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2017 DIGILAW 354 (MAD)

S. KANNAN v. STATE

2017-02-07

P.DEVADASS

body2017
JUDGMENT : Petition For Bail Under Section 439 CR.P.C. Petition for bail. 2. Offences alleged are under Sections 419, 468, 471, 447, 420 of IPC and under Sections 18, 18(A), 18(B), 20, 38, 40(1)(c) of Unlawful Activities (Prevention) Act 1967 (shortly, hereinafter UAP Act) in Crime No. 529 of 2015. 3. Petitioner is stated to be a member of Communist Party of India (Maoist). It is banned by the Government. He is alleged to be a terrorist. He was already confined in Prison in connection with Crime No. 01 of 2015 offences under Sections 120-B IPC r/w 124-A IPC and 20 of UAP Act. This case has been registered by 'Q' Branch. 4. In connection with the present case, namely, Crime No. 529 of 2015, petitioner has been formally arrested on 29.03.2016. Subsequently, he has been produced before the concerned Court on 30.03.2016. Thereafter, his remand period was extended from time to time. When his period of stay in jail neared 90 days, the learned Public Prosecutor sought extension of his remand period by filing a report. Thus, the report has been filed in advance, that is to say on the 87th day. On 28.06.2016, the Court extended the remand period of the accused. Admittedly, on that day, the accused/petitioner was not produced in person. But he was produced through Video Conference. 5. The learned counsel for the petitioner would contend that keeping a person in jail in connection with a criminal case, more particularly, involving of serious accusations and extending his remand period must be in accordance with law. There cannot be mechanical remand. 6. The learned counsel for the petitioner would further contend that the accused must know, he shall be made aware of his case is being considered for extending his remand period under the UAP Act beyond 90 days. Of course, the ceiling limit is 180 days. When the remand extension report was filed, the accused was not made aware of. This is in violation of settled principles of law. 7. In this connection, the learned counsel would cite Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others AIR 1994 SC 2623 : (1994) 4 SCC 602 : LNIND 1994 SC 572 and Sanjay Dutt v. State through C.B.I., Bombay 1995 Cr. LJ 477 : (1994) 5 SCC 410 : LNIND 1994 SC 834 : (1995) 1 MLJ (Crl) 176. 8. LJ 477 : (1994) 5 SCC 410 : LNIND 1994 SC 834 : (1995) 1 MLJ (Crl) 176. 8. In this connection, the learned counsel for the petitioner would also cite orders passed by this Court in Ganapathi and Others v. D.S.P., Valparai, Coimbatore District Crl. R.C. Nos. 1222 of 2015 and 19 of 2016 dated 20.01.2016 and Thiruselvam and Others v. D.S.P, Q. Branch, C.I.D., Ramanathapuram Range Crl. O.P. (MD) No. 361 of 2015 dated 30.06.2015. 9. The Investigating Officer filed counter. 10. The learned Public Prosecutor would contend that petitioner seeks bail. As the accused has committed certain offences under UAP Act, the rigour of Section 43D(5) proviso of UAP Act has to be satisfied. It is a pre-condition to grant bail. The accused has been produced through Video Conference. Such method of production has now been accepted. 11. I have anxiously considered the rival submissions, perused the averments in the bail petition, averments in the counter filed by the prosecution and the decisions cited. 12. Petitioner is being remanded from time to time under Section 167 Cr.P.C. Now Final Report (charge sheet) has been filed. Cognizance has been taken on the Final Report. Thereafter, petitioner has been produced under Section 309 Cr.P.C and his judicial custody is being extended from time to time. 13. Upon registration of a cognisable offence, if the Investigating Officer is not able to complete the investigation within 24 hours, then only remanding of the accused under Section 167 Cr.P.C will arise. Either for initial remand or for extension of remand, the accused has to be produced. As per Section 167 (2)(b) Cr.P.C. when the Investigating Officer seeks remand or extension of remand, the accused must be produced before the Court. The Officer must give extract of the case diary. The Court has to peruse it and satisfy itself the need to remand/extend the remand and then, it can grant or extend the remand. A Court cannot remand the accused mechanically. 14. Remanding a person is depriving of his personal liberty. Remanding a person and sending him to prison is making inroad into one's personal liberty. But it can be done only by a 'procedure' established by law. But the procedure must be 'fair' and 'reasonable' and 'not unjust'. (See Article 21, Constitution of India). Article 22 of the Constitution emphasises production of the accused before the Magistrate. Remanding a person and sending him to prison is making inroad into one's personal liberty. But it can be done only by a 'procedure' established by law. But the procedure must be 'fair' and 'reasonable' and 'not unjust'. (See Article 21, Constitution of India). Article 22 of the Constitution emphasises production of the accused before the Magistrate. The reason being when a person has been arrested by police, his (police) custody begins, without delay he has to be produced before a Judicial Authority. Constitution guarantees certain rights. They are ingrained in Articles 21 and 22 of the Constitution of India. They are inalienable. They are fundamental. They cannot be taken away. They cannot be abrogated. Article 21 authorises curbing the liberty of a person. But, it must be by a fair procedure. (See Maneka Gandhi v. Union of India AIR 1978 SC 597 : (1978) 1 SCC 248 : LNIND 1978 SC 638). 