[Cites 14, Cited by 0]
Gauhati High Court
Page No.# 1/13 vs The State Of Assam on 13 February, 2026
Page No.# 1/13
GAHC010028112026
2026:GAU-AS:2125
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./430/2026
MALABYA BORAH ALIAS MAINA
S.O LATE GIRISH BORAH,
RESIDENT OF SAIKHOWA KHUTIPATHER,
PS SAIKHOWAGHAT, DIST TINSUKIA, ASSAM
2: PANKAJ KUMAR SHARMA @ PANKAJ SHARMA
S/O SRI ANANDA SHARMA
RESIDENT OF HIJUGURI
MAHADEV ROAD
WARD NO. 10
TINSUKIA
PS TINSUKIA
DIST TINSUKIA
ASSA
VERSUS
THE STATE OF ASSAM
REP BY PP ASSAM
Advocate for the Petitioner : MR. N HASAN, MR SUBHRAJIT SAIKIA,MR. I K
BURAGOHAIN,MR. A HASAN
Advocate for the Respondent : PP, ASSAM,
Page No.# 2/13
BEFORE
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
ORDER
Date : 13-02-2026
Heard Mr. N. Hasan, learned counsel appearing for the accused applicant
and Mr. K. K. Parasar, learned Additional Public Prosecutor for the State.
2. This is an application under Section 483 of the BNSS, 2023 read with
Section 187 of the BNSS, praying for grant of regular bail/default bail to the
accused applicants, who have been arrested on 22.10.2025 and 23.10.2025
respectively, in connection with Kakopathar P.S. Case No. 50/2025 under
Sections 109/113/118/152/61(2)(a)/147 of the BNS, 2023 read with Sections
3/4/5 of the Explosive Substances Act, 1908 along with Sections 10/13/16/18 of
the Unlawful Activities (Prevention) Act, 1967 (Amended 2012) and Sections
25(1-A)/27 of the Arms Act.
3. The case of the accused applicants, inter alia, is that on 18.10.2025, the
complainant, S.I. Pranab Jyoti Sonowal of Kakopathar Police Station, lodged an
FIR before the said Police Station alleging that an information was received via
mobile phone from NK/499 Nandeshwar Sahu that a firing incident had taken
place at the Army Camp, Kakopathar CoB, 19th Grenadiers, Chelenguri,
Kakopathar. It was stated that the complainant was on night patrolling duty at
the time of the incident and upon receiving the information, he along with the
police party proceeded towards the Army Camp. Upon arrival, it was learnt that
at about 00:27 A.M., one unknown truck, which was later recovered at
Tengapani Ghat, had suddenly stopped in front of the Army Camp and
unidentified persons threw/fired/launched explosive substances towards the
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Camp, followed by indiscriminate firing by suspected extremists with the
intention to cause damage to the lives of army personnel stationed at the Camp,
to damage government property, to create terror in the area and among the
public and to demoralize the security forces. It was further alleged that the
suspected banned organization ULFA (I) was behind the attack and had hatched
a criminal conspiracy and planned the attack on the Army Camp. On visiting the
place of occurrence, splinters of explosive substances were found lying at the
Army Camp along with marks of a recent explosion and damage to the Camp.
4. On receipt of the FIR, the police registered Kakopathar P.S. Case No.
50/2025 under the aforementioned sections.
5. It is stated that accused applicant No. 1 was arrested on 21.10.2025 and
produced before the Court of the learned Chief Judicial Magistrate, Tinsukia on
22.10.2025. Accused applicant No. 2 was arrested on 22.10.2025 and produced
before the same Court on 23.10.2025. Since then, both accused applicants have
been in judicial custody. It is further stated that accused applicant No. 1 filed a
bail application before the learned Special Judge, Tinsukia on 21.01.2026
seeking default bail; however, the same was rejected by order dated
21.01.2026. Similarly, accused applicant No. 2 filed a bail application before the
learned Special Judge, Tinsukia on 22.01.2026 seeking default bail, which was
also rejected by order dated 22.01.2026.
6. It is stated that the Investigating Officer (hereinafter referred to as the
I.O.) submitted a petition before the learned Special Judge, Tinsukia on
16.01.2026 seeking extension of time for completion of investigation through
the P.I. Court, Tinsukia. Again, on 21.01.2026, the same I.O. filed another
petition seeking extension of time for completion of investigation through the
P.I. Court, Tinsukia. The learned Special Judge, Tinsukia, vide two orders dated
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21.01.2026 and 22.01.2026 respectively, allowed the prayer of the I.O. and
extended the time for completion of investigation by one month, i.e., till
21.02.2026.
