Bombay High Court
Mohammad Abid Ali S/O. Mohammad ... vs The State Of Maharashtra on 15 September, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:20166-DB
cri-appeal-411.23+
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.411 OF 2023
Md. Mehrajuddin S/o Abdul Hai Ansari,
Age-42 years, Occu:Business,
R/o-Hyder Bagh, Nanded - 431604,
Presently lodged in Nanded
Central Prison, Nanded.
...APPELLANT
VERSUS
The State of Maharashtra,
Through A.T.S. Kala Chowki
Police Station, Mumbai.
...RESPONDENT
WITH
CRIMINAL APPEAL NO.410 OF 2023
Mohammad Javed S/o Mohammad Shabbir Ali,
Age-35 years, Occu:Nil,
R/o-Komti Galli, Parbhani - 431 401,
Presently lodged in Nanded
Central Prison, Nanded.
...APPELLANT
VERSUS
The State of Maharashtra,
Through A.T.S. Kala Chowki
Police Station, Mumbai.
...RESPONDENT
WITH
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cri-appeal-411.23+
2
CRIMINAL APPEAL NO.412 OF 2023
Mohammad Abed Ali S/o
Mohammad Maheboob Ali,
Age-40 years, Occu:Nil,
R/o-Umar Colony, Nanded - 431604,
Presently lodged in Nanded
Central Prison, Nanded.
...APPELLANT
VERSUS
The State of Maharashtra,
Through A.T.S. Kala Chowki
Police Station, Mumbai.
...RESPONDENT
WITH
CRIMINAL APPEAL NO.413 OF 2023
Mohammad Abdul Karim
S/o Mohammad Abdul Halim,
Age-35 years, Occu:Nil,
R/o-Momin Pura, Parbhani - 431401,
Presently lodged in Nanded
Central Prison, Nanded.
...APPELLANT
VERSUS
The State of Maharashtra,
Through A.T.S. Kala Chowki
Police Station, Mumbai.
...RESPONDENT
WITH
CRIMINAL APPEAL NO.414 OF 2023
Abdul Salam S/o Abdul Qayyum,
Age-34 years, Occu:Nil,
R/o-Hyder Bagh, Nanded - 431604,
Presently lodged in Nanded
Central Prison, Nanded.
...APPELLANT
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cri-appeal-411.23+
3
VERSUS
The State of Maharashtra,
Through A.T.S. Kala Chowki
Police Station, Mumbai.
...RESPONDENT
WITH
CRIMINAL APPEAL NO.415 OF 2023
Mohammad Nisar Mohd. Abdul Rashid,
Age-41 years, Occu:Nil,
R/o-Zakir Husain Nagar,
Parbhani - 431401,
Presently lodged in Nanded
Central Prison, Nanded.
...APPELLANT
VERSUS
The State of Maharashtra,
Through A.T.S. Kala Chowki
Police Station, Mumbai.
...RESPONDENT
...
Mr. Sheikh Mohammad Rasiq Sheikh M.A. Advocate and Mr.
Mohammad Ibraheem K.M. Bilal Shaikh Advocate for
Appellants in all the Appeals.
Mr. A.M. Phule, A.P.P. for Respondent-State in all the Appeals.
...
CORAM: SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATE OF RESERVING JUDGMENT : 17th JULY 2023
DATE OF PRONOUNCING JUDGMENT : 15th SEPTEMBER 2023
cri-appeal-411.23+
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. All these Appeals have been filed by the respective
appellants - accused to challenge the order dated 8 th February
2023 passed by the learned Additional Sessions Judge-2, Nanded
thereby rejecting the bail application filed under Section 167(2)
(a)(i) of the Code of Criminal Procedure by the appellants.
