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“43. Section 20 of the TADA Act prescribes the modified application of the Code of Criminal Procedure indicated therein. The effect of sub-section (4) of Section 20 is to apply Section 167 of the Code of Criminal Procedure in relation to a case involving an offence punishable under the TADA Act subject to the modifications indicated therein. One of the modifications made [pic]in Section 167 of the Code by Section 20(4) of the TADA Act is to require the investigation in any offence under the TADA Act to be completed within a period of 180 days with the further proviso that the Designated Court is empowered to extend that period up to one year if it is satisfied that it is not possible to complete the investigation within the said period of 180 days, 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 180 days. This gives rise to the right of the accused to be released on bail on expiry of the said period of 180 days or the extended period on default to complete the investigation within the time allowed.” Thereafter, the Court referred to Hitendra Vishnu Thakur (supra) wherein it has been held that 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 bond as directed by the court”; and that a ‘notice’ to the accused is required to be given by the Designated Court before it grants any extension under the further proviso beyond the prescribed period for completing the investigation. It is apt to state that learned counsel for the petitioner therein conceded the legal position that the right of the accused which is enforceable only upto the filing of the challan and does not survive for enforcement on the challan being filed in the court against him. It was further contended that the decision in Hitendra Vishnu Thakur (supra) could not be read to confer on the accused an indefeasible right to be released on bail under Section 20(4)(bb) once the challan has been filed if the accused continues in custody. Such a concession was given by stating that Section 167 CrPC has relevance only to the period of investigation. The said position of law was accepted by the learned Additional Solicitor General. However, it was contended by him that direction for grant of bail in Hitendra Vishnu Thakur (supra) was not in consonance with such reading of the decision and indicates that the indefeasible right of the accused to be released on bail on expiry of the time allowed for completing the investigation survives and is enforceable even after the challan has been filed, without reference to the merits of the case or the material produced in the court with the challan. Mr. Dey has drawn inspiration from paragraphs 48 and 49 of the said decision which we think should be reproduced: -

Presently, we shall refer to certain later decisions. In the case of Dinesh Dalmia (supra), which has been placed reliance upon by Mr. Dey, the CBI lodged the First Information Report against the appellant and three companies on a complaint made by the Securities and Exchange Board of India. As the appellant was away, the learned Magistrate, by an order dated 14.2.2005, issued a non-bailable warrant of arrest against him. In the meantime, after the completion of investigation a charge-sheet was submitted before the learned Magistrate in terms of sub-section (2) of Section 173 CrPC. The name of the appellant featured in the charge-sheet along with the companies. Eventually, after following the process the appellant was sent to police custody on 14.2.2006 till 24.2.2006. The accused was handed over to the police for conducting investigation till 8.3.2006. He, however, was remanded to judicial custody till 14.3.2006 by order dated 9.3.2006 on the plea that further investigation was pending. CBI prayed for and obtained orders of remand to judicial custody from the learned Magistrate on 14.3.2006, 28.3.2006, 10.4.2006 and 28.4.2006. The appellant, on expiry of sixty days from the date of his arrest, filed an application for statutory bail purported to be in terms of the proviso appended to sub-section (2) of Section 167 CrPC on the premise that no further charge-sheet in respect of the investigation under sub-section (8) of Section 173 CrPC had been filed. When the said application was pending consideration, CBI sought for his remand into judicial custody under sub- section (2) of Section 309 thereof. The application for statutory bail was rejected by the learned Magistrate basically on the ground that the accused was arrested on the basis of non-bailable warrant issued by the court after taking cognizance of the offences in the charge-sheet. In revision, the learned Sessions Judge allowed the revision placing reliance on State v. Dawood Ibrahim Kaskar[17]. The CBI moved the High Court which overturned the decision of the learned Sessions Judge. This Court took note of the fact that the charge-sheet was submitted on 24.10.2005 and the applicant was arrested only on 12.2.2006. To the contentions raised before this Court, namely, (i) the charge-sheet filed against the appellant and the cognizance taken thereupon was illegal and invalid and by reason thereof, the valuable right of the appellant to be released on bail had been taken away; and (ii) even if the charge-sheet was legal, the right of the appellant under sub-section (2) of Section 167 CrPC continued to remain available in the facts and circumstances of the case. Noting the contentions, the Court adverted to the power conferred under the statute under Section 173 CrPC and, eventually, opined as follows: -

