Karnataka High Court

Sunil S/O Mallikarjun Murkibhavi vs The State Of Karnataka on 22 January, 2021

Author: K.Natarajan

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

     DATED THIS THE 22ND DAY OF JANUARY, 2021

                         BEFORE

        THE HON'BLE MR.JUSTICE K. NATARAJAN

           CRIMINAL APPEAL NO.100329/2020
                             C/W.
           CRIMINAL APPEAL NO.100327/2020

IN CRL.A NO 100329 OF 2020

BETWEEN:

1.   GANGYA @ GANGADHAR
     S/O. SANTRAM SHINDE, AGE. 26 YEARS,
     R/O. MARATHA GALLI, GOKAK,
     TQ. GOKAK, DIST. BELAGAVI 590 001.

2.   VINAYAK S/O. BASAVARAJ HADIGINAL
     AGE. 22 YEARS,
     R/O. MOKASHI GALLI, GOKAK,
     TQ. GOKAK, DIST. BELAGAVI 590 001.

3.   VITTAL S/O. PARASHURAM PAWAR
     AGE. 23 YEARS,
     R/O. MOKASHI GALLI, GOKAK,
     TQ. GOKAK, DIST. BELAGAVI 590 001.

4.   VINOD S/O. CHANDRU HOSAMANI
     AGE. 22 YEARS,
     R/O. SOMAWARPET, GOKAK,
     TQ. GOKAK, DIST. BELAGAVI 590 001.
                                2




5.     KIRAN S/O. VIJAY DODDANNAVAR
       AGE. 22 YEARS,
       R/O. AMBIGER GALLI, GOKAK,
       TQ. GOKAK, DIST. BELAGAVI 590 001.

6.     RAVI S/O. BHIMASHI CHUNNAVAR
       AGE. 22 YEARS,
       R/O. SIDDESHWAR NAGAR, GOKAK,
       TQ. GOKAK, DIST. BELAGAVI 590 001.

7.     KEDARI BASAVANNI JADHAV
       AGE. 36 YEARS,
       R/O. MARATHA GALLI, GOKAK,
       TQ. GOKAK, DIST. BELAGAVI 590 001.

8.     SANTOSH @ SANTU
       S/O. PANDURANG CHIGADOLLI,
       AGE. 21 YEARS,
       R/O. MARATHA GALLI, GOKAK,
       TQ. GOKAK, DIST. BELAGAVI 590 001.
                                            ...APPELLANTS

(BY SRI. ZAHEERABBAS M. HATTARKI AND SRI. HARSHAWARDHAN
M. PATIL, ADVOCATES)


AND:

THE STATE OF KARNATAKA
BY GOKAK TOWN POLICE STATION,
R/BY THE ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD 580 011.
                                            ...RESPONDENT

(BY SRI. V. M SHEELVANTH, SPP FOR RESPONDENT-STATE;

SRI.AVINASH M. ANGADI, ADVOCATE FOR DE-FACTO COMPLAINANT)

THIS CRIMINAL APPEAL IS FILED U SEC. 12 OF KARNATAKA CONTROL OF ORGANIZED CRIMES ACT, 2000, PRAYING TO QUASH THE ORDER PASSED BY THE PRL. SESSIONS JUDGE (KCOCA SPL.

JUDGE) BELAGAVI IN GOKAK TOWN PS CRIME NO.72/2020 DATED 30/07/2020 VIDE ANNEXURE-B AND THEREBY GRANTING EXTENSION OF TIME IN VIEW OF SECTION 22 OF KARNATAKA CONTROL OF ORGANIZED CRIMES ACT 2000 BE SET ASIDE AND THE APPELLANTS ACCUSED NO.1 TO 7 MAY KINDLY BE ENLARGED ON DEFAULT BAIL U/SEC. 167(2) OF CR.P.C. IN CONNECTION WITH THE GOKAK TOWN PS CRIME NO.72/2020 FOR THE OFFENCES PUNISHABLE U/SEC. 143, 147, 148, 302, 504, 506 R/W SEC. 149 OF IPC AND SEC.3(2) (V) OF SC/ST (PREVENTION OF ATROCITIES) ACT AND SECTION 25(1) A OF ARMS ACT AND SECTION 120B OF IPC AND SECTIONS 3 AND 4 OF THE KARNATAKA CONTROL OF ORGANIZED CRIME ACT 2000.

