Bombay High Court
Sanjay Gangaram Avathare vs State Of Mah. Thr. Pso Ps Sironcha ... on 29 July, 2021
Bench: Manish Pitale
APL765.20.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 765 OF 2020
Sanjay Gangaram Avathare
-Vs.-
The State of Maharashtra, thr. PSO, PS Sironcha,
Tahsil Sironcha, District Gadchiroli
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. S. V. Sirpurkar, Advocate for the applicant.
Mr. Sagar Ashirgade, APP for the respondent.
CORAM : MANISH PITALE, J.
DATE OF CLOSING: 22.07.2021
DATE OF PRONOUNCING: 29.07.2021.
Hearing was conducted through video
conferencing and the learned counsel agreed that the
audio and visual quality was proper.
2. The applicant (original accused) has
challenged two orders passed by the Court of
Additional Sessions Judge, Gadchiroli, dated
02/09/2020 and 19/09/2020. By the order dated
02/09/2020, the said Court allowed the application
for extension of detention of the applicant and
another accused person for further period of ninety
days under section 43-D(2) of the Unlawful Activities
(Prevention) Act, 1967 (hereinafter referred to as
"UAPA"). By order dated 19/09/2020, the said Court
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rejected the application of the applicant seeking
default bail under section 167(2) of the Code of
Criminal Procedure (hereinafter referred to as
"Cr.P.C."). According to the applicant, the application
for extension of detention ought to have been
rejected and consequently default bail ought to have
been granted to him.
3. On a secret information received, on
02/06/2020, one Ajay Ahirkar, Police Inspector at
Police Station Sironcha, District Gadchiroli, lodged a
report and a vehicle coming from State of Telangana
was apprehended. In the said vehicle, the applicant
and a person driving the vehicle were questioned and
search of the vehicle led to recovery of bags
containing ₹ 1,20,00,000/- (₹ one crore twenty lakhs 1,20,00,000/- (₹ 1,20,00,000/- (₹ one crore twenty lakhs one crore twenty lakhs
only). The applicant sought to explain recovery of
such huge amount of cash by stating that he was a
Manager and that the cash was meant for distribution
amongst tendupatta labours. The cash was seized
and panchanama was prepared. An F.I.R. for the
offences punishable under sections 17, 18 and 21 of
the UAPA bearing Crime No.129 of 2020 stood
registered in the matter. On 05/06/2020, the
applicant was arrested and investigation was
continued. This led to arrest of another accused
person Lumaji Waghare. On the basis of the
investigation, it was revealed that the said huge cash
amount was meant for payment to naxalites engaged
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in activities prejudicial to the State. During the course
of investigation, names of other accused persons
were revealed and the material on record allegedly
indicated that the absconding accused were members
of a banned organization.
4. At this stage, on 29/08/2020, since the period
of ninety days was about to expire, the public
prosecutor moved an application for extension of
detention of the applicant and the said accused
Lumaji Waghare. The said application was moved
under section 43-D of the UAPA read with section
167 of the Cr.P.C. The public prosecutor placed on
record before the Sessions Court at Gadchiroli, the
details of the investigation undertaken till that stage
and stated reasons why extension of detention of the
said accused persons was necessary. The applicant
and the said other accused person were put to notice
in respect of the said application and they were heard
through their counsel. After hearing the public
prosecutor and the counsel representing the accused
persons, by the impugned order dated 02/09/2020,
the Court of Additional Sessions Judge, Gadchiroli
allowed the application and consequently extended
the detention of the applicant and accused Lumaji
Waghare for a further period of ninety days with
effect from the dates of their arrest. As a
consequence, the application moved on behalf of the
applicant before the Sessions Court under section
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167(2) of the Cr.P.C. for grant of default bail stood
rejected by the impugned order dated 19/09/2020.
5. The applicant filed the instant application
challenging the said orders, wherein notice was
issued on 17/11/2020 and the State filed its reply.
6. Mr. S. V. Sirpurkar, learned counsel
appearing for the applicant, submitted that in the
present case, the mandatory requirement of section
43-D(2) of the UAPA, particularly the requirement
under proviso to section 43-D(2)(b) thereof, was
violated inasmuch as a proper report indicating
satisfaction of the public prosecutor, indicating
progress of the investigation and specific reasons for
further detention of the accused, was not on record.
