1 REPORTABLE  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.2181­2182  OF  2017 (Arising out of SLP(Crl.) Nos.7052­7053 of 2017)

RAMBEER SHOKEEN …..APPELLANT :Versus:

STATE OF NCT OF DELHI …..RESPONDENT   

J U D G M E N T

A.M. Khanwilkar, J.

1. These appeals, by special leave, question the legality and

tenability  of the  judgment and order passed by  the  learned

Single Judge of the High Court of Delhi at New Delhi dated

22nd May, 2017 in Criminal Appeal No.311/2017 and Criminal

M. (Bail) No.525/2017.

2. Briefly stated, the appellant has been named as an

accused in FIR No.10 of 2015 registered at the Police Station

2 (Special Cell), Delhi, for offence punishable under Sections 3 &

4 of the Maharashtra Control of Organized Crime Act, 1999

(hereinafter referred to as the “MCOCA”).   He has also been

named as an accused in FIR No.65/2016 for offence

punishable under Sections 26 & 27 of the Arms Act, registered

at the same police station. He was declared as a proclaimed

offender in connection with the said case and was later

arrested on 27th November, 2016.   

3. The appellant came to be arrested in connection with the

present FIR on 1st  December, 2016. Before the expiry of 90

days period, the Additional Public Prosecutor on  28th

February, 2017 moved an application for extension of time to

file charge­sheet up to 15th March, 2017.  The said application

reads thus:  

“  ANNEXURE P­3

IN THE COURT OF SHRI RAKESH PANDIT, LD.ASJ, MCOCA #

25, PATIALA HOUSE COURTS, NEW DELHI.

3 FIR No. 10/2015 dated 23.02.2015 U/s 3/4 MCOC Act PS Special Cell, Lodhi Colony, Delhi.

Subject : Regarding extension of limitation period upto 15.03.2017

Hon’ble Sir,

It is  submitted  that I  have  perused  the report  of the Investigating Officer of this case. The allegations against above Accused Rambeer Shokeen in present case are that he along with other syndicate members was running an organized crime syndicate in Delhi & other states by committing a series of sensational crimes including gruesome and inimical murder, extortion by putting by some businessmen in fear with criminal intimidation, obstruction of Govt. servants to deter them from discharge of official duties and offences under the arms act etc.

The above accused Rambeer Shokeen was continuously evading his arrest and didn’t join investigation. On 20.04.2015, non­bailable warrant against him was issued but couldn’t be executed, as not available at his possible hideouts and later on after further proceedings, he was declared P.O. on 26.08.2015 by this Hon’ble Court. On 27.11.2016, he was arrested in case FIR No.65/2016 U/s 25/27 Arms Act of P.S. Special Cell, Delhi and later on 01.12.2016, arrested in this case.  

Sl.  No.

Name, Parentage & address Date of arrest

S/ V

01 RAMBEER SHOKEEN aged – 37 years, S/0 Shri Naval Singh r/o H.No.151, Extension­IV, Nangloi, Delhi­ 41 & permanent address – H.No.70, village Kamruddin Nagar, P.S. Nihal Vihar, Delhi.

01.12.2016

4 During investigation, several evidences including followings have been collected against above accused Rambeer Shokeen:

1.  Income Tax Return report  (ITR) dated 10.02.2017 from year 2006­2016, which reflects that he has not filed ITR during this period, while he has incurred huge expenses during  Delhi  Legislative  Elections  of  year  2013  & 2015 apart from other expenses.

2.  Reports regarding  property  details from  the offence  of Sub­Registrar West, SDM­Nangloi etc.

3. FORM 26 submitted by him before Election Officer showing details of moveable & immovable properties etc.  

THE INVESTIGATION OF THE CASE IS TO BE CONDUCTED ON FOLLOWING GROUNDS

1.  As per FORM 26 submitted by the Accused before Election Commission to contest Delhi Legislative Assembly Election for Assembly Constituency­08 in year 2013, he has shown immoveable  and  moveable  assets  of  himself  & his  wife worth Rs. 1.85 (approx.), while he and his wife Mrs. Reeta Shokeen  are  not found filing income tax returns  during year 2006­2016, so the investigation on this point is necessarily required.

2. To make further interrogation from accused to verify the source of huge amount of money in respect of the assets as mentioned above vis­à­vis the ITR for a period 2006­2016 (NIL returns), the details of which were obtained on 10.02.2017.

In view of above pending investigation points, it is, humbly requested that the limitation  period for filing  charge  sheet against above accused Rambeer Shokeen may be extended upto 15.03.2017, so that charge sheet against him may be filed before the Hon’ble Court as per the time limit fixed by Hon’ble Court. Submitted please, Sd./­ 28.02.17

(RAVINDRA KUMAR) Addl. Public Prosecutor

Patiala House Court, New Delhi Dated: 28.02.2017”

5

4. On the same day i.e. 28th  February, 2017, the accused

moved an application for grant of statutory bail under Section

167(2)  of the Code of  Criminal  Procedure read with Section

21(2)(b) of MCOCA. The Special Judge, by an order dated 28th

February, 2017, extended the judicial custody of the appellant

until 1st March, 2017. The said order reads thus:   

“An application  for further  extension of  JC moved on behalf of IO. Copy given.

