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CASE NO.: Appeal (crl.)  1069 of 2005

PETITIONER: Ateef Nasir Mulla                                                        

RESPONDENT: State of Maharashtra                                             

DATE OF JUDGMENT: 24/08/2005

BENCH: B.P. SINGH & S.B.SINHA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.5258 Of 2003)

B.P. SINGH, J.

       Special leave granted.

       In this appeal the petitioner has impugned the judgment and  order of the High Court of Judicature at Bombay dated 29th  August, 2003 in Criminal Appeal No.995 of 2003.  The High Court  by its impugned judgment and order dismissed the appeal preferred  by the appellant and upheld the order of the Special Judge dated  11.07.2003 granting extension of time to complete the  investigation in exercise of power under Section 49 (2) (b) of the  Prevention of Terrorism Act, 2002, as also the order of the Special  Judge dated 25.7.2003 dismissing the bail application of the  appellant herein.   

The facts giving rise to this appeal, in so far as they are  relevant for the disposal of this appeal, may be noticed at the  outset.  A blast took place in a local train approaching platform  No.3 of the Mulund Railway Station, Mumbai, resulting in the  death of 11 persons and injuring 82 others.  Investigation disclosed  that the incident was the result of a conspiracy hatched by several  persons to strike terror in the minds of people by explosion of  bombs and preparations to wage war against the State.  In  connection with the said incident case No. DCB, CID, C.R.  No.21/2003 was registered under various provisions of the Indian  Penal Code, the Indian Explosives Act read with Explosive  Substances Act, Damage to Pubic Property Act, Indian Railways  Act as also under Sections 3 and 4 of the Prevention of Terrorism  Act, 2002, hereinafter referred to as the ’Act’.  

       On 15.4.2003 the appellant was arrested from Bandra-Kurla  Complex, Mumbai, in connection with the above case.  He was  produced before the Special Court which remanded him to police  custody till 28.4.2003.  The period of remand was again extended  till 12th May, 2003.  Thereafter the appellant was remanded to  judicial custody on 12th May, 2003.  This remand was extended  from time to time.

       It appears that three other similar incidents took place, and  in those cases as well the involvement of the appellant was  suspected.  The police sought custody of the appellant in each of  those three cases.

       The appellant having been arrested on 15th April, 2003, the

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period of 90 days for completing the investigation was to expire on  July 13, 2003.  On 11.7.2003 he was remanded to judicial custody  at about 1130 hours by the Special Court.  Later, an application  was moved for extension of time to complete the investigation  under Section 49(2)(b) of the Act.   It is not disputed before us that  extension of time for completing the investigation was sought in  connection with Mulund blast case.  It is also not disputed that the  advocate appearing on behalf of the appellant was present in Court  at that time in connection with another case namely, the Mumbai  blast case.  Immediately he made an enquiry and came to know  that the prayer for extension of time to complete the investigation  had been made in Mulund blast case.  He, therefore, immediately  enquired of the appellant as to whether he had been informed of  the fact that the prosecution had moved an application for  extension of time under Section 49(2)(b) of the Act.  The  appellant’s answer was in the negative.  His advocate, therefore,  requested the Special Public Prosecutor to supply him a copy of  the application which was duly supplied.  A prayer was made by  the appellant’s advocate for a week’s adjournment so as to enable  him to file a reply.  However, the Court granted him time till 2.45  p.m. to file a reply which was accordingly filed by the appellant’s  advocate.  In the reply filed on behalf of the appellant an objection  was taken that no notice had been given to the accused and,  therefore, he was unable to give an effective reply to the facts  stated in the application for extension because of insufficiency of  time.  It was also contended that the application did not disclose  any specific reason for the extension of the period of remand as  required by Section 49(2)(b) of the Act.

       After hearing the parties the Special Court allowed the  application by its order of July 11, 2003 and extended the period  for completing the investigation till the 14th August, 2003.  The  appellant was accordingly remanded.  This is the first order which  was challenged by the appellant before the High Court.  On 14th  July, 2003 an application for release of the appellant on bail was  filed stating that the period of 90 days had expired, and in terms of  Section 49(2)(b) read with the provisions of Section 167(2) of the  Code of Criminal Procedure, the appellant could not be remanded  any further and ought to be released on bail.  We, may, notice at  this stage that the charge sheet was filed in Court as against the  appellant on July 19, 2003.   

