Full Judgment Text
| ture | 1<br>REPOR<br>IN THE SUPREME COURT OF INDIA<br>CRIMINAL APPELLATE JURISDICTION<br>CRIMINAL APPEAL NOS.21812182 OF 2017<br>(Arising out of SLP(Crl.) Nos.70527053 of 2017)<br>RAMBEER SHOKEEN …..APPELLANT<br>:Versus:<br>STATE OF NCT OF DELHI …..RESPONDENT<br>J U D G M E N T<br>A.M. Khanwilkar, J.<br>1. These appeals, by special leave, question the legality and<br>tenability of the judgment and order passed by the learned<br>Single Judge of the High Court of Delhi at New Delhi dated<br>22nd May, 2017 in Criminal Appeal No.311/2017 and Criminal<br>M. (Bail) No.525/2017.<br>2. Briefly stated, the appellant has been named as an<br>Not Verified<br>igned by<br>H CHANDER<br>8.01.31<br>IST accused in FIR No.10 of 2015 registered at the Police Station | TABLE |
|---|---|---|
| lly s<br>HAS<br>201<br>:33<br>on: |
2
(Special Cell), Delhi, for offence punishable under Sections 3 &
4 of the Maharashtra Control of Organized Crime Act, 1999
(hereinafter referred to as the “MCOCA”). He has also been
named as an accused in FIR No.65/2016 for offence
punishable under Sections 26 & 27 of the Arms Act, registered
at the same police station. He was declared as a proclaimed
offender in connection with the said case and was later
th
arrested on 27 November, 2016.
3. The appellant came to be arrested in connection with the
st
present FIR on 1 December, 2016. Before the expiry of 90
th
days period, the Additional Public Prosecutor on 28
February, 2017 moved an application for extension of time to
th
file chargesheet up to 15 March, 2017. The said application
reads thus:
“ ANNEXURE P3
IN THE COURT OF SHRI RAKESH PANDIT, LD.ASJ, MCOCA #
25, PATIALA HOUSE COURTS, NEW DELHI.
3
FIR No. 10/2015 dated 23.02.2015 U/s 3/4 MCOC Act PS
Special Cell, Lodhi Colony, Delhi.
| Sl.<br>No. | Name, Parentage & address | |
|---|---|---|
| S/<br>V | 01 | RAMBEER SHOKEEN aged –<br>37 years, S/0 Shri Naval<br>Singh r/o H.No.151,<br>ExtensionIV, Nangloi, Delhi<br>41 & permanent address –<br>H.No.70, village Kamruddin<br>Nagar, P.S. Nihal Vihar, Delhi. |
01.12.2016
Subject : Regarding extension of limitation period upto
15.03.2017
Hon’ble Sir,
It is submitted that I have perused the report of the
Investigating Officer of this case. The allegations against
above Accused Rambeer Shokeen in present case are that he
along with other syndicate members was running an
organized crime syndicate in Delhi & other states by
committing a series of sensational crimes including gruesome
and inimical murder, extortion by putting by some
businessmen in fear with criminal intimidation, obstruction of
Govt. servants to deter them from discharge of official duties
and offences under the arms act etc.
The above accused Rambeer Shokeen was continuously
evading his arrest and didn’t join investigation. On
20.04.2015, nonbailable warrant against him was issued but
couldn’t be executed, as not available at his possible hideouts
and later on after further proceedings, he was declared P.O.
on 26.08.2015 by this Hon’ble Court. On 27.11.2016, he was
arrested in case FIR No.65/2016 U/s 25/27 Arms Act of P.S.
Special Cell, Delhi and later on 01.12.2016, arrested in this
case.
4
During investigation, several evidences including followings
have been collected against above accused Rambeer Shokeen:
1. Income Tax Return report (ITR) dated 10.02.2017 from
year 20062016, which reflects that he has not filed ITR
during this period, while he has incurred huge expenses
during Delhi Legislative Elections of year 2013 & 2015
apart from other expenses.
2. Reports regarding property details from the offence of
SubRegistrar West, SDMNangloi etc.
3. FORM 26 submitted by him before Election Officer
showing details of moveable & immovable properties etc.
THE INVESTIGATION OF THE CASE IS TO BE CONDUCTED
ON FOLLOWING GROUNDS
1.
As per FORM 26 submitted by the Accused before Election
Commission to contest Delhi Legislative Assembly Election
for Assembly Constituency08 in year 2013, he has shown
immoveable and moveable assets of himself & his wife
worth Rs. 1.85 (approx.), while he and his wife Mrs. Reeta
Shokeen are not found filing income tax returns during
year 20062016, so the investigation on this point is
necessarily required.
2.
To make further interrogation from accused to verify the
source of huge amount of money in respect of the assets as
mentioned above visàvis the ITR for a period 20062016
(NIL returns), the details of which were obtained on
10.02.2017.
In view of above pending investigation points, it is, humbly
requested that the limitation period for filing charge sheet
against above accused Rambeer Shokeen may be extended
upto 15.03.2017, so that charge sheet against him may be
filed before the Hon’ble Court as per the time limit fixed by
Hon’ble Court.
Submitted please, Sd./ 28.02.17
(RAVINDRA KUMAR)
Addl. Public Prosecutor
Patiala House Court, New Delhi
Dated: 28.02.2017”
5
th
On the same day i.e. 28 February, 2017, the accused
4.
moved an application for grant of statutory bail under Section
167(2) of the Code of Criminal Procedure read with Section
th
21(2)(b) of MCOCA. The Special Judge, by an order dated 28
February, 2017, extended the judicial custody of the appellant
st
until 1 March, 2017. The said order reads thus:
“An application for further extension of JC moved on
behalf of IO. Copy given.
Report is also submitted by Ld. APP for State for the
purposes of extension of JC beyond 90 days and for seeking
further extension of time for investigation beyond period of 90
days.
