Aakif Ateeque Nachan S/O Shri ... vs N.I.A
2023 Latest Caselaw 142 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

               D.B. Criminal Appeal No. 292/2022

Aakif Ateeque Nachan S/o Shri Ateeque Nachan, Aged About 33
Years, R/o 522, Nachan Mohalla, Village Borwali, Tehsil Bhwandi,
District Thane, Maharashtra (At Present Confined At Central Jail,
Jaipur)
                                                                  ----Appellant
                                   Versus
N.I.A., New Delhi Through Special P.P
                                                                ----Respondent

Connected With D.B. Criminal Appeal (Db) No. 312/2022 Aakif Ateeque Nachan S/o Shri Ateeque Nachan, Aged About 33 Years, R/o 522, Nachan Mohalla, Village Borwali, Tehsil Bhwandi, District Thana Maharashtra (At Present Confined At Central Jail, Jaipur)

----Appellant Versus N.I.A., New Delhi Through Special P.P

----Respondent

For Appellant(s) : Mr. Syed Saadat Ali, Adv. For Respondent(s) : Mr. Tej Prakash Sharma, Special PP

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BIRENDRA KUMAR

Order

05/01/2023

Heard the parties.

The appellant is one of the accused in FIR No. 150/2022

registered with Sadar Nimbaheda Police Station in the District of

Chittorgarh for different offences under Explosive Substance Act

(2 of 7) [CRLAD-292/2022]

as well as UAPA Act. The appellant was remanded in judicial

custody on 17/05/2022.

On 18/08/2022, the appellant filed an application for default

bail under Section 167(2) Cr.P.C. Prayer was refused by the

impugned order dated 30.08.2022 on the ground that before

expiry of 90 days, the period for completion of investigation was

extended upto 180 days on 22/06/2022 itself in exercise of power

under Section 43-D (2)(b) of UAPA Act.

The investigation was completed on 22/09/2022 and charge-

sheet was filed in the case thereafter, cognizance has also been

taken.

In one of the aforesaid appeals, the appellant has challenged

the order dated 08/08/2022 whereby custody of the appellant was

increased by 45 days i.e beyond 90 days without notice to the

appellant.

Learned counsel for the appellant submits that the

investigation was not completed within statutory period of 90 days

from the date of custody of the appellant on 17/05/2022.

Moreover, the period for completion of investigation was extended

without giving notice/opportunity of hearing as well as without

ensuring the presence of the appellant who was in custody, as

such valuable fundamental right of the appellant under Article 21

of the Constitution was violated. Therefore, on the date of exercise

of indefeasible right of bail the application for default bail ought to

have been allowed. Even copy of the application for extension of

time for completion of investigation was not supplied to the

appellant.

Learned counsel has placed reliance on the judgment of the

Hon'ble Supreme Court in case of Jigar @ Jimmy Pravinchandra

(3 of 7) [CRLAD-292/2022]

Adatiya vs. State of Gujarat (SLP Criminal No. 7696/21) decided

on 23/09/2022 wherein the Hon'ble Supreme Court considering

Sanjay Dutt's case and held that before consideration of

application for extension of time for completion of investigation,

the accused must be informed and should have the right to be

heard.

Para 29, 30 & 31 of the judgment are being reproduced

below:-

"29.As noted earlier, the only modification made by the larger Bench in the case of Sanjay Dutt to the decision in the case of Hitendra Vishnu Thakur1 is about the mode of service of notice of the application for extension. In so many words, in paragraph 53(2)

(a) of the Judgment, this Court in the case of Sanjay Dutt held that it is mandatory to produce the accused at the time when the Court considers the application for extension and that the accused must be informed that the question of extension of the period of investigation is being considered. The accused may not be entitled to get a copy of the report as a matter of right as it may contain details of the investigation carried out. But, if we accept the submission of the respondents that the accused has no say in the matter, the requirement of giving notice by producing the accused will become an empty and meaningless formality. Moreover, it will be against the mandate of clause (b) of the proviso to sub-section (2) of section 167 of CrPC. It cannot be accepted that the accused is not entitled to raise any objection to the application for extension. The scope of the objections may be limited. The accused can always point out to the Court that the prayer has to be made by the Public Prosecutor and not by the investigating agency. Secondly, the accused can always point out the twin requirements of the report in terms of proviso added by sub-section (2) of Section 20 of the 2015 Act to sub-section (2) of Section 167 of Cr.PC. The accused can always point out to the Court that unless it is satisfied that full compliance is made with the twin requirements, the extension cannot be granted.