IN CRL.A.NO.100327/2020

BETWEEN:

SUNIL S/O MALLIKARJUN MURKIBHAVI AGE. 43 YEARS, OCC. BUSINESS, R/O BASAVA NAGAR, GOKAK, TQ. GOKAK, DIST.BELAGAVI 591 307.

...APPELLANT (BY SRI. PATIL M H AND SRI. H. M. PATIL, ADVOCATES)

AND:

THE STATE OF KARNATAKA BY GOKAK TOWN POLICE STATION, R/BY THE ADDL. STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.

...RESPONDENT

(BY SRI. V. M SHEELVANTH, SPP FOR RESPONDENT-STATE;

SRI. AVINASH M. ANGADI, ADVOCATE FOR DE-FACTO COMPLAINANT)

THIS CRIMINAL APPEAL IS FILED U SEC. 12 OF KARNATAKA CONTROL OF ORGANIZED CRIMES ACT, 2000, PRAYING TO QUASH THE ORDER PASSED BY THE PRL. SESSIONS JUDGE (KCOCA SPL.

JUDGE) BELAGAVI IN GOKAK TOWN PS CRIME NO.72/2020 DATED 30/07/2020 VIDE ANNEXURE-B AND THEREBY GRANTING EXTENSION OF TIME IN VIEW OF SECTION 22 OF KARNATAKA CONTROL OF ORGANIZED CRIMES ACT 2000 BE SET ASIDE AND THE APPELLANT ACCUSED NO.8 MAY KINDLY BE ENLARGED ON DEFAULT BAIL U/SEC. 167(2) OF CR.P.C. IN CONNECTION WITH THE GOKAK TOWN PS CRIME NO.72/2020 FOR THE OFFENCES PUNISHABLE U/SEC. 143, 147, 148, 302, 504, 506 R/W SEC. 149 OF IPC AND SEC.3(2) (V) OF SC/ST (PREVENTION OF ATROCITIES) ACT AND SECTION 25(1) A OF ARMS ACT AND SECTION 120B OF IPC AND SECTIONS 3 AND 4 OF THE KARNATAKA CONTROL OF ORGANIZED CRIME ACT 2000.

THESE APPEALS HAVING BEEN HEARD THROUGH PHYSICAL HEARING AND RESERVED FOR JUDGMENT ON 18.01.2021, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT MADE THE FOLLOWING:

COMMON JUDGMENT

Accused Nos. 1 to 7 and 9 have filed Criminal Appeal

No.100329/2020 whereas accused No.8 filed Criminal Appeal

No.100327/2020 under Section 12 of the Karnataka Control of

Organized Crimes Act, 2000 (hereinafter referred to as the KCOCA

Act', for brevity), against the common order passed by the Principal

Sessions Judge (KCOCA Special Judge), Belagavi (hereinafter

referred to as the 'trial Court', for brevity) in Crime No.72/2020

registered by Gokak Town Police Station.

2. Heard the arguments of learned counsel Zaheerabbas

M. Hattarki and Harshwardhan M. Patil, for the appellants and

learned SPP Sri. V. M. Sheelvant for the respondent-State. The

ranks of the parties before the trial Court is retained for brevity.

3. The factual matrix of the case of the prosecution is that,

the Gokak Town Police registered the case in crime No.72/2020

against the accused persons for the offences punishable under

Sections 143, 147, 148, 302, 504, 506, 120(B) R/w. Section 149 of

IPC, Section 3(2) (v) of the SC/ST (Prevention of Atrocities) Act,

Section 25(1)A of Arms Act and Sections 3 and 4 of the KCOCA Act.

