Full Judgment Text
2024:BHC-AS:27906-DB
1.214.23 apeal.doc
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 214 OF 2023
1. Momin Moiuddin Gulam Hasan
@Moin Mistri Acc No. 4, Occ-Service
Niyag Bangalpura Masjid, Bangalpura
Bhivandi, Dist:-Thane
Presently in Judicial custody in the
Taloja Central Prison,
Navi Mumbai, India.
2. Asif Aminul Hussain Khan Adhikari
Aged: 46 yeas, Acc No. 5, Occ-Service
Add:-Room No. G-1, Nobsera Co.Op.
Hsg So., Near Wit Centre Panvel,
Dist:- Raigadh Presently in Judicial
custody in the Taloja Central Prison
Navi Mumbai, India ...Appellants
Versus
1. The State of Maharashtra
2. The Anti Terrorism Squad, Mumbai ...Respondents
Mr. Hassnain Kazi a/w Ms. Shraddha Vahval, Mr. Zeeshan Kazi, Mr.
Hafizuddin Kazi, Mr. Raeed Kazi, Mr. Saifan Shaikh and Mr. Athar
Qureshi for the Appellants
Mr. Ashok P. Mundargi, Senior Advocate, Amicus Curiae
Mr. H. S. Venegavkar, PP a/w Mrs. P. P. Shinde APP for the State
CORAM: REVATI MOHITE DERE &
GAURI GODSE JJ
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RESERVED ON: 2 MAY 2024
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PRONOUNCED ON: 15 JULY 2024
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JUDGMENT: (PER: GAURI GODSE, J.)
1. Although the arguments were concluded and judgment was
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reserved on 13 December 2023, we listed the matter for further
hearing on a praecipe moved by the learned Public Prosecutor as he
wanted to address this Court on certain issues, including pointing out
the latest decision of the Apex Court. Accordingly, we heard the
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learned counsels for the respective parties on 7 March 2024, 25
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April 2024 and 2 May 2024.
2. This appeal is preferred under Section 21 of the National
Investigation Agency Act, 2008 (“NIA Act”) to challenge the order
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dated 18 January 2023 passed by learned Sessions Judge
(MCOCA/POTA/TADA/NIA) and Additional Sessions Judge Greater
Mumbai in NIA RA No. 946 of 2022 in Crime No. 19 of 2022, by
which the court granted an extension of time of 15 days to file the
chargesheet. By way of an amendment, the appellants have also
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challenged the order dated 20 January 2023, by which the learned
Judge rejected the appellants’ application for grant of bail under
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Section 167 (2) of the Code of Criminal Procedure, 1973 (‘CrPC’).
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3. By an order dated 18 January 2023, the Trial Court granted an
extension of 15 days to the prosecution to file the chargesheet on the
ground that the prosecution was awaiting sanction from the
appropriate Government.
4. For examining the grounds of challenge raised on behalf of the
appellants, it is necessary to note the following dates as revealed from
the roznama, applications filed by the parties and the orders passed
below it:
st
21 September 2022 :– FIR was registered with the ATS for the
offences punishable under Sections 120-B, 121-A, 153-A of the Indian
Penal Code (“IPC”) and Sections 13(1)(b) of the Unlawful Activities
(Prevention) Act 1967 (“ the UAPA”).
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22 September 2022 : The appellants were arrested and
produced before the Trial Court. By an order passed on the first
remand application, the appellants were remanded to police custody
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for five days, i.e., until 26 September 2022 .
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26 September 2022 :– Appellants were produced before the
Trial Court. An order was passed on the second remand application,
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and police custody was granted till 3 October 2022 on the ground
that the prosecution required time for examining the electronic
devices.
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3 October 2022 :– Appellants were produced before the Trial
Court. An order was passed on the third remand application, and the
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police custody of the appellants was extended up to 8 October 2022,
again on the ground that time was required for examining the
electronic devices.
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8 October 2022 : The appellants were produced before the Trial
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Court and were granted judicial custody until 20 October 2022.
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20 October 2022 :- The appellants were produced before the
Trial Court through video conferencing (“VC”). An application was
filed for extension of the appellants’ judicial custody. The matter was
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adjourned to 3 November 2022 for the appearance of the accused
through VC.
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3 November 2022 :- The appellants were not produced before
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the Trial Court through VC. Judicial custody was extended till 17
November 2022.
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17 November 2022 :- Appellants were produced before the Trial
st
Court through VC. Judicial custody was accordingly extended till 1
December 2022.
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1 December 2022 :- Roznama does not reflect that the
appellants were produced before the Trial Court either physically or
through VC. However, it appears that the appellants’ Judicial custody
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was extended till 14 December 2022 .
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14 December 2022 :- Roznama does not reflect that the
appellants were produced before the Trial Court either physically or
through VC. However, it appears that the appellants’ Judicial custody
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was extended till 20 December 2022 .
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17 December 2022:- Since the ninety days period for filing the
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chargesheet was to expire on 20 December 2022 , the prosecution
filed a Criminal Misc. Application No. 1710 of 2022 and prayed for
extension of time to file the chargesheet on two grounds, i.e. (i) to
retrieve a large amount of electronic data from the FSL and (ii) to
obtain sanction from the appropriate Government under Section 45 of
the UAPA. The said application was allowed and an extension of 30
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days was granted from 20 December 2022. Thus, the said extension
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was to expire on 19 January 2023 .
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20 December 2022 :- Roznama records that Appellants were not
produced through VC, however, their Judicial custody was extended
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till 3 January 2023 .
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3 January 2023 :- Roznama records that the appellants were
produced through VC and their Judicial custody was extended and the
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matter was adjourned to 19 January 2023 for appearance, as the case
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was already adjourned to 19 January 2023 vide Order dated 17
December 2022 by the learned Judge, below Misc. Application No.
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1710 of 2022.
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12 January 2023 :- Investigating Officer preferred Misc.
Application No. 86 of 2023 for seeking further extension of 15 days
to file the chargesheet. Learned PP also prepared an application dated
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12 January 2023 recommending extension of 15 days for filing the
chargesheet.
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14 January 2023 :- Appellants were served with the application
seeking an extension of time.
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18 January 2023 :- Appellants filed an application for grant of
default bail under Section 167 (2) of CrPC on the ground that the
chargesheet was not filed within the extended time. On the same day,
the prosecution filed its say, opposing the said application and
contended that the time for completing the investigation would come
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to an end on 19 January 2023 ; and hence, the application for default
bail was premature. In view of the said objection, the learned advocate
for the appellants prayed for withdrawal of the said application.
Accordingly, the application was disposed of as withdrawn. However,
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on the same day, the learned trial Judge allowed Misc. Application No.
86 of 2023 filed by the prosecution, and the time for filing the
chargesheet was extended by 15 days from the date of expiration of
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the earlier period, i.e. from 19 January 2023 .
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19 January 2023 :- The entry in the Roznama shows that the
appellants were produced through VC and their Judicial custody was
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extended until 1 February 2023 .
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20 January 2023 :- The appellants filed a second application at
exhibit 44 praying for default bail under Section 167 (2) of CrPC.
However, their application was rejected on the ground that the
prosecution was already granted extension of time to file the
chargesheet.
st
1 February 2023 :- The entry in the Roznama shows that the
appellants were not produced through VC and their Judicial custody
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was extended until 2 February 2023 .
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2 February 2023 :- Chargesheet was filed, during the extended
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period granted by the learned special judge vide order dated 18
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January 2023. The last date to file the chargesheet was 3 February
2023, however, the chargesheet was filed a day prior to the last date.
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13 February 2023 :- The appellants i.e. accused nos. 3 and 4
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preferred the present appeal challenging the order dated 18 January
2023 granting extension of time to file the chargesheet. By way of
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amendment, they also challenged the order 20 January 2023,
rejecting their application for default bail.
Submissions on behalf of appellants :
5. Learned counsel for the appellants submitted that the second
application filed by the prosecution seeking extension of time on the
ground that time was required to obtain for sanction from the
appropriate government was not maintainable, more particularly when
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the first extension granted vide order dated 17 December 2022 was
only on one ground, i.e. for retrieving a large amount of data as per a
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letter of FSL dated 24 November 2022, despite also seeking
extension on the ground of time to obtain sanction. As per the special
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report filed by the learned PP, the application for extension of time
was filed on two grounds, i.e. firstly, to retrieve a large amount of
electronic evidence from the FSL and secondly, to obtain sanction
from the appropriate government. The learned Trial Judge, while
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granting extension by order dated 17 December 2022, has
specifically recorded that it would take some time to retrieve a large
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amount of data as per the letter of the FSL dated 24 November
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2022. A perusal of the order dated 17 December 2022 indicates that
extension to file the chargesheet was granted only on the ground of
time required to retrieve the large amount of data as per the letter of
the FSL. Thus, impliedly, the second ground pleaded by the
prosecution seeking time for obtaining sanction from the appropriate
government was rejected by the Trial Judge. The second application
filed by the prosecution for extension of time was again on the ground
of time required for obtaining sanction from the appropriate
government.
6. Learned counsel for appellants submitted that the order dated
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17 December 2022 impliedly refusing to grant extension of time on
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the ground of time required for obtaining sanction from the
appropriate government was never challenged by the prosecution.
Thus, the second application filed for extension of time to file the
chargesheet on the same ground was not maintainable. Learned
counsel for the appellants further submitted that it is a well-settled
principle of law that the time required to obtain sanction from the
appropriate authority is not a valid ground for extension of time to
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file the chargesheet, and as such the order dated 18 January 2023,
granting extension of time for filing the chargesheet on the said
ground is illegal. He, therefore, submitted that if this Court holds that
the order granting extension of time only on the ground of time
required for obtaining sanction is illegal, then the appellants will be
entitled to invoke their indefeasible right to seek default bail under
Section 167 (2) of CrPC as prayed in the application at exhibit 44
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filed on 20 January 2023.
7. In support of his submissions, learned counsel for the appellants
relied upon the decisions of the Hon’ble Supreme Court in the cases
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of Judgebir Singh @ Jasbir Singh Samra @ Jasbir & Ors , Hitendra
2
Vishnu Thakur and others Vs. State of Maharashtra and others ,
3
Bikramjit Singh Vs. The State of Punjab and The State of Maharashtra
4
Vs. Surendra Pundlik Gadling and the decisions of this Court in the
5
cases of Darshan Nandagawali Vs. State of Maharashtra and Sudha
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Bharadwaj and Ors Vs. National Investigation Agency and Ors .
8. Learned counsel for the appellants has relied upon an affidavit
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dated 3 October 2023 of the learned advocate for the appellants in
the trial Court in support of the contentions raised on behalf of the
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appellants that the first application filed on 18 January 2023 seeking
default bail was withdrawn, only because of the objection raised on
behalf of the prosecution that the application was premature.