Report  is also submitted by Ld. APP for State for the purposes of extension of JC beyond 90 days and for seeking further extension of time for investigation beyond period of 90 days.

JC is extended till 01.03.2017. Put up with main file for arguments on this application

on 01.03.2017. Copy of Order be given dasti.”

5. On 1st  March, 2017, the appellant filed his reply to

oppose the application filed by the  Additional Public

Prosecutor seeking extension of limitation period for filing of

charge­sheet  against the  appellant,  upto  15th  March,  2017.

Besides, the appellant  was produced before the  District  &

Sessions  Judge  and  as the  Presiding  Officer of the  Special

6 Court was on leave, the District & Sessions Judge passed the

following order:  

“01.03.2017

File is put up before me Shri Rakesh Pandit, Ld. Spl. Judge, NIA/POCSO/MCOCA,  ASJ­01,  PHC,  New Delhi is  on  leave today on account of un­wellness.

Present :  Shri Devender Kumar, Ld. Chief PP for the State along  with Shri Ravindra  Kumar, Ld. Addl. PP and ACP Hridaya Bhushan

Accused produced from JC.

Shri Mehmood Pracha and Shri R.H.A. Sikander, Ld. Counsels for the accused Rambeer Shokeen.

Reply  has  been  filed  on  behalf  of  accused Rambeer Shokeen to the application  moved on behalf of the State seeking extension of time for  filing  the charge sheet.  Copy supplied. An application has been moved on behalf of State seeking extension of JC of the accused above named.

As Ld. Presiding Officer is on leave. Judicial custody of the accused Rambeer Shokeen is extended till  07.03.2017. Merits of the application dated 28.02.2017 shall be decided by the concerned court.

Ld. Chief PP for the State submits that he has not been supplied with the copy of the application moved on behalf of the accused Rambeer Shokeen under Section 167(2) of Cr.P.C.  seeking grant of  statutory bail.  Ld. Counsel for the accused is directed to supply the copy of the same during the course of the day against proper receipt.

Put up on 07.03.2017 for further proceedings.”

7

6. On the next day i.e. 2nd  March, 2017, the appellant

moved another  application  for  grant of  statutory bail  under

Section 167(2) of Cr.P.C. read with Section 21(2)(b) of MCOCA.   7. On 4th  March, 2017, the ACP/Special  Cell/NDR, Lodhi

Colony,  New Delhi,  moved an application before the Special

Court  for  permission to  interrogate the appellant in Central

Jail No.3, Tihar, Delhi. The said application reads thus:  

“  ANNEXURE P­8

IN THE COURT OF SHRI RAKESH PANDIT, LD. ASJ, MCOCA# 25, PATIALA HOUSE COURTS, NEW DELHI.

FIR No.10/2015 dated 23.02.2015 U/s 3/4  MCOC Act PS Special Cell, Lodhi Colony, Delhi.

Subject :  Regarding permission for interrogation in Central Jail, Tihar, Delhi.  

Hon’ble Sir,

S/V S/V

Sl. No.

Name,  Parentage  & address

Date of arrest

01 RAMBEER SHOKEEN aged – 37 years, S/0 Shri Naval Singh r/o H.No.151, Extension­IV, Nangloi, Delhi­41 & permanent address – H.No.70, village Kamruddin Nagar, P.S. Nihal Vihar, Delhi.

01.12.2016

8 It is submitted that the present case is pending investigation

against accused Rambeer Shokeen and other syndicate members for running an organized crime syndicate in Delhi & other states by committing a series of sensational crimes including gruesome and inimical murder, extortion by putting by some businessmen in fear with  criminal intimidation, obstruction  of  Govt.  servants to  deter them from discharge of official duties and offences under the arms act etc.

On 01.12.2016,  accused Rambeer  Shokeen was arrested  in  this case. During investigation it is revealed that in November 2013, he had filed an affidavit before Election Commission to contest Delhi Legislative Assembly Election. In this affidavit, he has shown immoveable and  moveable assets of himself & his  wife  worth Rs.1.85 crores (approx.). As per report dated 10.02.2017 of Income Tax Department, neither he nor his wife Mrs. Reeta Shokeen has filed income tax returns during year 2006­2016.

In view of above, it is humbly requested that the necessary permission to interrogate accused Rambeer Shokeen may be granted  in Central  Jail  No.3,  Tihar,  Delhi.  The accused Rambeer Shokeen is running in judicial custody till 07.03.2017.

