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2015 DIGILAW 19 (CHH)

Ayesha Bano v. State Of Chhattisgarh

2015-01-20

SANJAY K.AGRAWAL

body2015
ORDER Sanjay K. Agrawal, J. 1. Invoking inherent jurisdiction of this court, the petitioners three in numbers namely; Ayesha Bano, Zubair Hussain and Dheeraj Sao have filed this petition under Section 482 of Cr.P.C. questioning the legality, validity and correctness of impugned order dated 25.05.2014 by which the Sessions Judge has declined to interfere with the order passed by trial magistrate granting application under first proviso to Sub-section (2) of Section 43-D of the Unlawful Activities (Prevention) Act, 1967 (henceforth 'the Act, 1967'). 2. The petitioners are facing trial for commission of offences punishable under Section 3, 13, 17and 40 of the Act, 1967, and also under Sections 420, 467, 471 and 120-B of the IPC in connection with Crime No. 567/2013 registered at Police Station Khamtarai-Raipur, District Raipur. 3. The jurisdictional police could not complete the investigation of aforesaid offences against the petitioners herein within the stipulated time of 90 days and, therefore, an application was made on behalf of prosecution under Section 43D (2)(b) of the Act, 1967, for extension of time indicating progress of investigation and assigning the reasons for detention of the petitioners/accused beyond the said period of 90 days and sought further time to complete the investigation and to file charge sheet. 4. The trial Magistrate, by its order dated 24.03.2014, allowed the application and extended the said period up to 180 days to complete the investigation and to file charge-sheet. 5. Questioning the said order, the petitioners herein preferred criminal revision No. 119/2014 before the court of Sessions. Learned Sessions Judge, by impugned order dated 25.04.2014 dismissed the revision finding inter alia that petitioners were served with copy of application filed for extension of time under first proviso to sub-section (2b) of Section43-D of the Act, 1967, and they have contested the application and there is no valid ground to interfere with the order granting extension of time to complete the investigation and to file charge-sheet. 6. Against that order, instant petition under Section 482 of Cr.P.C. has been filed by the petitioner herein. 7. 6. Against that order, instant petition under Section 482 of Cr.P.C. has been filed by the petitioner herein. 7. Appearing for the petitioners, Shri Devershi Thakur, learned counsel would submit as under : "• That, the application for extension of period of detention of accused was made by the City Superintendent of Police (for short, CSP) under first proviso to sub-section (2b) of Section 43-D of the Act, 1967, whereas, it ought to have been made by the Public Prosecutor under the above-stated provision, and therefore, time could not have been extended on the application made by the CSP/investigating Officer. • That, the petitioners were not given notice/reasonable opportunity to oppose the said application for extension of time to complete the investigation and to file charge-sheet, and placed reliance upon the decision of Supreme Court in case of Hitendra Vishnu Thakur v. State of Maharashtra & others AIR 1994 SC 2623 which has been followed by this court in B.K. Lata v. State of Chhattisgarh 2012 Cr.L.J. 1629." 8. Appearing for the State, Shri Prafull Bharat, learned Additional Advocate General would submit that requirement of law under first proviso to sub-section (2b) of Section 43-D of the Act, 1967, is satisfaction of the court dealing with application with the report of the public prosecutor for detention of accused beyond the said period of 90 days, and since the trial magistrate called the report of public prosecutor and thereafter has passed the order on the said application, therefore, petitioners submission in this regard deserves to be rejected. He would further submit that the petitioners were present before the court on 22.03.2014 and they have served with the copy of application and they not only replied the said application, but also duly represented through their counsel on 24.03.2014 when the application was heard and further time to complete the investigation and file charge-sheet was granted. 9. I have heard learned counsel appearing for the parties and considered the rival submissions made therein with utmost circumspection. 10. The short question falls for consideration is whether the trial magistrate is justified in granting the application filed under first proviso to Sub-section (2b) of Section 43-D of the Act, 1967 by giving notice and reasonable opportunity of hearing on the said application. 11. 10. The short question falls for consideration is whether the trial magistrate is justified in granting the application filed under first proviso to Sub-section (2b) of Section 43-D of the Act, 1967 by giving notice and reasonable opportunity of hearing on the said application. 