2. At the outset, it appears to be the confusion in the mind of
the learned Advocate for the appellants that the case involves
the National Investigation Agency Act (for short "the N.I.A. Act")
and therefore, it is said that the Appeals are filed under
Section 21 of the N.I.A. Act. We would like to say that an offence
vide Crime No.22 of 2022 came to be registered with Kala
Chowki Police Station, Mumbai for the offence punishable under
Section 121-A, 153-A, 109, 120-B of the Indian Penal Code and
Section 13(1)(b) of the Unlawful Activities (Prevention) Act (for
short "the UAPA"). The said First Information Report (for short
"the FIR") was filed by one ASI Balaji Chandel and it has been
handed over for investigation to be carried out by Anti Terrorism
Squad (for short "ATS"), Nagpur Camp, Nanded.
cri-appeal-411.23+
3. The appellants have contended that Maharashtra ATS
officials had abruptly picked up the appellants i.e. accused Nos.1
to 5 on 22nd September 2022 and accused No.6 on 26 th
September 2022, respectively. Since then, they are in custody,
initially in Police custody and thereafter in the Magisterial
custody. In the FIR it has been contended that ASI Chandel had
received confidential information that the organization by name
'Popular Front of India' and members of the said organization
had organized a public programme for delivering speeches on
various subjects and which were stated to be against the Union
of India. It was apprehended that the law and order situation
would be disturbed, as request was made in the speech to the
people that they should be ready for martyred for their religion.
Various meetings were organized at Nanded, Parbhani and it was
stated that in the speech delivered in those programmes the
atmosphere was tried to be created for the insurgency between
two religions. Anti-national speeches were also delivered and all
those details have been given in the FIR. With these allegations
the FIR has been lodged.
4. After arrest of the appellants i.e. original accused Nos.1
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to 5 on 22nd September 2022, they were produced before the
Chief Judicial Magistrate. In spite of opposition to the remand,
they were remanded to the custody till 30th September 2022.
Original accused No.6 then surrendered himself before the
Magistrate on 26th September 2022. Accused No.6 was
remanded in custody till 30th September 2022. Thereafter the
judicial custody was granted till 7 th October 2022. On 15th
December 2022 the prosecution (ATS) through the Investigating
Officer filed an application for extension of time for filing the
charge-sheet beyond 90 days. The learned Additional Sessions
Judge, Nanded extended the said time in spite of opposition by
the appellants. Being aggrieved by the said order dated 19 th
December 2022, the appellants filed application for statutory bail
under Section 167 of the Code of Criminal Procedure on 4 th
January 2023. The said application came to be rejected on 8 th
February 2023, hence the present Appeals.
5. Heard learned Advocate Mr. Sheikh Mohammad Rasiq
Sheikh M.A. and learned Advocate Mr. Mohammad Ibraheem
K.M. Bilal Shaikh appearing for the Appellants and learned APP
Mr. A.M. Phule appearing for the respondent - State.
cri-appeal-411.23+
6. It has been vehemently submitted on behalf of the
appellants that the appellants are innocent. They have been
falsely implicated. Essential ingredients of the offences are not
attracted at all. While rejecting the application by order dated 8 th
February 2023 (hereinafter the said order is referred to as
"impugned order") the mandatory provisions of the N.I.A. Act,
particularly Section 6 of the said Act were not followed at all.
Steps enumerated in Section 6 of the N.I.A. Act are mandatory
and when those were not followed at all, the extension of time to
file charge-sheet ought not to have been allowed. Maharashtra
ATS has no authority or jurisdiction to investigate scheduled
offences without following the mandatory provisions of the N.I.A.
Act. No doubt the said machinery can also investigate but
Section 10 of the N.I.A. Act cannot be interpreted in isolation of
the scheme of the N.I.A. Act. The learned trial Judge had not
considered the fact that the accused persons were not produced
before him when the the application for extension of time for
filing charge-sheet was filed. Mere issuance of the notice is not
sufficient.
7. Learned Advocate for the appellants has relied on Jigar @
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Jimmy Pravinchandra Adatiya vs. State of Gujarat, (2023)
6 SCC 484. Learned Advocate has specifically drawn our
attention to Paragraph Nos. 29, 31, 34 of the decision in Jigar @
Jimmy Pravinchandra Adatiya (supra) and submitted that the
Public Prosecutor who had filed the application for extension of
time to file charge-sheet has also not taken care to satisfy
himself as to whether there was really necessity for extension of
time to file charge-sheet, what was the progress that was made
in the investigation. Proper application of mind has to be
reflected in the application itself. Therefore, on two counts i.e.
for not producing the accused before the Court at time of
application for extension of time and also on the count of non
application of mind by the Public Prosecutor in filing application
for extension of time to file charge-sheet, the present impugned
order will have to be declared as illegal and the appellants
deserve to be released on default bail. Learned Advocate further
relied on the decision in Darshan Subhash Nandagawali vs.
