Devinderpal
Singh Vs. Govt. of National Capital Territory of Delhi [1995] INSC 671 (14 November 1995)
Sen,
S.C. (J) Sen, S.C. (J) Anand, A.S. (J) Sen, J.
CITATION:
1996 SCC (1) 44 JT 1995 (8) 603 1995 SCALE (6)372
ACT:
HEAD NOTE:
Special
leave granted.
Devinderpal
Singh, the appellant herein, was deported from Germany and was arrested on his arrival at New Delhi on the charge of having travelled
to Germany on a false passport. A case being
FIR No.22/93 under Section 419/420/468/471, Indian Penal Code, and Section 12
of the Passport Act, was registered against him. He was subsequently ordered to
be released on bail.
On the
very same day i.e. 19th
January, 1993, the
appellant was also arrested in another case being FIR No. 316/93 registered
under Section 302/307/326/323/436/120-B, Indian Penal Code, Sections 3, 4 and 5
of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and Sections
4 and 5 of the Explosive Substances Act.
The
appellant was remanded to judicial custody which was extended from time to time
and the statutory period of 180 days expired on 17th July, 1995.
Before
the expiry of the aforesaid statutory period of 180 days, an application was
moved on 12th July,
1995 for extension of
time for completion of the investigation and for that purpose a prayer was also
made for extending the period of detention of the appellant beyond the period
of 180 days. The Designated Court No. II, Tis Hazari, Delhi, ordered:- "I have seen the
entire file and progress of investigation. I have heard today the Ld. P.P. The
evidence has to be collected from Jaipur, Baroda, Ahmedabad against the accused persons and that some of the offenders
are yet to be arrested against whom some clues are received very recently.
Keeping this in view, I am of the opinion that this is a fit case where
extension of time as per provisions of sec. 20(4)(bb) TADA and Act 93, should
be given. I accordingly allow extension of period for another sixty days at the
expiry of first statutory period of 180 days with direction to positively
complete the investigation by then." The appellant was produced before the
Additional Chief Metropolitan Magistrate, New Delhi, on 17th July,
1995 and the period of
judicial remand was extended on the ground that the Designated Court had already extended the time for
completion of the investigation for another 60 days.
Consequently,
the judicial remand of the appellant was extended for a further period of 60
days till 15th
September, 1995.
The
appellant, thereafter, on 17th July, 1995, moved an application for bail on the
ground that the prosecution had failed to complete the investigation within the
statutory period of 180 days and that no independent report had been submitted
by the designated Public Prosecutor regarding the progress of the investigation
and specific reasons for detaining the appellant beyond the statutory period of
180 days were not stated by the Public Prosecutor. The further contention of
the appellant was that he was not produced before the Designated Court at the time of hearing of the
application for extension on 12th July, 1995
and the order of extension was passed behind his back and without giving him
any opportunity to show cause why the prayer for extension should not be
allowed.
Mr. Sodhi
appearing on behalf of the appellant, has contended that by virtue of the
proviso to sub-section (4)(bb) of Section 20, it is possible for the Designated
Court to extend the statutory period of detention beyond the prescribed period
of 180 days only if the conditions laid down in that sub-section are fulfilled.
An essential requirement of sub-section (4)(bb) of Section 20 is that there
will have to be a report of the Public Prosecutor indicating the progress of
the investigation and also the specific reasons for the detention of the accused
beyond the aforesaid statutory period. In the instant case, the Public
Prosecutor has not given any such report. The Designated Court, therefore, was in error in extending the period of
detention without any report of the Public Prosecutor, as required by the
statute. Mr. Sodhi further argued that in the judgment in the case of Hitender
Vishnu Thakur v. State of Maharashtra,
(1994) 4 SCC 602, (in which one of us, Dr. Anand, J. was a party), it was
clearly laid down that no extension under clause (bb) can be granted for
reasons other than those specifically contained therein and the requirements of
clause (bb) must be strictly complied with before any extension was granted.
The accused had acquired an indefeasible right to be released on bail in this case
on account of the default of the prosecution. The Designated Court was clearly in error in extending
the time, even though the Public Prosecutor had failed to make a report as
required by the statute. It was also emphasised by Mr. Sodhi that the order of
extension was passed without any notice to the accused and without producing
him before the court.
On
behalf of the respondent, Mr. R.P. Srivastava has argued that there is
sufficient material on record and good grounds for extending the period of
detention beyond the statutory period. It was contended that the application
for extension of time of the period of detention was fully considered and heard
by the Designated Court. The order to extend the period of
detention was passed only after carefully perusing the case diaries and other
relevant materials on record of the case. He drew our attention to the
statement made on behalf of the respondent in the affidavit filed in this Court
by S.N. Srivastava, Deputy Commissioner of Police, Head Quarters-II, PHQ, Delhi, that a challan has been filed
under Section 173 of the Code of Criminal procedure against the appellant
before the Additional Sessions Judge, Delhi, on 13th
September, 1995.