       The learned Special Judge after hearing the parties rejected  the application for grant of bail by his order of July 25, 2003.  This  order is the second order challenged before the High Court in the  appeal preferred by the appellant.

       Before the High Court three main grounds were urged in  support of the appeal.  Firstly, it was contended that there was no  good ground for grant of extension of the period to complete the  investigation under Section 49(2)(b) of the Act.  Secondly, the  prosecution was guilty of having not given notice of the  application to the appellant.  Thirdly, it was contended that the  prosecution acted in such manner only to defeat the indefeasible  right of the appellant under Section 167(2) of the Code of Criminal  Procedure read with Section 49(2)(b) of the Act.  The High Court  on a consideration of the material placed before it rejected all the  three contentions and dismissed the appeal.      

       Mr. Sushil Kumar, learned Senior Advocate appearing on  behalf of the appellant submitted before us that the application  filed by the Special Public Prosecutor praying for extension of time  to complete the investigation did not contain any specific reason  for the detention of the accused beyond the statutory period of 90  days.  The High Court negatived this contention after considering

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the contents of the application filed by the Public Prosecutor before  the Special Judge, which is Annexure P-7 in this appeal.   

We have also carefully perused the said application filed by  the Public Prosecutor and we are satisfied that the High Court  rightly rejected the aforesaid contention.  The Special Public  Prosecutor in his application explained that the investigation of the  case revealed that there was a deep-rooted and widespread  conspiracy which had bearing on national security and, therefore, it  was necessary to unearth the deep-rooted conspiracy and to bring  to book all the conspirators and the perpetrators involved in  connection with offences committed by them pursuant to the  conspiracy.  Unfortunately, some of them could be apprehended  but many of them were still to be arrested.  Despite the arrest of 16  such persons, the persons who were the real brain behind the bomb  blast were still absconding.  There was some reliable information  about their whereabouts and, therefore, police officers had been  deputed to different States to apprehend them.  After arrest, those  apprehended have to be interrogated and further investigation has  to be carried out.  Moreover, some of the accused persons who  were in police custody, were also involved in other bomb blast  cases and it had not been possible to call them for identification by  witnesses who had been traced out recently.  Moreover, 21 audio  cassettes and one Urdu book had been recovered at the instance of  one of the arrested accused which had been sent for transcription  and translation to the Office of the Chief Translator and  Interpreter, High Court, Mumbai.  The translation had not so far  been received.  Moreover, investigation disclosed that the arrested  accused and other accused had communicated with each other on  telephone.  The printouts regarding the calls made had to be  obtained from different companies and thereafter the data collected  has to be analysed.  Though, some of the printouts had been  received many others have yet to be received.  In this manner, in  the application the Special Public Prosecutor explained how  despite serious efforts made to trace out the absconding accused  who were spread all over the country, it had not been possible to  complete the investigation.  Having regard to the seriousness of the  incident which took place in Mulund in Mumbai, it was absolutely  necessary to carry out a detailed investigation.

The High Court was satisfied that the application filed  before the Special Court by the Public Prosecutor complied with  the requirements of Section 49 (2) (b) of the Act, inasmuch as the  application indicated the progress of the investigation and the  specific reasons for the detention of the accused beyond the period  of 90 days.  It is no doubt true that the Constitution mandates that  the person detained in custody should not be kept in detention for  any unreasonable time.  The Code of Criminal Procedure also  ensures that such a person is not detained in custody unreasonably  and that the investigation must proceed with promptness and report  submitted to the Court within the period prescribed by law.  If the  prosecution fails to do so, the person detained in custody is entitled  to apply for his release on bail.  However, in cases involving  serious offences such as those under the Terrorist and Disruptive  Activities (Prevention) Act, 1987, and the Prevention of Terrorism  Act, 2002 the legislature has advisedly given some latitude to the  investigating machinery in the matter of completion of the  investigation by providing for extension of time to complete the  investigation.  The extension is, however, not to be granted as a  matter of course, but subject to conditions enumerated in the Act.   Unless those conditions are satisfied, the Court will refuse to grant  the extension.   The report of the Public Prosecutor must satisfy the Court  that the Investigating Agency had acted diligently and though there  had been progress of the investigation, yet it was not possible for