Submissions on behalf of the prosecution :
9. Learned PP supported the impugned orders by relying upon
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affidavits dated 15 June 2023 and 9 October 2023 filed on behalf of
1 2023 SCC Online SC 543
2 (1994) 4 Supreme Court Cases 602
3 (2020) 10 SCC 616
4 (2019) 5 SCC 178
5 2023 SCC Online Bom 1162
6 2021 SCC Online Bom 4568
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the prosecution. He submitted that the first application seeking
extension of time was allowed on both the grounds pleaded by the
prosecution, i.e. the ground of retrieving a large amount of electronic
evidence as per the FSL letter as well as the ground for obtaining
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sanction. The order dated 17 December 2022 records the reasons for
extension of time on both grounds as pleaded on behalf of the
prosecution. Learned PP submitted that in view of the same there is no
substance in the ground raised on behalf of the appellants that the
second application seeking extension of time to file the chargesheet on
the ground of obtaining sanction from the appropriate government
was not maintainable. The learned PP further submitted that the
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appellants withdrew their application on 18 January 2023, seeking
default bail under Section 167 (2) of CrPC; hence, they are not
entitled to invoke their right subsequently after the chargesheet is
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filed. As per the second extension granted by order dated 18 January
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2023, the time to file the chargesheet was to expire on 3 February
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2023; however, the chargesheet was filed one day prior, i.e. on 2
February 2023. Since the time to file the chargesheet was already
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extended before the expiry of the period, no right accrued in favour of
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the appellants to seek default bail on 20 January 2023. Learned PP
further submitted that even if this Court holds that the order granting
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the second extension on 18 January 2023 is illegal, the appellants
would not be entitled to invoke their right under Section 167 (2) of
CrPC in as much as the appellants had never challenged the order
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dated 18 January 2023 before filing of the chargesheet. The time to
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file the chargesheet was to expire on 3 February 2023; whereas, the
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chargesheet was filed on 2 February 2023; the appellants filed the
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present appeal on 13 February 2023, i.e. after the filing of the
chargesheet. Thus, according to the learned PP under no
circumstances are the appellants now entitled to invoke their right
under Section 167 (2) of CrPC, in as much as, the chargesheet is
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already filed before the expiry of the time granted by order dated 18
January 2023 and much before the appellants filed the present appeal
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challenging the order dated 18 January 2023.
10. Learned PP in support of his submissions relied upon the
decisions of the Hon’ble Supreme Court in the cases of Sanjay Dutt
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Vs. State Through CBI, Bombay (II) , The State of Maharashtra Vs.
Surendra Pundlik Gadling and Dashrath Rupsingh Rathod Vs. State of
8
Maharashtra and another
11. During the further hearing learned PP relied upon the latest
decision of the Apex Court in the case of State of NCT of Delhi Vs
9
Raj Kumar @ Lovepreet @ Lovely . He submitted that the Hon’ble
Supreme Court has set aside an order granting default bail in a case
concerning the offences punishable under Sections 13, 18, 20 of the
UAPA, Sections 201, 120-B of IPC and Sections 25, 54, 59 of the
Arms Act 1959. He submitted that the Hon’ble Supreme Court held
that the High Court fell in error by not taking into consideration the
reasons given under Section 43D(2)(b) of the UAPA that were clearly
made out and explained in the letter of extension. It is also observed
that the Public Prosecutor had also mentioned that major investigation
of the case had been done and a draft chargesheet was ready, however,
extension of time was required for the remaining sanctions and report
7 (1994) 5 Supreme Court Cases 410
8 (2014) 9 Supreme Court Cases 129
9 2024 SCC Online SC 6
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of FSL for completing the investigation and that the matter should not
have been taken lightly as the nature of the offence, which involved
terrorist activities, had not only Pan India impact but also impact on
other enemy states. Learned PP submitted that even in the present
case, extension was sought on the grounds of examining and analyzing
the FSL report and awaiting sanction under Section 45 of the UAPA.
According to the learned PP, the present case is squarely covered by
the said decision. Hence, he submitted that no fault could be found in
the impugned orders and, as such, the appeal be dismissed.
Submissions made by the learned Amicus Curiae :
12. Considering the controversy involved in the present appeal, we
appointed Mr. Ashok Mundargi, learned senior counsel, as Amicus
Curiae. Mr. Mundargi submitted that it is a well-settled principle of
law that so long as the chargesheet is not filed within the meaning of
sub-section 2 of Section 173 of CrPC, the investigation remains
pending. However, once the chargesheet is filed, the right of the
accused to invoke his indefeasible right under Section 167 (2) of CrPC
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gets extinguished. He submitted that the prosecution must apply for
extension of time before the time to file the chargesheet expires, and if
such period expires, the right under Section 167 (2) of CrPC accrues
in favour of the accused. Learned senior counsel referred to paragraph
19 of the decision of the Hon’ble Supreme Court in the case of Dinesh
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Dalmia Vs. C.B.I. and submitted that the ideal period for completing
the investigation and filing a chargesheet is 24 hours but in some
cases, it is not practically possible to do so; hence, the legislature
found it fit that a remand of the accused can be sought in the event
investigation is not completed within 60 or 90 days, however, if the
same is not completed within the stipulated time, the accused on
expiry thereof would be entitled to apply for bail. Learned senior
counsel also referred to the decisions of the Hon’ble Supreme Court in
the cases of M. Ravindran Vs. The Intelligence Officer, Directorate of
11
Revenue Intelligence , Uday Mohanlal Acharya Vs. State of
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Maharashtra and Sanjay Dutt .
10 AIR 2008 SC 78
11 2020 0 Supreme(SC) 627
12 (2001) 5 SCC 453
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13. Learned senior counsel relied upon the decision in the case of M.
Ravindran and submitted that an accused is held to have availed of his
indefeasible right the moment he files an application for being released
on bail and offers to abide by the terms and conditions of bail. He
submitted that on the expiry of the stipulated period, as the case may
be, an indefeasible right accrues in favour of the accused for being
released on bail on account of default by the investigating agency in
completion of the investigation within the period prescribed, and the
accused is entitled to be released on bail if he is prepared to and
furnishes bail as directed by the Magistrate.
14. Learned senior counsel thus submitted that the Hon’ble Supreme
Court, in the decision of M. Ravindran, arrived at a conclusion that
the majority opinion in the Uday Acharya case is a correct
interpretation of the decision rendered by the Constitution bench in
the case of Sanjay Dutt . He submitted that the Hon’ble Supreme
Court has further held that the Constitution bench’s decision in the
case of Sanjay Dutt cannot be interpreted to mean that even where the
accused has properly exercised his right under Section 167 (2) of
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CrPC and communicated his willingness to furnish bail, he can be
denied bail on account of delay in deciding his application or
erroneous rejection of the same.
15. The learned senior counsel submitted that in the latest case of
the State of NCT of Delhi Vs Raj Kumar @ Lovepreet @ Lovely , the
reasons given by the prosecution for the extension of time was to
complete the investigation and file the chargesheet, as the FSL report
of the recovered arms was awaited, and, sanction under the Arms Act
was to be obtained after the FSL report was received. It was also the
prosecution’s case that one of the sanctions under Section 45 of the
UAPA was received, and another sanction was awaited. He submitted
that the sanction under Section 39 of the Arms Act is a previous
sanction for the institution of prosecution, however, sanction under
Section 45 of the UAPA is for taking cognizance and not for the
institution of prosecution or filing a chargesheet. He submitted that
in the facts of that case, the Apex Court accepted the grounds pleaded
by the prosecution for extension of time to complete the investigation,
and one of the additional reasons pleaded by the prosecution was
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awaiting one of the sanctions under the UAPA. He, thus, submitted
that the observations in the case of State of NCT of Delhi Vs Raj
Kumar @ Lovepreet @ Lovely may not be considered as an absolute
proposition of law that in every case, even if the investigation is
complete, time to obtain sanction under Section 45 of the UAPA is a
valid ground to seek extension of time to file chargesheet. He
submitted that in the present case, the appellants have not been
prosecuted under the Arms Act, that the FSL report had been received,
and the report of the Investigating Officer and the application by the
Special PP stated that investigation was complete, and that a proposal
for sanction was submitted to the appropriate government, and that
the sanction was awaited. He submitted that analysis of the FSL report
is no ground available in law to seek an extension of time to file a
chargesheet. According to the learned senior counsel, in the present
case, extension was sought only for obtaining sanction under the
UAPA, and as such, the said reasons cannot be termed as legal and
valid.
Analysis :
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16. We have considered the submissions. The undisputed facts for
examining the prayers of the appellants, i.e. for setting aside the
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impugned order dated 18 January 2023, by which the learned Special
Judge extended the time of fifteen days for filing the chargesheet and
to grant bail under section 167(2) of CrPC are as follows:
a) Ninety days period for filing the chargesheet was to expire
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on 20 December 2022.
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b) On 17 December 2022 an extension of 30 days was granted
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from 20 December 2022. Thus, the extended period would
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come to an end on 19 January 2023 .
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c) 18 January 2023 : Appellants’ application for availing bail
under section 167(2) of CrPC was rejected as premature, and
on the very same day, the time for filing the chargesheet was
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extended for 15 days from 19 January 2023 , i.e., upto 3
February 2023.
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d) 20 January 2023 : The second application for availing bail
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under Section 167(2) of CRPC was rejected as the time to file
the chargesheet was already extended.
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e) 2 February 2023 : Chargesheet was filed.
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f) 13 February 2023 : The present appeal was filed.
17. In view of the rival contentions, we are required to examine the
following questions:
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a) Is the extension of time granted by the order dated 18
January 2023 for filing the chargesheet legal and valid?
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b) Whether, based on the application filed on 20 January 2023,
the appellants are entitled to avail themselves the indefeasible
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right of default bail if the order dated 18 January 2023
granting extension to file chargesheet is held to be invalid ?
18. A perusal of the record reveals that the prosecution filed a
Criminal Misc. Application No. 1710 of 2022 and sought extension of
time to file chargesheet on two grounds, i.e. (i) to retrieve a large
amount of electronic data from the FSL and (ii) to obtain sanction
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from the appropriate Government under Section 45 of the UAPA. The
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order dated 17 December 2022 indicates that extension of 30 days
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was granted from 20 December 2022 only on the ground to retrieve
a large amount of electronic data from the FSL. In paragraph 6 of the
said order, the learned Judge has referred to both the grounds pleaded
by the prosecution and further held that retrieving data would take
some time and that the deleted data is necessary to the Investigating
Officer for investigation. Thus, the investigation was not completed as
the data was not recovered, therefore time was sought to complete the
investigation. The learned Judge, however, further held that the time
should be definite, and on that ground only, the investigating agency is
entitled to an extension of time to file the chargesheet. Thus, with
these observations, thirty days time was extended. Thus, a perusal of
the reasons recorded by the learned Judge shows that extension of
time was granted only to enable the Investigating Officer to complete
the investigation after retrieving the electronic data. Therefore, it is
very clear that time was extended only because the investigation was
incomplete as electronic data was to be retrieved and not on the
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ground that sanction was not received.
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19. A perusal of the second application dated 12 January 2023
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prepared by the Investigating Officer and the application dated 12
January 2023 of the public prosecutor indicates that (i) the electronic
data is recovered and the pen drive/hard disc was received from the
laboratory, (ii) ample evidence was available against the accused for
filing the chargesheet, (iii) offences punishable under section 13(1)(b)
of the UAPA and sections 120-B, 121-A, 153-A of Indian Penal Code
are applied, (iv) hence, prior permission for filing chargesheet is
required. It is further stated that the proposal for sanction was
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submitted before the government on 3 January 2023 for prior
permission; however, the permission had not yet been received and
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was not likely to be received before 19 January 2023 and hence, an
extension of time to file the chargesheet was required.
