Pahadiya Tulshiram Champala And ... vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 7358 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   NAGPUR BENCH : NAGPUR


                    CRIMINAL WRIT PETITION NO.831  OF 2017

1)      Pahadiya Tulshiram Champala,
        aged about 32 years, occupation :
        Private Driver, r/o Madanpalli, 
        Tahsil Mulug, District : Jayshankar
        Bhopalpalli (Telangana State). 

2)      Ravi Malayya Kankam, aged
        43 years, occupation : Tendu Patta
        Manager, r/o Mohd. Gospalli, 
        Tahsil : Mulug, District Jayshankar
        Bhopalpali (Telangana State).

3)      Nagraj Samayya Putta,
        aged about 37 years, occupation :
        Tendu Patta Contractor, r/o 
        Mohd. Golspalli, Tahsil Mulug,
        District Jayshankar Bhopalpali
        (Telangana State).                                 ...            Petitioners
                       - Versus -
State of Maharashtra, through Police 
State Officer, Police Station, Aheri, 
Tahsil Aheri, District Gadchiroli.                         ...            Respondent
                                   -----------------
Shri S.V. Sirpurkar, Advocate for petitioners. 
Smt. G. Tiwari, Additional Public Prosecutor for respondent. 
                                   ----------------
                                         CORAM :   P.N. DESHMUKH, J.

DATED : SEPTEMBER 21, 2017

ORAL JUDGMENT :

Rule, returnable forthwith. Heard finally by consent of

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Shri Sirpurkar, learned Counsel for petitioners, and Smt. Tiwari, learned

Additional Public Prosecutor for respondent.

2) Challenge in this petition is to orders dated 19/8/2017 passed

by learned Additional Sessions Judge, Gadchiroli by which judicial custody

remand of petitioners came to be further extended for a period of 90 days

from 22/8/2017 and to order dated 24/8/2017 rejecting application filed

by petitioners under Section 167(2) of the Code of Criminal Procedure

read with Section 43-D(2) of the Unlawful Activities (Prevention) Act,

1967 (hereinafter referred to as "the Act of 1967" for brevity) seeking

statutory bail. Petitioners have thus prayed for quashing both the

impugned orders and their release on bail.

3) By referring to documents filed in support of petition,

Shri Sirpurkar, learned Counsel for petitioners, has mainly stressed upon

application, which is at Annexure-II to the petition, filed by prosecution

for extension of Magisterial custody remand under Section 43-D of the

Act of 1967 and submitted that said application is not in accordance with

the statutory provisions as required under Section 43-D(2) of the Act of

1967 for the reason that same is not filed by learned Public Prosecutor,

but it is filed by the Investigating Officer and Sub-Divisional Police Officer,

Aheri having rubber stamp of Shri S.U. Kumbhare, Assistant Government

Pleader put on it establishing its presentation by Public Prosecutor. It is

thus contended that merely by putting a rubber stamp, it cannot be

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construed that such application is filed by learned Public Prosecutor on the

instructions of Investigating Officer. It is also contended that by putting

such rubber stamp, by no stretch of imagination, it can be said that

learned Public Prosecutor has applied his mind and prayed for extension

of Magisterial custody remand of accused. It is, therefore, prayed that

order dated 19/8/2017 extending custody of petitioners for further period

of 90 days from 22/8/2017 onwards may be quashed and set aside. It is

further submitted that if said order is found liable to be quashed and set

aside, then petitioners shall be entitled for statutory bail under Section

167(2) of the Code of Criminal Procedure since indefeasible right has

accrued in their favour on non filing of charge-sheet within stipulated

period.

4) With regards to filing of application for extension of

Magisterial custody remand of accused persons by prosecution under the

signature of Investigating Officer and thus, stating same to be not in

compliance with the provisions of Section 43-D(2) of the Act of 1967,

Shri Sirpurkar, learned Counsel for petitioners, has relied upon the

judgment of the Hon'ble Supreme Court in the case of Hitendra Vishnu

Thakur and others vs. State of Maharashtra and others (AIR 1994 SC

2623) as well as order dated 23/12/2016 passed by this Court in Criminal

Application No.774/2016 wherein also challenge was to rejection of

application for statutory bail under Section 167(2) of the Code of Criminal

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Procedure by applicants, who were involved in the offences punishable

under Sections 143, 144, 147, 148, 149 and 302 of Indian Penal Code,

Section 4/25 of the Arms Act and Sections 3(1)(i) and (ii) and 4 of the

Maharashtra Control of Organized Crime Act, 1999.

