Full Judgment Text
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Delivered on : 16 September, 2021
+ CRL.A. 559/2020 and CRL.M.A. 16703/2020
RAHUL GUPTA ..... Appellant
Through : Mr.Rajiv Mohan, Mr.Swapnil
Krishna, Mr.Nipun Arora,
Advocates.
versus
STATE ..... Respondent
Through : Mr.Kamal Kumar Ghai, APP for the
State with ACP Sanjay Sharma,
Rajouri Garden, and SI Amit
Sehrawat, PS Hari Nagar.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
1. The appeal is filed against the impugned order dated 18.03.2020
passed by the learned Special Judge, West District, Tis Hazari Courts, Delhi
(hereinafter referred learned Trial Court ) and to direct release of appellant
on bail per Section 167 Criminal Procedure Code ( Cr PC ) read with
Section 21(2) of the Maharashtra Control of Organised Crime Act, 1999
(hereinafter referred as MCOCA ) in case FIR No. 397/2019 registered at
police station Hari Nagar.
2. The learned counsel for the appellant says FIR No. 100/2018 was
registered under NDPS Act at police station Hari Nagar, Delhi and accused
Salman Tyagi was arrested on 17.02.2018 and appellant/accused Rahul
Gupta, was arrested on 18.04.2018 in the said FIR. The appellant was
granted regular bail in such FIR No. 100/2018 on 05.07.2019 by this Court
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Digitally Signed By:VIJAYA
LAKSHMI DOBHAL
Signing Date:17.09.2021 15:06
on the ground there being no evidence against him, except disclosure
statement of a co-accused.
3. However, on 13.08.2019, the present FIR was registered under
MCOCA. On 03.10.2019 co-accused Salman Tyagi was arrested in the
present FIR and appellant herein was arrested on 21.10.2019. There is a
provision for extension of period of investigation under the Act from 90
days to 180 days, but such application for extension needs to be moved
prior to the expiry of 90 days from the date of arrest of the accused.
4. The time for moving such application for extension of period of
investigation qua accused Salman Tyagi was to expire on 02.01.2020 and
qua the appellant herein on 21.01.2020.
5. It is alleged though, initially, Mr.Mahesh Patel, Advocate was
appearing on behalf of all accused, including this appellant but on
26.11.2019, the appellant filed an application for bail through Mr.Rajiv
Mohan, Advocate, who also filed his Vakalatnama . The order sheets since
26.11.2019 record the attendance of Sh. Rajiv Mohan, Advocate and of his
associates for the appellants, as alleged. However on 24.12.2019, an
application for extension of period of investigation to 180 days was moved
qua all accused by the prosecution, as period of investigation qua accused
Salman was going to expire on 02.01.2020 and the advance notice of the
application was accepted by Mr.Mahesh Patel, Advocate for all accused .
6. On 26.12.2019 this application was listed, but none of the accused
was present, accordingly, notice of this application was issued only to
accused Salman Tyagi and his counsel Mr.Mahesh Patel, Advocate.
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Digitally Signed By:VIJAYA
LAKSHMI DOBHAL
Signing Date:17.09.2021 15:06
7. On 28.12.2019 an order was passed recording the presence of
accused Salman Tyagi, being produced from custody along with his counsel
Mr.Mahesh Patel. The matter was then adjourned from time to time till
07.01.2020 by the learned District Judge- Vacations till an extension was
granted not only qua accused Salman Tyagi but also against other accused ;
including the appellant herein . The order dated 07.01.2020 inter alia
notes:-
“Considering the progressive investigation reported by the
IO and the investigation that remains to be conducted in
respect of remaining accused and evidence needed to be
collected, I find it reasonable to extend the time of
investigation for further period of 75 days from
15.01.2020.”
8. The learned counsel for the appellant relies upon order dated
28.11.2019 and subsequent orders where it notes the presence of
Mr.Mahesh Patel, Advocate for all accused except accused Rahul Gupta,
hence it is argued no notice for such extension was ever given to this
accused/appellant and in any case Mr.Mahesh Patel, Advocate accepted
notice for other accused, than this appellant hence the appellant is entitled
to bail.