JC is extended till 01.03.2017.
Put up with main file for arguments on this application
on 01.03.2017.
Copy of Order be given dasti.”
st
5. On 1 March, 2017, the appellant filed his reply to
oppose the application filed by the Additional Public
Prosecutor seeking extension of limitation period for filing of
th
chargesheet against the appellant, upto 15 March, 2017.
Besides, the appellant was produced before the District &
Sessions Judge and as the Presiding Officer of the Special
6
Court was on leave, the District & Sessions Judge passed the
following order:
“01.03.2017
File is put up before me Shri Rakesh Pandit, Ld. Spl. Judge,
NIA/POCSO/MCOCA, ASJ01, PHC, New Delhi is on leave
today on account of unwellness.
Present : Shri Devender Kumar, Ld. Chief PP for the State
along with Shri Ravindra Kumar, Ld. Addl. PP and ACP
Hridaya Bhushan
Accused produced from JC.
Shri Mehmood Pracha and Shri R.H.A. Sikander, Ld.
Counsels for the accused Rambeer Shokeen.
Reply has been filed on behalf of accused Rambeer
Shokeen to the application moved on behalf of the State
seeking extension of time for filing the charge sheet. Copy
supplied. An application has been moved on behalf of State
seeking extension of JC of the accused above named.
As Ld. Presiding Officer is on leave. Judicial custody of
the accused Rambeer Shokeen is extended till 07.03.2017.
Merits of the application dated 28.02.2017 shall be decided
by the concerned court.
Ld. Chief PP for the State submits that he has not been
supplied with the copy of the application moved on behalf of
the accused Rambeer Shokeen under Section 167(2) of
Cr.P.C. seeking grant of statutory bail. Ld. Counsel for the
accused is directed to supply the copy of the same during the
course of the day against proper receipt.
Put up on 07.03.2017 for further proceedings.”
7
nd
On the next day i.e. 2 March, 2017, the appellant
6.
moved another application for grant of statutory bail under
Section 167(2) of Cr.P.C. read with Section 21(2)(b) of MCOCA.
th
7. On 4 March, 2017, the ACP/Special Cell/NDR, Lodhi
Colony, New Delhi, moved an application before the Special
Court for permission to interrogate the appellant in Central
Jail No.3, Tihar, Delhi. The said application reads thus:
“ ANNEXURE P8
IN THE COURT OF SHRI RAKESH PANDIT, LD. ASJ, MCOCA#
25, PATIALA HOUSE COURTS, NEW DELHI.
FIR No.10/2015 dated 23.02.2015 U/s 3/4 MCOC Act PS Special
Cell, Lodhi Colony, Delhi.
| Sl.<br>No. | Name, Parentage &<br>address |
|---|
Date of arrest
01 RAMBEER SHOKEEN aged
– 37 years, S/0 Shri Naval
Singh r/o H.No.151,
ExtensionIV, Nangloi,
Delhi41 & permanent
address – H.No.70, village
Kamruddin Nagar, P.S.
Nihal Vihar, Delhi.
01.12.2016
Subject : Regarding permission for interrogation in Central Jail,
Tihar, Delhi.
Hon’ble Sir,
8
It is submitted that the present case is pending investigation
against accused Rambeer Shokeen and other syndicate members
for running an organized crime syndicate in Delhi & other states by
committing a series of sensational crimes including gruesome and
inimical murder, extortion by putting by some businessmen in fear
with criminal intimidation, obstruction of Govt. servants to deter
them from discharge of official duties and offences under the arms
act etc.
On 01.12.2016, accused Rambeer Shokeen was arrested in this
case. During investigation it is revealed that in November 2013, he
had filed an affidavit before Election Commission to contest Delhi
Legislative Assembly Election. In this affidavit, he has shown
immoveable and moveable assets of himself & his wife worth
Rs.1.85 crores (approx.). As per report dated 10.02.2017 of Income
Tax Department, neither he nor his wife Mrs. Reeta Shokeen has
filed income tax returns during year 20062016.
In view of above, it is humbly requested that the necessary
permission to interrogate accused Rambeer Shokeen may be
granted in Central Jail No.3, Tihar, Delhi. The accused Rambeer
Shokeen is running in judicial custody till 07.03.2017.
Submitted please,
Sd./
(HRIDAYA BHUSHAN)
ACP/Special Cell/NDR
Lodhi Colony, New Delhi
Dated: 04.03.2017”
th
The Special Judge considered the said application on 4
March, 2017 and allowed the prayer for permission to
th
interrogate the appellant in judicial custody before 7 March,
2017. The order passed by the Special Court reads thus:
“04.03.2017
9
File is put up before me as Shri Rakesh Pandit, Ld. Spl.
Judge, NIA/POCSO/MCOCA, ASJ01, PHC has gone to
Odisha for National Seminar, Judicial Academy, Cuttack.
Present : Shri Ravindra Kumar Ld. Addl. PP for the State
ACP Hridaya Bhushan along with Inspector Ravinder Kumar
Tyagi.
Accused Pankaj Sehrawat, Neeraj Sehrawat, Naveen Dabas
and Rahul Dabas produced from JC.
An application has been moved on behalf of Special Cell
seeking permission to interrogate the accused Rambeer
Shokeen in Central Jail No.3, Tihar Delhi submitting that the
accused Rambeer Shokeen was arrested in this case on
01.12.2016 and he is running in JC which is extended till
07.03.2017. During investigation it is revealed that in
November, 2013, he has filed an affidavit before Election
Commission to contest Delhi Legislative Assembly Election
and in the said affidavit, he has shown his immovable and
moveable assets as well as of his wife which is worth Rs.1.85
crores (approx.). It is stated that as per the report dated
10.02.2017 of Income Tax Department, neither he nor his wife
Smt. Reeta Shokeen has filed income tax return during the
year 20062016.