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20. By Order dated 18 January 2023, the learned Judge decided the
aforesaid second application seeking extension of time to file the
chargesheet. The learned Judge observed that by the earlier order
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dated 17 December 2022, extension was granted on two grounds,
i.e. for retrieving the large electronic data and for obtaining sanction
from the appropriate authority. The learned Judge has further held
that by the second application, extension is prayed for only on the
ground of getting sanction. It is further observed that the proposal for
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sanction was submitted on 3 January 2023, and hence, it would be
proper to grant an extension. Thus, with these observations, the
learned Judge granted extension of time of fifteen days to file the
chargesheet, from the expiration of the earlier period. Thus, by order
th
dated 18 January 2023, an extension of time to file the chargesheet
was granted only on the ground of obtaining sanction from the
appropriate government.
21. The law regarding completion of the investigation and
submitting the report in the prescribed form (‘chargesheet’) is no
longer res integra. In this regard, Mr Mundargi has pointed out the
relevant paragraphs 19 and 24 of the decision of the Hon’ble Supreme
Court in the case of Dinesh Dalmia, which reads as under:
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“ 19. A charge-sheet is a final report within the meaning of sub-
section (2) of Section 173 of the Code. It is filed so as to enable
the court concerned to apply its mind as to whether cognizance
of the offence thereupon should be taken or not. The report is
ordinarily filed in the form prescribed therefor. One of the
requirements for submission of a police report is whether any
offence appears to have been committed and, if so, by whom. In
some cases, the accused having not been arrested, the
investigation against him may not be complete. There may not be
sufficient material for arriving at a decision that the absconding
accused is also a person by whom the offence appears to have
been committed. If the investigating officer finds sufficient
evidence even against such an accused who had been absconding,
in our opinion, law does not require that filing of the charge-
sheet must await the arrest of the accused.
24. Concededly, the investigating agency is required to complete
investigation within a reasonable time. The ideal period therefor
would be 24 hours, but, in some cases, it may not be practically
possible to do so. Parliament, therefore, thought it fit that
remand of the accused can be sought for in the event
investigation is not completed within 60 or 90 days, as the case
may be. But, if the same is not done within the stipulated period,
the same would not be detrimental to the accused and, thus, he,
on the expiry thereof would be entitled to apply for bail, subject
to fulfilling the conditions prescribed therefor.”
Emphasis Applied
22. Thus, the law provides an outer limit for completing the
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investigation. Thus, an extension of time can be asked only to
complete the investigation. Sub-section 2 of Section 167 of CrPC
provides for an outer limit of sixty days or ninety days as the case may
be, for completing the investigation and there is no provision for an
extension of the said period. However, under the special statutes,
considering the seriousness and ramifications, exceptions are carved
out. Thus, under special statutes enabling provision for extension of
time to complete investigation is provided only because of the lengthy
investigations.
23. In the present case, the enabling provision for extension of time
to complete the investigation is Section 43-D of the UAPA, which
provides for an extension upto a maximum period of 180 days to
complete the investigation, provided the Court is satisfied with the
report of the Public Prosecutor, indicating the progress of the
investigation and the specific reasons for the detention of the accused.
In the present case, the report of the Investigating Officer and the
application of the Public Prosecutor seeking an extension of time, in
terms state that the investigation is complete and ample evidence is
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available for filing the chargesheet. Thus, an extension of time is
prayed, for filing the chargesheet not on the ground that the
investigation is not completed but on the ground that the proposal for
obtaining sanction from the appropriate government was pending and
the sanction was not likely to be received before the expiry of the
extended time. Thus, an extension of time is prayed only for obtaining
sanction as, admittedly, the investigation was complete. Thus, once the
investigation is complete, there is no question of granting an extension
of time to file a chargesheet by exercising powers under Section 43-D
of the UPAA, as there is no question of seeking an extension of time
on the ground that the application for grant of sanction under Section
45 of UAPA is pending; the reason being, that sanction is required for
taking cognizance and not for filing chargesheet.
24. So far as obtaining sanction from the appropriate authority is
concerned, the sanction is required for taking cognizance. In view of
Section 196 of CrPC and Section 45 of the UAPA, the embargo is on
taking cognizance and not on filing a chargesheet. Thus, for the
appropriate authority to apply its mind for grant of sanction, the
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chargesheet is necessary. Without a chargesheet, the appropriate
authority will not be able to apply its mind for the grant of sanction.
The Hon’ble Supreme Court, in paragraph 19 of the decision in the
case of Dinesh Dalmia, has held that “ A charge-sheet is a final report
within the meaning of sub-section (2) of Section 173 of the Code. It is
filed so as to enable the court concerned to apply its mind as to
whether cognizance of the offence thereupon should be taken or not.”
Thus, in the present case, in view of the embargo on the court taking
cognizance without sanction from the appropriate authority, a
chargesheet is necessary for the appropriate authority to apply its
mind for deciding the proposal for grant of sanction submitted by the
prosecution. Thus, for filing a chargesheet, sanction is not required.
25. As stated hereinabove in the present case, the report of the
Investigating Officer and the application of the Public Prosecutor
clearly records that the investigation is complete and ample evidence is
available for filing the chargesheet; however, extension of time is
prayed only on the ground of obtaining sanction from the appropriate
authority. The power to grant an extension under Section 43-D can be
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exercised only when the investigation is not complete and time is
required to be granted to complete the investigation. Hence, in our
th
opinion, the impugned Order dated 18 January 2023 granting the
extension of time to file the chargesheet is illegal and stands vitiated.
As the order of extension was vitiated, the indefeasible right to get
th
default bail accrued on 19 January 2023, when the time for
completing the investigation would come to an end.
26. The law on entitlement to default bail is also no longer res
integra . A three-Judge bench of the Hon’ble Supreme Court, in the
decision of Uday Acharya , after considering all the earlier decisions,
including the decisions in the case of Hitendra Thakur and Sanjay
Dutt , has decided the issue as to when can an accused be said to have
availed of his indefeasible right if the chargesheet is not filed within
the stipulated time. The conclusions in the decision of Uday Acharya
can be summarized as under:
(i) The moment the accused files an application, he avails his
indefeasible right.
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(ii) Once the accused files an application seeking default bail where
the prosecution has not filed the chargesheet, the magistrate has
no discretion left. The Court is only required to find out
whether the specified period under the statute has elapsed,
whether a chargesheet has been filed and whether the accused is
ready to furnish bail.
(iii) Even if the application is posted for hearing on a future date or
the magistrate refuses the application erroneously and the
accused moves to a higher court, then filing of chargesheet at
that stage will not take away the indefeasible right of the
accused.
27. Learned counsel for the appellants rightly relied upon the
decision of a three-Judge bench of the Hon’ble Supreme Court in the
case of Bikramjit Singh . In the said case, the accused were arrested for
the offences punishable under the UAPA, and, on completion of 90
days, they applied for default bail before the sub-divisional Judicial
st th
Magistrate on 21 February 2019. On 13 February 2019, the time
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th
for filing the chargesheet was extended. On 25 February 2019, an
th
application for default bail was dismissed on the ground that on 13
th
February 2019, time was extended upto 180 days. On 25 March
2019, the Sessions Court allowed the revision application on the
ground that the magistrate had no jurisdiction and the order dated
th th
13 February 2019 was set aside. On 26 March 2019, the
th
chargesheet was filed before the special judge. On 8 April 2019, an
th
application for default bail was filed, and on 11 April 2019, the
th
Revision against the order dated 25 February 2019, i.e. rejection of
th
default bail was dismissed. On 11 April 2019, the application for
th
default bail filed on 8 April 2019 was also dismissed. Thereafter, the
High Court dismissed the petition by holding that a joint
interpretation of Section 167 (2) CrPC read with Section 42-D of
UAPA, Sections 6, 13, and 22 of NIA would show that in case the
investigation is being carried out by the State police, the magistrate
will have the power under section 167(2) CrPC read with section
43(a) of UAPA to extend the period for investigation upto 180 days
and then commit the case to the Sessions Court as per Section 209 of
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CrPC; whereas in case the investigation is conducted by an agency
under the NIA Act the power shall be exercised by the special court
and the chargesheet will be presented before the special court. Thus,
the High Court held that since the chargesheet was filed, the right to
default bail was not available. The conclusions recorded by the
Hon’ble Supreme Court in the decision of Bikramjit Singh can be
summarized as under:
(i) The right to default bail becomes complete as long as the
application for default bail is made before the expiry of the 90
days period (such application need not even be in writing)
before a chargesheet is filed.
(ii) It is of no moment that the court in question either does not
dispose of such an application before the chargesheet is filed or
disposes of such application wrongly before such chargesheet is
filed. So long as an application is made for default bail on expiry
of the stipulated period before the time is further extended to
the maximum period of 180 days, default bail being an
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indefeasible right of an accused under the first proviso to
Section 167 (2), kicks in and must be granted.
(iii) The sole ground for dismissing the application was that the time
th
of 90 days was already extended by the Magistrate on 13
February 2019. This order was correctly set aside by the special
th
court on 25 March 2019, holding that under the UAPA read
with the NIA Act, the Special Court alone had jurisdiction to
extend time under the first proviso to Section 43-D(2)(b). The
fact that the accused filed another application for default bail on
th
8 April 2019 would not mean that this application would wipe
out the effect of the earlier application that was wrongly
decided.
(iv) Various Supreme Court decisions correctly hold that the right
to default bail is not a mere statutory right under the first
proviso to Section 167 (2) of CrPC, but, is part of the procedure
established by law under Article 21 of the Constitution of India.
Therefore, it is a fundamental right guaranteed to an accused
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person to be released on bail once the conditions of the first
proviso to Section 167 (2) are fulfilled.
28. Mr. Mundargi, learned senior counsel, has referred to the
decision of a three-Judge bench of the Hon’ble Supreme Court in the
case of M Ravindran. In the said case, the question under
consideration was whether the right under Section 167(2) will
extinguish on the subsequent complaint and whether the time of filing
default bail or time of disposal of a bail application is to be considered
for deciding the right of bail. The conclusions in the said decision after
discussing the earlier decisions including the decision of another three-
Judge bench of the Apex Court in the case of Uday Acharya can be
summarized as under:
(i) Irrespective of the seriousness of the offence and the reliability
of the evidence available, filing additional complaints merely to
circumvent the application for default bail is held to be an
improper strategy.
(ii) High Court wrongly entered into the merits of the matter.
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(iii) Once the accused files an application for default bail, he is
deemed to have availed of his right. If the accused applies before
the expiry of the stipulated period, the court must release him
on bail forthwith after getting the necessary information from
the public prosecutor. Such prompt action will restrict the
prosecution from frustrating the legislative mandate to release
the accused on bail in case of default by the investigating agency.
(iv) The right to be released on default bail continues to remain
enforceable if the accused has applied for such bail,
notwithstanding the subsequent filing of the chargesheet or a
report seeking an extension of time or filing of the chargesheet
in the interregnum when the challenge to the rejection of the
bail application is pending before a higher court.