9. The learned counsel for the appellant referred to Hitendra Vishnu
Thakur and Others vs State of Maharashtra and Others (1994) 4 SCC 602
which held:-
“21. Thus, we find that once the period for filing the
charge-sheet has expired and either no extension under
clause (bb) has been granted by the Designated Court or
the period of extension has also expired, the accused
person would be entitled to move an application for being
admitted to bail under sub-section (4) of Section 20 TADA
read with Section 167 of the Code and the Designated
Court shall release him on bail, if the accused seeks to be
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Digitally Signed By:VIJAYA
LAKSHMI DOBHAL
Signing Date:17.09.2021 15:06
so released and furnishes the requisite bail. We are not
impressed with the argument of the learned counsel for the
appellant that on the expiry of the period during which
investigation is required to be completed under Section
20(4) TADA read with Section 167 of the Code, the court
must release the accused on bail on its own motion even
without any application from an accused person on his
offering to furnish bail. In our opinion an accused is
required to make an application if lie 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 6 Hussinara Khatoon v. Home
Secy., State of Bihar, (1980) 1 SCC 98: 1980 SCC (Cri) 40:
AIR 1979 SC 1369 7 (1992) 4 SCC 272: 1992 SCC (Cri)
870: AIR 1993 SC 8 (1989) 3 SCC 532: 1989 SCC (Cri)
612: AIR 1990 SC 71 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 clause (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
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Digitally Signed By:VIJAYA
LAKSHMI DOBHAL
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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 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 TADA or within the extended period as
envisaged by clause (bb) has to be limited to 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.”
10. In Sanjay Dutt vs State through CBI (1994) 5 SCC 410 it was held:-
“(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.
Hence, it is argued proviso to sub-Section (b) of Section (2) of
Section 21 of MCOCA is pari materia to Section 20(4) (bb) of the TADA,
hence if we apply same analogy, notice ought to have been given to
appellant on an application for extension of time to file charge sheet.
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Digitally Signed By:VIJAYA
LAKSHMI DOBHAL
Signing Date:17.09.2021 15:06
11. The learned APP for the State on the other hand referred to Sharjeel
Imam vs. State of NCT of Delhi in CRL.M.C.1475/2020 decided on
10.07.2020 which notes:-
“61. There is no dispute that the counsel to whom the
information was given had filed Vakalatnama on behalf of
the petitioner before the Court below and was representing
him in the proceedings since February, 2020, as is clear
from the ordersheet dated February 12, 2020 (Annexure P5
to the petition). The very filing of the Vakalatnama suggests
authority having been given to the counsel to represent the
petitioner in the proceedings before the Court and to do all
acts and things which may be necessary to be done for the
progress and in the course of the prosecution of the case.
62. In fact, I notice, the Vakalatnama filed in these
proceedings was also executed by the petitioner on
February 18, 2020 while he was in custody in Tihar Jail in
favour of the same counsel. On the strength of the
information, the counsel could have presented herself
before the Court only to know the outcome of the
application / report, which may include, the Court on
presentation of the application / report if not satisfied with
the same, rejecting the same and not extending the time for
investigation. The appearance of the counsel would have
been a sufficient representation on behalf of the petitioner
and this fact is also acknowledged by the counsel for the
petitioner, as is seen in the table at para 10, where it is
stated that notice to the accused through production or to
the accused / counsel through Court is the standard in law.
That apart, even this Court, in Mohd. Maroof (supra) by
finding that notice has been issued by the Court to the
counsels, and the accused could not be produced in the
Court, has not found fault, in the order, extending the time
for investigation. So it follows, the appearance of the
counsel for the petitioner being sufficient representation
while considering application / report of the APP, whether
it is on a notice issued by the Court or on an information
from the Investigating Officer, is inconsequential.”
and Mohd.Maroof @ Ibrahim & Ors. vs. State in
CRL.M.C.3644/2014 decided on 12.05.2015 wherein it was held:
“30. No doubt, on 7th June, 2014, the accused
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LAKSHMI DOBHAL
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persons/petitioners were not produced before Court at the
time of extension of time of investigation for 30 days,
though it is the requirement of the principle of natural
justice and for issuance of notice to the accused.