5) To understand the controversy involved in the present

petition, following facts, in brief, are necessary to be stated :

Petitioners came to be arrested on 23/5/2017 for the

offences punishable under Sections 17, 18 and 21 of the Act of 1967.

Their arrest was an outcome of intercepting of vehicle occupied by them

during Police patrolling when they were found carrying with them cash of

Rs.75 lakhs and some naxal pamphlets. In that background, they came to

be arrested while one co-accused Khalil Ur Rehman, r/o Warangal is still

absconding. Admittedly, other two co-accused, namely, Rajanna and

Sudarshan are released on regular bail by learned trial Court.

6) After arrest, petitioners were initially granted Police custody

remand upto 28/5/2017, which was extended till 31/5/2017 and

thereafter they were granted Magisterial custody remand and on 88 th day

after their arrest, application came to be filed under Section 43-D(2) of

the Act of 1967 praying for further extension of their judicial custody for

90 days. The application was filed under the signature of Investigating

Officer and Sub-Divisional Police Officer, Aheri. Learned trial Court by

its order dated 19/8/2017 allowed the same, thereby extending judicial

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custody of petitioners by further period of 90 days from 22/8/2017. On

22/8/2017 petitioners filed application for grant of bail under the

provisions of Section 167(2) of the Code of Criminal Procedure

contending that in spite of lapse of period of 90 days within which

charge-sheet was necessary to be filed, since same was not filed within

said period, they were entitled for bail by default. However, learned trial

Court rejected the said application of petitioners by order dated

24/8/2017.

7) For the purpose of present petition, provisions of Section

43-D of the Act of 1967, which need consideration, are reproduced as

under :

"43-D - Modified application of certain provisions of the Code : (1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of Section 2 of the Code and "cognizable case" as defined in that clause shall be construed accordingly.

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2) -

(a) the references to "fifteen days", 'ninety days" and "sixty days" wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days" respectively; and

(b) after the proviso, the following provisos shall be inserted, namely, "Provided further that if it is not possible to complete

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the investigation within the said period of ninety days, the Court may if it 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 beyond the said period of ninety days, extend the said period up to one hundred and eighty days."

8) There is no dispute that provisions of Section 20(4)(bb) of

the Terrorist and Disruptive Activities (Prevention) Act, 1987,

Section 21(2) of the Maharashtra Control of Organised Crime Act, 1999

and Section 49 of the Prevention of Terrorism Act, 2002 are pari materia

to the provisions of Section 43-D of the Act of 1967. In para 22 of its

judgment in the case of Hitendra Vishnu Thakur and others (supra),

the Hon'ble Supreme Court has observed thus :

"The Legislature has provided for seeking extension of time for completion of investigation on a report of the public prosecutor. The Legislature did not purposely leave it to an investigating officer to make an application for seeking extension of time from the Court. This provision is in tune with the legislative intent to have the investigations completed expeditiously and not to allow an accused to be kept in continued detention during unnecessary prolonged investigation at the whims of the Police. The Legislature expects that the investigation must be completed with utmost promptitude but where it becomes necessary to seek some more time for completion of the investigation, the investigating agency must submit itself to the scrutiny of the public prosecutor in the first instance and satisfy him about the progress of the investigation and furnish reasons for seeking further custody of an accused. A public prosecutor is an important officer of the State

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Government and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the Court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or forwarding agency. A public prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation. In that event, he may not submit any report to the Court to seek extension of time. Thus, for seeking extension of time, the public prosecutor after an independent application of his mind to the request of the investigating agency is required to make a report to the Designated Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation."

9) Smt. Tiwari, learned Additional Public Prosecutor for

respondent, with reference to application filed for extension of judicial

custody by further 90 days has submitted that since said application bears

rubber stamp of learned Additional Public Prosecutor indicating that

application was presented by him, that is sufficient compliance of the

provision, thereby establishing that application was filed by Public

Prosecutor.

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10)              The submissions advanced as aforesaid, however, are not at all

convincing as in para 22 of the judgment in the case of Hitendra Vishnu

Thakur and others (supra), one of the arguments advanced was similar

that even if Public Prosecutor presents the request of the Investigating

Officer to the Court or forwards the request of the Investigating Officer

to the Court, it should be construed to be the report of Public Prosecutor.