State of Maharashtra in Criminal Appeal No.43 of 2023
decided by this Court, Bench at Nagpur on 6 th June 2023,
wherein the same grounds were considered. Further reliance has
been placed on the Single Bench decision of Kerala High Court in
T.J. Justin vs. State of Kerala and others, in Criminal MC
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No. 4508 of 2023, wherein also the Judgment in Jigar @ Jimmy
Pravinchandra Adatiya (supra) by the Hon'ble Supreme Court
was relied.
8. Further reliance has been placed by the learned Advocate
for the appellants on Bikramjit Singh vs. the State of
Punjab, (2020) 10 SCC 616, wherein it has been observed
that " A conspectus of the aforesaid decisions would show that
so long as an application for grant of default bail is made on
expiry of the period of 90 days (which application need not even
be in writing) before a charge sheet is filed, the right to default
bail becomes complete. It is of no moment that the Criminal
Court in question either does not dispose of such application
before the charge sheet is filed or disposes of such application
wrongly before such charge sheet is filed." In Bikramjit Singh
(supra), it has been further observed that, " We must not forget
that we are dealing with the personal liberty of an accused under
a statute which imposes drastic punishments. The right to
default bail, as has been correctly held by the judgments of this
Court, are not mere statutory rights under the first proviso to
Section 167(2) of the Code, but is part of the procedure
established by law under Article 21 of the Constitution of India,
cri-appeal-411.23+
which is, therefore, a fundamental right granted to an accused
person to be released on bail once the conditions of the first
proviso to Section 167(2) are fulfilled." Therefore, the leaned
Advocate for the appellants has submitted that a statutory right
had accrued to the appellants to be released on bail and
therefore, the learned trial Court ought to have allowed the bail
application.
9. The further limb of the submissions of the learned
Advocate for the appellants was that as per the Notification
issued by the Union of India on 12 th December 2019, the Central
Government in consultation with the Hon'ble the Chief Justice of
High Court, Bombay, designated the Court of Sessions at City
Civil Court, Bombay (Court No.26), as the Special Court for the
purpose of sub-section (1) of Section 11 of the N.I.A. Act for the
trial of the scheduled offences investigated by the National
Investigation Agency and therefore, the Court at Nanded had no
authority to grant extension of time to file charge-sheet. On that
count also the application ought to have been allowed.
10. Learned APP has strongly opposed the Appeals and
submitted that at no earlier point of time whenever the
appellants were produced before the concerned Courts had
cri-appeal-411.23+
raised the point of jurisdiction and as regards the production of
the accused at the time of application seeking extension of time
to file charge-sheet is concerned, learned APP relies on the
decision in Qamar Ghani Usmani vs. the State of Gujarat,
AIR 2023 SC 1901, wherein after taking into consideration the
decision in Sanjay Dutt vs. State through CBI, Bombay,
(1994) 5 SCC 410 and Jigar @ Jimmy Pravinchandra
Adatiya (supra), it was held that the application by the
investigating agency for extension of time in filing charge-sheet
can be entertained and granted upon the notice to be issued to
the accused or to keep him present before the Court. The
purpose is to bring it to the knowledge of the accused that such
an extension of time is sought. In the present case at the time of
application for extension of time, notice was given to the
accused persons through their Advocate and his submissions
were also heard, therefore, there is sufficient compliance as
contemplated under the law. Now, it will not lie in the mouth of
the accused persons to say that they were not heard. Learned
APP is relying on the affidavit of Mr. Abhay Ramrao Panhekar, the
Assistant Commissioner of Police, ATS, Nagpur, having additional
charge of Aurangabad region. Mr. Panhekar, the Assistant
Commissioner of Police has clearly stated that each and every
cri-appeal-411.23+
time opportunity was given to the appellants to oppose the
applications. He has further submitted that the matter is under
investigation by ATS and the learned Registrar (Inspection-I) of
this Court by letter dated 21 st July 2016 to the Principal
Secretary and R.L.A., Law and Judicial Department, Government
of Maharashtra submitted that the Hon'ble the Chief Justice of
the High Court, Bombay has given directions to designate the
Courts of Chief Judicial Magistrate and the Court of Sessions
Judges / Additional Sessions Judges at Thane, Akola and Nanded
for the production of accused and to try the cases investigated
by ATS from the units of Thane, Akola and Nanded. Then the
Notification was issued by the State Government on 26 th August
2016 according the jurisdiction. Thereupon, the learned Principal
District Judge, Nanded by order dated 20 th September 2016
designated District Judge-1 and Additional Sessions Judge,
Nanded to be the Judge of the Special Court to try the cases
investigated by the ATS, pertaining to Nanded, Parbhani, Latur
and Hingoli jurisdiction. Therefore, the said Court / Special Judge
has every jurisdiction to try the present case and deal with the
remands. The time for filing the charge-sheet is properly and
legally extended and therefore, on the day when the application
under Section 167(2) of the Code of Criminal Procedure was filed
cri-appeal-411.23+
by the present appellants, the said extension being legal the
accused had no statutory right to be released on default bail.