It was submitted that a copy of the report of the
public prosecutor was not served upon the accused
and further that the Court of Additional Sessions
Judge, Gadchiroli allowed the application in a
mechanical manner. It was submitted that the
applicant was not given a fair opportunity to contest
the application for extension of detention and that a
joint application seeking extension of detention of the
applicant and the said accused Lumaji Waghare was
defective, as separate applications ought to have been
filed enumerating independent grounds while
seeking extension of detention of each of the accused.
It was further submitted that the affidavit of the
Investigating Officer was not on record supporting
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the application for extension of detention, thereby
vitiating the impugned order dated 02/09/2020. It
was then submitted that once the impugned order
extending the detention was found to be
unsustainable, the consequent relief of default bail
ought to be granted by this Court by setting aside
impugned order dated 19/09/2020. The learned
counsel relied upon judgment of the Hon'ble
Supreme Court in the case of Hitendra Vishnu Thakur
and others v. State of Maharashtra and others,
reported in (1994) 4 SCC 602 and judgment of this
Court in the case of Santosh s/o Kisanrao Sonone v.
State of Maharashtra (Criminal Bail Application (BA)
No.820 of 2014, decided on 24/12/2014).
7. On the other hand, Mr. Sagar Ashirgade,
learned APP for the State, submitted that the
impugned orders did not deserve any interference, as
the mandatory requirements of law were duly
followed in the present case. It was submitted that
the public prosecutor had indeed submitted a report
before the Sessions Court satisfying the requirements
of proviso to section 43-D(2)(b) of the UAPA. In the
application for extension of detention also, the public
prosecutor had given detailed reasons while seeking
extension of detention. A joint application was
justified for the two accused persons because the
allegations against them were identical. It was further
submitted that the applicant was not entitled to the
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copy of the report of public prosecutor because the
investigation was still under way. On this basis, it
was submitted that the mandatory requirements of
law, in terms of the relevant provisions of law and
the aforesaid judgments of the Hon'ble Supreme
Court and this Court were duly complied with and
there was no substance in the contentions raised on
behalf of the applicant.
8. Having heard the learned counsel for the rival
parties, it needs to be examined whether the
mandatory requirements of law for seeking extension
of detention were satisfied in the present case. If this
Court comes to the conclusion that the mandatory
requirements were not satisfied, the applicant would
certainly be entitled to consequential relief of default
bail. The relevant provision for considering the
arguments of the rival parties, is section 43-D of the
UAPA. The relevant portion of the said provision
reads as follows:
"43-D. Modified application of certain provisions
of the Code. --
(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),--
(b) after the proviso, the following
provisos shall be inserted, namely:--
"Provided further that if it is not
possible to complete 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
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accused beyond the said period of ninety days,
extend the said period up to one hundred and
eighty days:
Provided also that if the police officer
making the investigation under this Act, requests,
for the purposes of investigation, for police
custody from judicial custody of any person in
judicial custody, he shall file an affidavit stating
the reasons for doing so and shall also explain
the delay, if any, for requesting such police
custody."
9. By the said provision, certain provisions of the
Cr.P.C. have been modified under the UAPA. Section
167 of the Cr.P.C. has also been modified in the
context of UAPA. A pari materia provision found in
the Terrorist Destructive Activities (Prevention) Act,
1987 came up for consideration before the Hon'ble
Supreme Court in the case of Hitendra Vishnu Thakur
and others v. State of Maharashtra and others
(supra). The law laid down by the Hon'ble Supreme
Court in the said judgment has held good for pari
materia provisions in other enactments, including the
UAPA. In paragraph 23 of the said reported
judgment, the Hon'ble Supreme Court has elaborated
upon the mandatory requirements when extension of
detention is sought. It has been held in the said
judgment as follows.
"The report of the public prosecutor, therefore,
is not merely a formality but a very vital
report, because the consequence of its
acceptance affects the liberty of an accused and
it must, therefore, strictly comply with the
requirements as contained in clause ( bb). The
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request of an investigating officer for extension
of time is no substitute for the report of the
public prosecutor. Where either no report as is
envisaged by clause (bb) is filed or the report
filed by the public prosecutor is not accepted by
the Designated Court, since the grant of
extension of time under clause (bb) is neither a
formality nor automatic, the necessary corollary
would be that an accused would be entitled to
seek bail and the court 'shall' release him on
bail if he furnishes bail as required by the
Designated Court. It is not merely the question
of form in which the request for extension
under clause (bb) is made but one of substance.