Submitted please,  

Sd./­ (HRIDAYA BHUSHAN) ACP/Special Cell/NDR

Lodhi Colony, New Delhi Dated: 04.03.2017”

The Special Judge considered the said application on 4th

March, 2017 and allowed the prayer for permission to

interrogate the appellant in judicial custody before 7th March,

2017. The order passed by the Special Court reads thus:

“04.03.2017

9

File is put up before me as Shri Rakesh Pandit, Ld. Spl. Judge, NIA/POCSO/MCOCA, ASJ­01, PHC has gone to Odisha for National Seminar, Judicial Academy, Cuttack. Present :  Shri Ravindra Kumar Ld. Addl. PP for the State ACP Hridaya Bhushan along with Inspector Ravinder Kumar Tyagi. Accused Pankaj Sehrawat, Neeraj Sehrawat, Naveen Dabas and Rahul Dabas produced from JC.

An application has been moved on behalf of Special Cell seeking permission to interrogate the accused Rambeer Shokeen in Central Jail No.3, Tihar Delhi submitting that the accused Rambeer Shokeen  was arrested in this case on 01.12.2016 and he  is  running  in JC which  is extended till 07.03.2017. During investigation it is revealed that in November, 2013, he has filed an affidavit before Election Commission to contest Delhi Legislative Assembly Election and in the said affidavit, he has shown his immovable and moveable assets as well as of his wife which is worth Rs.1.85 crores (approx.). It is stated that as per the report dated 10.02.2017 of Income Tax Department, neither he nor his wife Smt. Reeta Shokeen has filed  income tax return during the year 2006­2016.

Heard. Keeping in view the fact and circumstances, the application stands allowed by permitting Special Cell to interrogate the accused Rambeer Shokeen in judicial custody before 07.03.2017.

Application stands disposed of accordingly. Copy of this Order be sent to Superintendent, Tihar Jail, Delhi for compliance.

Copy of this Order be also given to the Special Cell, as prayed for.

Put up on 18.03.2017 for further proceedings.”

10

8. On 7th March, 2017, the application for extension of time

for filing charge­sheet dated 28th  February, 2017 and the

application  filed by  the appellant for  grant of  statutory bail

dated 2nd March, 2017, were taken up by the Special Court.

The Court after considering the arguments of the parties

passed the following order:

“07.03.2017

Present:   Shri Ravindra Kumar Ld. APP for State. Shri  Mehmood Pracha and Sh.  R.H.A.  Sikander counsel for accused. Accused Rambeer Shokeen from JC. IO ACP Hirdey Bhushan in person.

Arguments heard on application for extension of time for investigation dated 28.02.2017 and on application u/sec.167 (2) Cr.P.C. dated 02.03.2017 (moved at 10.00 a.m.)

Put up for order on these applications on 08.03.2017. JC is extended till 08.03.2017. Copy of order be given dasti.”

9. As directed, the  matter  was taken up by the Special

Court on 8th  March, 2017 when the prosecution filed

supplementary charge­sheet against the appellant. The Court

passed the following order:  

“08.03.2017

Present:   Shri Ravindra Kumar Ld. APP for State.

11 Shri Mehmood Pracha and Sh. R.H.A. Sikander and Prateek Gupta counsel for accused Rambeer Shokeen. IO ACP Hirdey Bhushan in person. Accused Rambeer Shokeen from JC.

Supplementary charge sheet filed  with respect to  Accused Rambeer Shokeen.

Charge sheet perused I take cognizance of the offences involved. Copies of documents supplied with respect to the charge sheet against Rambeer Shokeen. Time sought by IO to supply copy of earlier charge sheet against other accused persons. Same be supplied within 7 working days. Put up for scrutiny of documents on 18.03.2017. Considering the fact that supplementary charge sheet has already been filed against accused Rambeer Shokeen, so the application regarding extension of time dated 28.02.2017 become infructuous and thus dismissed as infructuous. Put up for arguments/order on application u/sec. 167 (2) Cr.P.C. on 09.03.2017.”

10. Again, the matter was taken up on 9th March, 2017 when

the hearing on statutory bail application remained

inconclusive. The Court passed the following order:  

“09.03.2017 Present:   Shri Ravindra Kumar Ld. APP for State. Shri Mehmood Pracha and Prateek Gupta counsel for accused Rambeer Shokeen.

Part arguments on application u/sec.167 (2) Cr.P.C. Heard. Put up for further arguments on this application on 14.03.2017.”

12

11. Finally, on 14th March, 2017 the Special Court rejected

the statutory bail application dated 2nd March, 2017 filed by

the appellant. The relevant extract of the observations/reasons

recorded by the Special Court reads:  

“xxx xxx xxx xxx xxx

So, in these circumstances, the application dated 28.02.2017 i.e. seeking extension of period to file charge sheet/investigation was not decided on merits (as sought vide  order  dated  01.03.2017).  Moreover,  on  08.03.2017, cannot be decided on  merits as the charge­sheet was already filed before order on this application. So,  in these circumstances,  the  issue before the court in this application is that whether vide order dated 01.03.2017, the said court of Ld. District & Session Judge, NDD was within its power to extend the judicial custody of the  accused or not and for that purpose  whether there should be a specific order of extension of period of investigation. As far as this issue is concerned, the law says that it is the prerogative of the investigating agency to file charge sheet/complete investigation, as per their wishes. The Court cannot interfere in the period/duration of investigation. However, in Sec.21(2)(b) MCOCA, the rider is that in case if the investigation is not completed within 90 days and the prosecution/IO  wanted that the accused shall remain in judicial custody, then only he has to move in terms of Sec.21(2)(b) of MCOCA. In this case, the prosecution had moved such application on 28.02.2017 (analogous to the movement of application u/sec.167(2) Cr.P.C. by accused, before charge­sheet). The