30. The logical and legal consequence of the grant of extension of time is the deprivation of the indefeasible right available to the accused to claim a default bail. If we accept the argument that the failure of the prosecution to produce the accused before the Court and to inform him that the application of extension is being considered by the Court is a mere procedural irregularity, it will negate the proviso added by sub-

(4 of 7) [CRLAD-292/2022]

section (2) of Section 20 of the 2015 Act and that may amount to violation of rights conferred by Article 21 of the Constitution. The reason is the grant of the extension of time takes away the right of the accused to get default bail which is intrinsically connected with the fundamental rights guaranteed under Article 21 of the Constitution. The procedure contemplated by Article 21 of the Constitution which is required to be followed before the liberty of a person is taken away has to be a fair and reasonable procedure. In fact, procedural safeguards play an important role in protecting the liberty guaranteed by Article 21. The failure to procure the presence of the accused either physically or virtually before the Court and the failure to inform him that the application made by the Public Prosecutor for the extension of time is being considered, is not a mere procedural irregularity. It is gross illegality that violates the rights of the accused under Article 21

31. An attempt was made to argue that the failure to produce the accused will not cause any prejudice to him. As noted earlier, the grant of extension of time to complete the investigation takes away the indefeasible right of the accused to apply for default bail. It takes away the right of the accused to raise a limited objection to the prayer for the extension. The failure to produce the accused before the Court at the time of consideration of the application for extension of time will amount to a violation of the right guaranteed under Article 21 of the Constitution. Thus, prejudice is inherent and need not be established by the accused.

Learned counsel appearing for National Investigation Agency

contends that this appeal is not maintainable in view of the

specific bar under Section 21 of NIA Act as impugned orders being

interlocutory orders.

Learned counsel contends that the order of remand is an

interlocutory order therefore, appeal is not maintainable.

Since valuable right of the appellant to be released on

mandatory bail has been decided finally by the impugned order

dated 30.08.2022, it is in the nature of intermediary order and not

simple interlocutory order.

(5 of 7) [CRLAD-292/2022]

In the case of State rep. By Inspector of Police & Ors. vs.

N.M.T. Joy Immaculate reported in AIR 2004 SC 2282 relied upon

by learned counsel for the respondent, the accused was remanded

to the police custody.

In the case on hand, the right of the appellant to be released

on bail on default of non-conclusion of the investigation has been

decided therefore, the impugned order is intermediary in nature

as such challengable under Section 21 of the Act in this appeal.

Learned counsel for the respondent next contends that

neither order of extension of time for completion of investigation

was challenged anywhere nor as of today the appellant is in illegal

detention as investigation of the case is already complete and

cognizance has already been taken and remand of the appellant is

under Section 309 Cr.P.C. within scope and ambit of power of the

court.

The law is well settled that once the appellant exercised his

right of indefeasible bail, it should have been decided forthwith

whether investigation was complete or not and whether the

appellant was entitled to bail or not. Due to not allowing an

opportunity of notice and hearing to the accused-appellant at the

time of extension of period for completion of investigation or

extension of remand of the appellant on 08.08.2022 the

constitutional right of the appellant to have fair opportunity to

defend was taken away. In the circumstance, legality or otherwise

of order of extension of period would also be taken note of while

considering the correctness of the order of refusal of grant of bail

under Section 167(2) Cr.P.C. Therefore, only for the reason that an

order which was passed in violation of Article 21 of the

Constitution against the appellant is not under challenge, its

(6 of 7) [CRLAD-292/2022]

correctness cannot be ignored while examining the correctness

and legality of the subsequent action of refusal of peremptory bail.

Therefore, we are of the view that the investigation of the

case was not completed within 90 days on the date of exercise of

right by the appellant for indefeasible bail and the time for

completion of investigation was extended against the well settled

judicial pronouncements referred above violating the right of the

appellant under Article 21 of the Constitution of India therefore,

impugned orders are not sustainable in law.

Learned counsel for the respondent has relied on Devinder

Pal Singh vs. Government of National Capital Territory of Delhi

reported in (1996) 1 SCC 44.

The aforesaid judgment was taken note of in Jimmy's case

(supra) while laying down that allowing an opportunity of hearing

to the accused must be provided at the time of considering the

prayer for extension of time for completion of investigation.

Learned counsel for the respondent has relied on the

following judgments:-

1. R.M. Ravindra vs. Intelligence Officer; (2021) 2 SCC 485

2. Uday Mohanlal Acharya vs. State of Maharashtra; (2001) 5 SCC

3. Hitendra Kumar vs. State of Maharashtra 1994 (4) SCC 602

4. Asst. Excise Commissioner vs. Esthappan Cherin (2021) 10 SCC

210.

Legal propositions decided in the above cases are not

disputed here.

Learned counsel for the respondent contends that one more

criminal case is pending against the appellant and allegation in the

present case is also of very serious nature.

(7 of 7) [CRLAD-292/2022]

The pendency of another criminal case and seriousness of

the allegation cannot be a ground to not complete the

investigation within the statutory time and violating the

fundamental right of the accused nor it would be a ground to not

give notice of the prayer for extension of time to the accused.

Therefore, we do not find any reason to accept the aforesaid

submission.

Accordingly, both the orders stands hereby set aside and the

appeals are allowed.

Let the appellant be released forthwith on execution of

surety bond of Rs. 2,00,000/-(two lakhs) alongwith two sureties of

the like amount. One of the sureties must be resident of territorial

jurisdiction of the court below. Since the charge sheet has already

been submitted, the appellant shall remain present on each and

every date till framing of the charges unless the trial court

permits, on being satisfied with reasonable excuse of the appellant

for his absence on any particular date. The appellant shall

surrender passport to the court at the time of furnishing security

and the appellant shall fully cooperate with the trial for its early

conclusion. If the appellant breaches any of the conditions, the

respondent would be at liberty to pray for cancellation of bail.

(BIRENDRA KUMAR),J (PANKAJ BHANDARI),J

ANIL SHARMA /21-22

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