11. In order to appreciate the question raised at the bar, it would be proper to notice Section 43-D(2)(b) of the Act, 1967, which states as under:-- "43-D. Modified application of certain provisions of the Code:-- (1) xxxx xxxx xxxx (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),- (a) xxx xxx xxx (b) after the proviso, the following provisions shall be inserted, namely:-- "Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with 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 of ninety days, extend the said period up to one hundred and eighty days." 12. From a plain and careful perusal of the aforesaid provision, it would appear that there is no obligation of issuance of notice to the accused persons while considering the report of public prosecutor. It is enough if the accused persons are produced before the court at the time of consideration of public prosecutor's report for extension of time of detention and the accused persons are informed that court is considering the question of extension of period of their detention. 13. It is enough if the accused persons are produced before the court at the time of consideration of public prosecutor's report for extension of time of detention and the accused persons are informed that court is considering the question of extension of period of their detention. 13. Their Lordships of Supreme Court in case of Hitendra Vishnu Thakur AIR 1994 SC 2623 (Supra) while considering similar provision contained in Section 20(4)(b) with proviso (bb) of TADA Act, read requirement of notice by holding as under:-- "In conclusion, we may (even at the cost of repetition) say that an accused person seeking bail under Section 20(4) has to make an application to the court for grant of bail on grounds of 'default' of the prosecution and the court shall release the accused on bail after notice to the public prosecutor uninfluenced by the gravity of the offence or the merits of the prosecution case since Section 20(8)does not control the grant of bail under Section 20(4) of TADA and both the provisions operate in separate and independent fields. It is, however, permissible for the public prosecutor to resist the grant of bail by seeking an extension under clause (bb) by filing a report for the purpose before the court. However, no extension shall be ranted by the court without notice to an accused to have his say regarding the prayer for grant of extension under clause (bb). In this view of the matter, it is immaterial whether the application for bail on ground of 'default' under Section 20(4) is filed first or the report as envisaged by clause (bb) is filed by the public prosecutor first so on as both are considered while ranting or refusing bail. If the period prescribed by clause (b) of Section 20(4) has expired and the court does not grant an extension on the report of the public prosecutor made under clause (bb), the court shall release the accused on bail as it would bean indefeasible right of the accused to be so released. Even where the court grants an extension under clause (bb) but the charge-sheet is not filed within the extended period, the court shall have no option but to release the accused on bail if he seeks it and is prepared to furnish the bail as directed by the court. Even where the court grants an extension under clause (bb) but the charge-sheet is not filed within the extended period, the court shall have no option but to release the accused on bail if he seeks it and is prepared to furnish the bail as directed by the court. Moreover, no extension under clause (bb) can be granted by the Designated Court except on a report of the public prosecutor nor can extension be granted for reasons other than those specifically contained in clause (bb) which must be strictly construed." 14. The above-stated interpretation placed by their Lordships of Supreme Court in Hitendra Vishnu Thakur AIR 1994 SC 2623 (Supra) was considered by the constitution Bench in matter of Sanjay Dutt v. State through C.B.I.. Bornbai (II) 1994 (5) SCC 410 , and it was held as under:-- "Learned Additional Solicitor General, in reply, agreed entirely with the above submission of Shri Sibal and submitted that the principle enunciated by the Division Bench in Hitendra Vishnu Thakur must be so read........." In the later part of judgment, finally held that no written notice giving reasons therein required to serve to the accused persons and it will be sufficient if the accused is produced before the court and informed that question of extension of period of detention is being considered, and held as under : "53(2)(a). 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. 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." Thus, requirement of notice which was read into similar provision in TADA by their Lordships of the Supreme Court in of Supreme Court in case of Hitendra Vishnu Thakur AIR 1994 SC 2623 (Supra) down by Constitution Bench in Sanjay Dutt's case 1994 (5) SCC 410 and now it is sufficient if the accused are produced before the court at the time of consideration of the Public Prosecutor's report for extension of the period of detention and the accused are informed that the court is considering the question of extension of the period of their detention. 