13 order could not be passed as the court under Sec.5(5) MCOCA had stated that the same is to be heard by the concerned court. So, there was no lapse on the part of IO. He had already moved the application on time. As far as the JC is concerned, the same has been extended by the concerned court after the application u/sec.28(2)(b) MCOCA is already moved by the IO. So, in these circumstances, the court  had acted  in  legal  way  in extending  the  period of judicial custody since the application for seeking extension of time was already pending before the court. So, in these circumstances, no ground exists which suggest that there was illegal custody of accused beyond the period of 90 days from the day of his first judicial remand and he is entitled for statutory bail u/sec.21(2)(b) of MCOCA. So, the application u/sec. 167(2) Cr.P.C. alternatively read as application u/sec.21(2)(b) of MCOCA is dismissed. Copy of order be given dasti.

Put up for purpose fixed on date already fixed i.e. 18.03.2017.”           

12. Aggrieved, the appellant filed  Criminal Appeal

No.311/2017 before the High Court of Delhi at New Delhi and

challenged the legality  of  orders  dated 1st  March,  2017,  4th

March, 2017, 7th March, 2017 and 14th March, 2017. Besides,

the appellant moved an application for grant of interim bail.

By the impugned judgment, the High Court has rejected

14 Criminal Appeal No.311/2017 and Criminal M. (Bail)

No.525/2017 on 22nd May, 2017.  

13. The principal argument of the appellant before the High

Court as noted in paragraph 20 of the impugned judgment is

that the report/application submitted by the Additional Public

Prosecutor for extension of time to file charge­sheet till  15th

March, 2017, was not in conformity with the requirement of

proviso to  Section 167(2) of Cr.P.C.   The appellant placed

reliance  on  the  decision of this  Court in  Hitendra Vishnu

Thakur v. State of Maharashtra,1  to buttress his

submission. After adverting to the legal position

expounded in the said decision, the High Court in paragraph

24 considered the  factual matrix relevant  for  answering the

issue. The contention specifically raised by the appellant has

been dealt with from paragraph 25 of the impugned judgment

and noted thus:

“25. The request submitted by the public prosecutor on 28.2.2017 seeking extension of the period for filing charge­

1  (1994) 4 SCC 602

15 sheet against him in this case till 15.3.2017, briefly referred to the report of the investigating officer that had been submitted  before  him (the  public prosecutor) and  upon its perusal the brief background facts were mentioned indicating certain steps  that  had been taken to  collect  evidence with regard to the income and assets of the appellant. The public prosecutor informed the special court by the said request in writing that  investigation of the case was to be conducted, inter alia,  by his ’― further interrogation’ as to the source of money for acquiring the assets worth Rs. 1.85 crores as had been declared to be held by him and his wife to the Election Commission  at the time  of contesting the  election to  Delhi Legislative Assembly in 2013, income­tax returns not having been filed by him or his wife during 2006­2016.  

26. Pertinent to mention here that the request for interrogation of the appellant in custody made by the investigating officer on 4.3.2017, granted on the same date by the District and Sessions Judge, was for the same reasons and on the same grounds as were set out by the public prosecutor in his request submitted on 28.2.2017.  

27. It is true that the request of the public prosecutor submitted on 28.2.2017 is not captioned as ‘report’ nor does it specifically refer to the provision contained in the second proviso to Section 167 (2) Cr.P.C. But, this cannot be construed as a deficiency. It has to be borne in mind that it is not  a matter  of form but  one of  substance.  The request in writing dated 28.2.2017 of the additional public prosecutor satisfies the twin criteria of the second proviso to Section 167 (2) Cr.P.C. It indicates that the public prosecutor had subjected the investigating officer’s report as made to him to scrutiny and also informed the court the progress of the investigation and setting out the reasons why the continued detention of the appellant in custody was necessary. Therefore, it  has to be accepted as a  ‘report’  of the public

16 prosecutor satisfying the requirements of  second proviso to Section 167 (2) Cr.P.C.  Whether or not, in the facts and circumstances  of the  case,  as  prevailing  on  the  date  such report  was  submitted to the  special court  will have to  be considered separately.  

28. As noted above, the appellant had moved an application under Section 167(2)  Cr.P.C. for  release on bail  by default under Section 167(2) Cr.P.C. on 28.2.2017. It is fairly conceded by the learned counsel for the appellant that such application  moved on  28.2.2017  was  premature  as  ninety days would expire only on 1.3.2017.  