Heard. Keeping in view the fact and circumstances, the
application stands allowed by permitting Special Cell to
interrogate the accused Rambeer Shokeen in judicial custody
before 07.03.2017.
Application stands disposed of accordingly. Copy of this
Order be sent to Superintendent, Tihar Jail, Delhi for
compliance.
Copy of this Order be also given to the Special Cell, as
prayed for.
Put up on 18.03.2017 for further proceedings.”
10
th
On 7 March, 2017, the application for extension of time
8.
th
for filing chargesheet dated 28 February, 2017 and the
application filed by the appellant for grant of statutory bail
nd
dated 2 March, 2017, were taken up by the Special Court.
The Court after considering the arguments of the parties
passed the following order:
“07.03.2017
Present: Shri Ravindra Kumar Ld. APP for State.
Shri Mehmood Pracha and Sh. R.H.A. Sikander counsel for
accused.
Accused Rambeer Shokeen from JC.
IO ACP Hirdey Bhushan in person.
Arguments heard on application for extension of time for
investigation dated 28.02.2017 and on application u/sec.167
(2) Cr.P.C. dated 02.03.2017 (moved at 10.00 a.m.)
Put up for order on these applications on 08.03.2017.
JC is extended till 08.03.2017.
Copy of order be given dasti.”
9. As directed, the matter was taken up by the Special
th
Court on 8 March, 2017 when the prosecution filed
supplementary chargesheet against the appellant. The Court
passed the following order:
“08.03.2017
Present: Shri Ravindra Kumar Ld. APP for State.
11
Shri Mehmood Pracha and Sh. R.H.A. Sikander and Prateek
Gupta counsel for accused Rambeer Shokeen.
IO ACP Hirdey Bhushan in person.
Accused Rambeer Shokeen from JC.
Supplementary charge sheet filed with respect to Accused
Rambeer Shokeen.
Charge sheet perused I take cognizance of the offences
involved.
Copies of documents supplied with respect to the charge sheet
against Rambeer Shokeen. Time sought by IO to supply copy
of earlier charge sheet against other accused persons. Same
be supplied within 7 working days.
Put up for scrutiny of documents on 18.03.2017.
Considering the fact that supplementary charge sheet has
already been filed against accused Rambeer Shokeen, so the
application regarding extension of time dated 28.02.2017
become infructuous and thus dismissed as infructuous.
Put up for arguments/order on application u/sec. 167 (2)
Cr.P.C. on 09.03.2017.”
th
10. Again, the matter was taken up on 9 March, 2017 when
the hearing on statutory bail application remained
inconclusive. The Court passed the following order:
“09.03.2017
Present: Shri Ravindra Kumar Ld. APP for State.
Shri Mehmood Pracha and Prateek Gupta counsel for accused
Rambeer Shokeen.
Part arguments on application u/sec.167 (2) Cr.P.C.
Heard.
Put up for further arguments on this application on
14.03.2017.”
12
th
11. Finally, on 14 March, 2017 the Special Court rejected
nd
the statutory bail application dated 2 March, 2017 filed by
the appellant. The relevant extract of the observations/reasons
recorded by the Special Court reads:
“xxx xxx xxx xxx xxx
So, in these circumstances, the application dated
28.02.2017 i.e. seeking extension of period to file charge
sheet/investigation was not decided on merits (as sought
vide order dated 01.03.2017). Moreover, on 08.03.2017,
cannot be decided on merits as the chargesheet was
already filed before order on this application.
So, in these circumstances, the issue before the court in
this application is that whether vide order dated
01.03.2017, the said court of Ld. District & Session Judge,
NDD was within its power to extend the judicial custody of
the accused or not and for that purpose whether there
should be a specific order of extension of period of
investigation.
As far as this issue is concerned, the law says that it is the
prerogative of the investigating agency to file charge
sheet/complete investigation, as per their wishes. The
Court cannot interfere in the period/duration of
investigation. However, in Sec.21(2)(b) MCOCA, the rider is
that in case if the investigation is not completed within 90
days and the prosecution/IO wanted that the accused
shall remain in judicial custody, then only he has to move
in terms of Sec.21(2)(b) of MCOCA.
In this case, the prosecution had moved such application
on 28.02.2017 (analogous to the movement of application
u/sec.167(2) Cr.P.C. by accused, before chargesheet). The
13
order could not be passed as the court under Sec.5(5)
MCOCA had stated that the same is to be heard by the
concerned court. So, there was no lapse on the part of IO.
He had already moved the application on time. As far as
the JC is concerned, the same has been extended by the
concerned court after the application u/sec.28(2)(b) MCOCA
is already moved by the IO. So, in these circumstances, the
court had acted in legal way in extending the period of
judicial custody since the application for seeking extension
of time was already pending before the court.
So, in these circumstances, no ground exists which suggest
that there was illegal custody of accused beyond the
period of 90 days from the day of his first judicial remand
and he is entitled for statutory bail u/sec.21(2)(b) of
MCOCA.
So, the application u/sec. 167(2) Cr.P.C. alternatively read
as application u/sec.21(2)(b) of MCOCA is dismissed.
Copy of order be given dasti.
Put up for purpose fixed on date already fixed i.e.
18.03.2017.”
Aggrieved, the appellant filed Criminal Appeal
12.
No.311/2017 before the High Court of Delhi at New Delhi and
st th
challenged the legality of orders dated 1 March, 2017, 4
th th
March, 2017, 7 March, 2017 and 14 March, 2017. Besides,
the appellant moved an application for grant of interim bail.
By the impugned judgment, the High Court has rejected
14
Criminal Appeal No.311/2017 and Criminal M. (Bail)
nd
No.525/2017 on 22 May, 2017.