The application is, therefore, rightly rejected.
11. Here, the fact that is emerging is that the FIR came to be
lodged with ATS Squad which has its office at Kala Chowki,
Mumbai and it has been declared as Police Station by Notification
dated 17th November 2004. The jurisdiction for investigation to
ATS, Government of Maharashtra (of which Police Station is Kala
Chowki) is entire State of Maharashtra. Reference to this can be
found in the Notification issued by the Government of
Maharashtra on 26th August 2016 appended with the affidavit of
Mr. Panhekar, who is the Investigating Officer in this case. After
the crime was registered vide Crime No.22 of 2022, it came to
be registered for the offence punishable under Sections 121-A,
153-A, 120-B, 109, 116, 201 of the Indian Penal Code and
Section 13(1)(B) of the UAPA. At this stage itself we would like
to say that though the offence was registered under the UAPA,
the investigation was never handed over to National
Investigation Agency. The affidavit does not say it in specific
words, yet there is no contrary document produced by the
appellants on record to show that investigation was at any point
of time, handed over to the National Investigation Agency.
cri-appeal-411.23+
12. Objection is now raised that there is no compliance of
Section 6 of the N.I.A. Act. We do not agree with the said
submissions. Section 6 of the N.I.A. Act lays down procedure for
investigation of scheduled offences. No doubt the scheduled
offences covers offences under the UAPA also, yet, Section 6(1)
of the N.I.A. Act prescribes that the copy of the FIR should be
sent to the State Government and thereafter the State
Government, under sub-section (2) of Section 6 of the N.I.A.
Act, should forward it to the Central Government. Sub-section
(3) of Section 6 of the N.I.A. Act deals with, as to what the
Central Government should do and sub-section (4) of Section 6
of the N.I.A. Act says that if the Central Government is of the
opinion that the said offence is fit to be investigated by the
National Investigation Agency, then it would direct the Agency to
investigate the same. Here, in this case the Central Government
has not taken any decision to handover the investigation to the
National Investigation Agency. Without any proof, we cannot
come to the conclusion that the Government of Maharashtra
would not have complied with Section 6(2) of the N.I.A. Act.
Merely because the offence under the UAPA is scheduled offence,
the investigation will not automatically go to National
Investigation Agency. It will be carried out by the National
cri-appeal-411.23+
Investigation Agency only after the decision is taken by the
Central Government under sub-section (4) of Section 6 of the
N.I.A. Act. Section 10 of the N.I.A. Act prescribes that nothing
contained in this Act shall affect the powers of the State
Government to investigate and prosecute any scheduled offence
or other offences. Hence, we do not find any substance in the
point raised by the appellants that the learned Special Judge
under the UAPA had not considered that there was no mandatory
fulfillment of Section 6 of the N.I.A. Act.