The accused persons were arrested by the police and they were

remanded to judicial custody and the police required to file the

charge sheet within 90 days from the date of their arrest. During

the pendency of the investigation, the Investigating Officer (I.O.)

through the public prosecutor moved an application under Section

22 of the KCOCA Act for extension of time by another 90 days for

filing of the charge sheet. Accordingly, the learned trial Judge

allowed the application on 30.07.2020. Subsequently, the accused

persons moved an application under Section 167 (2) of Cr.P.C.

seeking statutory bail for non-filing of the charge sheet within the

prescribed time, which came to be rejected. Being aggrieved by

both the orders, the accused persons 1 to 9 have preferred these

appeals.

4. Learned SPP Sri.V. M. Sheelvant filed detailed

objections.

5. Learned counsel for the appellants/accused contended

that the order passed by the trial Court extending the time for filing

of the charge sheet and rejection of the bail application of the

accused u/s. 167 (2) of Cr.P.C. are against the provisions of law.

Section 22 of the KCOCA Act is synonyms to the section 21 of the

MCOC Act, Section 20 of the TADA Act, Section 36A(4) of the NDPS

Act, Section 43D(2) (b) of the Prevention of Unlawful Activities Act,

1967 and Section 49(2)(b) of POTA Act.

Learned counsel for the appellants further contended that, in

order to extend the time limit for filing of the charge sheet, the

public prosecutor is required to file a detailed report under Section

22 of the KCOCA Act, which is not filed. On the other hand, he has

forwarded the report of the I.O. and based upon the said report of

the I.O. the trial Court extended the time limit which is not correct

and against the judgment of the Hon'le Apex Court in the case of

Hitendra Vishnu Thakur and Ors. Vs. State of Maharashtra

and Ors. reported in (1994) 4 SCC 602. There is no notice

issued to the accused persons prior to extending the time for filing

the charge sheet as held by the Hon'ble Apex Court in the Hitendra

Vishnu's case (supra) and thereby order of the trial Court is sheer

violation of the principles of natural justice.

Learned counsel further contended that the Coordinate Bench

of this Court also observed the same in the case of Sayeed Majid

Ahamed Vs. State of Karnataka passed Criminal Petition

No.4398/2020 and connected matter. In a similar case the Hon'ble

Apex Court set aside the order of the Bombay High Court, Bench at

Aurangabad and directed the District Judge to dispose the matter

on merits. Even while rejecting the application under Section

167(2) of Cr.P.C., has observed, the report of the prosecutor is

essential, but the public prosecutor has not filed any independent

report and therefore the order of the trial Court is nonest of law.

Hence prayed for setting aside the same and consequently, for

granting bail to the accused persons u/s. 167(2) of Cr.P.C. by

allowing this appeal.

6. The learned SPP by filing objection contended that the

judgment relied upon by the counsel for the accused is not

applicable to the fact and circumstances of this case and he would

further contended that in Hitendra Vishnu's case and other

matters, the period of 90 days was already lapsed. The right of

accused for getting bail under Section 167(2) Cr.P.C. was accrued

but the trial Court has not given any opportunity to the accused by

issuing notice before extending the time. But here in this case, the

charge sheet is required to be filed by the I.O. on the 90th day,

which is falls on 06.08.2020, but the I.O. submitted report on

30.07.2020, which is 83rd day of the arrest and the trial Court

extended the time for another 90 days as per Section 22 of the

KCOCA Act and the right for the accused was not at all accrued for

getting default bail under section 167 (2) of Cr.P.C. Therefore,

there is no necessity for the Court to issue notice to the accused

persons before extending 90 days for filing the charge sheet.

Learned SPP further contended that, as per Section 22 of the

KCOCA Act, it is mandatory to extend time for 90 days by the

Special Court when a report is filed by the Public Prosecutor. Of

course the trial Court considered the application filed by the Public

Prosecutor which is annexed with the report of the I.O. and

considering the entire request made by the Public Prosecutor, the

trial Court extended the time for another 90 days for filing the

charge sheet. Even on the next date of hearing, when case was

called on 06.08.2020, the accused persons not moved any

application before the trial Court even though 90 days expires on

06.08.2020. But the application is filed by the accused persons

only on 12.10.2020 i.e., just seven days prior to the filing of the

charge sheet. The trial Court considered the entire materials

placed on record and after satisfaction, extended the time and as

per the Section 22 of the KCOCA Act it is mandatory or compulsory

to extend the time by the trial Court. Further he contended that

the charge sheet is filed within 180 days and therefore, the

question of granting default bail to the accused does not arise.