29. On 28.2.2017, besides the application of the investigating officer seeking extension of the custody period of the appellant, the report of the public prosecutor for extension of the  period of investigation  had come  be submitted to the special court. Without doubt, the report could be considered before expiry of the period of ninety days or on the last day of such period ordinarily available which would be 1.3.2017. The  special court,  within its judicial  discretion,  decided to postpone the consideration to the following date i.e. 1.3.2017. It is reflected in the order passed on 1.3.2017 by the District and Sessions Judge, as extracted earlier, that the additional sessions judge presiding over the special court was indisposed and, therefore, on leave of absence on 1.3.2017. The District and Sessions Judge, before whom the file was placed for consideration of the report of the public prosecutor and the  application  of the investigating  officer,  decided to defer the former to  7.3.2017 for it to be ‘decided  by the concerned court’ while extending the judicial custody for such period. Questions have been raised as to the competence of the District and Sessions Judge to deal with this case under MCOCA on the plea that the judicial officer presiding over the court of District and Sessions Judge was not designated as a special court in terms of Section 5 MCOCA.”

17

14. While dealing with the argument regarding the

competence of the District & Sessions Judge, the High Court

referred to the Notification dated 15th  September,  2010 and

opined that it was regarding conferral of powers of Presiding

Officer of the Special Court under MCOCA ascribable to

Section 5 of the special  enactment.  Further, the Lieutenant

Governor of National Capital Territory of Delhi was pleased to

confer on each member of the Delhi Higher Judicial Service,

inter alia, the powers of Presiding Officer of the Special Court

under MCOCA as extended to NCT of Delhi, with conferral of

powers to be exercised “with effect from the date of

assumption of the charge” of such post in pursuance of

“transfer or posting orders by the Chief Justice of the Delhi

High Court”.

15. The High Court then considered the grounds urged by

the appellant and after adverting to Section 5 of MCOCA and

Section 15 of the General Clauses Act and the reported

precedents pressed into service by both the sides, answered

18 the issue  against the  appellant.  The  High  Court concluded

that the validity of  Notification dated 15th  September, 2010,

issued by the Lieutenant Governor of NCT of Delhi, inter alia,

conferring powers  to  be exercised by  the  members of  Delhi

Higher Judicial Service, in terms of MCOCA, such

empowerment being “ex­officio”, cannot be questioned.   

16. As regards the  merits of the application for grant of

statutory bail, the High Court adverted to the decisions relied

upon by the parties. In paragraph 69 the Court then observed:

“69. As has been held above, the District and Sessions Judge, while dealing with the matter arising out of, inter alia, the report  of  the public prosecutor on 01.03.2017,  and the additional sessions judge  presiding over the special court also dealing, amongst others,  with the said report of the public  prosecutor on 07.03.2017 and 08.03.2017,  failed to discharge the judicial responsibility properly. The consideration of the report of the public prosecutor, submitted (on 28.02.2017)  well in  time before expiry of the period of ninety days ordinary available, was deferred unnecessarily on 01.03.2017 and beyond till it was treated, wrongly so, as infructuous ― on 08.03.2017. It is against this backdrop that

the appellant argues that  there being no order  in terms of second proviso to Section 167(2) Cr.P.C. enlarging the period of investigation, a right to bail by default has accrued in his favour which cannot be defeated by submission of the charge

19 sheet on 07.03.2017. The crucial question, however, is as to whether such benefit can be extended to the appellant in a fact­situation where the investigating police officer, and the public prosecutor, had done their part of the duty under the law, well within time, and the default in consideration of, and decision on, the report of the public prosecutor was wholly for the reasons (or, shall we say, fault) attributable to the District & Sessions Judge and the special court.”  

17. Again in paragraphs 74 to 77, the Court observed thus:  

“74. It is clear that the report submitted on 28.02.2017 by the public prosecutor in terms of second proviso to Section 167(2) Cr. PC seeking enlargement of time for completion of investigation did not receive due consideration of the court. If the grounds on which the public prosecutor was recommending extension of time were sufficient, there would be no justification for its denial and, resultantly absolutely no justification for the appellant to be released on bail by default.

If, on the other hand, the request was unfounded, it should have been rejected and an appropriate order extending release on bail by default should have been passed.  

75. Since the report did not receive due consideration and was improperly treated as ‘infructuous’, there are two options available before this court : one, to remit the matter back to the special court for a proper decision on the report or, two, to consider the report and pass appropriate order thereupon. The former course  would only entail further delay. In a case involving questions of personal liberty, such course is not desirable. In this view, the learned counsel on both sides were also heard on the merits of the report of the public prosecutor,

20 bearing in mind that this court  is duty bound to secure the ends of justice and to prevent abuse of the process of court.  