Mr. Srivastava
contended that in the case of Sanjay Dutt v. State, (1994) 5 SCC 410, it has
been laid down that the indefeasible right accrued to the accused for non-
compliance with the requirements of Section 20(4)(bb) was enforceable only
prior to the filing of the challan. This indefeasible right did not survive or
could not be enforced after the challan was filed. The appellant had failed to
enforce his right before the challan was filed and, therefore, he could not
enforce this right any more now that the challan has been filed.
Mr. Sodhi
countered this argument by saying that the order passed by the Designated Court was clearly erroneous.
When
the court heard the case, the challan had not been filed at all. He further
contended that the decision in Sanjay Dutt's case was given on a concession
made by the counsel appearing on behalf of the appellant and the court had no
occasion to examine this issue in detail.
We
need not express any opinion on this aspect of the matter. The decision in
Sanjay Dutt's case was rendered by a Bench of Five Judges and is binding upon
this Court.
The Designated Court granted extension of time to the
investigating agency for completion of the investigation under Clause (bb) of
Section 20(4) of TADA. This extension was granted on an application made by the
investigating officer only and without any report of the public prosecutor. It
is submitted by Mr. Sodhi that extension was granted behind the back of the
appellant and without permitting the appellant to have his say against the
grant of extension. This position has not been controverted by learned counsel
for the respondents. In Hitendra Vishnu Tahkur's case (supra), it was observed:-
"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 alongwith 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 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." In Hitendra Vishnu Thakur's
case (supra) it was also opined that no extension can be granted by the Designated Court under Clause (bb) unless the
accused is put on notice and permitted to have his say so as to be able to
object to the grant of extension.
The
Constitution Bench in Sanjay Dutt's case (supra) did not express any contrary
opinion in so far as the requirement of the report of the public prosecutor for
grant of extension is concerned or on the effect of the absence of such a
report under clause (bb) of Section 20(4), but observed that the 'notice'
contemplated in the decision in Hitendra Vishnu Thakur's case before granting
extension for completion of investigation is not to be construed as a
"written notice" to the accused and that only the production of the
accused at the time of consideration of the report of the public prosecutor for
grant of extension of the period for completing the investigation was being
considered would be sufficient notice to the accused.
The
validity of an order granting extension under Clause (bb) of Section 20(4) of
TADA is to be considered with reference to the facts as existing on the date of
the order. Mr. Sodhi is right in his contention that the order passed by the
Designated Court on 12th July, 1995, without any report of the public
prosecutor and without even the appellant being produced and informed by the
Designated Court that question of grant of extension of the period for
completing investigation was under consideration, renders the order granting
extension by the Designated Court erroneous and it cannot be sustained.
This
now takes us to the question of grant of bail to the appellant. Learned counsel
for the parties state that challan has since been filed on 30.9.95. Learned counsel
are at variance about the effect of filing the challan on the right of the
appellant to be released on bail. This question was examined in Sanjay Dutt's
case (supra), where it has been laid down that the right to be released on bail
for failure to complete the investigation within the prescribed time is not
automatic and even if 'infeasible' it has to be 'availed of' by the accused at
the appropriate stage and that:- "The indefeasible right accruing to the
accused in such a situation is enforceable only prior to the filing of the challan
and it does not survive of remain enforceable on the challan being filed, if
already not availed of. Once the challan has been filed, the question of grant
of bail has to be considered and decided only with reference to the merits of
the case under the provisions relating to grant of bail to an accused after the
filing of the challan. The custody of the accused after the challan has been
filed is not governed by the Section 167 but different provisions of the Code
of Criminal Procedure. If that right had accrued to the accused but it remained
unenforced till the filing of the challan, then there is no question of its
enforcement thereafter since it is extinguished the moment challan is filed
because Section 167 Cr.P.C. ceases to apply.
Since,
as submitted by Mr. Sodhi, an application for grant of bail in the ground that
the prosecution had failed to complete investigation within the statutory
period of 180 days was filed and is pending before the Designated Court, we
refrain from dealing with the bail application filed in this Court or express
any opinion on the merits of the bail application pending before the Designated
Court. The Designated
Court shall dispose
of the pending bail application in accordance with law expeditiously, keeping
in view the principles laid down by this Court in the above referred cases.
The
appeal and the bail application are therefore disposed of in the terms noticed
above. There shall be no order as to costs.
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