15. Judging by the principle of law laid down by their Lordships of Supreme Court in Sanjay Dutt's case 1994 (5) SCC 410 . if the facts of present case are examined. it is quite vivid that on 22.03.2014 i.e. a date on which the application was made on behalf of prosecution for extension of time, the petitioners were produced before the court and they were served with notice of application for extension by the trial magistrate and on 24.03.2014 they were again produced before the trial magistrate and they were duly represented through their counsel, petitioner No. 3 filed written reply opposing extension of time of detention of the petitioners beyond 90 days, and after considering the reply and their submissions, the trial magistrate found that it is a fit case where considering the nature and gravity of offence and report of the public prosecutor, time deserves to be extended from 90 days to 180 days for completing the investigation and filing of charge-sheet and thereby granted that application. The aforesaid facts are clearly recorded by the trial court in its order-sheet dated 22.03.2014, relevant part of which reads as under:-- ^^vfHk;qDrx.k Kkiu tkjh dj vfHkj{kk ls cqyk;k x;kA vfHk;qDrx.k vfHkj{kk ls tsy okjaV ds lkFk is’kA Fkkuk [kerjkbZ dh vksj ls jktsUæ tSloky lh-,l-ih- us mifLFkr gksdj vijk/k dzekad 567@2013 ds vkjksihx.k dk fjek.M ysus ckcr~ fjek.M vkosnu i= dsl Mk;jh ds lkFk is’k dj foospuk viw.kZ gksus dk dkj.k n’kkZrs gq, fu/kkZfjr vof/k 90 fnol dks foLrkfjr djrs gq, 180 fnol rd vknsf’kr djus bl vk’k; dk is’k fd;kA dsl Mk;jh dk voyksdu fd;k x;kA vkxkeh U;kf;d fjek.M fnukad 24-03-2014 rd Lohd`r fd;k x;kA fjek.M vof/k foLr`r fd;s tkus ckcr~ vkosnu i= ds laca/k esa vfHk;kstu vf/kdkjh ls izfrosnu fy;k tkosA iqu’p& vfHk;kstu vf/kdkjh Jh ns’kik.Ms }kjk izfrosnu is’k fd;k x;kA vfHk;qDrx.k /khjt lko] vk;’kk ckuks] tqcSj gqlSu dks fu:) vof/k 90 fnol dks foLrkfjr dj 180 fnol rd djus ckcr~ uksfVl fn;k tkdj ikorh fy;k x;kA izdj.k vfHk;qDrx.k ds tokc gsrq fu;r fd;k tkrk gSA izdj.k tokc gsrq 24-03-2014 vkyksd dqekj eq[; U;kf;d eftLVªsV jk;iqj] N-x-** 16. Apart from this, learned Sessions Judge also in order impugned has clearly recorded a finding that notice on application for extension were duly served to the present petitioners and acknowledging the notice, they duly signed the order-sheet on 22.03.2014 and it has further been recorded that they not only represented through their counsel, but duly contested the said application also, and only thereafter, order granting application under first proviso to Sub-section (2b) of Section 43-D of the Act, 1967, came to be passed, and as such, reasonable opportunity has been afforded to the petitioners to oppose the application seeking extension of time under the Act, 1967. 17. After hearing learned counsel for the parties and perusal of order-sheet of trial court as well as order impugned, I am satisfied that the petitioners were not only given notice on application filed for extension of time, but they were allowed to file objections also, and thereafter, order impugned came to be passed and it cannot be held that they were not given reasonable opportunity of contesting the application, and as such, learned Sessions Judge has rightly rejected the contention so raised on behalf of the petitioners. 18. 18. This brings me to the next submission raised by the petitioners that application was made by the CSP for extension of time and public prosecutor did not make any submission for extension of time. First proviso to sub-section (2b) of Section 43-D of the Act, 1967, would clearly indicate that report of public prosecutor indicating the progress of investigation and the specific reasons for detention of the accused beyond the said period of ninety days is necessary. The trial magistrate on 22.03.2014 called the report of public prosecutor and report was submitted by the District Public Prosecution Officer on 24.03.2014 and after considering the report, the trial magistrate considered that application and being satisfied with the progress of investigation and considering the reason assigned for detention of petitioners beyond the said period of 90 days, extended the period up to 180 days. Thus, sine-quo-non for granting application is the report of the public prosecutor for such extension of time and it cannot be said that mere filing of application by the CSP would vitiate the order granting extension of time up to 180 days in favour of prosecution, therefore, no illegality has been committed by the learned Sessions Judge in concurring with the order passed by the trial magistrate in exercise of powers conferred under first proviso to sub-section (2b) of Section 43-D of the Act, 1967. 19. The decision so relied upon by the petitioners in B.K. Lala (Supra) is of no help to them as the facts of present case are clearly distinguishable. In that case, accused persons were neither produced nor they were served with copy of notice, however, in the instant case, accused persons were produced and they were served with copy of application. 20. As a fall out and the consequence of the aforesaid discussion, the petition is held to be devoid of merit and is, therefore, dismissed. Petition Dismissed.