Sasti Laskar vs The State Of Assam And Anr
2023 Latest Caselaw 4717 Gua

Gauhati High Court

Sasti Laskar vs The State Of Assam And Anr on 24 November, 2023

                                                                 Page No.# 1/10

GAHC010223552023




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.Rev.P./446/2023

            SASTI LASKAR
            S/O CHAN KUMAR LASKAR
            VILL- NO. 2 BARJHAR
            P.O. BARJHAR BAZAR
            P.S. DALGAON
            DIST. DARRANG, ASSAM



            VERSUS

            THE STATE OF ASSAM AND ANR
            REP. BY THE PP, GOVT. OF ASSAM

            2:KANAK DAS
             S/O MANIK DAS
            VILL- NO. 1 HATIGARH
            P.S. KACHUGAON
            DIST. KOKRAJHAR
            ASSA

Advocate for the Petitioner   : MR. R P HAZARIKA

Advocate for the Respondent : PP, ASSAM
                                                                       Page No.# 2/10


                                 BEFORE
               HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                      ORDER

Date : 24.11.2023

1. Heard Mr. R. P. Hazarika, learned counsel for the petitioner. Also heard Ms. S Bora learned Additional Public Prosecutor, appearing for the State of Assam who has produced the case diary of Kachugaon P. S. Case number 18/2023.

2. This application under Section 397/401 read with section 482 of the Code of Criminal Procedure, 1973 has been filed by the petitioner, namely, Sasti Laskar, impugning the order dated 22.08.2023, passed by learned Special Judge, Kokrajhar in connection with of Kachugaon P. S. Case number 18/2023.

3. By the impugned order dated 22.08.2023, learned Special Judge, Kokrajhar has extended the period of detention of the petitioner by another 90 days on the prayer of the Investigating Officer of the of Kachugaon P. S. Case number 18/2023.

4. It is pertinent to mention herein that the present petitioner was initially arrested on 07.04.2023 in connection with Rowta P. S. Case number 75/2023, which was registered under Sections 447/307/427/384 of the Indian Penal Code Read with some other provisions of Explosive Substance Act and Unlawful Activities (Prevention) Act, 1967.

5. However, he was later on shown arrested in the Kachugaon P. S. Case number 18/2023 on the strength of prayer made by the Investigating Officer of the said case on 09.06.2023. Thereafter, on 21.08.2023, the Investigating Officer of Kachugaon P. S. Case number 18/2023 filed an application under Section 43D of the Unlawful Activities (Prevention) Act, praying for further Page No.# 3/10

extension of the period of detention of the present petitioner for another period of 90 days and by impugned order dated 22.08.2023, learned Special Judge Kokrajhar, after hearing the learned counsel for the petitioner as well as learned Public Prosecutor, extended the period of detention for another period of 90 days.

6. For the sake of convenience the impugned order dated 22.08.2023 passed by learned Special Judge, Kokrajhar is quoted herein below:

"Learned counsels for the ball petitioners for accused Sasti Laskar and Hiteswar Barman are present.

C.D. as called for has been received.

Heard learned Counsels for the bail petitioners and learned P.P.

Seen the prayer of I/O through learned P.P., for extension of detention period of 90 days of accused persons namely Nibash Barman, Ajit Namo Das, Sasti Laskar, Santanu Mohan Ray, Narayan Barman and Manudhar Bardhan, on the ground that accused persons are cadre of KLO and they were in touch with perpetrators outside India and are likely to escape India. It is highly unlikely that they will cooperate in trial if they are released on ball.

Perused the C.D. Considering the serious nature of the offence, prayer of I/O for extension of detention period of above named accused persons beyond 90 days is allowed. Hence, the bail petitions for accused Sasti Laskar and Hiteswar Barman are rejected.

Also seen the prayer of I/O. for extending the statutory period of detention beyond 90 days for accused Uttam Ray, Krishna Kanta Ray, Mithun Ray and Bipul Ray. Upon perusal of record, it appears that all he aforesaid four accused persons had already completed statutory detention period of 90 days and accordingly, they were Page No.# 4/10

also granted bail by this Court. Hence, the prayer of the I.O. is rejected.

Let the C.D. be sent back."

7. Mr. R. P. Hazarika, learned counsel for the petitioner has submitted that the period of detention of the present petitioner was extended by the learned Special Judge, Kokrajhar, without there being any report from the Public Prosecutor as required under law, merely on the prayer made by the Investigating Officer.