(v) Where the accused fails to apply for default bail when the right
accrues to him and subsequently a chargesheet is filed,
additional complaint or a report seeking an extension of time is
preferred, the right to default bail would be extinguished.
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29. In view of the facts of the present case, it is necessary to refer to
the decision of the Hon’ble Supreme Court in the case of Jigar Adatiya
13
Vs State of Gujrat . The issue involved in the said case was decided in
the context of the legal position that the indefeasible right to default
bail under sub-section (2) of Section 167 is an integral part of the
fundamental right to personal liberty under Article 21 of the
Constitution of India. The conclusions recorded in the said decision
can be summarized as under:
(i) Clause (b) of sub-section (2) of Section 167 CrPC lays down that
no magistrate shall authorize the detention of the accused in the
custody of the police unless the accused is produced before him
in person. The requirement to produce the accused either
physically or through video linkage is a sine qua non for the
exercise of the power to extend the judicial custody remand.
The reason is that the accused has a right to oppose the prayer
for the extension of the remand. Production of the accused
while granting the extension is not an empty formality.
13 (2023) 6 SCC 484
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(ii) The requirement of a report under the proviso added by sub-
section (2) of Section 20 of the 2015 Act to clause (b) of sub-
section (2) of Section 167 of CrPC is twofold; firstly, in the
report of the public prosecutor, the progress of the investigation
should be set out and, secondly, the report must disclose specific
reasons for continuing the detention of the accused. Therefore,
an extension of time is not an empty formality. The public
prosecutor has to apply his mind before submitting the report
for an extension of time. The prosecution has to make out a case
in terms of both the aforesaid requirements, and the Court must
apply its mind to the contents of the report before accepting the
prayer for grant of extension.
(iii) Orders extending the period of investigation were rendered
illegal because the accused was not produced physically or
through video linkage when the extension was granted.
(iv) Applications for default bail were made before the chargesheet
was filed. Thus, once the orders granting extension are held
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illegal and stand vitiated, the accused are entitled to default bail.
30. We have already recorded our reasons for holding that the
th
order dated 18 January 2023 granting an extension of time to file the
chargesheet is illegal and stands vitiated. An earlier application at
th
Exhibit 40 filed by the appellants on 18 January 2023 for default bail
was disposed of as withdrawn by the learned Judge. It is pertinent to
note that when the appellants filed the application at Exhibit 40
seeking default bail, the learned Judge passed an order ‘SPP to say’,
pursuant to which the special PP gave his written objection therein,
that the application was premature, as the period of extension would
th
come to an end on 19 January 2023. Pursuant thereto, the advocate
for the appellants withdrew the application, and as such, the learned
th
Special Judge disposed of the said application on 18 January 2023
th
itself as withdrawn. However, on the very same day, i.e., 18 January
2023, the learned Judge allowed Misc. Application No. 86 of 2023
filed by the prosecution, and the time for filing the chargesheet was
extended by 15 days from the date of expiration of the earlier period,
th rd
i.e. from 19 January 2023. Thus, the time was extended upto 3
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th
February 2023. The appellants, on 20 January 2023, filed a second
application for availing bail under section 167(2) of CrPC; however,
the same was rejected as the time to file the chargesheet was already
nd
extended. Thereafter, on 2 February 2023 chargesheet was filed.
31. It was argued by the learned PP that even if this Court holds that
th
the order granting the second extension on 18 January 2023 is
illegal, the appellants would not be entitled to invoke their right under
Section 167 (2) of CrPC in as much as the appellants had never
th
challenged the order dated 18 January 2023 before filing of the
chargesheet. However, we do not find any merit in this argument for
the reasons set out hereinabove. Once we hold that the order granting
extension of time to file chargesheet is illegal and stands vitiated, filing
of chargesheet within the illegally extended time will not take away
the indefeasible right of the appellants to seek default bail, having
regard to the fact that the appellants had preferred an application
seeking default bail under Section 167(2) of CrPC. The said
th
application seeking default bail filed on 20 January 2023 was
dismissed only on the ground that the time to file the chargesheet was
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extended. Hence, once we hold that the said extension is illegal and
stands vitiated, the appellants are entitled to default bail in view of the
application filed by the appellants under Section 167(2) of CrPC on
th
20 January 2023.
32. In the recent decision in the case of State of NCT of Delhi Vs Raj
Kumar @ Lovepreet @ Lovely, the Hon’ble Supreme Court set aside
an order granting default bail in a case involving offences punishable
under Sections 13, 18, 20 of the UAPA, Sections 201, 120-B of IPC
and Sections 25,54, 59 of the Arms Act 1959. The Hon’ble Supreme
Court held that the High Court fell in error by not taking into
consideration the reasons given under Section 43D(2)(b) of the UAPA,
which was clearly made out and explained in the letter of extension. It
is observed that the Public Prosecutor had also mentioned that a major
investigation of the case had been done and a draft chargesheet was
ready; one of the sanctions under the UAP Act was received; however,
an extension of time was required for the remaining sanction under
the UAPA and obtaining sanction under the Arms Act, after the report
of FSL of the arms recovered was received. The Hon’ble Supreme
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Court has also held that the matter should not have been taken lightly
as the nature of the offence, which involved terrorist activities, had
not only Pan India impact but also impact on other enemy states.
33. Thus, in the case of the State of NCT of Delhi Vs Raj Kumar @
Lovepreet @ Lovely , the reasons given by the prosecution were for
extension of time to complete the investigation was that the FSL
report of the recovered arms and sanction under the Arms Act were
awaited. The sanction under Section 39 of the Arms Act is a previous
sanction for the institution of prosecution; however, the sanction
under Section 45 of the UAPA is for taking cognizance and not for the
institution of prosecution or filing a chargesheet. In paragraph 8 of the
said decision, the Apex Court observed that the Public Prosecutor’s
application clearly mentioned that one of the sanctions under the
UAPA was received and another was awaited, and the sanction under
the Arms Act was to be obtained after the results from the FSL were
received. Therefore, in paragraph 9, it is observed that the reason
mentioned in the impugned order that the application had been filed
for extension without any valid basis as the sanction had already been
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granted was not correct. Thus, considering the facts of the said case,
where the FSL report of the recovered arms was awaited, and sanction
under the Arms Act was to be obtained after the FSL report was
received, the Apex Court set aside the impugned Order of the High
Court granting default bail. Thus, awaiting one of the sanctions under
the UAPA was only an additional ground for seeking extension of
time.
34. For correctly understanding the legal principles with reference to
the observations of the Hon’ble Supreme Court, in the aforesaid
decision in the case of State of NCT of Delhi Vs Raj Kumar @
Lovepreet @ Lovely, relied upon by the learned PP, it is necessary to
refer to the principle of the ratio decidendi of a judgment . The
Hon’ble Supreme Court in the decision of Arasmeta Captive Power
14
Co. (P) Ltd. Vs Lafarge India (P) Ltd. held as under in paragraphs 38
and 39;
“38. At this stage, we may also profitably refer to another
principle which is of assistance to understand and
appreciate the ratio decidendi of a judgment. The
14 (2013) 15 SCC 414
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judgments rendered by a court are not to be read as
statutes. In Union of India v. Amrit Lal
Manchanda [(2004) 3 SCC 75 : 2004 SCC (Cri) 662] it
has been stated that : (SCC p. 83, para 15)
“15. … Observations of courts are neither to be read as
Euclid's theorems nor as provisions of the statute and that
too taken out of their context. [The] observations must be
read in the context in which they appear to have been
stated. … To interpret words, phrases and provisions of a
statute, it may become necessary for Judges to embark into
lengthy discussions but the discussion is meant to explain
and not to define. Judges interpret statutes, they do not
interpret judgments. They interpret words of statutes;
their words are not to be interpreted as statutes.
39. In Som Mittal v. State of Karnataka [(2008) 3 SCC
574 : (2008) 2 SCC (Cri) 1 : (2008) 1 SCC (L&S) 910] it
has been observed that : (SCC p. 581, para 9)
“9. … Judgments are not to be construed as statutes. Nor
words or phrases in judgments to be interpreted like
provisions of a statute. Some words used in a judgment
should be read and understood contextually and are not
intended to be taken literally. Many a time a Judge uses a
phrase or expression with the intention of emphasising a
point or accentuating a principle or even by way of a
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1.214.23 apeal.doc
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 214 OF 2023
1. Momin Moiuddin Gulam Hasan
@Moin Mistri Acc No. 4, Occ-Service
Niyag Bangalpura Masjid, Bangalpura
Bhivandi, Dist:-Thane
Presently in Judicial custody in the
Taloja Central Prison,
Navi Mumbai, India.
2. Asif Aminul Hussain Khan Adhikari
Aged: 46 yeas, Acc No. 5, Occ-Service
Add:-Room No. G-1, Nobsera Co.Op.
Hsg So., Near Wit Centre Panvel,
Dist:- Raigadh Presently in Judicial
custody in the Taloja Central Prison
Navi Mumbai, India ...Appellants
Versus
1. The State of Maharashtra
2. The Anti Terrorism Squad, Mumbai ...Respondents
Mr. Hassnain Kazi a/w Ms. Shraddha Vahval, Mr. Zeeshan Kazi, Mr.
Hafizuddin Kazi, Mr. Raeed Kazi, Mr. Saifan Shaikh and Mr. Athar
Qureshi for the Appellants
Mr. Ashok P. Mundargi, Senior Advocate, Amicus Curiae
Mr. H. S. Venegavkar, PP a/w Mrs. P. P. Shinde APP for the State
CORAM: REVATI MOHITE DERE &
GAURI GODSE JJ
nd
RESERVED ON: 2 MAY 2024
th
PRONOUNCED ON: 15 JULY 2024
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JUDGMENT: (PER: GAURI GODSE, J.)
1. Although the arguments were concluded and judgment was
th
reserved on 13 December 2023, we listed the matter for further
hearing on a praecipe moved by the learned Public Prosecutor as he
wanted to address this Court on certain issues, including pointing out
the latest decision of the Apex Court. Accordingly, we heard the
th th
learned counsels for the respective parties on 7 March 2024, 25
nd
April 2024 and 2 May 2024.
2. This appeal is preferred under Section 21 of the National
Investigation Agency Act, 2008 (“NIA Act”) to challenge the order
th
dated 18 January 2023 passed by learned Sessions Judge
(MCOCA/POTA/TADA/NIA) and Additional Sessions Judge Greater
Mumbai in NIA RA No. 946 of 2022 in Crime No. 19 of 2022, by
which the court granted an extension of time of 15 days to file the
chargesheet. By way of an amendment, the appellants have also
th
challenged the order dated 20 January 2023, by which the learned
Judge rejected the appellants’ application for grant of bail under
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Section 167 (2) of the Code of Criminal Procedure, 1973 (‘CrPC’).
th
3. By an order dated 18 January 2023, the Trial Court granted an
extension of 15 days to the prosecution to file the chargesheet on the
ground that the prosecution was awaiting sanction from the
appropriate Government.
