Mohamad Rusthum Shaik @ Rusthum v. State of Karnataka, S. R. Nagar Police Station
2013-02-25
K.N.Keshavanarayana
body2013
DigiLaw.ai
ORDER R.N. Keshavanarayana, J. In this petition filed under Section 482 of Cr. P.C., the petitioners who have been arraigned as Accused Nos. 1 to 6, 9, 10, 11, 26, 27 & 29 in Crime No.161/2012 of Sampangiramanagara Police Station registered for the offences punishable under Sections 489 (B) & (C), 120(B) of IPC, Sections 3, 25 & 27 of Indian Arms Act and Sections 3, 15, 16 & 17 of Vnlawful Activities (Prevention) Act, 1967, (for short, 'UA Act') have sought for setting aside the order dated 07.12.2012 passed by the Principal City Civil and Sessions Judge, Bangalore, in the aforesaid crime case allowing the application filed by the prosecution under Section 43(D)(2)(b) of D.A. Act and extending their remand upto 180 days from the date of their first remand by the Magistrate. 2) The case of the prosecution in brief is as under, At about 6.00 p.m., on 09.09.2012, the Police Inspector of Sampangiramanagara Police Station, received a credible information that few persons from the Country's Border with Bangladesh are staying in Room No. 305 and 306 of S.S. Residency situated in 1st Main Road, Sampangiramanagara and are dealing in counterfeit currency notes, arms and ammunition. Immediately, the Police Inspector along with the staff and panchas, conducted a raid on the said rooms and there, they found Accused Nos. 1 to 6 in room Nos. 305 and 306. On verification, they also found possessing huge counterfeit currency notes, arms and ammunition. All these things were seized and Accused Nos. 1 to 6 were arrested. On the basis of the report of the Inspector, the aforesaid case came to be registered. Subsequently, other petitioners were apprehended and at their instance counterfeit currency notes were seized. All the arrested accused persons were remanded to Judicial Custody. 3) In terms of Section 43(D)(2)(b) of U.A. Act, the public prosecutor filed an application before the Principal City Civil and Sessions Judge, Bangalore, on 05.12.2012 seeking extended remand of these petitioners and others for 180 days. The said application came to be allowed by the learned Principal City Civil and Sessions Judge on 07.12.2012 extending the remand of the petitioners and other accused in the case, upto 180 days. The legality and correctness of the said order is questioned in this petition by raising several grounds. The petition is opposed by the Respondent-State.
The said application came to be allowed by the learned Principal City Civil and Sessions Judge on 07.12.2012 extending the remand of the petitioners and other accused in the case, upto 180 days. The legality and correctness of the said order is questioned in this petition by raising several grounds. The petition is opposed by the Respondent-State. 4) Having heard the learned Counsel appearing on both sides and on perusal of the materials produced, I am of the considered opinion that, on a short point this petition requires to be allowed and the matter is required to be sent back to the Principal City Civil and Sessions Judge, Bangalore, for consideration afresh. 5) As noticed supra, the case was filed on 05.12.2012 by the Public Prosecutor. On the same day, the matter was heard and on 07.12.2012, the orders came to be passed. The certified copy of the order sheet maintained by the Learned Principal City Civil and Sessions Judge indicates that petitioners and other accused persons were not informed about filing of the said application seeking their extended remand upto 180 days. 6) As per Section 43(D)(2)(b) of U.A. Act, two more provisos have been added to Section 167(2) of Cr. P.C. after the proviso thereto. As per the 1st proviso so added by Section 43(D)(2)(b), the Court is empowered to extend the period of detention of the accused persons beyond 90 days upto 180 days if the Court is satisfied that the report of the public prosecutor indicating the progress of the investigation and the specific reasons for detention of the accused beyond the said period of90 days. The expression 'Court' is defined under the D.A. Act. According to this, 'Court' means a criminal Court having jurisdiction under the Code to try offences under this Act and includes a Special Court constituted under Section 11 or under Section 21 of the National Investigation Agency Act, 2008. In the light of this provision, the Single Bench of Kerala High Court in Ashruff Vs. State of Kerala (2011 Crl. L.J. 1021), has held that the Special Court/Sessions Judge of the division alone is competent to order extension of the remand upto 180 days. 7) While considering almost similar provision found in Section 20(4)(bb) of TADA Act, the Division Bench of the Apex Court in Hitendra Vishnu Thakur and others etc. Vs.