13. We will directly go to the point of jurisdiction, as from the
above discussion it is clear that the State Government agency
has powers to investigate the offences under the UAPA. The
UAPA had come into force with effect from 30 th December 1967
and there were amendments in the year 2004, 2008, 2013 and it
appears that lastly in the year 2019. There was no specific
provision for establishment of Special Courts when the Act came
into force and therefore, the Second Schedule of the Code of
Criminal Procedure would have been made applicable which go
according to the quantum of punishment prescribed. The
provision of Section 11 of the Cr.P.C. together with definition of
"Court" in Section 2(1)(d) of the UAPA is therefore, required to
be considered. Of course with the amendment with effect from
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14th August 2019, the Court includes a criminal Court having
jurisdiction under Section 22 of the N.I.A. Act, but it is in
addition because the word used is "or". As aforesaid, ATS Office
was declared as "Police Station", which had jurisdiction over
entire Maharashtra and therefore, requirement for designating
the Courts at Thane, Akola and Nanded for the production of
accused and trial of cases investigated by ATS Squad / sub-
squad arose. The powers have then been conferred by the State
Government under Section 11 with Section 185 of the Code
of Criminal Procedure to learned Chief Judicial Magistrate and
District and Sessions Court at Thane, Akola and Nanded by
Notification dated 26th August 2016. The area coming under
these Courts is also prescribed and as regards the Court at
Nanded is concerned, the jurisdiction is Nanded, Parbhani, Latur
and Hingoli Districts. The Court that was prescribed, was the
District and Sessions Court, Nanded and therefore, the learned
Principal District Judge, Nanded by office order dated 20 th
September 2016 designated District Judge-1 and Additional
Sessions Judge, Nanded to be the Judge of the Special Court to
try the cases investigated by ATS. Therefore, the Court at
Nanded has jurisdiction to try and entertain the case under the
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UAPA which is investigated by the ATS. We do not find any fault
in the same.
14. Now coming to the fact that the application that was filed,
was under Section 167(2) of the Code of Criminal Procedure, we
cannot enter into the merits of the case. It is to be seen, as to
whether the said right stood accrued after the statutory period to
the appellants or not. For that purpose, it is to be noted that
accused Nos.1 to 5 came to be arrested on 22 nd September 2022
and accused No.6 came to be arrested on 26 th September 2022.
The documents have been produced on record to show that upon
the arrest, appellants - accused Nos. 1 to 5 were produced
before the learned Chief Judicial Magistrate, Nanded and by
order dated 22nd September 2022 Police custody was granted till
30th September 2022. Even as regards accused No.6, who came
to be arrested on 26th September 2022, he was also remanded in
Police custody till 30th September 2022. It appears that on 30 th
September 2022 Police custody was extended till 7 th October
2022. But on 7th October 2022 the appellants were remanded to
Magisterial custody till 22nd October 2022. Thereafter an
application was given by the Special Prosecutor, Nanded on 15 th
December 2022 for extension of 60 days to file the charge-
sheet. It was mentioned that the period to file charge-sheet
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would end by 20th December 2022 and the extension was sought
beyond that period i.e. starting from 20 th December 2022. Notice
of the said report / application was given to the appellants and
their Advocate was heard and thereafter the extension was
granted for 60 days by order dated 19 th December 2022.
However, it appears that application under Section 167(2) of the
Code of Criminal Procedure was filed on behalf of the accused-
appellants on 4th January 2023 for various reasons as set out in
the said application. That application came to be rejected on 8 th
February 2023 by the learned Special Judge. Thereafter, again
Special Public Prosecutor filed an application for extension of
time by 30 days to file charge-sheet, on 6 th February 2023.
Similar application was also given by the Investigating Officer
which is said to be through the Special Public Prosecutor and by
order dated 10th February 2023, the said period was extended by
30 days, thereby total extension of 180 days was granted. It has
been informed by the learned APP that the charge-sheet has
been filed on 17th March 2023 and it is within the extended
period.
15. One of the main point on which the appellants are harping
upon, is that they were not got produced by the learned Special
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Judge, when the extension of time to file charge-sheet was
granted on 19th December 2022 as well as on 10 th February 2023
and therefore they want to rely on the decision in Jigar @
Jimmy Pravinchandra Adatiya (supra). Whereas the
prosecution contends that on both the occasions notice was
issued to the accused persons through their Advocate and the
learned Advocate representing them was heard. Here, it is to be
noted that the appellants have not challenged the extension of
time that was granted by order dated 19 th December 2022 by
the learned Special Judge. The impugned order dated 8 th
February 2023 makes a specific mention that notice of report
which was dealt with in order dated 19th December 2022, was
served on the accused persons and the order dated 10 th February
2023 also specifically mentions that the notice was served to the
accused persons through their Advocate. Para No.2 of the order
dated 10th February 2023 passed by the learned Special Judge
gives the objection taken on behalf of the accused. The
prosecution is relying on Qamar Ghani Usmani (supra). Here it
is to be noted that in Qamar Ghani Usmani (supra) there is
reference to the Judgment of Jigar @ Jimmy Pravinchandra
Adatiya (supra). The decisions in Hitendra Vishnu Thakur
and others vs. State of Maharashtra, (1994) 4 SCC 602,
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Sanjay Dutt (supra) and Sayed Mohd. Ahmed Kazmi vs.