76. The background facts and circumstances of the case against the appellant have already been noted. Certain assets of  the appellant  and members of his  immediate family had come to  light  for which,  prima facie, there was no account, particularly in view of the declaration made on the subject in 2013,  when he  was a candidate in the election to Delhi Legislative Assembly. Noticeably, the investigating officer was seeking opportunity to interrogate the appellant against these facts to seek his explanation, if any. Under the provisions of the special enactment (MCOCA), the investigating police officer is entitled to  interrogate the accused in judicial custody. As mentioned earlier, a formal request to this effect made by the investigating officer was allowed by order dated 04.03.2017. The report submitted on 28.02.2017 by the public prosecutor, thus, is found to  pass  the necessary muster  of the second proviso to Section 167(2) as inserted in the Code of Criminal Procedure by Section 21(2) of MCOCA. The fact that the charge­sheet was filed on 08.03.2017,  only re­assures that the request for enlargement of time for completion of investigation made on 28.02.2017 was not with ulterior motive.  

77. In above view, in the considered view of this court,  the request made by the public prosecutor should not only have received due consideration of the special court on 28.02.2017, or the  District  & Sessions Judge on 01.03.2017, but also deserved to  be allowed. The  trashing of the said report  as “infructuous”, by order dated 08.03.2017, was thus not only incorrect but improper. In these circumstances, in exercise of the jurisdiction vested in this court to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of proceedings of the inferior criminal court (under Section 397 Cr. PC), as indeed invoking the ‘inherent

21 powers’ of this court to secure the ends of justice and prevent abuse of the judicial process (under Section 482 Cr. PC), the order dated 08.03.2017 disposing of the report of the public prosecutor under second proviso to Section 167(2) Cr. PC is set aside and, instead the said report is accepted and the period for completion of investigation of the case at hand against the appellant is extended till 08.03.2017 when the report under Section 173 Cr. PC (supplementary charge­sheet) against him was actually filed. In this view, the prayer of the appellant for release on bail  by default under Section 167(2) is rendered impermissible and is accordingly declined.”

18. Being aggrieved, the appellant has approached this Court

by way of  these appeals. In the course of hearing, the only

argument canvassed by the counsel for the appellant  was

about the entitlement of the appellant for grant of statutory

bail as, admittedly, the Special Court did not pass any specific

order on the report/application for extension of time for filing

of charge­sheet against the appellant preferred by the

Additional  Public  Prosecutor. In absence  of such  an  order,

contends the appellant, the appellant acquired an indefeasible

right. Thus, he ought to have been granted statutory bail as

prayed vide application dated 2nd March, 2017, under Section

167(2) of Cr.P.C. read with Section 21(2)(b) of MCOCA.  As the

22 statutory period of 90 days had already expired and there was

no extension of time granted to the prosecution by the Special

Court to file the charge­sheet, filing of the charge­sheet

against the appellant on 8th March, 2017 could not denude the

appellant of statutory bail. In support of his submission,

reliance  is placed on the decisions  in the case of  Union of

India v. Nirala Yadav,2 Uday Mohanlal Acharya v. State

of Maharashtra,3 and Sanjay Dutt v. State through CBI  4.

No other argument has been canvassed by the learned counsel

for the appellant in these appeals.  