13. The principal argument of the appellant before the High
Court as noted in paragraph 20 of the impugned judgment is
that the report/application submitted by the Additional Public
th
Prosecutor for extension of time to file chargesheet till 15
March, 2017, was not in conformity with the requirement of
proviso to Section 167(2) of Cr.P.C. The appellant placed
reliance on the decision of this Court in Hitendra Vishnu
1
, to buttress his
Thakur v. State of Maharashtra
submission. After adverting to the legal position
expounded in the said decision, the High Court in paragraph
24 considered the factual matrix relevant for answering the
issue. The contention specifically raised by the appellant has
been dealt with from paragraph 25 of the impugned judgment
and noted thus:
“25. The request submitted by the public prosecutor on
28.2.2017 seeking extension of the period for filing charge
1
(1994) 4 SCC 602
15
sheet against him in this case till 15.3.2017, briefly referred
to the report of the investigating officer that had been
submitted before him (the public prosecutor) and upon its
perusal the brief background facts were mentioned indicating
certain steps that had been taken to collect evidence with
regard to the income and assets of the appellant. The public
prosecutor informed the special court by the said request in
writing that investigation of the case was to be conducted,
inter alia, by his ― ’ further interrogation’ as to the source of
money for acquiring the assets worth Rs. 1.85 crores as had
been declared to be held by him and his wife to the Election
Commission at the time of contesting the election to Delhi
Legislative Assembly in 2013, incometax returns not having
been filed by him or his wife during 20062016.
26. Pertinent to mention here that the request for
interrogation of the appellant in custody made by the
investigating officer on 4.3.2017, granted on the same date
by the District and Sessions Judge, was for the same
reasons and on the same grounds as were set out by the
public prosecutor in his request submitted on 28.2.2017.
27. It is true that the request of the public prosecutor
submitted on 28.2.2017 is not captioned as ‘report’ nor does
it specifically refer to the provision contained in the second
proviso to Section 167 (2) Cr.P.C. But, this cannot be
construed as a deficiency. It has to be borne in mind that it is
not a matter of form but one of substance. The request in
writing dated 28.2.2017 of the additional public prosecutor
satisfies the twin criteria of the second proviso to Section 167
(2) Cr.P.C. It indicates that the public prosecutor had
subjected the investigating officer’s report as made to him to
scrutiny and also informed the court the progress of the
investigation and setting out the reasons why the continued
detention of the appellant in custody was necessary.
Therefore, it has to be accepted as a ‘report’ of the public
16
prosecutor satisfying the requirements of second proviso to
Section 167 (2) Cr.P.C. Whether or not, in the facts and
circumstances of the case, as prevailing on the date such
report was submitted to the special court will have to be
considered separately.
28. As noted above, the appellant had moved an application
under Section 167(2) Cr.P.C. for release on bail by default
under Section 167(2) Cr.P.C. on 28.2.2017. It is fairly
conceded by the learned counsel for the appellant that such
application moved on 28.2.2017 was premature as ninety
days would expire only on 1.3.2017.
29. On 28.2.2017, besides the application of the investigating
officer seeking extension of the custody period of the
appellant, the report of the public prosecutor for extension of
the period of investigation had come be submitted to the
special court. Without doubt, the report could be considered
before expiry of the period of ninety days or on the last day
of such period ordinarily available which would be 1.3.2017.
The special court, within its judicial discretion, decided to
postpone the consideration to the following date i.e. 1.3.2017.
It is reflected in the order passed on 1.3.2017 by the District
and Sessions Judge, as extracted earlier, that the additional
sessions judge presiding over the special court was
indisposed and, therefore, on leave of absence on 1.3.2017.
The District and Sessions Judge, before whom the file was
placed for consideration of the report of the public prosecutor
and the application of the investigating officer, decided to
defer the former to 7.3.2017 for it to be ‘decided by the
concerned court’ while extending the judicial custody for such
period. Questions have been raised as to the competence of
the District and Sessions Judge to deal with this case under
MCOCA on the plea that the judicial officer presiding over the
court of District and Sessions Judge was not designated as a
special court in terms of Section 5 MCOCA.”
17
14. While dealing with the argument regarding the
competence of the District & Sessions Judge, the High Court
th
referred to the Notification dated 15 September, 2010 and
opined that it was regarding conferral of powers of Presiding
Officer of the Special Court under MCOCA ascribable to
Section 5 of the special enactment. Further, the Lieutenant
Governor of National Capital Territory of Delhi was pleased to
confer on each member of the Delhi Higher Judicial Service,
inter alia, the powers of Presiding Officer of the Special Court
under MCOCA as extended to NCT of Delhi, with conferral of
powers to be exercised “with effect from the date of
assumption of the charge” of such post in pursuance of
“transfer or posting orders by the Chief Justice of the Delhi
High Court”.
The High Court then considered the grounds urged by
15.
the appellant and after adverting to Section 5 of MCOCA and
Section 15 of the General Clauses Act and the reported
precedents pressed into service by both the sides, answered
18
the issue against the appellant. The High Court concluded
th
that the validity of Notification dated 15 September, 2010,
issued by the Lieutenant Governor of NCT of Delhi, inter alia,
conferring powers to be exercised by the members of Delhi
Higher Judicial Service, in terms of MCOCA, such
empowerment being “exofficio”, cannot be questioned.