We may presently refer to a recent three-Judge Bench decision in Sayed Mohd. Ahmad Kazmi v. State (Government of NCT of Delhi) and others[19]. In the said case, the accused had filed an application for grant of bail on 2.6.2012 since his ninety days’ period of custody was to expire on 3.6.2012 and further custody was sought for by the prosecution. The learned Magistrate, by his order dated 2.6.2012, extended the period of investigation and the custody of the appellant by another ninety days. The said order was assailed by the appellant in a revision which came for consideration before the learned Additional Sessions Judge, who, on 8.6.2012, held that it was only the Sessions Court and not the Chief Metropolitan Magistrate which had the competence to extend the judicial custody of the accused and to entertain cases of such nature. On 22.6.2012, the accused-appellant was produced before the learned Chief Judicial Magistrate for extension of his custody. On 17.7.2012 an application was filed under Section 167(2) CrPC seeking default bail as no charge-sheet had been filed within ninety days period of the appellant’s custody. The said application was dismissed by the learned Magistrate. Thereafter, the matter was referred by the learned Chief Metropolitan Magistrate to the learned District and Sessions Judge, who directed that judicial custody of the accused-appellant be extended. The aforesaid order of the learned Sessions Judge was assailed before the High Court under Section 482 CrPC and the High Court stayed the operation of the order passed by the learned Additional Sessions Judge dated 28.6.2012 and, therefore, the application for grant of statutory bail could not be taken up by the learned Additional Sessions Judge till the High Court vacated the order of stay on 13.7.2012. As has been stated earlier, the accused moved an application for grant of bail under Section 167(4) and the same was listed for consideration on 17.7.2012. In the meantime, revision petition came before the learned Additional and Sessions Judge, who allowed the application and opined that the custody of the accused was illegal. In view of the order passed by the learned Additional Sessions Judge declaring the custody of the accused to be illegal, on the same day an application under Section 167(2) CrPC was filed before the learned Chief Metropolitan Magistrate, but he, instead of hearing the application on the sad date, notified the hearing for 18.7.2012. On the adjourned date, i.e., 18.7.2012 the State filed a fresh application seeking further extension of appellant’s custody and the investigation period. The learned Chief Metropolitan Magistrate directed a copy of the said application to be served on the counsel for the accused and notified the matter for hearing on 20.7.2012. On that day he took up the matter for extension of custody and, instead of considering the application, extended the time of interrogation and custody of the appellant for ninety days with retrospective effect from 2.6.2012. The aforesaid order was challenged before the learned Sessions Judge who adjourned the matter to 12.10.2012 and on 31.7.2013 the prosecution filed the charge-sheet. When the matter travelled to this Court, a question arose with regard to getting the benefit of the default bail. Be it stated, the Court was considering the provisions contained in Section 43-D of Unlawful Activities (Prevention) Act, 1967 and Section 167(2) CrPC. In that context, it observed thus: -

Coming to the facts of the instant case, we find that prior to the date of expiry of 90 days which is the initial period for filing the charge-sheet, the prosecution neither had filed the charge-sheet nor had it filed an application for extension. Had an application for extension been filed, then the matter would have been totally different. After the accused respondent filed the application, the prosecution submitted an application seeking extension of time for filing of the charge-sheet. Mr. P.K. Dey, learned counsel for the appellant would submit that the same is permissible in view of the decision in Bipin Shantilal Panchal (supra) but on a studied scrutiny of the same we find the said decision only dealt with whether extension could be sought from time to time till the completion of period as provided in the Statute i.e., 180 days. It did not address the issue what could be the effect of not filing an application for extension prior to expiry of the period because in the factual matrix it was not necessary to do so. In the instant case, the day the accused filed the application for benefit of the default provision as engrafted under proviso to sub- Section (2) of Section 167 CrPC the Court required the accused to file a rejoinder affidavit by the time the initial period provided under the statute had expired. There was no question of any contest as if the application for extension had been filed prior to the expiry of time. The adjournment by the learned Magistrate was misconceived. He was obliged on that day to deal with the application filed by the accused as required under Section 167(2) CrPC. We have no hesitation in saying that such procrastination frustrates the legislative mandate. A Court cannot act to extinguish the right of an accused if the law so confers on him. Law has to prevail. The prosecution cannot avail such subterfuges to frustrate or destroy the legal right of the accused. Such an act is not permissible. If we permit ourselves to say so, the prosecution exhibited sheer negligence in not filing the application within the time which it was entitled to do so in law but made all adroit attempts to redeem the cause by its conduct.