19. The respondent  on the  other  hand  would  support the

reasons recorded by the Special Court and by the High Court

to oppose these appeals. According to the respondent, the

Special  Court  and  the  High Court  have  not  committed any

error in rejecting the prayer for grant of statutory bail, in view

of indisputable facts of  the present case. The appellant was

well advised not to pursue his application for grant of

2  (2014) 9 SCC 457 3  (2001) 5 SCC 453 4  (1994) 5 SCC 410

23 statutory bail application dated 28th  February, 2017. For, by

that date, 90 days period for filing charge­sheet had not

expired.  Resultantly, the  question of  entertaining  prayer for

grant of statutory bail did not arise. As regards the statutory

bail application filed on 2nd March, 2017, the same was also

misconceived as the Additional Public Prosecutor had already

filed report/application for extension of time on 28th February,

2017 itself and the Court had extended the judicial custody of

the appellant pursuant to the said application until 1st March,

2017. Again on 1st  March, 2017, the hearing on

report/application for extension of time preferred by the

Additional Public Prosecutor was deferred and judicial custody

was  finally  extended until  8th  March, 2017. Further,  merely

because   no express order was passed on the said

report/application of the Additional Public Prosecutor on 2nd

March, 2017 or for that matter, till 8th March, 2017 when the

charge­sheet was filed against the appellant, ipso facto did not

create any right in favour of the appellant. For, judicial

24 custody of the appellant was consciously extended by the

competent Court from time to time (from 28th February, 2017

till the filing of charge­sheet). In any case, the Special Court,

in law, was obliged to first decide the said report/application

for extension of time preferred by the Additional Public

Prosecutor,  and only if the  same was to  be rejected  before

filing  of the  charge­sheet  or  expiry  of the  period of judicial

custody of the appellant,  could  the appellant  claim that  an

indefeasible right had accrued in his favour. In other words,

application for grant of statutory bail preferred by the

appellant on 2nd March, 2017  was also premature and in any

case, the same could not have been taken up for consideration

until the report/application for extension of time to file charge­

sheet submitted by the Additional Public Prosecutor dated 28th

February, 2017, was finally decided. In support of this

submission, reliance has been placed on the dictum in

paragraph  48  of the  decision  of the  Constitution  Bench  in

Sanjay Dutt’s case (supra).  It is contended that the decisions

25 in Uday Mohanlal Acharya (supra), Nirala Yadav (supra) and

Sanjay Dutt will be of no avail to the appellant as the

exposition in  those  cases  was  in  light  of the facts  of those

cases. It is contended that the High Court justly considered

the merits  of the  report  of the Additional  Public  Prosecutor

dated  28th  February, 2017 for extension  of time,  and  after

analysing the relevant aspects, concluded that the request

made by  the  Additional  Public  Prosecutor  was genuine  and

appropriate. The High Court, after hearing both sides,

concluded that the time to file charge­sheet against the

appellant stood extended till 8th March, 2017 when the same

was, in fact, filed.  Resultantly, the  application for grant  of

statutory bail filed by the appellant albeit on 2nd March, 2017,

was  bound to  be  dismissed.  According to the respondents,

these appeals are devoid of merit and ought to be dismissed.  

20. We have  heard  Mr.  Mehmood Pracha, learned counsel

appearing for the  appellant and  Ms.  Pinky  Anand, learned

Additional Solicitor General assisted by Mr. Aman Sinha,

26 learned  senior counsel and Mr.  B.V.  Balaram Das, learned

counsel for the respondent.  

21. After having analysed the facts and events as unfolded

from 28th  February, 2017 until 8th  March, 2017, it is

indisputable that on 28th  February, 2017, the Additional

Public Prosecutor had filed report for extension of time to file

charge­sheet against the appellant until 15th March, 2017. The

same was filed within time, before the expiry of 90 days from

the date of initial arrest of the appellant in connection with the

subject FIR. Realising this position, the appellant did not

pursue his first application for statutory bail dated 28th

February, 2017. Instead, he was advised to file a fresh

statutory bail application on 2nd March, 2017. Admittedly, on

2nd March, 2017 the report submitted by the Additional Public

Prosecutor dated 28th  February, 2017  was still undecided.

Therefore, no right can be said to have accrued to the

appellant for grant of bail on the ground of default.   In law,

only upon rejection of the prayer for extension of time sought

27 by the  Additional Public Prosecutor, right in favour of the

appellant  for grant of statutory bail  could have ignited. The

mere fact that 90 days period from the date of initial arrest of

the appellant in connection with the subject FIR had lapsed on

2nd  March, 2017, could not ineluctably entail in grant of

statutory bail to the appellant. Moreso, when no decision was

taken by the Court on the report/application submitted by the

Additional Public Prosecutor until 8th March, 2017, on which

date the supplementary charge­sheet against the appellant

was filed in Court. Considering the effect of filing of the

supplementary charge­sheet against the appellant, coupled

with the  fact that  his  judicial  custody was extended by the

Court of competent jurisdiction until the pendency of

consideration of  the report/application for extension of  time

to file the charge­sheet, in law, it is unfathomable as to how

the  appellant could claim to  have  any  accrued right to  be

released on bail on the ground of default or for that matter,

such a right having become indefeasible.  

28

22. The legal position has been expounded by the

Constitution Bench of the Supreme Court in the case of

Sanjay Dutt  (supra), in particular, in paragraph 48 as under:    

“48. 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 provisions 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 provisions 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 CrPC 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. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if

29 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 : 1952 Cri LJ 656] ; Ram Narayan Singh v. State of Delhi [1953 SCR 652 : AIR 1953 SC 277 : 1953 Cri LJ 1113] and A.K. Gopalan v. Government of India [(1966)  2 SCR 427 :  AIR 1966 SC 816 :  1966 Cri  LJ 602].)”

(emphasis supplied)

Further, the conclusion articulated in paragraph 53, makes it

clear that the decision in  Hitendra Vishnu Thakur  (supra)

must be understood accordingly. It observed thus:  “53. As a result of the above discussion, our answers to the three questions of law referred for our decision are as under:

(1) xxx xxx xxx xxx

(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

30 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 investigation  is  being considered, is  alone sufficient for the purpose.   

(2)(b) The ‘indefeasible right’ of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from  the time of  default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. 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.  The right of  the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage.”   

The aforementioned opinion has been expressed by the

Constitution Bench in the context of question No.2 formulated

in paragraph 2 of the judgment as under:  

“2. The questions of law indicated in the said order of reference, to be decided by us, are three, namely:

31

(1)   xxx xxx xxx xxx

(2) The proper construction of clause (bb) of sub­section (4) of Section 20 of the TADA Act indicating the nature of right of  an accused to be released on bail thereunder, on the default to complete investigation within the time allowed therein;  

(3)  xxx xxx xxx xxx”

23. It is thus clear that no right had accrued to the appellant

before filing of the charge­sheet; at best, it was an inchoate

right until 8th  March, 2017. Resultantly, the question of

granting statutory bail after filing of charge­sheet against the

appellant and moreso during the pendency of

report/application for extension  of time to file charge­sheet

was impermissible. In other words, the application for grant of

statutory bail filed by the appellant on 2nd March, 2017, even if

pending, could have been taken forward only if the prayer for

extension of period was to be formally and expressly rejected

by the Court.  

