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PETITIONER: DEVINDERPAL SINGH

       Vs.

RESPONDENT: GOVT. OF NATIONAL CAPITAL TERRITORY OF DELHI

DATE OF JUDGMENT14/11/1995

BENCH: SEN, S.C. (J) BENCH: SEN, S.C. (J) ANAND, A.S. (J)

CITATION:  1996 SCC  (1)  44        JT 1995 (8)   603  1995 SCALE  (6)372

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SEN, J.      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

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    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

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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

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    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

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    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.