The contents of the report to be submitted by
the public prosecutor, after proper application
of his mind, are designed to assist the
Designated Court to independently decide
whether or not extension should be granted in a
given case. Keeping in view the consequences of
the grant of extension i.e. keeping an accused
in further custody, the Designated Court must
be satisfied for the Justification, from the report
of the public prosecutor, to grant extension of
time to complete the investigation. Where the
Designated Court declines to grant such an
extension, the right to be released on bail on
account of the 'default' of the prosecution
becomes indefeasible and cannot be defeated by
reasons other than those contemplated by sub-
section (4) of Section 20 as discussed in the
earlier part of this judgment."
10. Insofar as UAPA is concerned, in the case of
State of Maharashtra v. Surendra Pundlik Gadling
and others, reported in (2019) 5 SCC 178, after
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referring to the aforesaid judgment in the case of
Hitendra Vishnu Thakur and others v. State of
Maharashtra and others (supra), the Hon'ble
Supreme Court has reiterated the said position of
law. It has been further held in the said judgment
that while analyzing whether the mandatory
requirement of law under proviso to section 43-D (2)
(b) of the UAPA has been followed or not, the Court
is required to emphasize on substance over form. In
the said case, the Court found that a separate "report"
of the public prosecutor was not available. It was
found that the Investigating Officer had submitted an
application seeking extension of detention for the
purpose of investigation and after referring to such
an application, the public prosecutor had in turn
moved an application before the Court, wherein the
public prosecutor had applied his mind to the reasons
stated by the Investigating Officer and there upon,
prayed for extension of detention of the accused. The
Hon'ble Supreme Court found that even if technically
there was absence of a "report" of the public
prosecutor, yet the prayer for extension of detention
of the accused deserved to be granted because there
was sufficient material to show that the public
prosecutor had indeed scrutinized the material on
record and thereupon stated the progress of
investigation and the reasons for seeking extension of
detention of the accused. Substance was given
precedence over the form and the order of the High
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Court was set aside, thereby allowing the appeal of
the State and granting extension of detention of the
accused persons.
11. Applying the said position of law to the facts
of the present case, it is found that the public
prosecutor had submitted a report as per proviso to
section 43-D(2)(b) of the UAPA. In this report, the
public prosecutor not only stated the progress of
investigation till the date of submitting the report, but
he also stated the reasons for extension of detention.
A reference was made to the manner in which the
Investigating Officer had proceeded in the matter and
the reasons why extension of detention of the
applicant and the other accused person Lumaji
Waghare was sought. Thus, mandatory requirement
of report of the public prosecutor stating reasons for
extension of detention is very much satisfied in the
facts of the present case.
12. The record also shows that the public
prosecutor moved a detailed application dated
29/08/2020, on the basis of the aforesaid report
dated 28/08/2020, seeking extension of detention of
the applicant and other accused person. The copy of
the said application was served upon the applicant
and the other accused person. A counsel represented
the said accused persons before the Court below
when the application was taken up for consideration.
A perusal of the impugned order shows that the
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aforesaid Court perused the application filed by the
public prosecutor as also the report. The Court also
looked into the case papers and the manner in which
the investigation had progressed. The case diary was
also perused and thereupon the Court allowed the
application for extension of detention of the applicant
and the other accused person. The Court found that
the specific reasons putforth on behalf of the
prosecution seeking extension of detention were
justified.
13. As noted by the Hon'ble Supreme Court in the
case of Hitendra Vishnu Thakur and others v. State of
Maharashtra and others (supra), the purpose of
provisos added to section 43-D(2)(b) of the UAPA, is
to ensure that the public prosecutor applies his mind
to the reasons putforth by the Investigating Officer
while seeking extension of detention of the accused
persons. The public prosecutor is expected to
consider the material placed before him and upon
being satisfied about the reasons stated for extension
of detention, submit such a report to the Court. The
substance of the report and the application moved for
extension of detention takes precedence over the
form of such a report or application.
14. In the present case, this Court has perused the
application for extension of detention moved by the
public prosecutor. The application states in detail the
progress of the investigation and also the reasons
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seeking extension of detention of the said accused
persons. The record also shows that the public
prosecutor had indeed submitted a report before the
Sessions Court. The impugned order shows that the
said Court indeed referred to the report, the case
papers as also the case diary to record its satisfaction
about the specific reasons for extension of detention
of the accused persons. Thus, the mandatory
requirements of law were satisfied in the present
case.