As regards the merits of the application for grant of
16.
statutory bail, the High Court adverted to the decisions relied
upon by the parties. In paragraph 69 the Court then observed:
“69. As has been held above, the District and Sessions
Judge, while dealing with the matter arising out of, inter alia,
the report of the public prosecutor on 01.03.2017, and the
additional sessions judge presiding over the special court
also dealing, amongst others, with the said report of the
public prosecutor on 07.03.2017 and 08.03.2017, failed to
discharge the judicial responsibility properly. The
consideration of the report of the public prosecutor, submitted
(on 28.02.2017) well in time before expiry of the period of
ninety days ordinary available, was deferred unnecessarily
on 01.03.2017 and beyond till it was treated, wrongly so, as
―
infructuous on 08.03.2017. It is against this backdrop that
the appellant argues that there being no order in terms of
second proviso to Section 167(2) Cr.P.C. enlarging the period
of investigation, a right to bail by default has accrued in his
favour which cannot be defeated by submission of the charge
19
sheet on 07.03.2017. The crucial question, however, is as to
whether such benefit can be extended to the appellant in a
factsituation where the investigating police officer, and the
public prosecutor, had done their part of the duty under the
law, well within time, and the default in consideration of, and
decision on, the report of the public prosecutor was wholly for
the reasons (or, shall we say, fault) attributable to the District
& Sessions Judge and the special court.”
17. Again in paragraphs 74 to 77, the Court observed thus:
“74. It is clear that the report submitted on 28.02.2017 by the
public prosecutor in terms of second proviso to Section 167(2)
Cr. PC seeking enlargement of time for completion of
investigation did not receive due consideration of the court. If
the grounds on which the public prosecutor was
recommending extension of time were sufficient, there would
be no justification for its denial and, resultantly absolutely no
justification for the appellant to be released on bail by default.
If, on the other hand, the request was unfounded, it should
have been rejected and an appropriate order extending
release on bail by default should have been passed.
75. Since the report did not receive due consideration and was
improperly treated as ‘infructuous’, there are two options
available before this court : one, to remit the matter back to
the special court for a proper decision on the report or, two, to
consider the report and pass appropriate order thereupon. The
former course would only entail further delay. In a case
involving questions of personal liberty, such course is not
desirable. In this view, the learned counsel on both sides were
also heard on the merits of the report of the public prosecutor,
20
bearing in mind that this court is duty bound to secure the
ends of justice and to prevent abuse of the process of court.
76. The background facts and circumstances of the case
against the appellant have already been noted. Certain assets
of the appellant and members of his immediate family had
come to light for which, prima facie, there was no account,
particularly in view of the declaration made on the subject in
2013, when he was a candidate in the election to Delhi
Legislative Assembly. Noticeably, the investigating officer was
seeking opportunity to interrogate the appellant against these
facts to seek his explanation, if any. Under the provisions of
the special enactment (MCOCA), the investigating police officer
is entitled to interrogate the accused in judicial custody. As
mentioned earlier, a formal request to this effect made by the
investigating officer was allowed by order dated 04.03.2017.
The report submitted on 28.02.2017 by the public prosecutor,
thus, is found to pass the necessary muster of the second
proviso to Section 167(2) as inserted in the Code of Criminal
Procedure by Section 21(2) of MCOCA. The fact that the
chargesheet was filed on 08.03.2017, only reassures that
the request for enlargement of time for completion of
investigation made on 28.02.2017 was not with ulterior
motive.
77. In above view, in the considered view of this court, the
request made by the public prosecutor should not only have
received due consideration of the special court on 28.02.2017,
or the District & Sessions Judge on 01.03.2017, but also
deserved to be allowed. The trashing of the said report as
“infructuous”, by order dated 08.03.2017, was thus not only
incorrect but improper. In these circumstances, in exercise of
the jurisdiction vested in this court to satisfy itself as to the
correctness, legality or propriety of the order passed or as to
the regularity of proceedings of the inferior criminal court
(under Section 397 Cr. PC), as indeed invoking the ‘inherent
21
powers’ of this court to secure the ends of justice and prevent
abuse of the judicial process (under Section 482 Cr. PC), the
order dated 08.03.2017 disposing of the report of the public
prosecutor under second proviso to Section 167(2) Cr. PC is set
aside and, instead the said report is accepted and the period
for completion of investigation of the case at hand against the
appellant is extended till 08.03.2017 when the report under
Section 173 Cr. PC (supplementary chargesheet) against him
was actually filed. In this view, the prayer of the appellant for
release on bail by default under Section 167(2) is rendered
impermissible and is accordingly declined.”
18. Being aggrieved, the appellant has approached this Court
by way of these appeals. In the course of hearing, the only
argument canvassed by the counsel for the appellant was
about the entitlement of the appellant for grant of statutory
bail as, admittedly, the Special Court did not pass any specific
order on the report/application for extension of time for filing
of chargesheet against the appellant preferred by the
Additional Public Prosecutor. In absence of such an order,
contends the appellant, the appellant acquired an indefeasible
right. Thus, he ought to have been granted statutory bail as
nd
prayed vide application dated 2 March, 2017, under Section
167(2) of Cr.P.C. read with Section 21(2)(b) of MCOCA. As the
22
statutory period of 90 days had already expired and there was
no extension of time granted to the prosecution by the Special
Court to file the chargesheet, filing of the chargesheet
th
against the appellant on 8 March, 2017 could not denude the
appellant of statutory bail. In support of his submission,
reliance is placed on the decisions in the case of
Union of
2
India v. Nirala Yadav , Uday Mohanlal Acharya v. State
3 4
, and .
of Maharashtra Sanjay Dutt v. State through CBI
No other argument has been canvassed by the learned counsel
for the appellant in these appeals.