However, it has come on the record that the trial Court had
issued a notice to the counsel who were appearing on
behalf of the accused, they did not appear despite of having
knowledge about the concerned application. One of the
counsel refused to receive the notice. He did not appear
when the application for extension of time of investigation
for 30 days was taken up. If he had any objection about the
production of accused at the time of extension, he could
have appeared and pointed out the same to the trial court.
The reasons given by the counsel are unacceptable. This
Court after having gone through the report submitted by
the Public Prosecutor allowed the prayer of the said
application. Many other objections were raised by the
counsel in this regard, I am of the view that while sitting in
the jurisdiction of 482 Cr.P.C., the Court is not to decide
the objections unless the order is perverse or it has been
passed contrary to law. One of the objections is with
regard to the appointment of public prosecutor by the
Government. These are the issues which are to be
considered at the time of framing of charge. Prima-facie,
this Court is satisfied with the reasons recorded by the trial
Court on the basis of the report of the Public Prosecutor.
The report submitted by the Public Prosecutor is a very
detailed report which indicates the progress of the
investigation and specific reasons are given for the
detention of the accused beyond 90 days to 120 days. All
the objections raised by the petitioners are allowed to be
taken by them at the time of framing of charge.”
12. The crux of the two judgments above is the notice to the counsel is a
sufficient notice to the accused.
13. However, it is argued by the appellant, in Sharjeel (supra) and
Mohd.Maroof (supra), the counsel of the accused was same throughout the
proceedings but whereas accused Rahul Gupta changed his counsel and
appointed Mr.Rajiv Mohan, Advocate instead of Sh.Mahesh Patel,
Advocate and that Sh.Mahesh Patel, Advocate was never his counsel when
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LAKSHMI DOBHAL
Signing Date:17.09.2021 15:06
an application dated 24.12.2019 for extension was moved, hence there was
no notice to the appellant of the application for extension of time, thus he is
entitled to bail.
14. No doubt the bail under Section 167 (1)(a) Cr.P.C. per Rakesh Paul
vs. State of Assam 2017 (15) SCC 67 and Udai Mohanlal Acharya vs. State
of Maharashtra, (2001) 5 SCC 453 is a fundamental right, but one cannot
ignore the fact the application dated 24.12.2019 when filed, its advance
notice was served upon Sh.Mahesh Patel, Advocate who has been
appearing on behalf of all accused. At such time he did not object that he
was not a counsel for appellant. Though, Sh.Rajiv Mohan Advocate was
appointed on 26.11.2019 for filing an application for bail, but Sh.Mahesh
Patel, Advocate did not sought for discharge from the case qua the
appellant. Rule 39 (Section IV, Chapter II of Part IV of the Bar Council of
India Rules) of the Rules framed under Section 49 (1) (C) of the Advocates
Act, 1961 provides as under:-
“An advocate shall not enter appearance in any case in
which there is already a vakalat or memo of appearance
filed by an advocate engaged for a party except with his
consent; in case such consent is not produced he shall
apply to the Court stating reasons why the said consent
could not be produced and he shall appear only after
obtaining the permission of the Court.”
15. No such consent of earlier counsel nor any permission was sought
formally from Sh.Mahesh Patel, Advocate for his discharge qua the
appellant, hence it cannot be said the Investigating Officer had the
knowledge that Sh.Mahesh Patel, Advocate was no longer an advocate for
accused Rahul Gupta. Neither such an inclination was ever shown by
Sh.Mahesh Patel, Advocate on 24.12.2019 when he accepted advance
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LAKSHMI DOBHAL
Signing Date:17.09.2021 15:06
notice on behalf of all accused . Concept of parties having various counsels
representing them at one point of time is not uncommon to our Courts,
hence acceptance of application for extension by Sh.Mahesh Patel,
Advocate on behalf of all accused, including this appellant goes against him
and it cannot be said the accused had no notice of such an application.
Moreso order dated 07.01.2020 of extension of period of investigation
against all accused for 75 days was never challenged by any of the accused,
including this appellant.
16. In view of above, this appeal has no merit and is dismissed. Pending
application, if any, also stands disposed of.
YOGESH KHANNA, J.
SEPTEMBER 16, 2021
M/DU
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Digitally Signed By:VIJAYA
LAKSHMI DOBHAL
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