These submissions were, however, not accepted by Hon'ble Apex Court

observing thus :

"There is no scope for such a construction, when we are dealing with the liberty of a citizen. The Courts are expected to zealously safeguards his liberty. Clause (bb) has to be read and interpreted on its plain language without adding or substitution of any expression in it. We have already dealt with the importance of the report of the public prosecutor and emphasised that he is neither a `post office' of the investigating agency nor its `forwarding agency' but is charged with a statutory duty. He must apply his mind to the facts and circumstances of the case and his report must disclose on the face of it that he had applied his mind to the twin conditions contained in clause (bb) of sub-section (4) of Section 20. Since the law requires him to submit the report as envisaged by the Section, he must act in the manner as provided by the Section and in no other manner. A Designated Court which overlooks and ignores the requirements of a valid report fails in the performance of one of its essential duties and renders its order under clause (bb) vulnerable. Whether the public prosecutor labels his report as a report or as an application for extension would not be of much consequence, so long as it demonstrates on the face of it, that he has applied his

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mind and is satisfied with the progress of the investigation and the genuineness of the reasons for grant of extension to keep an accused in further custody as envisaged by clause (bb) (supra). Even the mere reproduction of the application or request of the investigating officer by the public prosecutor in his report, without demonstration of the application of his mind and recording his own satisfaction would not render his report as the one envisaged by clause (bb) and it would not be a proper report to seek extension of time. In the absence of an appropriate report, the Designated Court would have no jurisdiction to deny to an accused his indefeasible right to be released on bail on account of the default of the prosecution to file the challan within the prescribed time if an accused seeks and is prepared to furnish the bail bonds as directed by the Court. Moreover, no extension can be granted to keep an accused in custody beyond the prescribed period except to enable the investigation to be completed and as already stated before any extension is granted under clause (bb), the accused must be put on notice and permitted to have his say so as to be able to object to the grant of extension."

11) In that view of the matter, it goes without saying that request

of Investigating Officer for extension of time is no substitute for the report

of Public Prosecutor. The application filed by Investigating Officer having

rubber stamp of Shri S.U. Kumbhare, even otherwise, establishes that said

Law Officer is Assistant Government Pleader, which fact creates further

doubt in the case of prosecution, if application for extension of judicial

custody of applicants was filed through Public Prosecutor, as mandated by

the statute. Moreover, there is nothing to establish that before extension

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of custody, accused were given notice of the said application or were

heard as learned Additional Sessions Judge in para 5 of his order has

stated that accused were informed about extension of judicial custody by

further period of 90 days to which they did not say anything. Plain

reading of the impugned order thus implies that petitioners were simply

informed of extension of judicial custody by further period of 90 days

without giving any notice or obtaining their say in any manner. In that

view of the matter and for the facts as aforesaid, application filed by

Investigating Officer for extension of judicial custody by no stretch of

imagination can be said to be within the parameters of Section 43-D(2) of

the Act of 1967.

12) Admittedly, no charge-sheet in the present crime is yet filed.

Smt. Tiwari, learned Additional Public Prosecutor for respondent, has

pointed out that sanction to file charge-sheet is awaited. By now it is

well settled law that in such situation, indefeasible right accrues in favour

of accused and if application is filed by accused on the ground of default

of prosecution in filing charge-sheet within stipulated period, the Court

shall release the accused on bail after notice to the Public Prosecutor

uninfluenced by the gravity of the offence or merits of the case of

prosecution.

13) In that view of the matter, the petition is allowed. The

impugned order dated 19/8/2017 extending judicial custody remand of

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petitioners and impugned order dated 24/8/2017 passed by learned

Additional Sessions Judge, Gadchiroli rejecting application for grant of

bail to accused under Section 167(2) read with Section 43-D (2) of the

Act of 1967 are quashed and set aside.

Petitioners shall be released on bail on their executing P.R.

Bonds in the sum of rupees one lakh each with one solvent surety each in

like amount. While on bail, petitioners shall mark their presence with

Investigating Officer at Police Station, Aheri, District Gadchiroli once in a

week, preferably on Monday between 1 p.m. and 4 p.m. till filing of

charge-sheet and except for marking their attendance in Police Station,

shall not enter the territorial limits of Gadchiroli District until further

order.

Applicants shall not leave their home town without giving

prior intimation to the Investigating Officer and without obtaining prior

permission of learned trial Court.

Applicants shall submit their passports immediately, if any, to

Investigating Officer and if they are not holding passports, shall file

affidavit to that effect before Investigating Officer.

14) Rule is made absolute in the above terms. No order as to

costs.

JUDGE

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