19. The respondent on the other hand would support the
reasons recorded by the Special Court and by the High Court
to oppose these appeals. According to the respondent, the
Special Court and the High Court have not committed any
error in rejecting the prayer for grant of statutory bail, in view
of indisputable facts of the present case. The appellant was
well advised not to pursue his application for grant of
2
(2014) 9 SCC 457
3
(2001) 5 SCC 453
4
(1994) 5 SCC 410
23
th
statutory bail application dated 28 February, 2017. For, by
that date, 90 days period for filing chargesheet had not
expired. Resultantly, the question of entertaining prayer for
grant of statutory bail did not arise. As regards the statutory
nd
bail application filed on 2 March, 2017, the same was also
misconceived as the Additional Public Prosecutor had already
th
filed report/application for extension of time on 28 February,
2017 itself and the Court had extended the judicial custody of
st
the appellant pursuant to the said application until 1 March,
st
2017. Again on 1 March, 2017, the hearing on
report/application for extension of time preferred by the
Additional Public Prosecutor was deferred and judicial custody
th
was finally extended until 8 March, 2017. Further, merely
because no express order was passed on the said
nd
report/application of the Additional Public Prosecutor on 2
th
March, 2017 or for that matter, till 8 March, 2017 when the
chargesheet was filed against the appellant, ipso facto did not
create any right in favour of the appellant. For, judicial
24
custody of the appellant was consciously extended by the
th
competent Court from time to time (from 28 February, 2017
till the filing of chargesheet). In any case, the Special Court,
in law, was obliged to first decide the said report/application
for extension of time preferred by the Additional Public
Prosecutor, and only if the same was to be rejected before
filing of the chargesheet or expiry of the period of judicial
custody of the appellant, could the appellant claim that an
indefeasible right had accrued in his favour. In other words,
application for grant of statutory bail preferred by the
nd
appellant on 2 March, 2017 was also premature and in any
case, the same could not have been taken up for consideration
until the report/application for extension of time to file charge
th
sheet submitted by the Additional Public Prosecutor dated 28
February, 2017, was finally decided. In support of this
submission, reliance has been placed on the dictum in
paragraph 48 of the decision of the Constitution Bench in
Sanjay Dutt’s case (supra). It is contended that the decisions
25
in Uday Mohanlal Acharya (supra), Nirala Yadav (supra) and
Sanjay Dutt will be of no avail to the appellant as the
exposition in those cases was in light of the facts of those
cases. It is contended that the High Court justly considered
the merits of the report of the Additional Public Prosecutor
th
dated 28 February, 2017 for extension of time, and after
analysing the relevant aspects, concluded that the request
made by the Additional Public Prosecutor was genuine and
appropriate. The High Court, after hearing both sides,
concluded that the time to file chargesheet against the
th
appellant stood extended till 8 March, 2017 when the same
was, in fact, filed. Resultantly, the application for grant of
nd
statutory bail filed by the appellant albeit on 2 March, 2017,
was bound to be dismissed. According to the respondents,
these appeals are devoid of merit and ought to be dismissed.
20. We have heard Mr. Mehmood Pracha, learned counsel
appearing for the appellant and Ms. Pinky Anand, learned
Additional Solicitor General assisted by Mr. Aman Sinha,
26
learned senior counsel and Mr. B.V. Balaram Das, learned
counsel for the respondent.
21. After having analysed the facts and events as unfolded
th th
from 28 February, 2017 until 8 March, 2017, it is
th
indisputable that on 28 February, 2017, the Additional
Public Prosecutor had filed report for extension of time to file
th
chargesheet against the appellant until 15 March, 2017. The
same was filed within time, before the expiry of 90 days from
the date of initial arrest of the appellant in connection with the
subject FIR. Realising this position, the appellant did not
th
pursue his first application for statutory bail dated 28
February, 2017. Instead, he was advised to file a fresh
nd
statutory bail application on 2 March, 2017. Admittedly, on
nd
2 March, 2017 the report submitted by the Additional Public
th
Prosecutor dated 28 February, 2017 was still undecided.
Therefore, no right can be said to have accrued to the
appellant for grant of bail on the ground of default. In law,
only upon rejection of the prayer for extension of time sought
27
by the Additional Public Prosecutor, right in favour of the
appellant for grant of statutory bail could have ignited. The
mere fact that 90 days period from the date of initial arrest of
the appellant in connection with the subject FIR had lapsed on
nd
2 March, 2017, could not ineluctably entail in grant of
statutory bail to the appellant. Moreso, when no decision was
taken by the Court on the report/application submitted by the
th
Additional Public Prosecutor until 8 March, 2017, on which
date the supplementary chargesheet against the appellant
was filed in Court. Considering the effect of filing of the
supplementary chargesheet against the appellant, coupled
with the fact that his judicial custody was extended by the
Court of competent jurisdiction until the pendency of
consideration of the report/application for extension of time
to file the chargesheet, in law, it is unfathomable as to how
the appellant could claim to have any accrued right to be
released on bail on the ground of default or for that matter,
such a right having become indefeasible.
28
The legal position has been expounded by the
22.