15. The proviso to Section 43D(5) UAP Act is parallel to Section 20(8) TADA. Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others (supra) is a landmark decision on the said TADA provision. The principles laid down therein will equally apply to cases arose under UAP Act. 16. In Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others (supra), the Hon'ble Supreme Court emphasis the production of the accused for remand. 17. In Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others (supra), the Hon'ble Supreme Court observed as under: "22. An application for grant of bail under Section 20(4) has to be decided on its own merits for the default of the prosecuting agency to file the charge-sheet within the prescribed or the extended period for completion of the investigation uninfluenced by the merits or the gravity of the case. The court has no power to remand an accused to custody beyond the period pre scribed by clause (b) of Section 20 (4) or extended under clause (bb)of Ore said section, as the case may be, if the challan is not filed, only on he ground that the accusation against the accused is of a serious nature or the offence is very grave. These grounds are irrelevant for considering the grant of bail under Section 20 (4) TADA. The learned Additional Solicitor General rightly did not subscribe to the argument of Mr. These grounds are irrelevant for considering the grant of bail under Section 20 (4) TADA. The learned Additional Solicitor General rightly did not subscribe to the argument of Mr. Madhava Reddy (both appearing for the State of Maharashtra) that while considering an application for release on bail under Section 20(4), the court has also to be guided by the general conditions for grant of bail as provided by Section 20(8) TADA. Considering the ambit and scope of the two provisions, we are of the opinion that it is totally inconceivable and unacceptable that the considerations for grant of bail under Section 20(8) would be applicable to and control the grant of bail under Section 20(4) of the Act. The two provisions operate in different and independent fields. The basis for grant of bail under Section 20 (4), as already noticed, is entirely different from the ground on which bail may be granted under Section 20 (8) of the Act. It would be advantageous at this stage to notice the provisions of Section 20(8) and (9) of the Act. "(8) Not withstanding anything contained in the Code, no person accused of an offence punishable under this Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless- (a) The Public Prosecutor has been given an opportunity to oppose the application for such release, and (b) Where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable ground for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (9) The limitations on granting of specified in sub-section (%) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail." As would be seen from the plain phraseology of sub-section (8) of Section 20, it commences with a non obstante clause and in its operation imposes a ban on release of a person accused of an offence punishable under TADA or any rule made thereunder on bail unless the twin conditions contained in clauses (a) and (b) thereof are satisfied. No bail can be granted under Section 20(8) unless the Designated Court is satisfied after notice to the Public Prosecutor that there are reasonable grounds for believing that the accused is not guilty of such an offence and that he is not likely to commit any offence while on bail. Sub-section (9) qualifies sub-section (8) to the extent that the two conditions contained in clauses (a) and (b) are in addition to the limitations prescribed under the Code of Criminal Procedure or nay other law for the time being in force relating to the grant of bail. Strictly speaking Section 20 (8) is not the source of power of the Designated Court to grant bail but it places further limitations on the exercise of its power to grant bail in cases under TADA, as is amply clear from the plain language of Section 20 (9). The Constitution Bench in Kartar Singh case while dealing with the ambit and scope of sub-sections (8) and (9) of Section 20 of the Act quoted with approval the following observations from Usmanbhai case (SCC p. 704, para 344) "Though there is no express provision excluding the applicability of Section 439 of the Code similar to the one contained in Section 20(7) of the Act in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder, but that result must, by necessary implication, follow. It is true that the source of power of a Designated Court to grant bail is not Section 20 (8) of the Act as it only places limitations on such power. This is made explicit by Section 20 (9) which enacts that the limitations on granting of bail specified in Section 20 (8) are in addition to the limitations under the Code or any other law for the time being in force. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code. It cannot be doubted that a Designated Court is a court other than the High Court or the Court of Session within the meaning of Section 437 of the Code. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code. It cannot be doubted that a Designated Court is a court other than the High Court or the Court of Session within the meaning of Section 437 of the Code. The exercise of the power to grant bail by a Designated Court is not only subject to the limitations contained therein., but is also subject to the limitations placed by Section 20 (8) of the Act. And went on to add: (SCC p. 704, para 345) Reverting to Section 20(8), if either of the two conditions mentioned therein is not satisfied, the ban operates and the accused person cannot be released on bail but of course it is subject to Section 167 (2) as modified by Section 20(4) of the TADA Act in relation to a case under the provisions of TADA. Thus, the ambit and scope of Section 20(8) of TADA is no longer res integra and from the above discussion it follows that both the provision i.e., Section 20(4) and 20(8) of TADA operate in different situations and are controlled and guided by different considerations." 18. Subsequently, a Constitution Bench of the Hon'ble Supreme Court had occasion to deal with similar question in Sanjay Dutt v. State through C.B.I., Bombay (supra). The principles laid down in Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others (supra) have been approved in Sanjay Dutt v. State through C.B.I., Bombay (supra). 19. In the said case, the Hon'ble Supreme Court observed as under: "46. In Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others, (1994) 4 JT (SC) 225 : (1994) 4 SCC 602 : (1994) AIR SCW 3699 the conclusion was summarised, 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 the 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 granted by the Court without notice to an accused to have its 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 made under clause (bb), the Court shall release the accused, on bail as it would be an 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. 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. 47. In Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others (supra), it was held that the Designated Court would have no jurisdiction to deny to an accused his indefeasible right to be released on bail on account of the default of the prosecution to file the challan within the prescribed time if an accused seeks and is prepared to furnish the bail bond as directed by the Court: and that a notice to the accused is required to be given by the Designated Court before it grants any extension under the further proviso beyond the prescribed period of 180 days for completing the investigation. Shri Kapil Sibal, learned counsel for the petitioner contended that the requirement of the notice contemplated by the decision in Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others (supra) before granting the extension for completing the investigation is mere production of the accused before the Court and not a written notice to the accused giving reasons for seeking the extension requiring the accused to show cause against it. Learned counsel submitted that mere production of the accused at that time when the prayer for extension of time is made by the Public prosecutor and considered by the Court, to enable such a decision being made in accordance with the requirements of Section 167, Cr.P.C., is the only requirement of notice to be read in the decision of the Division Bench in Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others (supra). The grievance of the learned counsel was that quite of then the accused was not even produced before the Court at the time of consideration by the Court of the prayer of the Public Prosecutor for extension of the period. 50. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4) (bb) is based on a correct reading of the principle indicated in that decision. 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 or remain enforceable on the challan being filed, if already not availed of. Once 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 provision 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 Section 167 but different provision 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. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4) (bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. State of Punjab, 1952 SCR 395 : AIR 1952 SC 106 ; Ram Narayan Singh v. State of Delhi, 1953 SCR 652 : AIR 1953 SC 277 and A.K. Gopalan v. Govt, of India (1966) 2 SCR 427 : AIR 1966 SC 816 ." 