15. Insofar as the contention raised on behalf of
the applicant that the order stood vitiated because
report of the public prosecutor was not furnished to
the accused, suffice it to say that such a requirement
cannot be read into proviso to section 43-D(2)(b) of
the UAPA, for the reason that investigation was still
under progress. The mandatory requirement of the
said proviso is that there should be a report of the
public prosecutor indicating the progress of
investigation and the specific reasons for further
detention of the accused and satisfaction of the Court
with such a report. It is crucial that the stage when
such an application is moved by the public
prosecutor, the investigation is still under progress
and it is for the Court to be satisfied with the report
submitted by the public prosecutor. Thus,
requirement of service of copy of the report to the
accused cannot be read into the said proviso to
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section 43-D(2)(b) of the UAPA.
16. Even otherwise, copy of the application
seeking extension of detention was indeed served on
the applicant and the other accused person. They
were duly represented by the counsel, who opposed
such extension of detention. Perusal of the the
application seeking extension of detention shows that
in the application also details about progress of the
investigation thus far were stated and the reasons for
seeking extension of detention were also stated in
detail. Thus, no prejudice was caused to the accused
persons in the facts and circumstances of the present
case for opposing the prayer for extension of
detention moved by the public prosecutor. Therefore,
there is no substance in the aforesaid contention
raised on behalf of the applicant.
17. The contention raised on behalf of the
applicant that the public prosecutor could not have
moved a joint application seeking extension of
detention of the applicant and the other accused
person is also without any substance. The learned
APP is justified in submitting that when the progress
of the investigation had demonstrated the role of the
said two accused persons being identical and the
reasons for seeking the extension of their detention
also being identical, there was no error on the part of
the public prosecutor in having moved a joint
application. The applicant cannot succeed in the
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present case only because a separate application for
seeking extension of detention of the other accused
person was not moved. In this context, the reliance
placed on judgment of this Court in the case of
Santosh s/o Kisanrao Sonone v. State of Maharashtra
(supra), particularly paragraph-11 thereof is also
misplaced because in the said judgment, this Court
has nowhere laid down that when extension of
detention of more than one accused person is sought,
the public prosecutor has to move separate
applications in the context of each accused person.
Hence, the said contention is also rejected.
18. Insofar as the contention raised on behalf of
the applicant based on second proviso to section 43-D
(2)(b) of the UAPA, to the effect that the impugned
orders stood vitiated because the Investigating Officer
had not filed his affidavit, suffice it to say that the
said contention is misplaced in the facts and
circumstances of the present case. The second proviso
to section 43-D(2)(b) of the UAPA applies in a case
where the Investigating Officer seeks Police custody
of the accused from judicial custody. In the present
case, neither the Investigating Officer nor the public
prosecutor sought Police custody of the applicant and
the other accused person. By the application moved
before the Sessions Court, the public prosecutor
sought extension of detention of the said accused
persons, who were already in judicial custody.
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Hence, the said contention also deserves to be
rejected.
19. Apart from this, a perusal of the impugned
order dated 02/09/2020 passed by the Court of
Additional Sessions Judge, Gadchiroli, shows that the
said Court has not only referred to the reasons
putforth by the public prosecutor seeking extension of
detention, but the Court has also perused the case
diary for ascertaining the progress of the
investigation. After looking into the entire material
available on record, including the report of the public
prosecutor submitted under section 43-D(2)(b) of the
UAPA, the said Court came to a considered
conclusion that the detention of the applicant
deserved to be extended. This Court finds no reason
to interfere with the satisfaction expressed by the said
Court while allowing the application moved by the
public prosecutor.
20. Consequently, no error can be attributed to
the aforesaid Court for having passed the impugned
order dated 19/09/2020, rejecting the application
moved on behalf of the applicant for grant of default
bail under section 167(2) of the Cr.P.C. The rejection
of the said application was only consequential to the
extension of detention of the applicant as per order
dated 02/09/2020. The moment, the detention of
the applicant stood extended under section 43-D(2)
(b) of the UAPA, there was no question of the
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applicant being entitled to default bail under the said
provision read with section 167(2) of the Cr.P.C..
Hence, there is no error in the impugned order dated
19/09/2020.
21. In view of the above, it is found that the
contentions raised on behalf of the applicant cannot
be accepted. Consequently, the present application is
found without any merit and accordingly, it is
dismissed.
JUDGE
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