4. For examining the grounds of challenge raised on behalf of the
appellants, it is necessary to note the following dates as revealed from
the roznama, applications filed by the parties and the orders passed
below it:
st
21 September 2022 :– FIR was registered with the ATS for the
offences punishable under Sections 120-B, 121-A, 153-A of the Indian
Penal Code (“IPC”) and Sections 13(1)(b) of the Unlawful Activities
(Prevention) Act 1967 (“ the UAPA”).
nd
22 September 2022 : The appellants were arrested and
produced before the Trial Court. By an order passed on the first
remand application, the appellants were remanded to police custody
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th
for five days, i.e., until 26 September 2022 .
th
26 September 2022 :– Appellants were produced before the
Trial Court. An order was passed on the second remand application,
rd
and police custody was granted till 3 October 2022 on the ground
that the prosecution required time for examining the electronic
devices.
rd
3 October 2022 :– Appellants were produced before the Trial
Court. An order was passed on the third remand application, and the
th
police custody of the appellants was extended up to 8 October 2022,
again on the ground that time was required for examining the
electronic devices.
th
8 October 2022 : The appellants were produced before the Trial
th
Court and were granted judicial custody until 20 October 2022.
th
20 October 2022 :- The appellants were produced before the
Trial Court through video conferencing (“VC”). An application was
filed for extension of the appellants’ judicial custody. The matter was
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rd
adjourned to 3 November 2022 for the appearance of the accused
through VC.
rd
3 November 2022 :- The appellants were not produced before
th
the Trial Court through VC. Judicial custody was extended till 17
November 2022.
th
17 November 2022 :- Appellants were produced before the Trial
st
Court through VC. Judicial custody was accordingly extended till 1
December 2022.
st
1 December 2022 :- Roznama does not reflect that the
appellants were produced before the Trial Court either physically or
through VC. However, it appears that the appellants’ Judicial custody
th
was extended till 14 December 2022 .
th
14 December 2022 :- Roznama does not reflect that the
appellants were produced before the Trial Court either physically or
through VC. However, it appears that the appellants’ Judicial custody
th
was extended till 20 December 2022 .
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th
17 December 2022:- Since the ninety days period for filing the
th
chargesheet was to expire on 20 December 2022 , the prosecution
filed a Criminal Misc. Application No. 1710 of 2022 and prayed for
extension of time to file the chargesheet on two grounds, i.e. (i) to
retrieve a large amount of electronic data from the FSL and (ii) to
obtain sanction from the appropriate Government under Section 45 of
the UAPA. The said application was allowed and an extension of 30
th
days was granted from 20 December 2022. Thus, the said extension
th
was to expire on 19 January 2023 .
th
20 December 2022 :- Roznama records that Appellants were not
produced through VC, however, their Judicial custody was extended
rd
till 3 January 2023 .
rd
3 January 2023 :- Roznama records that the appellants were
produced through VC and their Judicial custody was extended and the
th
matter was adjourned to 19 January 2023 for appearance, as the case
th th
was already adjourned to 19 January 2023 vide Order dated 17
December 2022 by the learned Judge, below Misc. Application No.
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1710 of 2022.
th
12 January 2023 :- Investigating Officer preferred Misc.
Application No. 86 of 2023 for seeking further extension of 15 days
to file the chargesheet. Learned PP also prepared an application dated
th
12 January 2023 recommending extension of 15 days for filing the
chargesheet.
th
14 January 2023 :- Appellants were served with the application
seeking an extension of time.
th
18 January 2023 :- Appellants filed an application for grant of
default bail under Section 167 (2) of CrPC on the ground that the
chargesheet was not filed within the extended time. On the same day,
the prosecution filed its say, opposing the said application and
contended that the time for completing the investigation would come
th
to an end on 19 January 2023 ; and hence, the application for default
bail was premature. In view of the said objection, the learned advocate
for the appellants prayed for withdrawal of the said application.
Accordingly, the application was disposed of as withdrawn. However,
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on the same day, the learned trial Judge allowed Misc. Application No.
86 of 2023 filed by the prosecution, and the time for filing the
chargesheet was extended by 15 days from the date of expiration of
th
the earlier period, i.e. from 19 January 2023 .
th
19 January 2023 :- The entry in the Roznama shows that the
appellants were produced through VC and their Judicial custody was
st
extended until 1 February 2023 .
th
20 January 2023 :- The appellants filed a second application at
exhibit 44 praying for default bail under Section 167 (2) of CrPC.
However, their application was rejected on the ground that the
prosecution was already granted extension of time to file the
chargesheet.
st
1 February 2023 :- The entry in the Roznama shows that the
appellants were not produced through VC and their Judicial custody
nd
was extended until 2 February 2023 .
nd
2 February 2023 :- Chargesheet was filed, during the extended
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th
period granted by the learned special judge vide order dated 18
rd
January 2023. The last date to file the chargesheet was 3 February
2023, however, the chargesheet was filed a day prior to the last date.
th
13 February 2023 :- The appellants i.e. accused nos. 3 and 4
th
preferred the present appeal challenging the order dated 18 January
2023 granting extension of time to file the chargesheet. By way of
th
amendment, they also challenged the order 20 January 2023,
rejecting their application for default bail.
Submissions on behalf of appellants :
5. Learned counsel for the appellants submitted that the second
application filed by the prosecution seeking extension of time on the
ground that time was required to obtain for sanction from the
appropriate government was not maintainable, more particularly when
th
the first extension granted vide order dated 17 December 2022 was
only on one ground, i.e. for retrieving a large amount of data as per a
th
letter of FSL dated 24 November 2022, despite also seeking
extension on the ground of time to obtain sanction. As per the special
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report filed by the learned PP, the application for extension of time
was filed on two grounds, i.e. firstly, to retrieve a large amount of
electronic evidence from the FSL and secondly, to obtain sanction
from the appropriate government. The learned Trial Judge, while
th
granting extension by order dated 17 December 2022, has
specifically recorded that it would take some time to retrieve a large
th
amount of data as per the letter of the FSL dated 24 November
th
2022. A perusal of the order dated 17 December 2022 indicates that
extension to file the chargesheet was granted only on the ground of
time required to retrieve the large amount of data as per the letter of
the FSL. Thus, impliedly, the second ground pleaded by the
prosecution seeking time for obtaining sanction from the appropriate
government was rejected by the Trial Judge. The second application
filed by the prosecution for extension of time was again on the ground
of time required for obtaining sanction from the appropriate
government.
6. Learned counsel for appellants submitted that the order dated
th
17 December 2022 impliedly refusing to grant extension of time on
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the ground of time required for obtaining sanction from the
appropriate government was never challenged by the prosecution.
Thus, the second application filed for extension of time to file the
chargesheet on the same ground was not maintainable. Learned
counsel for the appellants further submitted that it is a well-settled
principle of law that the time required to obtain sanction from the
appropriate authority is not a valid ground for extension of time to
th
file the chargesheet, and as such the order dated 18 January 2023,
granting extension of time for filing the chargesheet on the said
ground is illegal. He, therefore, submitted that if this Court holds that
the order granting extension of time only on the ground of time
required for obtaining sanction is illegal, then the appellants will be
entitled to invoke their indefeasible right to seek default bail under
Section 167 (2) of CrPC as prayed in the application at exhibit 44
th
filed on 20 January 2023.
7. In support of his submissions, learned counsel for the appellants
relied upon the decisions of the Hon’ble Supreme Court in the cases
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1
of Judgebir Singh @ Jasbir Singh Samra @ Jasbir & Ors , Hitendra
2
Vishnu Thakur and others Vs. State of Maharashtra and others ,
3
Bikramjit Singh Vs. The State of Punjab and The State of Maharashtra
4
Vs. Surendra Pundlik Gadling and the decisions of this Court in the
5
cases of Darshan Nandagawali Vs. State of Maharashtra and Sudha
6
Bharadwaj and Ors Vs. National Investigation Agency and Ors .
8. Learned counsel for the appellants has relied upon an affidavit
rd
dated 3 October 2023 of the learned advocate for the appellants in
the trial Court in support of the contentions raised on behalf of the
th
appellants that the first application filed on 18 January 2023 seeking
default bail was withdrawn, only because of the objection raised on
behalf of the prosecution that the application was premature.
Submissions on behalf of the prosecution :
9. Learned PP supported the impugned orders by relying upon
th th
affidavits dated 15 June 2023 and 9 October 2023 filed on behalf of
1 2023 SCC Online SC 543
2 (1994) 4 Supreme Court Cases 602
3 (2020) 10 SCC 616
4 (2019) 5 SCC 178
5 2023 SCC Online Bom 1162
6 2021 SCC Online Bom 4568
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the prosecution. He submitted that the first application seeking
extension of time was allowed on both the grounds pleaded by the
prosecution, i.e. the ground of retrieving a large amount of electronic
evidence as per the FSL letter as well as the ground for obtaining
th
sanction. The order dated 17 December 2022 records the reasons for
extension of time on both grounds as pleaded on behalf of the
prosecution. Learned PP submitted that in view of the same there is no
substance in the ground raised on behalf of the appellants that the
second application seeking extension of time to file the chargesheet on
the ground of obtaining sanction from the appropriate government
was not maintainable. The learned PP further submitted that the
th
appellants withdrew their application on 18 January 2023, seeking
default bail under Section 167 (2) of CrPC; hence, they are not
entitled to invoke their right subsequently after the chargesheet is
th
filed. As per the second extension granted by order dated 18 January
rd
2023, the time to file the chargesheet was to expire on 3 February
nd
2023; however, the chargesheet was filed one day prior, i.e. on 2
February 2023. Since the time to file the chargesheet was already
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extended before the expiry of the period, no right accrued in favour of
th
the appellants to seek default bail on 20 January 2023. Learned PP
further submitted that even if this Court holds that the order granting
th
the second extension on 18 January 2023 is illegal, the appellants
would not be entitled to invoke their right under Section 167 (2) of
CrPC in as much as the appellants had never challenged the order
th
dated 18 January 2023 before filing of the chargesheet. The time to
rd
file the chargesheet was to expire on 3 February 2023; whereas, the
nd
chargesheet was filed on 2 February 2023; the appellants filed the
th
present appeal on 13 February 2023, i.e. after the filing of the
chargesheet. Thus, according to the learned PP under no
circumstances are the appellants now entitled to invoke their right
under Section 167 (2) of CrPC, in as much as, the chargesheet is
th
already filed before the expiry of the time granted by order dated 18
January 2023 and much before the appellants filed the present appeal
th
challenging the order dated 18 January 2023.
10. Learned PP in support of his submissions relied upon the
decisions of the Hon’ble Supreme Court in the cases of Sanjay Dutt
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7
Vs. State Through CBI, Bombay (II) , The State of Maharashtra Vs.