20. In Ganapati and Others v. Coimbatore District (Crl.R.C. Nos. 1222 of 2015 dated 20.01.2016), a learned Judge of this Court referred to the ratios laid down by the Hon'ble Supreme Court in Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others (supra) and also in Sanjay Dutt v. State through C.B.I., Bombay (supra). In the said case, similarly the accused were alleged to have committed certain offences under UAP Act. The accused was not produced, remand was mechanically extended, the Court found it to be an illegal and granted the accused bail. 21. In Sayed Mohd. Ahmad Kazmi v. State and Others (2012) 12 SCC 1 : LNIND 2012 SC 666, the accused is alleged to have committed certain offences under UAP Act. He sought for default bail. But that was not dealt within accordance with law. He challenged it. Subsequently Final Report was filed. It was argued before the Hon'ble Supreme Court that the period was over, final report was also filed and thereafter, he can seek bail only on merit. 22. He sought for default bail. But that was not dealt within accordance with law. He challenged it. Subsequently Final Report was filed. It was argued before the Hon'ble Supreme Court that the period was over, final report was also filed and thereafter, he can seek bail only on merit. 22. The Hon'ble Supreme Court negatived such a contention and held that there cannot be validation of illegal detention retrospectively. It means if the accused is entitled to default bail and he was denied such a bail unlawfully and if subsequently final report is filed, the illegality of having not granted the default bail cannot be cured. He cannot be denied the benefit of law laid down in Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others (supra) and Sanjay Dutt v. State through C.B.I., Bombay (supra). 23. Now from the above survey of the case-law, what follows is that Court can remand an accused only on his production. Remand or extension of remand could be obtained only upon satisfaction of the Court based on the materials produced before it including the report filed by the Public Prosecutor. Any flaw on the part of the prosecution in this regard will not enure benefit to the prosecution. But will enure benefit to the accused. The 'indefeasible bail' or 'bail orders on default' cannot be curtailed, cannot be denied, cannot be defeated by any subsequent act by the prosecution. 24. In the case before us, after accepting the expiry of the period, the Public Prosecutor filed remand extension report. At no point of time, the petitioner was made aware of the plea of remand extension made by the prosecution. Subsequently, remand extension order was passed by the Court. Production of the accused through Video Conference or subsequent filing of the Final Report will not retrospectively validate such illegal detention. When the remand is in breach of Section 167 Cr.P.C. and the law laid down by the Hon'ble Supreme Court in Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others (supra) and Sanjay Dutt v. State through C.B.I., Bombay (supra) as well as in Crl.R.C. Nos. 1222 of 2015 and 19 of 2016 dated 20.01.2016 (CTSJ) the remand becomes illegal. 25. In the light of the above, the principles laid down in the above decisions squarely applies to the facts of this case. 26. 1222 of 2015 and 19 of 2016 dated 20.01.2016 (CTSJ) the remand becomes illegal. 25. In the light of the above, the principles laid down in the above decisions squarely applies to the facts of this case. 26. Proviso to Section 43D(5) of UAP Act prescribes a condition precedent to be satisfied before granting bail, namely, the Court must come to the conclusion that there is no reasonable basis that the accused has committed an offence. But we are on a different aspect. Ratio laid down in Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others (supra) and in Sanjay Dutt v. State through C.B.I., Bombay (supra) and the Constitutional mandates in Articles 14, 21, 22 are clear and are superior. Section 43D(5) of UAP Act is subservient to it. The proviso to Section 43D(5) of UAP Act cannot override, when once the remand or extension of remand is found to be illegal. In the circumstances, the proviso to Section 43D(2) UAP Act will not stand in the way of granting him bail. Thus the petitioner is entitled to bail. 27. The petitioner is involved in several cases. Some of them are serious offences. Thus, his availability during the Trial, after the Trial are to be ensured. In such circumstances, some precautionary measures have to be taken. 28. Ordered as under: (i) Bail granted; (ii) Two sureties, one shall be his mother, they and the petitioner shall execute a bond for Rs. 15,000/- (Rupees Fifteen Thousand only) each to the satisfaction of the learned Principal Sessions Judge, Erode; (iii) Petitioner shall report before the respondent police on all working days at 10.30 a.m. until further orders.