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PETITIONER: CENTRAL BUREAU OF INVESTIGATION

       Vs.

RESPONDENT: NAZIR AHMED SHEIKH

DATE OF JUDGMENT:       05/01/1996

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) MAJMUDAR S.B. (J)

CITATION:  1996 SCC  (7) 160        JT 1996 (1)   108  1996 SCALE  (1)116

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      Though the  respondent has  been served with notice, he has not  been either  appeared in person or through counsel, we request  Shri R.S.  Sodhi, the  learned counsel to assist the Court  as Amicus Curiae. We express our appreciation for the valuable  assistance rendered  by him.  The facts fairly are not in dispute. On October 26, 1990, at about 9.30 a.m., Inspector Dharamveer  of BSF  was kidnapped  in pursuance of criminal conspiracy by some of the accused persons, while he was travelling  in a  mini bus  from Nishat to Srinagar. The accused Nazir  Ahmed Sheikh Goldenter shot him dead from his AD-56 rifle  in cold  blood. As a result of which, Inspector Dharamvir died  instantaneously. During  the course  of  the investigation, the  recoveries were  made and a confessional statement under  Section 15  of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short, ’the Act’) was recovered.  In   addition  thereto,  the  investigation  has collected other  evidence. On  March 6, 1992, a charge-sheet was filed  along with a material before the Designated Court explaining the  reasons for the delay in filling the charge- sheet. By  order dated  December 29,  1992,  the  Designated Court has  granted bail to the respondent on the ground that since the occurrence had taken place on October 26, 1990 and the charge-sheet  came to  be filed on March 6, 1992 without even calling  of the relevant case diary. Calling that order in question, the above appeal has been filed.      It is  not in  dispute from these facts that the arrest of the  respondent came  to be made on March 8, 1991 and the charge-sheet was  filed on  March 6,  1992. The  question is whether the  charge-sheet  was  filed  within  the  time  or whether the  accused is  intitled to be enlarged for failure to file  the charge-sheet.  Section  20(4)  deals  with  the modification of the time prescribed under Section 167 of the Criminal Procedure  Code, 1973  (for short, ’the Code’) with

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regard to  the filing  of the  charge-sheet. In  view of the fact that the charge-sheet contains a charge that the murder of the  officer was  committed liable  to  conviction  under Section 302  IPC. Clause  (b) of Section 167 would apply. It ways that  with reference  to sub-section (2) of Section 167 for the  words 15  days, 90  days and  6  months  where-ever occurs shall be construed with reference to one year and one year respectively  as envisaged  under  sub-section  (4)  of Section 20  of the Act. It is seen that when the accused has been arrested on March 8, 1991, the Investigating Officer is enjoined  to   produce  him  before  the  Magistrate  having jurisdiction within  24 hours  from the  date of the arrest. Consequently, the  limitation of one year would begin to run and be  counted from  next date of the arrest, namely, March 9, 1991.  Since the  charge-sheet has been filed on March 6, 1992, the Designated Court was not justified in holding that the  charge-sheet   was  not   fled  within  the  limitation prescribed under  sub-section (4)  of Section 20 of the Act, i.e., one  year. The  later amendment  to  the  Act  seeking permission of  the Court for extension of the time or filing the necessary  material to  show the  grounds on  which  the investigation could  not be  completed within the period has no application  since the  arrest  was  made  prior  to  the amendment of the Act.      Under these  circumstances, the  Designated  Court  was clearly in  error in  enlarging the  accused. The  order  is accordingly set aside. The appeal is accordingly allowed. We are  informed  that  the  respondent  has  already  been  in detention in connection with other cases.