Surendra Pundlik Gadling and Dashrath Rupsingh Rathod Vs. State of
8
Maharashtra and another
11. During the further hearing learned PP relied upon the latest
decision of the Apex Court in the case of State of NCT of Delhi Vs
9
Raj Kumar @ Lovepreet @ Lovely . He submitted that the Hon’ble
Supreme Court has set aside an order granting default bail in a case
concerning the offences punishable under Sections 13, 18, 20 of the
UAPA, Sections 201, 120-B of IPC and Sections 25, 54, 59 of the
Arms Act 1959. He submitted that the Hon’ble Supreme Court held
that the High Court fell in error by not taking into consideration the
reasons given under Section 43D(2)(b) of the UAPA that were clearly
made out and explained in the letter of extension. It is also observed
that the Public Prosecutor had also mentioned that major investigation
of the case had been done and a draft chargesheet was ready, however,
extension of time was required for the remaining sanctions and report
7 (1994) 5 Supreme Court Cases 410
8 (2014) 9 Supreme Court Cases 129
9 2024 SCC Online SC 6
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of FSL for completing the investigation and that the matter should not
have been taken lightly as the nature of the offence, which involved
terrorist activities, had not only Pan India impact but also impact on
other enemy states. Learned PP submitted that even in the present
case, extension was sought on the grounds of examining and analyzing
the FSL report and awaiting sanction under Section 45 of the UAPA.
According to the learned PP, the present case is squarely covered by
the said decision. Hence, he submitted that no fault could be found in
the impugned orders and, as such, the appeal be dismissed.
Submissions made by the learned Amicus Curiae :
12. Considering the controversy involved in the present appeal, we
appointed Mr. Ashok Mundargi, learned senior counsel, as Amicus
Curiae. Mr. Mundargi submitted that it is a well-settled principle of
law that so long as the chargesheet is not filed within the meaning of
sub-section 2 of Section 173 of CrPC, the investigation remains
pending. However, once the chargesheet is filed, the right of the
accused to invoke his indefeasible right under Section 167 (2) of CrPC
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gets extinguished. He submitted that the prosecution must apply for
extension of time before the time to file the chargesheet expires, and if
such period expires, the right under Section 167 (2) of CrPC accrues
in favour of the accused. Learned senior counsel referred to paragraph
19 of the decision of the Hon’ble Supreme Court in the case of Dinesh
10
Dalmia Vs. C.B.I. and submitted that the ideal period for completing
the investigation and filing a chargesheet is 24 hours but in some
cases, it is not practically possible to do so; hence, the legislature
found it fit that a remand of the accused can be sought in the event
investigation is not completed within 60 or 90 days, however, if the
same is not completed within the stipulated time, the accused on
expiry thereof would be entitled to apply for bail. Learned senior
counsel also referred to the decisions of the Hon’ble Supreme Court in
the cases of M. Ravindran Vs. The Intelligence Officer, Directorate of
11
Revenue Intelligence , Uday Mohanlal Acharya Vs. State of
12
Maharashtra and Sanjay Dutt .
10 AIR 2008 SC 78
11 2020 0 Supreme(SC) 627
12 (2001) 5 SCC 453
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13. Learned senior counsel relied upon the decision in the case of M.
Ravindran and submitted that an accused is held to have availed of his
indefeasible right the moment he files an application for being released
on bail and offers to abide by the terms and conditions of bail. He
submitted that on the expiry of the stipulated period, as the case may
be, an indefeasible right accrues in favour of the accused for being
released on bail on account of default by the investigating agency in
completion of the investigation within the period prescribed, and the
accused is entitled to be released on bail if he is prepared to and
furnishes bail as directed by the Magistrate.
14. Learned senior counsel thus submitted that the Hon’ble Supreme
Court, in the decision of M. Ravindran, arrived at a conclusion that
the majority opinion in the Uday Acharya case is a correct
interpretation of the decision rendered by the Constitution bench in
the case of Sanjay Dutt . He submitted that the Hon’ble Supreme
Court has further held that the Constitution bench’s decision in the
case of Sanjay Dutt cannot be interpreted to mean that even where the
accused has properly exercised his right under Section 167 (2) of
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CrPC and communicated his willingness to furnish bail, he can be
denied bail on account of delay in deciding his application or
erroneous rejection of the same.
15. The learned senior counsel submitted that in the latest case of
the State of NCT of Delhi Vs Raj Kumar @ Lovepreet @ Lovely , the
reasons given by the prosecution for the extension of time was to
complete the investigation and file the chargesheet, as the FSL report
of the recovered arms was awaited, and, sanction under the Arms Act
was to be obtained after the FSL report was received. It was also the
prosecution’s case that one of the sanctions under Section 45 of the
UAPA was received, and another sanction was awaited. He submitted
that the sanction under Section 39 of the Arms Act is a previous
sanction for the institution of prosecution, however, sanction under
Section 45 of the UAPA is for taking cognizance and not for the
institution of prosecution or filing a chargesheet. He submitted that
in the facts of that case, the Apex Court accepted the grounds pleaded
by the prosecution for extension of time to complete the investigation,
and one of the additional reasons pleaded by the prosecution was
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awaiting one of the sanctions under the UAPA. He, thus, submitted
that the observations in the case of State of NCT of Delhi Vs Raj
Kumar @ Lovepreet @ Lovely may not be considered as an absolute
proposition of law that in every case, even if the investigation is
complete, time to obtain sanction under Section 45 of the UAPA is a
valid ground to seek extension of time to file chargesheet. He
submitted that in the present case, the appellants have not been
prosecuted under the Arms Act, that the FSL report had been received,
and the report of the Investigating Officer and the application by the
Special PP stated that investigation was complete, and that a proposal
for sanction was submitted to the appropriate government, and that
the sanction was awaited. He submitted that analysis of the FSL report
is no ground available in law to seek an extension of time to file a
chargesheet. According to the learned senior counsel, in the present
case, extension was sought only for obtaining sanction under the
UAPA, and as such, the said reasons cannot be termed as legal and
valid.
Analysis :
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16. We have considered the submissions. The undisputed facts for
examining the prayers of the appellants, i.e. for setting aside the
th
impugned order dated 18 January 2023, by which the learned Special
Judge extended the time of fifteen days for filing the chargesheet and
to grant bail under section 167(2) of CrPC are as follows:
a) Ninety days period for filing the chargesheet was to expire
th
on 20 December 2022.
th
b) On 17 December 2022 an extension of 30 days was granted
th
from 20 December 2022. Thus, the extended period would
th
come to an end on 19 January 2023 .
th
c) 18 January 2023 : Appellants’ application for availing bail
under section 167(2) of CrPC was rejected as premature, and
on the very same day, the time for filing the chargesheet was
th rd
extended for 15 days from 19 January 2023 , i.e., upto 3
February 2023.
th
d) 20 January 2023 : The second application for availing bail
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under Section 167(2) of CRPC was rejected as the time to file
the chargesheet was already extended.
nd
e) 2 February 2023 : Chargesheet was filed.
th
f) 13 February 2023 : The present appeal was filed.
17. In view of the rival contentions, we are required to examine the
following questions:
th
a) Is the extension of time granted by the order dated 18
January 2023 for filing the chargesheet legal and valid?
th
b) Whether, based on the application filed on 20 January 2023,
the appellants are entitled to avail themselves the indefeasible
th
right of default bail if the order dated 18 January 2023
granting extension to file chargesheet is held to be invalid ?
18. A perusal of the record reveals that the prosecution filed a
Criminal Misc. Application No. 1710 of 2022 and sought extension of
time to file chargesheet on two grounds, i.e. (i) to retrieve a large
amount of electronic data from the FSL and (ii) to obtain sanction
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from the appropriate Government under Section 45 of the UAPA. The
th
order dated 17 December 2022 indicates that extension of 30 days
th
was granted from 20 December 2022 only on the ground to retrieve
a large amount of electronic data from the FSL. In paragraph 6 of the
said order, the learned Judge has referred to both the grounds pleaded
by the prosecution and further held that retrieving data would take
some time and that the deleted data is necessary to the Investigating
Officer for investigation. Thus, the investigation was not completed as
the data was not recovered, therefore time was sought to complete the
investigation. The learned Judge, however, further held that the time
should be definite, and on that ground only, the investigating agency is
entitled to an extension of time to file the chargesheet. Thus, with
these observations, thirty days time was extended. Thus, a perusal of
the reasons recorded by the learned Judge shows that extension of
time was granted only to enable the Investigating Officer to complete
the investigation after retrieving the electronic data. Therefore, it is
very clear that time was extended only because the investigation was
incomplete as electronic data was to be retrieved and not on the
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ground that sanction was not received.
th
19. A perusal of the second application dated 12 January 2023
th
prepared by the Investigating Officer and the application dated 12
January 2023 of the public prosecutor indicates that (i) the electronic
data is recovered and the pen drive/hard disc was received from the
laboratory, (ii) ample evidence was available against the accused for
filing the chargesheet, (iii) offences punishable under section 13(1)(b)
of the UAPA and sections 120-B, 121-A, 153-A of Indian Penal Code
are applied, (iv) hence, prior permission for filing chargesheet is
required. It is further stated that the proposal for sanction was
rd
submitted before the government on 3 January 2023 for prior
permission; however, the permission had not yet been received and
th
was not likely to be received before 19 January 2023 and hence, an
extension of time to file the chargesheet was required.
th
20. By Order dated 18 January 2023, the learned Judge decided the
aforesaid second application seeking extension of time to file the
chargesheet. The learned Judge observed that by the earlier order
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th
dated 17 December 2022, extension was granted on two grounds,
i.e. for retrieving the large electronic data and for obtaining sanction
from the appropriate authority. The learned Judge has further held
that by the second application, extension is prayed for only on the
ground of getting sanction. It is further observed that the proposal for
rd
sanction was submitted on 3 January 2023, and hence, it would be
proper to grant an extension. Thus, with these observations, the
learned Judge granted extension of time of fifteen days to file the
chargesheet, from the expiration of the earlier period. Thus, by order
th
dated 18 January 2023, an extension of time to file the chargesheet
was granted only on the ground of obtaining sanction from the
appropriate government.
21. The law regarding completion of the investigation and
submitting the report in the prescribed form (‘chargesheet’) is no
longer res integra. In this regard, Mr Mundargi has pointed out the
relevant paragraphs 19 and 24 of the decision of the Hon’ble Supreme
Court in the case of Dinesh Dalmia, which reads as under:
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“ 19. A charge-sheet is a final report within the meaning of sub-
section (2) of Section 173 of the Code. It is filed so as to enable
the court concerned to apply its mind as to whether cognizance
of the offence thereupon should be taken or not. The report is
ordinarily filed in the form prescribed therefor. One of the
requirements for submission of a police report is whether any
offence appears to have been committed and, if so, by whom. In
some cases, the accused having not been arrested, the
investigation against him may not be complete. There may not be
sufficient material for arriving at a decision that the absconding
accused is also a person by whom the offence appears to have
been committed. If the investigating officer finds sufficient
evidence even against such an accused who had been absconding,
in our opinion, law does not require that filing of the charge-
sheet must await the arrest of the accused.
24. Concededly, the investigating agency is required to complete
investigation within a reasonable time. The ideal period therefor
would be 24 hours, but, in some cases, it may not be practically
possible to do so. Parliament, therefore, thought it fit that
remand of the accused can be sought for in the event
investigation is not completed within 60 or 90 days, as the case
may be. But, if the same is not done within the stipulated period,
the same would not be detrimental to the accused and, thus, he,
on the expiry thereof would be entitled to apply for bail, subject
to fulfilling the conditions prescribed therefor.”