The learned SPP would further contend that the Public

Prosecutor is not supposed to invent the facts and not to present

something new, but in this case, he has filed an application with the

report of the I.O. and nothing is required to be attached with the

report of the I.O. Therefore, the application of the Public

Prosecutor itself is construed as a report. Therefore, the question

of challenging the order of the trial Court would not arise. Hence

prayed for dismissing the appeals.

7. Having heard the arguments of learned counsel for the

appellants as well as the learned SPP, the points that arise for my

consideration are:

i. Whether the trial Court is justified in extending another 90 days for filing the charge sheet u/s. 22 of the KCOCA Act?

ii. Whether the appellants/accused are entitled for default bail u/s. 167(2) of Cr.P.C?

8. On perusal of the records, the Gokak Town Police

registered a case against accused persons for various offences in

IPC and invoked Sections 3 and 4 of KCOCA Act. The accused

persons were arrested by the police on various dates and charge

sheet is required to be filed by the I.O. within the dates as

mentioned below:

   Accused No.            Date of Arrest      Charge sheet to be
                                               filed or on before

Accused Nos. 1 to 3         08.05.2020             06.08.2020

Accused Nos. 4 to 6         11.05.2020             09.08.2020

    Accused No.7            12.05.2020             10.08.2020

    Accused No.9            18.05.2020             16.08.2020

9. The I.O. invoked Section 120B of IPC and Sections 3

and 4 of KCOCA Act on 21.07.2020. During the investigation, prior

to 06.08.2020, the Public Prosecutor by filing an application on

29.07.2020, along with the report of the I.O. seeking extension of

another 90 days time for filing the charge sheet. The trial Court by

considering the application filed by the Public Prosecutor allowed

the application by extending another 90 days as per proviso to

Section 22(b) of the KCOCA Act on 30.07.2020. Admittedly, the

said order of extension has not been challenged by the appellants

within 30 days from the date of the order as per Section 12 (2) of

the KCOCA Act. However, after extending the time for filing the

charge sheet by the police, which expired on 19.10.2020, and just

7 days prior to that, the accused filed an application under Section

167 (2) Cr.P.C. for granting default bail, which came to be rejected

vide order dated 19.10.2020. The appellants/accused challenged

both the orders together by filing the single appeal before this

Court.

10. Section 22 (b) of the KCOCA Act provides for extending

90 days time in addition to the 90 days prescribed under the 167(2)

Cr.P.C. which is as under:

"22. Modified application of certain provisions of the Code. -

(1) Notwithstanding anything contained in the Code or in any other law, every offence punishable under this Act, shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code and "Cognizable case" as defined in that clause shall be constructed accordingly.

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

(a) The references to "fifteen days" and "Sixty days" wherever they occur, shall be constructed as references to "Thirty days" and "ninety days" respectively;

(b) After the proviso, the following proviso shall be inserted namely:-

"Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Special Court shall extend the said period up to one hundred and eighty days 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 of ninety days.

xxxxxxxx"

11. Admittedly, the alleged offences are punishable with

imprisonment for death or imprisonment for life. The investigation

officer is required to file final report within 90 days as per Section

167 of Cr.P.C. As per Section 22 (b) of the KCOCA Act, which

extends another 90 days on the report filed by the Public Prosecutor

and on bare reading of the proviso, it defines that the Special Court

shall extend the said period up to 180 days on the report of the

Public Prosecutor indicating the progress of the investigation and

specific reasons for the detention of the accused beyond 90 days.

Of course the trial Court in its order dated 30.7.2020 not

elaborately dealt with the application but it is stated, perused the

application of the PP and heard the arguments of learned PP and by

referring to Section 22 of the KCOCA Act, extended another 90 days

to complete the investigation. However, no notice has been issued

to the accused while extending further 90 days for filing charge

sheet.