State of Kerala (2011 Crl. L.J. 1021), has held that the Special Court/Sessions Judge of the division alone is competent to order extension of the remand upto 180 days. 7) While considering almost similar provision found in Section 20(4)(bb) of TADA Act, the Division Bench of the Apex Court in Hitendra Vishnu Thakur and others etc. Vs. State of Maharashtra and others ( AIR 1994 SC 2623 ) held that before considering the application for extended remand, it is necessary for the designated Court to issue notice to the accused concerned and give him an opportunity. Though there was no specific provision to that effect, the Apex Court, read such requirement into the said section. However, the correctness of the said decision cameup for consideration before the Constitution Bench of the Apex Court in the case of Sanjay Dutt Vs. State through CBI, Bombay, [ (1994) 5 SCC 410 ]. 8) The Apex Court in Sanjay Dutt's case referred to supra, has finally concluded in Para 53(2)(a) that 'Section 20(4)(bb) of the TADA Act only requires production of the accused before the Court in accordance with Section 167(1) of Cr. P.C. 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 the Apex Court in Hitendra Vishu's case cited supra. 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'. 9) In Ashruffs case cited supra, relying on the decision of the Apex Court in San jay Dutt's case referred to supra, while considering the scope of Section 43(D)(2)(b) of U.A. Act, has held that the accused persons are required to be produced before the Court on the date of filing of the application seeking extended remand.
9) In Ashruffs case cited supra, relying on the decision of the Apex Court in San jay Dutt's case referred to supra, while considering the scope of Section 43(D)(2)(b) of U.A. Act, has held that the accused persons are required to be produced before the Court on the date of filing of the application seeking extended remand. The order passed by the learned Magistrate in that case extending the remand of accused up to 180 days, was found to be vitiated for the reason that the accused persons were not produced before the Magistrate on the date, on which the order came to be passed and that the Magistrate has not informed the accused persons about consideration of extension of remand and their detention beyond 90 days. It was also found that a separate applications giving the details as insisted by the aforesaid proviso were not filed against each and every accused. 11) Regard being had to the provisions of Section 43(2)(b) of U.A. Act and the provisions of National Investigation Agency Act 2008, I concur with the view expressed by the Kerala High Court in the aforesaid decision. The principles laid down by the Constitution Bench of the Apex Court in Sanjay Dutt's case referred to surpa would in all force apply to the cases under Section 43(D)(2)(b) of U.A. Act. 12) In the case on hand, as noticed supra, on the very date of filing the application, learned Principal City Civil and Sessions Judge, heard the matter and reserved the matter for orders and proceeded to pass orders on 07.12.2012. This shows that the accused persons, whose extended remand had been sought in the said application, were not even informed about the consideration of the application and they were not told about filing of application seeking extended remand. The accused persons were not produced before the learned Sessions Judge. Therefore, the order passed by the learned Sessions Judge extending the period of remand upto 180 days, even without informing the affected parties is highly vitiated, as such, it is liable to be set aside, and the learned Sessions Judge is required to be directed to consider the application afresh and pass appropriate orders. 13) Accordingly, the petition is allowed.
Therefore, the order passed by the learned Sessions Judge extending the period of remand upto 180 days, even without informing the affected parties is highly vitiated, as such, it is liable to be set aside, and the learned Sessions Judge is required to be directed to consider the application afresh and pass appropriate orders. 13) Accordingly, the petition is allowed. The order dated 07.12.2012 passed by the Principal City Civil and Sessions Judge, Bangalore, in Crime No.161/2012 of Sampangiramanagara Police Station extending the period of remand of the accused persons upto 180 days, is set aside. The learned Sessions Judge is directed to consider the application afresh in accordance with law and after intimating the accused persons regarding consideration of said application. The application shall be disposed of within a period of 10 days. Until the date of fresh consideration of the application, the remand of the accused shall be deemed to be authorised. All other contentions and grounds urged in the petition are kept open.