8. It is also submitted by learned counsel for the petitioner that on the day when the said prayer was made, the petitioner was not produced before learned Special Judge and only his counsel was present when he was moving a bail application for the petitioner, which was rejected.

9. Learned counsel for the petitioner has cited a ruling of Hon'ble Apex Court in Hitendra, Vishnu Thakur and Others Vs State of Maharashtra and Another reported in (1994) 4 SCC 602, wherein Hon'ble Apex Court observed as follows:

"23. We may at this stage, also on a plain reading of clause (bb) of sub-section (4) of Section 20, point out that 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 Page No.# 5/10

the investigation and furnish reasons for seeking further custody of an accused. A public prosecutor is an important officer of the State 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 a 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 under clause (bb) to seek extension of time. Thus, for seeking extension of time under clause (bb), 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. The public prosecutor may attach the request of the investigating officer along with his request or application and report, but his report, as envisaged under clause (bb), must disclose on the face of it that he has applied his mind and was satisfied with the progress of the investigation and considered grant of further time to complete the investigation necessary. The use of the expression "on 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" as occurring in clause (bb) in sub-section (2) of Section 167 as amended by Section 20(4) are important and indicative of the legislative intent not to keep an accused in custody Page No.# 6/10

unreasonably and to grant extension only on the report of the public prosecutor. 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 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. We are unable to agree with Mr Madhava Reddy or the Additional Solicitor General Mr Tulsi that even if the 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 the public prosecutor. There is no scope for such a Page No.# 7/10

construction when we are dealing with the liberty of a citizen. The courts are expected to zealously safeguard his liberty. Clause (bb) has to be read and interpreted on its plain language without addition 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 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 Page No.# 8/10

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."

10. On the other hand, learned Additional Public Prosecutor has submitted that though no report was filed by the learned Public Prosecutor, however, the prayer of the Investigating Officer was made through the learned Public Prosecutor and the application dated 21.08.2023, filed by the Investigating Officer for extension of the period of detention was routed through learned Public Prosecutor.

11. However, it is also submitted that there is no indication in the impugned order as to whether on the date when the impugned order was passed, the petitioner was produced before the learned Special Judge, Kokrajhar from the jail hajot, or any notice was issued to him to that effect.

12. I have considered the submissions made by learned counsel for both the sides and have perused the materials on record, including the case Diary of Kachugaon P. S. Case number 18/2023. I have also considered the ruling of the Apex Court cited by learned counsel for the petitioner in Hitendra Vishnu Thakur (Supra).

13. Apart from what has been stated by Hon'ble Apex Court in the judgment cited by the learned counsel for the petitioner, the Hon'ble Apex Court in Sanjay Kumar Kedia Vs. Intelligence Officer Kumar, NCB and Another reported in (2009) 17 SCC 631 has held that before a prayer for extension of detention period is considered following are to be considered i. a report from Public Prosecutor;

Page No.# 9/10

ii. which indicates the progress of investigation; iii. which specifies compelling reasons for seeking the detention of accused beyond the statutory period of detention; iv. after the notice of the prayer for extension of detention has been given to the accused person.

14. In the instant case, it is apparent from the materials on record that accused was not produced before the learned Special Judge Kokrajhar, on the date when the prayer for extension was made by the investigating officer and no notice of the same was given to the accused person, neither the report of the Public Prosecutor, as required under law, was there before the learned Special Judge, Kokrajhar at the time of consideration of the prayer for extension of detention period.

15. It has been held that the production of accused before the court at the time of extension of detention period and consideration of report of the Public Prosecutor before such prayer is considered is not an empty formality and the same is the mandate of the law and in the instant case, the learned Magistrate passed the extension order merely on the basis of an application filed by the Investigating Officer through the Public Prosecutor, Kokrajhar without any independent report from the learned Public Prosecutor.

16. Hence, this court is of considered opinion that the impugned order dated 22.08.2023 passed by learned Special Judge, Kokrajhar in Kachugaon P. S. Case number 18/2023 fails to withstand the legal scrutiny and therefore, this court is inclined to set aside the same and accordingly, the impugned order is hereby set aside and this revision petition is hereby allowed.

Page No.# 10/10

17. With above observations, this criminal revision petition stands disposed of.

JUDGE

Comparing Assistant