Emphasis Applied
22. Thus, the law provides an outer limit for completing the
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investigation. Thus, an extension of time can be asked only to
complete the investigation. Sub-section 2 of Section 167 of CrPC
provides for an outer limit of sixty days or ninety days as the case may
be, for completing the investigation and there is no provision for an
extension of the said period. However, under the special statutes,
considering the seriousness and ramifications, exceptions are carved
out. Thus, under special statutes enabling provision for extension of
time to complete investigation is provided only because of the lengthy
investigations.
23. In the present case, the enabling provision for extension of time
to complete the investigation is Section 43-D of the UAPA, which
provides for an extension upto a maximum period of 180 days to
complete the investigation, provided the Court is satisfied with the
report of the Public Prosecutor, indicating the progress of the
investigation and the specific reasons for the detention of the accused.
In the present case, the report of the Investigating Officer and the
application of the Public Prosecutor seeking an extension of time, in
terms state that the investigation is complete and ample evidence is
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available for filing the chargesheet. Thus, an extension of time is
prayed, for filing the chargesheet not on the ground that the
investigation is not completed but on the ground that the proposal for
obtaining sanction from the appropriate government was pending and
the sanction was not likely to be received before the expiry of the
extended time. Thus, an extension of time is prayed only for obtaining
sanction as, admittedly, the investigation was complete. Thus, once the
investigation is complete, there is no question of granting an extension
of time to file a chargesheet by exercising powers under Section 43-D
of the UPAA, as there is no question of seeking an extension of time
on the ground that the application for grant of sanction under Section
45 of UAPA is pending; the reason being, that sanction is required for
taking cognizance and not for filing chargesheet.
24. So far as obtaining sanction from the appropriate authority is
concerned, the sanction is required for taking cognizance. In view of
Section 196 of CrPC and Section 45 of the UAPA, the embargo is on
taking cognizance and not on filing a chargesheet. Thus, for the
appropriate authority to apply its mind for grant of sanction, the
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chargesheet is necessary. Without a chargesheet, the appropriate
authority will not be able to apply its mind for the grant of sanction.
The Hon’ble Supreme Court, in paragraph 19 of the decision in the
case of Dinesh Dalmia, has held that “ A charge-sheet is a final report
within the meaning of sub-section (2) of Section 173 of the Code. It is
filed so as to enable the court concerned to apply its mind as to
whether cognizance of the offence thereupon should be taken or not.”
Thus, in the present case, in view of the embargo on the court taking
cognizance without sanction from the appropriate authority, a
chargesheet is necessary for the appropriate authority to apply its
mind for deciding the proposal for grant of sanction submitted by the
prosecution. Thus, for filing a chargesheet, sanction is not required.
25. As stated hereinabove in the present case, the report of the
Investigating Officer and the application of the Public Prosecutor
clearly records that the investigation is complete and ample evidence is
available for filing the chargesheet; however, extension of time is
prayed only on the ground of obtaining sanction from the appropriate
authority. The power to grant an extension under Section 43-D can be
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exercised only when the investigation is not complete and time is
required to be granted to complete the investigation. Hence, in our
th
opinion, the impugned Order dated 18 January 2023 granting the
extension of time to file the chargesheet is illegal and stands vitiated.
As the order of extension was vitiated, the indefeasible right to get
th
default bail accrued on 19 January 2023, when the time for
completing the investigation would come to an end.
26. The law on entitlement to default bail is also no longer res
integra . A three-Judge bench of the Hon’ble Supreme Court, in the
decision of Uday Acharya , after considering all the earlier decisions,
including the decisions in the case of Hitendra Thakur and Sanjay
Dutt , has decided the issue as to when can an accused be said to have
availed of his indefeasible right if the chargesheet is not filed within
the stipulated time. The conclusions in the decision of Uday Acharya
can be summarized as under:
(i) The moment the accused files an application, he avails his
indefeasible right.
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(ii) Once the accused files an application seeking default bail where
the prosecution has not filed the chargesheet, the magistrate has
no discretion left. The Court is only required to find out
whether the specified period under the statute has elapsed,
whether a chargesheet has been filed and whether the accused is
ready to furnish bail.
(iii) Even if the application is posted for hearing on a future date or
the magistrate refuses the application erroneously and the
accused moves to a higher court, then filing of chargesheet at
that stage will not take away the indefeasible right of the
accused.
27. Learned counsel for the appellants rightly relied upon the
decision of a three-Judge bench of the Hon’ble Supreme Court in the
case of Bikramjit Singh . In the said case, the accused were arrested for
the offences punishable under the UAPA, and, on completion of 90
days, they applied for default bail before the sub-divisional Judicial
st th
Magistrate on 21 February 2019. On 13 February 2019, the time
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th
for filing the chargesheet was extended. On 25 February 2019, an
th
application for default bail was dismissed on the ground that on 13
th
February 2019, time was extended upto 180 days. On 25 March
2019, the Sessions Court allowed the revision application on the
ground that the magistrate had no jurisdiction and the order dated
th th
13 February 2019 was set aside. On 26 March 2019, the
th
chargesheet was filed before the special judge. On 8 April 2019, an
th
application for default bail was filed, and on 11 April 2019, the
th
Revision against the order dated 25 February 2019, i.e. rejection of
th
default bail was dismissed. On 11 April 2019, the application for
th
default bail filed on 8 April 2019 was also dismissed. Thereafter, the
High Court dismissed the petition by holding that a joint
interpretation of Section 167 (2) CrPC read with Section 42-D of
UAPA, Sections 6, 13, and 22 of NIA would show that in case the
investigation is being carried out by the State police, the magistrate
will have the power under section 167(2) CrPC read with section
43(a) of UAPA to extend the period for investigation upto 180 days
and then commit the case to the Sessions Court as per Section 209 of
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CrPC; whereas in case the investigation is conducted by an agency
under the NIA Act the power shall be exercised by the special court
and the chargesheet will be presented before the special court. Thus,
the High Court held that since the chargesheet was filed, the right to
default bail was not available. The conclusions recorded by the
Hon’ble Supreme Court in the decision of Bikramjit Singh can be
summarized as under:
(i) The right to default bail becomes complete as long as the
application for default bail is made before the expiry of the 90
days period (such application need not even be in writing)
before a chargesheet is filed.
(ii) It is of no moment that the court in question either does not
dispose of such an application before the chargesheet is filed or
disposes of such application wrongly before such chargesheet is
filed. So long as an application is made for default bail on expiry
of the stipulated period before the time is further extended to
the maximum period of 180 days, default bail being an
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indefeasible right of an accused under the first proviso to
Section 167 (2), kicks in and must be granted.
(iii) The sole ground for dismissing the application was that the time
th
of 90 days was already extended by the Magistrate on 13
February 2019. This order was correctly set aside by the special
th
court on 25 March 2019, holding that under the UAPA read
with the NIA Act, the Special Court alone had jurisdiction to
extend time under the first proviso to Section 43-D(2)(b). The
fact that the accused filed another application for default bail on
th
8 April 2019 would not mean that this application would wipe
out the effect of the earlier application that was wrongly
decided.
(iv) Various Supreme Court decisions correctly hold that the right
to default bail is not a mere statutory right under the first
proviso to Section 167 (2) of CrPC, but, is part of the procedure
established by law under Article 21 of the Constitution of India.
Therefore, it is a fundamental right guaranteed to an accused
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person to be released on bail once the conditions of the first
proviso to Section 167 (2) are fulfilled.
28. Mr. Mundargi, learned senior counsel, has referred to the
decision of a three-Judge bench of the Hon’ble Supreme Court in the
case of M Ravindran. In the said case, the question under
consideration was whether the right under Section 167(2) will
extinguish on the subsequent complaint and whether the time of filing
default bail or time of disposal of a bail application is to be considered
for deciding the right of bail. The conclusions in the said decision after
discussing the earlier decisions including the decision of another three-
Judge bench of the Apex Court in the case of Uday Acharya can be
summarized as under:
(i) Irrespective of the seriousness of the offence and the reliability
of the evidence available, filing additional complaints merely to
circumvent the application for default bail is held to be an
improper strategy.
(ii) High Court wrongly entered into the merits of the matter.
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(iii) Once the accused files an application for default bail, he is
deemed to have availed of his right. If the accused applies before
the expiry of the stipulated period, the court must release him
on bail forthwith after getting the necessary information from
the public prosecutor. Such prompt action will restrict the
prosecution from frustrating the legislative mandate to release
the accused on bail in case of default by the investigating agency.
(iv) The right to be released on default bail continues to remain
enforceable if the accused has applied for such bail,
notwithstanding the subsequent filing of the chargesheet or a
report seeking an extension of time or filing of the chargesheet
in the interregnum when the challenge to the rejection of the
bail application is pending before a higher court.
(v) Where the accused fails to apply for default bail when the right
accrues to him and subsequently a chargesheet is filed,
additional complaint or a report seeking an extension of time is
preferred, the right to default bail would be extinguished.
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29. In view of the facts of the present case, it is necessary to refer to
the decision of the Hon’ble Supreme Court in the case of Jigar Adatiya
13
Vs State of Gujrat . The issue involved in the said case was decided in
the context of the legal position that the indefeasible right to default
bail under sub-section (2) of Section 167 is an integral part of the
fundamental right to personal liberty under Article 21 of the
Constitution of India. The conclusions recorded in the said decision
can be summarized as under:
(i) Clause (b) of sub-section (2) of Section 167 CrPC lays down that
no magistrate shall authorize the detention of the accused in the
custody of the police unless the accused is produced before him
in person. The requirement to produce the accused either
physically or through video linkage is a sine qua non for the
exercise of the power to extend the judicial custody remand.
The reason is that the accused has a right to oppose the prayer
for the extension of the remand. Production of the accused
while granting the extension is not an empty formality.
13 (2023) 6 SCC 484
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(ii) The requirement of a report under the proviso added by sub-
section (2) of Section 20 of the 2015 Act to clause (b) of sub-
section (2) of Section 167 of CrPC is twofold; firstly, in the
report of the public prosecutor, the progress of the investigation
should be set out and, secondly, the report must disclose specific
reasons for continuing the detention of the accused. Therefore,
an extension of time is not an empty formality. The public
prosecutor has to apply his mind before submitting the report
for an extension of time. The prosecution has to make out a case
in terms of both the aforesaid requirements, and the Court must
apply its mind to the contents of the report before accepting the
prayer for grant of extension.
(iii) Orders extending the period of investigation were rendered
illegal because the accused was not produced physically or
through video linkage when the extension was granted.
(iv) Applications for default bail were made before the chargesheet
was filed. Thus, once the orders granting extension are held
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illegal and stand vitiated, the accused are entitled to default bail.
30. We have already recorded our reasons for holding that the
th
order dated 18 January 2023 granting an extension of time to file the
chargesheet is illegal and stands vitiated. An earlier application at
th
Exhibit 40 filed by the appellants on 18 January 2023 for default bail
was disposed of as withdrawn by the learned Judge. It is pertinent to
note that when the appellants filed the application at Exhibit 40
seeking default bail, the learned Judge passed an order ‘SPP to say’,
pursuant to which the special PP gave his written objection therein,
that the application was premature, as the period of extension would
th
come to an end on 19 January 2023. Pursuant thereto, the advocate
for the appellants withdrew the application, and as such, the learned
th
Special Judge disposed of the said application on 18 January 2023
th
itself as withdrawn. However, on the very same day, i.e., 18 January
2023, the learned Judge allowed Misc. Application No. 86 of 2023
filed by the prosecution, and the time for filing the chargesheet was
extended by 15 days from the date of expiration of the earlier period,
th rd
i.e. from 19 January 2023. Thus, the time was extended upto 3
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th
February 2023. The appellants, on 20 January 2023, filed a second
application for availing bail under section 167(2) of CrPC; however,
the same was rejected as the time to file the chargesheet was already
nd
extended. Thereafter, on 2 February 2023 chargesheet was filed.
