1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 64 OF 2009 Mr Bhagyesh @ Bablu Nitin Shah ..... Applicant. V/s The State of Maharashtra ....... Respondent. ------ Mr. S.R. Chitnis, Senior Counsel i/b Mr. Pankaj Kavale for the applicant. Mr. Rajesh More, APP for the State. ------ CORAM : V.M. KANADE, J. DATE : 28th January, 2009 P.C:- 1. Heard the learned Senior Counsel for the applicant and the learned APP for the State. 2. This is an application filed by the applicant, seeking bail on the ground that the charge- sheet has not been filed within the period contemplated under section 167(2) of the Criminal Procedure Code. Time was given to the learned APP appearing on behalf of the State to find out whether notice was given to the accused before extending time for filing the charge- sheet as required under the provisions of section 21 (2). The Apex Court in the case of Hitendra Vishnu Thakur and Others vs. State of Maharashtra and Ors reported in 1994 SCC (Cri) 1087 has held that notice has to be given to the accused before extension is granted by the Court. In the 2 present case, no such notice was given to the accused. 3. The learned APP appearing on behalf of the State invited my attention to the order passed by the Magistrate, extending the remand ordered by the Special Court. He pointed out that on 21/11/2008 this application was filed and notice of this application was given to the applicant. In my view, this notice which has been given does not satisfy the requirements laid down by the Apex Court in the case of Hitendra Vishnu Thakur (Supra). In the said case, provisions of Terrorist and Disruptive Activities (Prevention) Act, 1987 [For short "TADA"] were made applicable. The aforesaid provisions are pari materia to section 21 sub-section (2) of the Maharashtra Control of Organized Crime Act, 1999 [For short "MCOC Act"]. The ratio laid down by the Apex Court, therefore, would squarely apply to the facts of the present case. Mr. More, the learned APP appearing on behalf of the State was unable to point out any other judgment of the Apex Court taking a contrary view to the view taken in the case of Hitendra Vishnu Thakur (supra). 4. In the present case, applicant was arrested on 24/08/2008 and he was remanded to police custody on 25/8/2008. Provisions of MCOC Act were made applicable on 8/10/2008 when approval was granted by the competent authority. Period of 90 days from the date of remand, therefore, expired on 21/11/2008. On 20/11/2008, remand was extended by the Special Court till 02/12/2008. An 3 application for extension of time to file charge- sheet was filed on 21/11/2008. The said application discloses that it has been filed by the Investigating Officer. The Special Public Prosecutor was on leave and, therefore, endorsement of the Public Prosecutor was taken. There is no material on record to indicate that the Public Prosecutor had applied his mind when the said application was filed in Court. The Apex Court in the case of Hitendra Vishnu Thakur (supra) had deprecated the practice of the Investigating Officers filing applications for extension of time to file charge- sheet. The Apex Court has observed that a statutory obligation is cast on the Public Prosecutor to satisfy himself that sufficient ground exists for seeking extension of time for filing the charge- sheet. The Apex Court in the said case in para 20 of its judgment has observed as under:- "20. Section 57 of the Code of Criminal Procedure provides that a person arrested shall not be detained in custody by the police for a period longer than that which is reasonable but that such period shall not exceed 24 hours exclusive of the time necessary for journey from the place of arrest to the court of the Magistrate in the absence of a special order under Section 167 of the Code. The Constitution of India through Article 22(2) mandates that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for journey from the place of arrest to that court and that no person shall be detained in custody beyond that period without the authority of the Magistrate. Thus, the 4 Constitution of India as well as the Code of Criminal Procedure expect that an arrested person, who has been detained in custody, shall not be kept in detention for any unreasonable time and that the investigation must be completed as far as possible within 24 hours. Where the investigation of the offence for which accused has been arrested cannot be completed within 24 hours and there are grounds for believing that the accusation or information against the accused is well- founded, the police is obliged to forward the accused along with the case diary to the nearest Magistrate for further remand of the accused person. The Magistrate, on the production of the accused and the case diary, must scrutinise the same carefully and consider whether arrest was legal and proper and whether the formalities required by law have been complied with and then to grant further remand, if the Magistrate is so satisfied. The law enjoins upon the investigating agency to carry out the investigation, in a case where a person has been arrested and detained, with utmost urgency and complete the investigation with great promptitude in the prescribed period. Sub-section (2) of Section 167 of the Code lays down that the Magistrate to whom the accused is forwarded may authorise his detention in such custody, as he may think fit, for a term specified in that section. The proviso to sub- section (2) fixes the outer limit within which the investigation must be completed and in case the same is not completed within the said prescribed period, the accused would acquire a right to seek to be released on bail and if he is prepared to and does furnish bail, the Magistrate shall release him on bail and such release shall be deemed to be grant of bail under Chapter XXXIII of the Code of Criminal Procedure. The said chapter comprises of Sections 436 to 450 but for our purposes it is 5 only Sections 437 and 439 of the Code which are relevant. Both these sections empower the court to release an accused on bail. The object behind the enactment of Section 167 of the Code was that the detention of an accused person should not be permitted in custody pending investigation for any unreasonably longer period. However, realising that it may not be possible to complete the investigation in every case within 24 hours or even 15 days, as the case may be, even if the investigating agency proceeds with utmost promptitude, Parliament introduced the proviso to Section 167(2) of the Code prescribing the outer limit within which the investigation must be completed. Section 167 read with section 20(4) of TADA, thus, strictly speaking is not a provision for "grant of bail" but deals with the maximum period during which a person accused of an offence may be kept in custody and detention to enable the investigating agency to complete the investigation and file the charge- sheet, if necessary, in court. The proviso to Section 167(2) of the