12. The Hon'ble Supreme Court in the case of Hitendra

Vishnu's case (supra) at para 20 while considering the TADA Act

which is synonyms to the Section 22 of the KCOCA Act, has held as

under:

"20. Thus, we find that once the period for film,- the charge-

sheet has expired and either no extension under clause (bb) has been granted by the Designated Court or the period of extension has also expired, the accused person would be entitled to move an application for being admitted to bail under sub-section (4) of Section 20 TADA read with Section 167 of the Code and the Designated Court shall release him on bail, if the accused seeks to be so released and furnishes the requisite bail. We are not impressed with the argument of the learned counsel for the appellant that on the expiry of the period during which investigation is required to be completed under Section 20(4) TADA read with Section 167 of the Code, the court must release the accused on bail on its own motion even without any application from an accused person on his offering to furnish bail. In our opinion an accused is required to make an application if lie wishes to be

released on bail on account of the 'default' of the investigating prosecuting agency and once such an application is made, the court should issue a notice to the public prosecutor who may either show that the prosecution has obtained the order for extension for completion of investigation from the court under clause (bb) or that the challan has been filed in the Designated Court before the expiry of the prescribed period or even that the prescribed period has actually not expired and thus resist the grant of bail on the alleged ground of 'default'. The issuance of notice would avoid the possibility of an accused obtaining an order of bail under the 'default' clause by either deliberately or inadvertently concealing certain facts and would avoid multiplicity of proceedings. It would, therefore, serve the ends of justice if both sides are heard on a petition for grant of bail on account of the prosecution's 'default'. Similarly, when a report is submitted by the public prosecutor to the Designated Court for grant of extension under clause (bb), its notice should be issued to the accused before granting such an extension so that an accused may have an opportunity to oppose the extension on all legitimate and legal grounds available to him. It is true that neither clause

(b) nor clause (bb) of sub-section (4) of Section 20 TADA specifically provide for the issuance of such a notice but in our opinion the issuance of such a notice must be read into these provisions both in the interest of the accused and the prosecution as well as for doing complete justice between the parties. This is a requirement of the principles of natural justice and the issuance of notice to the accused or the

public prosecutor, as the case may be, would accord with fair play in action, which the courts have always encouraged and even insisted upon. It would also strike a just balance between the interest of the liberty of an accused on the one hand and the society at large through the prosecuting agency on the other hand. There is no prohibition to the issuance of such a notice to the accused or the public prosecutor in the scheme of the Act and no prejudice whatsoever can be caused by the issuance of such a notice to any party. We must as already noticed reiterate that the objection to the grant of bail to an accused on account of the 'default' of the prosecution to complete the investigation and file the challan within the maximum period prescribed under clause(b) of sub-section (4) of Section 20 TADA or within the extended period as envisaged by clause (bb) has to be limited to cases where either the factual basis for invoking the 'default' clause is not available or the period for completion of investigation has been extended under clause (bb) and the like. No other condition like the gravity of the case, seriousness of the offence or character of the offender etc. can weigh with the court at that stage to refuse the grant of bail to an accused under sub-section (4) of Section 20 TADA on account of the 'default' of the prosecution."

13. The Coordinate bench of this court in a similar case in

Crl.P.No.4398/2020 C/w. Crl.P.No. 4322/2020 in the case of

Sayeed Mahzid Ahmed Vs. State of Karnataka and Ramesh

Kumar Vs. State of Karnataka in respect of the NDPS Act held

similar.