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reasons disclosed to complete the investigation within the period of  90 days.  In such cases, having regard to the progress of the  investigation and the specific reason for grant of extension of time,  the Court, may, extend the period for completion of the  investigation thereby enabling the Court to remand the accused to  custody  during the extended period.  These are compulsions which  arise in extra-ordinary situations.  The activities of the terrorists are  well-organized, well-planned and deftly executed by professionals  who have perfected the art of creating panic in public mind.  Their  activities are pursuant to a deep-rooted conspiracy, and the co- conspirators are more often than not stationed at different places  where they perform the role assigned to them.  It is only with great  difficulty that the investigating agency is able to unearth the well  planned and deep-rooted conspiracy involving a large number of  persons functioning from different places.  It is even more difficult  to apprehend the members of the conspiracy.  The investigation is  further delayed on account of the reluctance on the part of the  witnesses to depose in such cases.  It is only after giving them full  assurance of safety that the police is able to obtain their statement.   Thus, while law enjoins upon the investigating agency an  obligation to conduct the investigation with a sense of urgency and  with promptitude, there are cases in which the period of 90 days  may not be sufficient for the purpose.  Hence, the legislature,  subject to certain safeguards, has empowered the Court concerned  to extend the period for the completion of the investigation and to  remand the accused to custody during the extended period.  In this  case, we are satisfied that the circumstances existed justifying the  extension of period under Section 49(2)(b) of the Act.

It was then contended before us that the appellant had not  been given notice of the application moved under the first proviso  to Section 49(2)(b) of the Act.  There is no statutory requirement to  give any notice to the appellant in any particular form, but this  Court has taken the view that even in the absence of any specific  provision to this effect, fair play and principles of natural justice  demand that before granting extension of time to complete the  investigation, the Court must give notice to the accused to oppose  the application, if so, advised.  Dealing with a similar provision  under the Terrorist and Disruptive Activities (Prevention) Act,  1987 this Court in Sanjay Dutt Vs. State through C.B.I., Bombay  (II)(1994) 5 SCC 410 held :

"Section 20(4)(bb) of the TADA Act only requires  production of the accused before the court in accordance  with Section 167(1) of the Code of Criminal Procedure  and this is how the requirement of notice to the accused  before granting extension beyond the prescribed period  of 180 days in accordance with the further proviso to  clause (bb) of sub-section (4) of Section 20 of the TADA  Act has to be understood in the judgment of the Division  Bench of this Court in Hitendra Vishnu Thakur.  The  requirement of such notice to the accused before granting  the extension for completing the investigation is not a  written notice to the accused giving reasons therein.   Production of the accused at that time in the court  informing him that the question of extension of the  period for completing the investigation is being  considered, is alone sufficient for the purpose".  

 In the instant case the petitioner was present in Court and so  was his advocate, when such an application was moved.  On his  request a copy of the application was given to the advocate of the  appellant with an opportunity to file a reply.  The reply was also  filed, though having regard to the urgency of the matter the

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applicant was called upon to file a reply by 2.45 p.m.  The matter  was thereafter heard and only after hearing both the parties the  Court passed an order.

We are, therefore, satisfied that the requirement of giving  notice to the accused before passing such an order was complied,  and the order cannot be faulted on that ground.

It was, then contended on behalf of the appellant that the  appellant having acquired an indefeasible right to be released on  bail on the expiry of 90 days from the date of his arrest, the Special  Judge was not justified in rejecting the application for grant of bail  which was filed on July 14, 2003.  By then the charge sheet had  not been submitted by the police and, hence, there was no reason to  continue the detention of the appellant.

This submission overlooks the fact that by an order dated  July 11, 2003 the Court had granted extension of time to the  investigating agency to complete the investigation.  Thus on July  14, 2003 when an application was filed for grant of bail under  Section 167(2) of the Code of Criminal Procedure, there was  already an order extending the time for completion of  investigation, and consequently the Court was empowered to  remand the accused to judicial or police custody during the said  extended period.

Dealing with similar provisions of the Terrorist and  Disruptive Activities (Prevention) Act, this Court in Hitendra  Vishnu Thakur and Others Vs. State of Maharashtra and Others :  (1994) 4 SCC 602 observed :

"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 go grant extension only on 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. 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 him 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

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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".   

In the instant case, the Court was satisfied on the report of  the Public Prosecutor filed in the form of an application that there  was good ground to grant the extension prayed for under the first  proviso to Section 49(2)(b) of the Act.  The submission must,  therefore, be rejected.

We are, therefore, satisfied that the High Court has  committed no error in dismissing the appeal preferred by the  appellant.  This appeal therefore lacks merit and is, accordingly,  dismissed.