U.O.I. Thr. Cbi vs Nirala Yadav@Raja Ram Yadav@Deepak ...

As per the allegations of the prosecution, on 15.2.2002 the deceased Sanjay Kumar Singh, Divisional Forest Officer, Shahabad Division with Headquarter at Sasaram, was on a surprise check in village Rehal, District Rohtas along with his subordinate staff and, at that juncture, he was surrounded by a group of 25-30 unknown naxalites and was taken outside the village and when he declined to comply with the illegal demand of the naxalites for payment of rupees five lakhs for his release, he was taken inside the forest where he was shot dead. After the criminal law was set in motion on the basis of an FIR, the investigation commenced.

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: -

In view of our aforesaid premised reasons we do not find any error in the order of the High Court in overturning the order refusing bail and extending the benefit to the respondent and, accordingly, the appeal fails and is hereby dismissed.

June 30, 2014.

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