14. I have perused the judgment of the Hon'ble Supreme

Court as well as the Coordinate Bench of this Court and judgment

of Bombay High Court, Aurangabad Bench. In all those cases, the

90 days period of time limit for filing the charge sheet has been

completed and the right of the accused for getting default bail

accrued, but the trial Court extended the time limit for another 90

days without giving any opportunity to the accused by issuing

notice. But here in this case, the time for filing of the charge sheet

expires only on 06.08.2020. But prior to that, on 30.07.2020, the

Public Prosecutor moved an application along with the report of the

I.O. regarding progress of the investigation and requirement of the

time for completion of investigation has been mentioned. Based

upon the report and application filed by the Public Prosecutor, the

trial Court extended 90 days time prior to expiry of 90 days from

the date of the arrest of the accused persons and as on

30.07.2020, there is no right for the accused accrued for seeking

default bail under Section 167 (2) of Cr.P.C. and their application

under Section 167 Cr.P.C. is filed only on the 177th day of their

arrest and by that time the trial Court already extended 90 days

under Section 22 (b) of the KCOCA Act, which was not challenged

by the accused persons by filing appeal under Section 12(2) of the

KCOCA Act within 30 days from 30.07.2020. If at all the accused

persons had no knowledge about the extension of time, they could

have filed an application u/s. 167 (2) of Cr.P.C. immediately after

completion of 90 days on 06.08.2020, but they filed application for

default bail only on 12.10.2020. The fact remains that the accused

knowing fully well about the extension of time by the trial Court,

kept quite without filing any application and only to defeat the

extension of time granted by the trial court, filed an application for

default bail just prior to filing the charge sheet.

15. In my considered opinion, notice is required to be given

to the accused only after accruing any right of getting default bail

after expiry of 90 days from the date of their arrest. That apart,

once the time is extended by the trial Court and the charge sheet is

filed within 180 days, as per Section 22 (b) of the KCOCA Act, the

question of granting default bail to the accused u/s. 167(2) of

Cr.P.C. does not arise.

16. That apart, with regard to the contention of the learned

counsel that the Public Prosecutor shall file the report and he has

only forwarded the request of the I.O. and therefore, he has not

complied the proviso to Section 22(b) of the KCOCA Act, the

learned SPP relied upon the judgment of the Hon'ble Supreme

Court reported in (2019) 5 SCC 178 in the case of State of

Maharashtra Vs. Surendra Pundlik Gadling and Ors, While

considering the Unlawful Activities (Prevention) Act, 1967, the

Hon'ble Supreme Court held the status of the prosecutor is not a

part of the investigating agency, but it is an independent statutory

authority and by considering the Hitendra Vishnu's case (supra),

the Hon'ble Supreme Court has held as under:

"36. No doubt, in para 23 of Hitendra Vishnu Thakur9 case, this Court laid emphasis on the importance of the scrutiny by a public prosecutor so as to not leave the detenu in the hands of the IO alone, being the police 8 (supra) 9 (supra) authority. The public prosecutor, thus, has the option to agree or disagree with the reasons given by the IO for seeking extension of time but in the facts of the present

case, the second document in the form of an application shows scrutiny of the first document and thereafter details grounds and expanded reasons for the requirement of further time to complete the investigation.

37. Undoubtedly the request of an IO for extension of time is not a substitute for the report of the public prosecutor but since we find that there has been, as per the comparison of the two documents, an application of mind by the public prosecutor as well as an endorsement by him, the infirmities in the form should not entitle the respondents to the benefit of a default bail when in substance there has been an application of mind. The detailed grounds certainly fall within the category of "compelling reasons" as enunciated in Sanjay Kedia case.

38. We are, thus, not able to persuade ourselves to agree with the conclusions of the learned single Judge of the Bombay High Court in the impugned order and hold that the respondents would not be entitled to the benefit of default bail and consequently the impugned order is set aside.

39. We may, however, clarify that since the charge-sheet has been filed, any observations made by us herein, would not, in any manner, affect the right of the respondents to seek regular bail from the trial court, if so advised, which would be decided on its own merits by the trial court. The appeal is allowed leaving the parties to bear their own costs."

17. In view of the judgment of the Hon'ble Apex Court, in

Surendra Pundlik Gadling's case (supra), the Public Prosecutor

filed the application before the Sessions Judge along with the report

of the I.O. and based upon the report, the trial Court extended the

time. The learned counsel for the accused not produced the

application filed by the Public Prosecutor before the trial Court to

verify the same by this Court and the learned counsel also not

produced their application filed before the trial Court u/s. 167 of

Cr.P.C. In the absence of those applications, especially the

application filed by the prosecutor along with the report of the I.O.,

it cannot be acceptable that the Public Prosecutor has not filed any

report of the I.O. along with the application for extension of time to