31. It was argued by the learned PP that even if this Court holds that
th
the order granting the second extension on 18 January 2023 is
illegal, the appellants would not be entitled to invoke their right under
Section 167 (2) of CrPC in as much as the appellants had never
th
challenged the order dated 18 January 2023 before filing of the
chargesheet. However, we do not find any merit in this argument for
the reasons set out hereinabove. Once we hold that the order granting
extension of time to file chargesheet is illegal and stands vitiated, filing
of chargesheet within the illegally extended time will not take away
the indefeasible right of the appellants to seek default bail, having
regard to the fact that the appellants had preferred an application
seeking default bail under Section 167(2) of CrPC. The said
th
application seeking default bail filed on 20 January 2023 was
dismissed only on the ground that the time to file the chargesheet was
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extended. Hence, once we hold that the said extension is illegal and
stands vitiated, the appellants are entitled to default bail in view of the
application filed by the appellants under Section 167(2) of CrPC on
th
20 January 2023.
32. In the recent decision in the case of State of NCT of Delhi Vs Raj
Kumar @ Lovepreet @ Lovely, the Hon’ble Supreme Court set aside
an order granting default bail in a case involving offences punishable
under Sections 13, 18, 20 of the UAPA, Sections 201, 120-B of IPC
and Sections 25,54, 59 of the Arms Act 1959. The Hon’ble Supreme
Court held that the High Court fell in error by not taking into
consideration the reasons given under Section 43D(2)(b) of the UAPA,
which was clearly made out and explained in the letter of extension. It
is observed that the Public Prosecutor had also mentioned that a major
investigation of the case had been done and a draft chargesheet was
ready; one of the sanctions under the UAP Act was received; however,
an extension of time was required for the remaining sanction under
the UAPA and obtaining sanction under the Arms Act, after the report
of FSL of the arms recovered was received. The Hon’ble Supreme
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Court has also held that the matter should not have been taken lightly
as the nature of the offence, which involved terrorist activities, had
not only Pan India impact but also impact on other enemy states.
33. Thus, in the case of the State of NCT of Delhi Vs Raj Kumar @
Lovepreet @ Lovely , the reasons given by the prosecution were for
extension of time to complete the investigation was that the FSL
report of the recovered arms and sanction under the Arms Act were
awaited. The sanction under Section 39 of the Arms Act is a previous
sanction for the institution of prosecution; however, the sanction
under Section 45 of the UAPA is for taking cognizance and not for the
institution of prosecution or filing a chargesheet. In paragraph 8 of the
said decision, the Apex Court observed that the Public Prosecutor’s
application clearly mentioned that one of the sanctions under the
UAPA was received and another was awaited, and the sanction under
the Arms Act was to be obtained after the results from the FSL were
received. Therefore, in paragraph 9, it is observed that the reason
mentioned in the impugned order that the application had been filed
for extension without any valid basis as the sanction had already been
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granted was not correct. Thus, considering the facts of the said case,
where the FSL report of the recovered arms was awaited, and sanction
under the Arms Act was to be obtained after the FSL report was
received, the Apex Court set aside the impugned Order of the High
Court granting default bail. Thus, awaiting one of the sanctions under
the UAPA was only an additional ground for seeking extension of
time.
34. For correctly understanding the legal principles with reference to
the observations of the Hon’ble Supreme Court, in the aforesaid
decision in the case of State of NCT of Delhi Vs Raj Kumar @
Lovepreet @ Lovely, relied upon by the learned PP, it is necessary to
refer to the principle of the ratio decidendi of a judgment . The
Hon’ble Supreme Court in the decision of Arasmeta Captive Power
14
Co. (P) Ltd. Vs Lafarge India (P) Ltd. held as under in paragraphs 38
and 39;
“38. At this stage, we may also profitably refer to another
principle which is of assistance to understand and
appreciate the ratio decidendi of a judgment. The
14 (2013) 15 SCC 414
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judgments rendered by a court are not to be read as
statutes. In Union of India v. Amrit Lal
Manchanda [(2004) 3 SCC 75 : 2004 SCC (Cri) 662] it
has been stated that : (SCC p. 83, para 15)
“15. … Observations of courts are neither to be read as
Euclid's theorems nor as provisions of the statute and that
too taken out of their context. [The] observations must be
read in the context in which they appear to have been
stated. … To interpret words, phrases and provisions of a
statute, it may become necessary for Judges to embark into
lengthy discussions but the discussion is meant to explain
and not to define. Judges interpret statutes, they do not
interpret judgments. They interpret words of statutes;
their words are not to be interpreted as statutes.
39. In Som Mittal v. State of Karnataka [(2008) 3 SCC
574 : (2008) 2 SCC (Cri) 1 : (2008) 1 SCC (L&S) 910] it
has been observed that : (SCC p. 581, para 9)
“9. … Judgments are not to be construed as statutes. Nor
words or phrases in judgments to be interpreted like
provisions of a statute. Some words used in a judgment
should be read and understood contextually and are not
intended to be taken literally. Many a time a Judge uses a
phrase or expression with the intention of emphasising a
point or accentuating a principle or even by way of a
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| flourish of writing style. Ratio decidendi of a judgment is<br>not to be discerned from a stray word or phrase read in<br>isolation.” | ||
|---|---|---|
| emphasis applied |
35. Thus, Mr Mundargi, the learned senior counsel, is right in
submitting that the Apex Court accepted the grounds pleaded by the
prosecution for an extension of time to complete the investigation, as
the sanction under the Arms Act was to be obtained after the FSL
report of the recovered arms was received, and awaiting one of the
sanctions under the UAPA, was only an additional ground pleaded by
the prosecution for extension of time. We, therefore, agree with the
submissions made by Mr. Mundargi. Thus, according to us, the
observations in the decision of State of NCT of Delhi Vs Raj Kumar @
Lovepreet @ Lovely, relied upon by the learned PP, are with reference
to the facts of the said case and are clearly distinguishable from the
facts in the present case.
36. During further hearing, it was argued by the learned PP that one
of the grounds pleaded for extension of time also stated that time was
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required as the analysis of the FSL report was being done. We do not
find any substance in the said argument. As stated in the report of the
Investigating Officer and the application of the Special PP, the FSL
report was already received. It is the case of the prosecution that the
investigation was complete, and ample evidence was available to file
the chargesheet. Thus, the said ground i.e. that time was required to
analyze the FSL report, was unwarranted and a very flimsy ground.
This is no ground available in law to seek an extension of time to file a
chargesheet. Thus, the said argument for seeking an extension on this
ground is nothing but defeating the indefeasible right available to the
accused to seek default bail. Thus, in the present case, the reason given
in the impugned order to grant an extension of time to file the
chargesheet is only for obtaining sanction and cannot be termed as
legal and valid.
37. Thus, in view of the aforesaid facts of the case, the principles of
law laid down in the aforesaid decisions and, in particular, the
decision of the three-Judge bench of the Hon’ble Supreme Court in
th
the case of M. Ravindran , the impugned order dated 18 January
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2023 granting extension of time of fifteen days to file the chargesheet
cannot be sustained being illegal.
38. In view of the aforesaid facts of the case, the remaining
judgments referred to by both parties are not relevant, and hence, it is
not necessary to discuss the same.
39. Hence, for the aforesaid reasons, we summarize our conclusions
as under:
(i) An extension of time to complete the investigation can be
granted only if a legal and valid ground is shown for not
completing the investigation within the time specified by law.
Granting extension of time to complete the investigation on a
flimsy or invalid ground will defeat the accused's right to seek
default bail, and as such, would violate his right guaranteed to
him under Article 21 of the Constitution of India.
(ii) Under Section 45 of the UAPA, sanction is required for taking
cognizance. In view of Section 196 of CrPC and Section 45 of
the UAPA, the embargo is on taking cognizance and not on filing
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a chargesheet. Thus, for the appropriate authority to apply its
mind to grant sanction, chargesheet is necessary, as without a
chargesheet, the appropriate authority will not be able to apply
its mind to the grant of sanction.
(iii) In the present case, the FSL report has been received. The report
of the Investigating Officer and the application by the special PP
stated that the investigation was complete and ample evidence
was available against the appellants to file the chargesheet;
however, a proposal for sanction under Section 45 of the UAPA,
was awaited from the appropriate authority.
(iv) Thus, the reason accepted in the impugned order to grant an
extension of time to file the chargesheet is only for awaiting
sanction, which cannot be termed legal and valid.
(v) Thus, once the order granting extension is held illegal and
stands vitiated, the appellants are entitled to default bail.
40. Thus, in the peculiar facts of the present case, once the order
granting extension is held illegal and stands vitiated, the appellants are
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entitled to default bail.
41. We place on record our appreciation for the invaluable
contribution and assistance of Mr. Mundargi, senior counsel who was
appointed by us as Amicus Curiae to assist us in the matter.
42. Hence, for the reasons recorded above, the appeal is allowed by
passing the following order:
th
(i) Order dated 18 January 2023 passed by the Special Judge
below Misc. Application No. 86 of 2023 is quashed and set
aside, and the Misc. Application No. 86 of 2023 is rejected.
th
(ii) Order dated 20 January 2023 passed by the Special Judge
below Exhibit 44 in RA 946 of 2022 in CR No. 19 of 2022 is
quashed and set aside.
(iii) The application at Exhibit 44 is allowed, and the appellants are
directed to be released, if not required in any other case, on the
following terms and conditions ;
(a) Appellants be released on bail in connection with CR No.
19/2022 registered with the Kala Chowki Police station (ATS)
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on furnishing P.R. bond in the sum of Rs. 1,00,000/- each
with one or more sureties in the like amount.
(b)The appellants shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with
the facts of the case and shall not tamper with any evidence.
(c) The appellants shall submit their address where they will be
residing and their contact/mobile number to the Investigating
Officer, and in the event of any change in the address or
contact/mobile number, they shall intimate the same to the
Investigating Officer forthwith.
(d)The appellants shall attend Kala Chowki Police station (ATS)
nd th
and report to the Investigating Officer on every 2 and 4
Saturday of every month between 10.00 a.m. to 1.00 p.m. till
the conclusion of their trial.
(e) The appellants shall regularly attend all the dates of hearing
before the trial court.
(f) In the event of breach of any of the conditions by the
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appellants, the prosecution will be entitled to apply for
cancellation of bail.
(iv) Appeal is allowed in the above terms.
All concerned to act on an authenticated copy of this Order.
GAURI GODSE, J. REVATI MOHITE DERE, J.
Digitally
signed by
IRESH
MASHAL
Date:
2024.07.16
14:36:37
+0530
IRESH
MASHAL
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