State, (2012) 12 SCC 1 were also taken into consideration.
The relevant Paragraphs from Qamar Ghani Usmani (supra)
are reproduced here:
" 6.1 The short question which is posed for the consideration of
this Court is whether in the facts and circumstances of the case,
the appellant shall be entitled to the statutory/default bail under
Section 167(2) of the Cr.PC on the ground that at the time when
the extension of time for completing the investigation was prayed
by the investigating agency and granted by the Trial Court the
accused was not kept present?
6.2. Learned counsel appearing on behalf of the appellant -
accused has heavily relied upon the decisions of this Court in the
cases of Hitendra Vishnu Thakur (supra); Sanjay Dutt (supra);
Sayed Mohd. Ahmed Kazmi (supra) and on the recent decision of
this Court in the case of Jigar (supra).
6.2.1. In the case of Hitendra Vishnu Thakur (supra), this Court
observed and held that when a report is submitted by the Public
Prosecutor to the Designated Court for grant of extension, its
notice should be issued to the accused before granting such an
extension so that the accused may have an opportunity to oppose
the extension on all legitimate and legal grounds available to him.
6.2.2. However, thereafter, the decision of this Court in the case of
Hitendra Vishnu Thakur (supra) fell for consideration before this
Court in the case of Sanjay Dutt (supra) and the view taken by
this Court in the case of Hitendra Vishnu Thakur (supra) as above,
has not been accepted by the Constitution Bench of this Court and
it is observed and held in the case of Sanjay Dutt (supra) that a
notice to the accused is not required to be given by the Designated
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Court before it grants any extension for completing the
investigation. Meaning thereby, the accused is to be kept present
before the Court when it grants any extension for completing the
investigation. The view taken by this Court in the case of Hitendra
Vishnu Thakur (supra) that a notice is to be given to the accused
so that he can oppose the extension has not been accepted by the
Constitution Bench of this Court in the case of Sanjay Dutt
(supra). As such under the Scheme of Cr.P.C. and on the report
submitted by the Investigating Agency, prayer for extension of
time for completing investigation is subject to the satisfaction of
the concerned Court whether to grant further extension or not.
The Court is to be satisfied on the grounds on which the extension
is sought.
6.2.3. Now so far as the reliance placed upon the decision of this
Court in the case of Sayed Mohd. Ahmed Kazmi (supra) by learned
counsel appearing on behalf of the appellant is concerned, at the
outset, it is required to be noted that the said decision shall not be
applicable to the facts of the case on hand. In the case before this
Court, in fact, the extension granted by the learned Chief
Metropolitan Magistrate was challenged on the ground that the
learned Chief Metropolitan Magistrate had no competence to
extend the judicial custody of the accused. The learned Additional
Sessions Judge accepted the same. However, thereafter, a fresh
extension was sought which was beyond the period prescribed
under Section 167 of the Cr.PC and therefore, this Court observed
and held that extension for period of investigation from
retrospective effect shall not be permissible.
6.3 Similarly, even the decision of this Court in the case of
Rambeer Shokeen (supra) relied upon by learned Solicitor General
shall also not be applicable to the facts of the case on hand. In the
case of Rambeer Shokeen (supra) pending application by the
Investigating Agency for extension of time for completing the
investigation, the accused made an application for
cri-appeal-411.23+
statutory/default bail and to that this Court observed and held that
the application filed by the Investigating Agency for extension of
time for completing the investigation which was prayed in time
kept pending ought to be decided first by the Court.
6.4 Thus, sum and substance of law laid-down by this Court
in the cases of Sanjay Dutt (supra) and Jigar (supra) are
that while considering the application by the Investigating
Agency for extension of time for completing the
investigation beyond the period prescribed under Section
167(2) of the Cr.PC the accused is to be given notice and/or
is to be kept present before the Court, so that, the accused
had knowledge that the extension is sought and granted."