Code read with Section 20(4)(b) of TADA, therefore, creates an indefeasible right in an accused person on account of the 'default' by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail. It is for this reason that an order for release on bail under proviso (a) of Section 167(2) of the Code read with Section 20 (4) of TADA is generally termed as an "order- on-default" as it is granted on account of the default of the prosecution to complete the investigation and file the challan within the prescribed period. As a consequence of the amendment, an accused after the expiry of 180 days from the date of his arrest becomes entitled to bail irrespective of the nature of the offence with which he is charged, where the 6 prosecution fails to put up challan against him on completion of the investigation. With the amendment of clause (b) of sub-section 4 of Section 20 read with the proviso to sub-section (2) of Section 167 of CrPC an indefeasible right to be enlarged on bail accrues in favour of the accused if the police fails to complete the investigation and put up a challan against him in accordance with law under Section 173 CrPC. An obligation, in such a case, is cast upon the court, when after the expiry of the maximum period during which an accused could be kept in custody, to decline the police request for further remand except in cases governed by clause (bb) of Section 20(4). There is yet another obligation also which is cast on the court and that is to inform the accused of his right of being released on bail and enable him to make an application in that behalf. (Hussainara Khatoon case (1980) 1 SCC 98). This legal position has been very ably stated in Aslam Babalal Desai v. State of Maharashtra (1992) 4 SCC 272 where speaking for the majority, Ahmadi J. referred with approval to the law laid down in Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau, New Delhi (1989) 3 SCC 532 wherein it was held that : (SCC p. 288, para 9) "The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not court's discretion. If the investigating agency fails to file charge- sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite 7 bail bonds." " Similarly, the Apex Court in para 30 of the said judgment has observed as under:- "30. In conclusion, we may (even at the cost of repetition) say that an accused person seeking bail under Section 20(4) has to make an application to the court for grant of bail on grounds of 'default' of the prosecution and the court shall release the accused on bail after notice to the public prosecutor uninfluenced by the gravity of the offence or the merits of the prosecution case since Section 20(8) does not control the grant of bail under Section 20(4) of TADA and both the provisions operate in separate and independent fields. It is, however, permissible for the public prosecutor to resist the grant of bail by seeking an extension under clause (bb) by filing a report for the purpose before the court. However, no extension shall be granted by the court without notice to an accused to have his say regarding the prayer for grant of extension under clause (bb). In this view of the matter, It is immaterial whether the application for bail on ground of 'default' under Section 20 (4) is filed first or the report as envisaged by clause (bb) is filed by the public prosecutor first so long as both are considered while granting or refusing bail. If the period prescribed by clause (b) of Section 20(4) has expired and the court does not grant any extension on the report of the public prosecutor made under clause (bb), the court shall release the accused. Even where the court grants an extension under clause (bb) but the charge- sheet is not filed within the extended period, the court shall have no option but to release the accused on bail if 8 he seeks it and is prepared to furnish the bail as directed by the court. Moreover, no extension under clause (bb) can be granted by the Designated Court except on report of the public prosecutor nor can extension be granted for reasons other than those specifically contained in clause (bb) which must be strictly construed." The Apex Court has laid down that notice has to be given to the accused before filing an application for extension. In the present case, on 21/11/2008, since the Special Public Prosecutor was on leave, the application for extension was adjourned to 02/12/2008. The requirement of the Public Prosecutor satisfying himself about the necessity of filing application for extension, obviously, does not appear to have been complied with. Secondly, notice also was not given to the accused which is clearly reflected from the order dated 21/11/2008 which reads as under:- "ORDER "Perused the report. Heard I.O. and Public Prosecutor Shri Kazi. Incidentally, Special P.P. is on leave the learned PP has urged that, as Special P.P. is on leave, he has counter signed the said report. He admitted that, the report is required to be submitted by Prosecutor as per the provision of sec. 21(2) of M.C.O.C. Act, 1999. He urged that the matter may be kept on 25/11/2008 so that Special P.P. would submit expected report and till then as he has signed the report prepared by investigating agency be considered to extend the period till 25/11/2008. Here it needs to be mentioned that, on 19/11/2008 9 at 5.40 p.m. some accused persons moved application contending that, in view of the failure of the investigating agency to complete investigation within 90 days they be released on bail. In this matter it appears that, MCR is granted till 2/12/2008. Hence, without prejudice to the rights of the either side the matter is now posted on 2/12/2008. Parties to note that, after giving opportunity of being heard the application moved by investigating agency will be heard on 2/12/2008." S/d Shri W.K. Sangle. Special Judge, Thane. 21/11/08." The Apex Court in the case of Hintendra Vishnu Thakur (supra) has observed that indefeasible right accrues in favour of the accused and if an application is made by the accused on the ground of default of the prosecution, the Court shall release the accused on bail after notice to the Public Prosecutor uninfluenced by the gravity of the offence or merits of the prosecution case. In this case, therefore, by the time the matter was adjourned to 02/12/2008, extension which was allegedly granted was without notice to the accused and without the Public Prosecutor being satisfied about the said report. Under these circumstances, application filed by the applicant will have to be allowed. 5. Applicant be released on bail in the sum of Rs 25,000/- with one or two sureties in the like amount in C.R. No.I-351 of 2008 registered at Turbhe Police Station which was 10 subsequently transferred to Crime Branch, Navi Mumbai. Applicant, however, shall not enter the jurisdiction of Turbhe Police Station, pending the hearing and final disposal of the criminal case. He shall report to Crime Branch, Navi Mumbai twice in a week. 6. Application is disposed of. (V.M. KANADE, J.)