Constitution Bench of the Supreme Court in the case of
Sanjay Dutt (supra), in particular, in paragraph 48 as under:
| “ | 48 | . | We have no doubt that the common stance before us of | |||||
|---|---|---|---|---|---|---|---|---|
| the nature of indefeasible right of the accused to be released | ||||||||
| on bail by virtue of Section 20(4)( | bb | ) is based on a correct | ||||||
| reading of the principle indicated in that decision. | The | |||||||
| indefeasible right accruing to the accused in such a | ||||||||
| situation is enforceable only prior to the filing of the | ||||||||
| challan and it does not survive or remain enforceable | ||||||||
| on the challan being filed, if already not availed of. | ||||||||
| Once the challan has been filed, the question of grant | ||||||||
| of bail has to be considered and decided only with | ||||||||
| reference to the merits of the case under the provisions | ||||||||
| relating to grant of bail to an accused after the filing of | ||||||||
| the challan. | The custody of the accused after the challan | |||||||
| has been filed is not governed by Section 167 but different | ||||||||
| provisions of the Code of Criminal Procedure. If that right had | ||||||||
| accrued to the accused but it remained unenforced till the | ||||||||
| filing of the challan, then there is no question of its | ||||||||
| enforcement thereafter since it is extinguished the moment | ||||||||
| challan is filed because Section 167 CrPC ceases to apply. | ||||||||
| The Division Bench also indicated that if there be such | ||||||||
| an application of the accused for release on bail and | ||||||||
| also a prayer for extension of time to complete the | ||||||||
| investigation according to the proviso in Section 20(4) | ||||||||
| ( | bb | ), both of them should be considered together. It is | ||||||
| obvious that no bail can be given even in such a case | ||||||||
| unless the prayer for extension of the period is rejected. | ||||||||
| In short, the grant of bail in such a situation is also | ||||||||
| subject to refusal of the prayer for extension of time, if |
29
| such a prayer is made. | If the accused applies for bail under | |||||||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| this provision 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. | It is settled by | |||||||||||||||||||||||
| Constitution Bench decisions that a petition seeking | ||||||||||||||||||||||||
| the writ of | habeas corpus | on the ground of absence of a | ||||||||||||||||||||||
| valid order of remand or detention of the accused, has | ||||||||||||||||||||||||
| to be dismissed, if on the date of return of the rule, the | ||||||||||||||||||||||||
| custody or detention is on the basis of a valid order. | ||||||||||||||||||||||||
| (See | N | aranjan Singh Nathawan | v. | State of Punjab | [1952 SCR | |||||||||||||||||||
| 395 : AIR 1952 SC 106 : 1952 Cri LJ 656] ; | Ram Narayan | |||||||||||||||||||||||
| Singh | v. | State of Delhi | [1953 SCR 652 : AIR 1953 SC 277 : | |||||||||||||||||||||
| 1953 Cri LJ 1113] and | A.K. Gopalan | v. | Government of | |||||||||||||||||||||
| India | [(1966) 2 SCR 427 : AIR 1966 SC 816 : 1966 Cri LJ | |||||||||||||||||||||||
| 602].) | ||||||||||||||||||||||||
| (emphasis supplied) |
Further, the conclusion articulated in paragraph 53, makes it
clear that the decision in Hitendra Vishnu Thakur (supra)
must be understood accordingly. It observed thus:
“53. As a result of the above discussion, our answers to the
three questions of law referred for our decision are as under:
(1) xxx xxx xxx xxx
(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
30
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
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 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.”
The aforementioned opinion has been expressed by the
Constitution Bench in the context of question No.2 formulated
in paragraph 2 of the judgment as under:
“ 2 . The questions of law indicated in the said order of
reference, to be decided by us, are three, namely:
31
(1) xxx xxx xxx xxx
(2) The proper construction of clause (bb) of subsection (4) of
Section 20 of the TADA Act indicating the nature of right of an
accused to be released on bail thereunder, on the default to
complete investigation within the time allowed therein;
(3) xxx xxx xxx xxx”
23. It is thus clear that no right had accrued to the appellant
before filing of the chargesheet; at best, it was an inchoate
th
right until 8 March, 2017. Resultantly, the question of
granting statutory bail after filing of chargesheet against the
appellant and moreso during the pendency of
report/application for extension of time to file chargesheet
was impermissible. In other words, the application for grant of
nd
statutory bail filed by the appellant on 2 March, 2017, even if
pending, could have been taken forward only if the prayer for
extension of period was to be formally and expressly rejected
by the Court.
As held by the Constitution Bench of this Court, the
24.
consideration of application for grant of statutory bail in a
situation, as in the present case, was dependent on rejection
32
of prayer of the Additional Public Prosecutor for extension of
time. When such prayer is made, it is the duty of the Court to
consider the report/application for extension of period for
filing of the chargesheet in the first instance; only if it was to
be rejected could the prayer for grant of statutory bail be taken
forward. In no case, the hearing on statutory bail application
precede the consideration of prayer for extension of the period
for filing of the chargesheet made by the Additional Public
Prosecutor.
25. The Constitution Bench decision in Sanjay Dutt’s case
(supra) also answers the next issue raised by the appellant
about the absence of a valid remand/detention. In that, in the
concluding part of the aforequoted paragraph 48, the Court
has opined that a petition seeking a writ of habeas corpus on
the ground of absence of a valid order of remand or detention
has to be dismissed if, on the date of return of the rule, the
custody or detention is on the basis of a valid order.
Admittedly, in the present case, the judicial custody of the
33
appellant was extended by the Court of competent jurisdiction
from time to time pending consideration of request to extend
th
time to file chargesheet, initially from 28 February, 2017, till
st st
1 March 2017 and so continued from 1 March, 2017, until
th th th
7 March, 2017, and again from 7 March, 2017, till 8
March, 2017 on which date the chargesheet was filed
against the appellant in the Court. The order passed by the
th
Special Court on 8 March, 2017, has been so construed by
the High Court and additionally by explicitly extending the
period for filing of the chargesheet against the appellant until
th
8 March, 2017. We find no error in that approach of the
High Court. No interference is warranted in that regard.
The appellant, however, relies on the observations in
26.
Uday Mohanlal Acharya (supra) rendered by a threeJudge
Bench of this Court. In the said case, the accused had himself
surrendered in Court and was remanded to judicial custody.
