting Section 43D by the U.A. (P) Amendment Act, a Special Court before whom such a case is pending is 28 empowered to extend the time of investigation, if such investigation is not completed within the statutory period of 90 days upto 180 days if the Court is satisfied on the report made to it by the Public Prosecutor indicating the progress of investigation and the specific reasons for detention of the accused beyond the said period of 90 days.
A plain reading of the provisions of sub-section 2 (b) of Section 43D, it is abundantly clear that the said provisions makes it incumbent upon the Court concerned to consider the question of extension of time only on being satisfied with the report made to it by a Public Prosecutor indicating the progress of investigation and the specific reasons for detention of the accused beyond the said period of 90 days. It also appears exercise of such power must not be automatic and is not mere matter of formality but is of considerable importance inasmuch as the consequence of such order would trample the personal liberty of a citizen before his trial and ought to be exercised very sparingly and in exceptional cases.
17. Now, on a parallel reading of sub-section (7) of Section 24 of the Code of Criminal Procedure and sub-section (2) of Section 15 of the NIA Act, we find there is a distinct departure from the Code as regards to the eligibility criteria of a Public Prosecutor under the NIA Act, and the same is of considerable significance. While under the Code of Criminal Procedure a person may be appointed as a Public Prosecutor or an Additional Public Prosecutor, if he has been in practice as an advocate for not less than 7 years and as a Special Public Prosecutor if he has been in practice as an advocate for not less than 10 years, 29 however, according to the provisions of sub-section (2) of Section 15 of the NIA Act the eligibility criteria for the post of Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor is more stringent and his practice experience as an advocate is no longer sufficient and one of the essential requirement is his special knowledge of law. In our opinion, the legislative intent the additional qualification "a special knowledge in law" in addition to the practice experience of an advocate in the post of Public Prosecutor or Additional Public Prosecutor or Special Public Prosecutor for conducting the cases investigated by the NIA is to achieve the object of such legislature, i.e. to ensure a suspect against whom prima facie materials have been collected showing his involvement in the commission of schedule offences is prosecuted more effectively. We are of the further opinion the additional qualification for the post of Public Prosecutor "a special knowledge in law" can reasonably construed to mean that the legislature intended that such person must have possess a special knowledge on the penal statute specified in the schedule of the said Act. Therefore, the Public Prosecutor appointed under Section 24 of the Code of Criminal Procedure cannot stand on same footing with a Public Prosecutor appointed under the NIA Act. It is true that it is the discretion of the Central Government or the State Government or the prosecuting agency to appoint a Public Prosecutor for conducting cases on its behalf, whom they found to be fit for such post but at the same time since the Public Prosecutor is a statutory post and a Public Prosecutor is holding a public office performing such duties, thus while appointing a Public Prosecutor the Central Government or the State 30 Government or the prosecuting agency cannot bypass the mandate of law. The power to constitute NIA and appointment of Public Prosecutor as above has been vested in the Central Government. Admittedly, no Public Prosecutor was appointed under Section 15 of the NIA Act for conducting prosecution of the case in hand, until the Central Government by a notification issued vide Memo No. S.O. 234 (E), dated February 2, 2011 in exercise of power conferred by sub- section (1) of Section 15 of the NIA Act, 2008 read sub-section (8) of Section 24 of the CrPC, appointed Mr. D. C. Sarkar, Advocate and Mr. Shyamal Kumar Ghosh, Advocate respectively for conducting the cases instituted by the National Investigating Agency in the Trial Courts, Appeals, revisions or other matters arising out of the case in revisional or appellate Court established by law in the territory of West Bengal. Thus, the District Public Prosecutor, Darjeeling, was not empowered and authorized under the NIA Act to conduct prosecution of a case investigated by the NIA. We find from the examination of the Lower Court Records, only a letter addressed to the District Public Prosecutor, Darjeeling by I.G.P., (Investigation), NIA/New Delhi, on June 6, 2010, requesting him to appear in the aforesaid case on behalf of NIA till a Public Prosecutor in terms of provision of NIA Act is appointed. In any event, when the power of appointment of Public Prosecutor is vested on the Central Government the same cannot be substituted by a request made by its officer. Therefore, it cannot now be disputed when the District Public Prosecutor submitted his report before the Court below seeking extension of time he was not appointed under Section 15 of the NIA Act as the Public Prosecutor and accordingly no order of extension of time can be 31 made by a Court lawfully. In this case neither the Public Prosecutor who submitted his report seeking extension of time was legally competent to do so nor the order of extension of time passed thereupon is a valid one. It may be noted the learned Counsel appearing on behalf of the NIA in this appeal, has not been able to show us any material that anytime thereafter the District Public Prosecutor, Darjeeling was appointed as a Public Prosecutor in terms of the provision of NIA Act. It goes without saying that the role of a Public Prosecutor in the administration of criminal justice is of considerable significance. A Public Prosecutor is a holder of a public office and his duty is to represent the administration of justice, he is not a part of the investigating agency nor its mouthpiece. He is to be fair, independent, unbiased and impartial. While under the general law, i.e. under the Code of Criminal Procedure the real function