7. It is the case of the accused applicants that the aforesaid petitions filed by
the I.O. seeking extension of time were not endorsed by the learned Public
Prosecutor nor any report indicating the progress of the investigation and the
specific reasons for detaining the accused applicants beyond the period of 90
days were furnished by the learned Public Prosecutor. It is contended that
Section 43D(2)(b) of the Unlawful Activities (Prevention) Act, 1967 (hereinafter
referred to as ULA(P) Act) mandates that if it is not possible to complete the
investigation within 90 days, the Court may extend the said period up to 180
days only if it is satisfied with a 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.
8. It is stated that accused applicant No. 1, having been produced before the
learned Court on 22.10.2025, completed 90 days in custody on 19.01.2026;
therefore, his right to default bail accrued on and from 20.01.2026 in the
absence of a charge-sheet or valid extension of time for completion of
investigation. Similarly, accused applicant No. 2, having been produced on
23.10.2025, completed 90 days in custody on 20.01.2026; therefore, his right to
default bail accrued on and from 21.01.2026 in the absence of a charge-sheet
or valid extension of time.
9. Mr. N. Hasan, learned counsel for the accused applicants, submits that the
rejection of default bails by the learned Special Judge, Tinsukia, vide orders
dated 21.01.2026 and 22.01.2026, are illegal, as at that point of time, neither
there had any charge-sheet been filed nor were there valid reasons for
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extension of time. He submits that the petitions filed by the I.O. on 16.01.2026
and 21.01.2026 were not endorsed by the Public Prosecutor and no
independent report indicating the progress of investigation and specific reasons
for continued detention beyond 90 days were furnished. Therefore, the
extension of time granted on 21.01.2026 and 22.01.2026 are invalid in the eyes
of law and cannot defeat the indefeasible right to default bails. He further
submits that the Public Prosecutor merely pressed the petitions submitted by
the I.O., which is impermissible under law, resulting in non-compliance with
Section 43D(2)(b) of the ULA(P) Act. Consequently, the said orders are vitiated
and liable to be treated as non est in the eyes of law.
10. In support of his submissions, learned counsel has relied upon the decision
in Hitendra Vishnu Thakur v. State of Maharashtra , reported in (1994) 4 SCC
602, wherein the Hon'ble Supreme Court has held that the Public Prosecutor is
required to independently apply his mind to the request of the investigating
agency before submitting a report to the Court seeking extension of time.
11. On the other hand, Mr. K. K. Parasar, learned Additional Public Prosecutor
for the State, submits that the Public Prosecutor did endorse the petition and
the reasons given therein for extension of time and that the provisions of
Section 43D(2)(b) of the ULA(P) Act were duly complied with. Accordingly, the
learned Special Judge, Tinsukia rightly extended the time for completion of
investigation. He, therefore, submits that default bails should not be granted, at
this stage, to the accused applicants in view of the extensions granted.
12. This Court has considered the submissions made by the learned counsel for
the respective parties and has carefully perused the materials available on
record.
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13. It is a settled position of law that the investigating agency must complete
the investigation within the prescribed period of 60 or 90 days, as mandated.
Upon expiry of the said period, if no charge-sheet or final report is filed, the
accused acquires an indefeasible right to be released on default bail. In the
present case, the period of 90 days expired on 19.01.2026 in respect of accused
applicant No. 1 and on 21.01.2026 in respect of accused applicant No. 2. The
petitions seeking extension of time were filed on 16.01.2026 and 21.01.2026
directly by the I.O. before the learned Special Judge, Tinsukia and no
independent report or endorsement of the Public Prosecutor is evident from the
petitions filed by the I.O. and the orders passed by the learned Special Judge,
Tinsukia.
14. In view of the factual matrix and the rival submissions, it is necessary to
examine the provisions of Section 43D(2)(b) of the ULA(P) Act. For ready
reference, the same is extracted below:
"43D. 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 I
nvestigation 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:
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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."
15. A plain reading of the aforesaid provisions makes it clear that if
investigation cannot be completed within 90 days, the Public Prosecutor must
submit a report to the Court indicating the progress of the investigation and the
specific reasons for detaining the accused beyond the said period of 90 days.
Upon receipt of such report, if the Court is satisfied, it may extend the period up
to 180 days.