The period for filing of chargesheet (60 days in that case)
th
expired on 16 August, 2000. The accused moved an
34
th
application on 17 August, 2000, for grant of statutory bail on
the ground of default in filing of chargesheet within the
statutory period of 60 days. That bail application was rejected
by the Magistrate on the same day, holding that the provisions
of Section 167(2) of Cr.P.C. had no application to the cases
pertaining to the special enactment i.e. Maharashtra
Protection of Interest of Depositors (in Financial
Establishments) Act, 1999. The accused then approached the
High Court. When the matter was pending before the High
th
Court, chargesheet was filed before the Trial Judge on 30
August, 2000. The High Court refused to grant relief on the
ground that by the time the High Court could consider the
correctness of the order on the statutory bail application
passed by the competent Court, a chargesheet was filed
against the accused before the Magistrate and, therefore, the
so called enforceable right did not survive or remained
enforceable. In this backdrop, this Court considered the
matter and answered the issue in favour of the accused on the
35
finding that before the chargesheet was filed, the accused had
invoked the remedy of statutory bail. Thus, the factum of filing
of chargesheet subsequently cannot defeat the right accrued
to him. In the present case, before the appellant instituted the
nd
subject application for grant of statutory bail on 2 March,
2017, the Additional Public Prosecutor had already filed his
report/application for extending the period for filing of charge
th
sheet against the appellant until 15 March, 2017, but
decision thereon was deferred. As held by the Constitution
Bench in the case of Sanjay Dutt (supra), unless the
report/application filed by the Additional Public Prosecutor for
extension of time was rejected, no right would accrue in favour
of the accused much less to consider his application for grant
of statutory bail. Further, in such cases it is the duty of the
concerned Court to first deal with the prayer for extension of
period to file chargesheet made by the Additional Public
Prosecutor. The High Court, in the impugned judgement, thus
answered the issue against the appellant and additionally
36
considered the justness of the prayer made by the Additional
Public Prosecutor for extension of period for filing charge
sheet. It recorded an express finding that the said request was
genuine and appropriate and thus extended the time for that
th
purpose till 8 March, 2017.
Reverting to the decision in the case of
27. Nirala Yadav
(supra) rendered by twoJudge Bench, the accused in that
th
case was arrested and sent to judicial custody on 5
December, 2006. After lapse of the statutory period of 90
th
days on 14 March, 2007, the accused filed application for
grant of statutory bail on the ground of default. The
th
prosecution (CBI), however, on 15 March, 2007, moved an
application for extension of time for a period of 30 days. Since
the application for grant of statutory bail filed by the accused
preceded the filing of application for extension of time, the
issue was answered in favour of the accused. In the present
case, however, the prayer for extension of period for filing
chargesheet was moved by the Additional Public Prosecutor
37
before the statutory period had lapsed, but the same remained
th
pending until 8 March, 2017, when chargesheet was filed in
Court. Until the said request was formally and expressly
rejected by the competent Court, in view of the exposition in
the case of (supra), the concerned Court could
Sanjay Dutt
not have assumed jurisdiction to consider the prayer for grant
of statutory bail of the appellant. The request made by the
Additional Public Prosecutor was formally disposed of as
th
infructuous on 8 March, 2017, after filing of the chargesheet
against the appellant. That was not an order of rejection of the
request of the Additional Public Prosecutor as such. The High
Court has examined this aspect and, in our opinion, rightly
answered the issue against the appellant for the reasons
recorded in paragraphs 75 to 77 of the impugned judgment,
including by explicitly extending the time to file chargesheet
th
till 8 March, 2017.We affirm the said view of the High Court.
Therefore, even this decision relied upon by the appellant will
be of no avail in the fact situation of the present case.
38
Taking overall view of the matter, therefore, it is noticed
28.
that the Additional Public Prosecutor had submitted his report
th
to the concerned Court for extending time until 15 March,
2017, to file the chargesheet. That report was submitted on
th
28 February, 2017, before expiry of the initial statutory
period of 90 days for filing of the chargesheet against the
appellant. That request was disposed of by the Special Court
th
on 8 March, 2017 as infructuous, after the chargesheet
th
against the appellant was submitted in Court. Until 8 March,
2017, the appellant was sent to judicial custody by the
competent Court pending consideration of request of the
Additional Public Prosecutor for extension of time to file the
chargesheet. The Court, in law, could not have considered the
th
prayer for grant of statutory bail of the appellant until 8
March, 2017, on which date the chargesheet was already filed
against the appellant in the concerned Court. Further, the
High Court considered the circumstances in which the order
th
came to be passed by the Special Court on 8 March, 2017. In
39
our opinion, it rightly held that the said request could not
have been closed as having become infructuous. Rather, it
was the duty of the Court to decide the request on its merits
and only upon its rejection, proceed to consider the prayer for
grant of statutory bail. The High Court, therefore, noticed that
it had two options: first, to remit the matter back to the
Special Court for a proper decision on the said report of the
th
Additional Public Prosecutor dated 28 February, 2017 or
second, to consider the same itself and pass appropriate
orders thereupon. It chose to adopt the second option, which
was thought desirable and not objected to by the appellant as
can be discerned from the noting in paragraph 75 of the
impugned judgment. The High Court, in paragraph 76 of the
impugned judgment, then proceeded to consider the prayer for
extension of time made in the report submitted by the
th
Additional Public Prosecutor on 28 February, 2017, and, for
tangible reasons, found the same to be genuine and
appropriate. Having thus held, it allowed the said request by
40
th
extending the time to file chargesheet till 8 March, 2017. We
find no infirmity in the said approach of the High Court.
th
Having extended the time till 8 March, 2017 and as the
chargesheet was already filed on that date, the question of
considering the prayer for grant of statutory bail of the
nd
appellant vide application dated 2 March, 2017, on the
ground of default, did not survive for further consideration.
Right to grant of statutory bail would have enured to the
accused only after rejection of the request for extension of time
prayed by the Additional Public Prosecutor. As a result, the
High Court rightly rejected the prayer for grant of statutory
nd
bail pursued by the appellant vide application dated 2
March, 2017. We are in full agreement with the said
conclusion reached by the High Court.
A priori , these appeals must fail. Indeed, rejection of the
29.
prayer for grant of statutory bail will not come in the way of
the appellant in pursuing his remedy for grant of regular bail
41
on merit. The appellant is free to pursue that remedy which
may be considered on its own merits in accordance with law.
Accordingly, these appeals are dismissed being devoid of
30.
merits.
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
January 31, 2018.