of Public Prosecutor begins with the commencement of trial before a Court of Sessions but in a case relates to the offence punishable under the U.A. (P) Act, the Public Prosecutor has been attributed with some function to be exercised during investigation. In terms of Section 43D of the U.A. (P) Act, the Public Prosecutor has been vested with a duty to play a significant role even at the stage of investigation, being authorized to submit a report in Court where investigation has not been completed, within the statutory period of 90 days by seeking extension of time upto 180 days for completion of investigation. It is uncontroverted that the District Public Prosecutor, Darjeeling was never appointed as a Public Prosecutor in terms of NIA Act, neither at the time when he sought for extension of time nor on anytime thereafter. At the same time under 32 Section 43D of the U.A. (P) Act read with Section 15 of the NIA Act, it is only on the report of the Public Prosecutor appointed thereunder, the Court is conferred with a power to exercise its jurisdiction to extend the period of investigation, of course subject to its satisfaction to do so. It is well settled principle that when a special statute subsequently enacted, provides some additional requirements which is not there in the general law, then in that case the special statute shall prevail. It is also well settled a penal statute must always be construed, by applying the principle of strict construction and when by way of amendment something is incorporated in a penal statute, whereby a Court is empowered to assume jurisdiction to encroach upon the personal liberty of any person then in that case the mandate of such enactment has to be followed in its letter and sprit. It is an admitted position that order of extension of time for completion of investigation was allowed on the report of the District Public Prosecutor, Darjeeling, who was never appointed as a Public Prosecutor under Section 15 of the NIA Act. Thus, the order of extension of time based on a report submitted by a person, who is not lawfully authorized, apart from the fact such extension was granted long after the accused approached the Court for statutory bail invoking default clause and was ready to furnish bail bond. Accordingly, the order of extension of time as well as the rejection of the appellant's prayer for bail consequent upon extension of time cannot be sustained and is set aside.
18. In the result, the appeal stands allowed and it is directed the appellant should be released on bail on a bond of Rs. 1 lakh with two sureties of Rs. 50,000/- each, one of whom must be local to the satisfaction of the Trial 33 Court and on further condition after her release she shall not leave the jurisdiction of the District of Darjeeling and as already charge-sheet has been submitted she must be present before the Trial Court on each day of hearing, unless prevented due to good and sufficient reasons. The learned Trial Court shall otherwise be entitled to proceed against the appellant in accordance with law. We also make it clear we have not gone into the merits of the case. The Trial Court is further directed to conclude the trial strictly in terms of mandate of Section 19 of the NIA Act, 2008.
19. Before parting with this Judgement, in addition to what have been observed hereinabove, we think it necessary to lay down the following guidelines for the Courts below to be followed to avoid same mistake in similar situation;
(i) Whenever any application is filed for extension of time for completion of investigation beyond the statutory period prescribed under Section 167 CrPC, by the prosecution invoking the provisions of a special statute providing for the same, the Court must at once disposed of such application before expiry of the statutory period.
(ii) If such an application for extension of time is filed before the expiry of statutory period prescribed under Section 167 CrPC, then in that case, the Court concerned shall pass necessary order, if not before the expiry of statutory period positively on the day the accused is produced in Court after completion of his 90 days remand in custody.
(iii) It is not necessary before moving the application for extension of time that a written notice be given to the accused but the order should be 34 passed in presence of the accused with a clear intimation to him that Court is going to consider prosecution's application for extension of time.
(iv) In a situation where no charge-sheet is submitted within the statutory period prescribed under Section 167 of the Code or within the extended period, if the accused moves an application for his release on bail invoking default clause and is prepared to furnish the bail as may be required, the Court must at once pass necessary order, without entering into the merits of the case.
(v) If after the release of the accused on statutory bail, charge- sheet is submitted, such subsequent filing of charge-sheet must not be a ground for cancellation of his bail and to take him in custody.
(vi) If, despite the fact no charge-sheet is submitted within the statutory period, still the accused has not availed of his right of statutory bail, then in that case after submission of charge-sheet his prayer for bail cannot be entertained on the ground no charge-sheet was submitted within the statutory period.
(vii) If any application seeking bail on default for non-submission of charge-sheet within the statutory period is moved by the accused, the learned Court must not defer the hearing of the case on the prayer of the prosecution because at that stage the question of adjudication on merit does not at all arise and only thing is to see whether the charge-sheet has been submitted within the statutory period of 90 days or not.
The learned Registrar General is directed to circulate this Judgement to the Courts below for necessary compliance.
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The Office is directed to at once sent down the Lower Court Records to the Court below by Special Messenger and the Court below is directed upon receipt of the record to proceed with the trial.
Urgent Photostat Certified copy of this Judgement be furnished to the parties on usual undertaking.
I agree
(J. N. Patel, C.J.) (Ashim Kumar Roy, J.)