16. In the present case, no independent report of the Public Prosecutor forms
part of the petitions filed by the I.O. on 16.01.2026 and 21.01.2026
respectively. The petitions were filed directly by the I.O. before the learned
Special Judge, Tinsukia and were considered while passing the orders dated
21.01.2026 and 22.01.2026 respectively extending the period for completion of
investigation. In this context, the relevant paragraph from Hitendra Vishnu
Thakur (supra) is extracted below:
"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
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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
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 unreasonably and to grant
extension only on the report of the public prosecutor. The report of the public
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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 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 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
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'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 falls 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 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."
17. From the aforesaid judgment of the Hon'ble Supreme Court, it is apparent
that the report of the Public Prosecutor, submitted after due scrutiny of the
petition filed by the Investigating Officer, has been accorded utmost importance.
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It is evident that the Public Prosecutor has the discretion either to agree or to
disagree with the reasons furnished by the Investigating Officer for seeking
extension of time. The reasons assigned by the Investigating Officer for
extension of time cannot be substituted for the independent report of the Public
Prosecutor as contemplated under Section 43D(2)(b) of the ULA(P) Act.
18. In the aforesaid case, the Hon'ble Supreme Court has clearly held that the
Public Prosecutor is an important officer of the State Government, appointed
under the Code of Criminal Procedure. He is not a part of the investigating
agency but an independent statutory authority. Therefore, the Public Prosecutor
is expected to independently apply his mind to the request of the investigating
agency before submitting a report to the Court seeking extension of time to
enable completion of the investigation. He is not merely a post office or a
forwarding agency. A Public Prosecutor may or may not agree with the reasons
provided by the Investigating Officer for seeking an extension of time.
Therefore, unless the Public Prosecutor independently applies his mind and
submits a separate report reflecting satisfaction regarding the progress of the
investigation and the necessity for extension, a petition merely filed before the
concerned Court seeking extension of time for completion of investigation
cannot be termed as one made under Section 43D(2)(b) of the ULA(P) Act. In
the instant case, as is evident from the petitions filed by the Investigating
Officer as well as from the orders passed by the learned Special Judge,
Tinsukia, no such independent application of mind by the Public Prosecutor is
discernible.
19. It is also necessary to consider the issue of grant of default bail. In Union
of India v. Nirala Yadav, reported in (2014) 9 SCC 457, the Hon'ble Supreme
Court has held that upon expiry of the prescribed period of 60 or 90 days, as
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the case may be, an indefeasible right accrues in favour of the accused to be
released on bail on account of the default of the investigating agency in
completing the investigation within the mandatory period. Therefore, the
accused is entitled to be released on bail once such right accrues.
20. In the present case, the learned Special Judge, Tinsukia rejected the bail
applications of accused applicant No. 1 and accused applicant No. 2 vide orders
dated 21.01.2026 and 22.01.2026, respectively, solely on the ground that the
I.O. had filed petitions seeking extension of time before expiry of the statutory
period of detention. However, as already discussed, the principles laid down by
the Hon'ble Apex Court in Hitendra Vishnu Thakur (supra) clearly mandates
that unless the Public Prosecutor independently applies his mind and submits a
separate report indicating satisfaction regarding the progress of investigation
and the necessity for extension, a petition filed by the Investigating Officer
alone cannot be treated as one under Section 43D(2)(b) of the ULA(P) Act.
Therefore, in the instant case, the petitions having been filed directly by the I.O.
before the learned Special Judge, Tinsukia, without the endorsement or
independent report of the Public Prosecutor, are liable to be declared invalid.
Moreover, as the investigation was not completed within the statutory period of
90 days when accused applicant No. 1 and accused applicant No. 2 filed their
bail applications, they were entitled to be granted default bails, as no charge-
sheet had been filed by the Investigating Officer at the relevant point of time.
21. In view of the above discussions, this Court is of the considered opinion
that the accused applicants should be granted default bail and therefore, it is
directed that the accused applicants shall be released on bail forthwith upon
furnishing a bail bond of Rs.1,00,000/- (Rupees One Lakh) each with 2 sureties
of like amount to the satisfaction of the learned Special Judge, Tinsukia, Assam
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subject to the following conditions:
i. that the accused applicants shall cooperate with the
investigation;
ii. that the accused applicants shall appear before the
investigating authority as and when required;
iii. that the accused applicants shall not directly or
indirectly make any inducement, threat or promise to
any person, who may be acquainted with the facts of the
case, so as to dissuade such person from disposing such
facts before the investigating authority against the
accused applicants;
22. In view of the aforesaid directions, the instant bail application is,
accordingly, disposed of as allowed.
JUDGE
Comparing Assistant