(emphasis supplied)
16. In Qamar Ghani Usmani (supra), the Hon'ble Supreme
Court, in Para No.6.4 above, has explained the law laid down in
Sanjay Dutt (supra) as well as Jigar @ Jimmy Pravinchandra
Adatiya (supra) and the purpose, for insisting upon notice or to
keep the accused present, has been stated that the accused
should get the knowledge regarding extension sought and
granted. Therefore, in view of the point of law explained as
above, we do not find any substance in the point raised now by
the appellants that the extension of time is illegal as they were
not got produced by the Special Judge. Notice was given
regarding the reports / applications and the learned Advocate
representing the appellants had opposed the same. Here it is to
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be noted that after the extension was granted by order dated
19th December 2022, the application under Section 167(2) of the
Code of Criminal Procedure was filed by the appellants on 4 th
January 2023 and as aforesaid, the said order dated 19 th
December 2022 was not challenged immediately. Even in the
present Appeals, when those were filed on 8 th March 2023, there
was no such prayer challenging the extension order dated 19 th
December 2022 but the prayer clause came to be amended in
view of the leave granted by this Court as per order dated 21 st
June 2023 and therefore, the said application filed on 4 th January
2023 under Section 167(2) of the Code of Criminal Procedure
was premature. The said application came to be decided on 8 th
February 2023. The further extension of time to file charge-sheet
was sought by application / report dated 6 th February 2023,
which came to be granted on 10th February 2023. When leave to
amend was granted, it can be seen that the said amendment is
not happily worded. There is no specific challenge to the order
dated 10th February 2023 thereby granting extension to file
charge-sheet by 30 days and now the charge-sheet has been
filed within the prescribed / extended period. Therefore, it
cannot be said that an indefeasible right under Section 167(2) of
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the Code of Criminal Procedure accrued to the appellants at any
point of time.
17. The decision in Bikramjit Singh vs. the State of Punjab
(supra) is definitely binding on this Court. The right that will
accrue to the accused persons if the schedule is not followed by
the investigating agency, would definitely related to the
fundamental right granted to the accused persons. However, to
approve the said right those conditions will have to be fulfilled.
The circumstances stated or grounds raised in the application by
the appellants are not sufficient to hold that the investigating
agency has failed in filing the charge-sheet within the stipulated
period. The extension was sought well within time and
opportunity was given to the accused persons to defend.
18. Another ground on which the appellants are harping upon
is that the the report of the Special Public Prosecutor seeking
extension of time to file charge-sheet, is nothing but copy-paste
of the report by the Investigating Officer and it does not reflect
the application of mind. Here, we would like to say that if the
report of the Investigating Officer is in detail covering every
aspects, then its reproduction by the Special Public Prosecutor
cannot be taken as copy-paste and non-application of mind. The
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report covers as to what progress has been made in the
investigation and what investigation still remains. Therefore, we
do not find any substance in this point also.
19. As regards impugned order dated 8 th February 2023 is
concerned, it is to be noted that the application under Section
167(2) of the Code of Criminal Procedure contain such grounds
that the extension has been illegally given and the points raised
by the accused are not considered etc. In fact those points could
not have been agitated before the same Judge who had granted
the extension of time. He could not have sat as an appellate
Court on his own order and therefore, immediate challenge to
that order granting extension of time to file charge-sheet, dated
19th December 2022 was necessary for the appellants but they
kept quiet. In Qamar Ghani Usmani (supra) two extensions
granted by the Special Court were not challenged and at the
time when the default bail application was made, there was
already an extension and even thereafter also there was second
extension. Of course in that case it was in presence of the
accused and under those set of facts, the Hon'ble Supreme Court
rejected the contentions of the accused therein and held that the
accused was not entitled to be released on statutory / default
bail. Here in the present case also there is similar situation. As
cri-appeal-411.23+
aforesaid, though the challenge to extension order dated 19 th
December 2022 is made, it was after the leave that was granted
by this Court by order dated 21st June 2023. But still there is no
challenge to the extension order dated 10 th February 2023.
Hence we arrive at a conclusion that the impugned orders dated
8th February 2023 as well as dated 19 th December 2022 do not
suffer from any illegality. No statutory or indefeasible right arose
in favour of the appellants - accused under Section 167(2) of the
Code of Criminal Procedure. There is no merit in the present
Appeals and the same deserve to be dismissed.
20. All the Appeals are dismissed.
[ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/SEP23