24. As  held  by the  Constitution  Bench  of this  Court, the

consideration  of  application for  grant  of statutory  bail in  a

situation, as in the present case, was dependent on rejection

32 of prayer of the Additional Public Prosecutor for extension of

time.  When such prayer is made, it is the duty of the Court to

consider the report/application for extension of period for

filing of the charge­sheet in the first instance; only if it was to

be rejected could the prayer for grant of statutory bail be taken

forward.  In no case, the hearing on statutory bail application

precede the consideration of prayer for extension of the period

for  filing of the charge­sheet made by the Additional  Public

Prosecutor.   

25. The Constitution Bench decision in  Sanjay Dutt’s  case

(supra)  also answers the next issue raised by the appellant

about the absence of a valid remand/detention. In that, in the

concluding part of the afore­quoted paragraph 48, the Court

has opined that a petition seeking a writ of habeas corpus on

the ground of absence of a valid order of remand or detention

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.

Admittedly, in the  present  case, the judicial  custody of the

33 appellant was extended by the Court of competent jurisdiction

from time to time pending consideration of request to extend

time to file charge­sheet, initially from 28th February, 2017, till

1st March 2017 and so continued from 1st March, 2017, until

7th  March, 2017, and again from 7th  March, 2017, till 8th

March, 2017 ­ on which date the charge­sheet was filed

against the appellant in the Court. The order passed by the

Special Court on 8th March, 2017, has been so construed by

the  High Court  and additionally  by  explicitly extending the

period for filing of the charge­sheet against the appellant until

8th March, 2017.   We find no error in that approach of the

High Court. No interference is warranted in that regard.

26. The appellant, however, relies on the observations in

Uday Mohanlal Acharya  (supra) rendered by a three­Judge

Bench of this Court. In the said case, the accused had himself

surrendered in Court and was remanded to judicial custody.

The  period for filing  of charge­sheet (60  days in that  case)

expired on 16th  August, 2000. The accused moved an

34 application on 17th August, 2000, for grant of statutory bail on

the ground of default in filing of charge­sheet within the

statutory period of 60 days.  That bail application was rejected

by the Magistrate on the same day, holding that the provisions

of Section 167(2) of Cr.P.C. had no application to the cases

pertaining to the special enactment i.e. Maharashtra

Protection of Interest of Depositors (in Financial

Establishments) Act, 1999. The accused then approached the

High Court.  When  the  matter  was pending before the  High

Court, charge­sheet was filed before the Trial Judge on 30th

August, 2000. The High Court refused to grant relief on the

ground that by the time the High Court could consider the

correctness of the order on the statutory bail application

passed by the competent Court, a charge­sheet was filed

against the accused before the Magistrate and, therefore, the

so called enforceable right did not survive or remained

enforceable.   In this backdrop, this Court considered the

matter and answered the issue in favour of the accused on the

35 finding that before the charge­sheet was filed, the accused had

invoked the remedy of statutory bail. Thus, the factum of filing

of charge­sheet subsequently cannot defeat the right accrued

to him. In the present case, before the appellant instituted the

subject application for grant of statutory bail  on 2nd  March,

2017, the Additional Public Prosecutor had already filed his

report/application for extending the period for filing of charge­

sheet against the appellant until 15th  March, 2017, but

decision thereon was deferred.   As held by the Constitution

Bench in the case of  Sanjay Dutt  (supra), unless the

report/application filed by the Additional Public Prosecutor for

extension of time was rejected, no right would accrue in favour

of the accused much less to consider his application for grant

of statutory bail. Further, in such cases it is the duty of the

concerned Court to first deal with the prayer for extension of

period to file charge­sheet made by the Additional Public

Prosecutor. The High Court, in the impugned judgement, thus

answered the issue against the appellant and additionally

36 considered the justness of the prayer made by the Additional

Public Prosecutor for extension of period for filing charge­

sheet. It recorded an express finding that the said request was

genuine and appropriate and thus extended the time for that

purpose till 8th March, 2017.  

27. Reverting to the decision in the case of  Nirala Yadav

(supra) rendered  by two­Judge  Bench, the  accused in that

case was arrested and sent to judicial custody on 5th

December, 2006. After  lapse   of  the statutory period of 90

days on 14th  March, 2007, the accused  filed application  for

grant of statutory bail on the ground of default. The

prosecution (CBI),  however, on 15th  March, 2007, moved an

application for extension of time for a period of 30 days.  Since

the application for grant of statutory bail filed by the accused

preceded  the filing  of  application for  extension  of time, the

issue was answered in favour of the accused. In the present

case, however, the prayer for extension of period for filing

charge­sheet was moved by the Additional Public Prosecutor

37 before the statutory period had lapsed, but the same remained

pending until 8th March, 2017, when charge­sheet was filed in

Court. Until the said request was formally and expressly

rejected by the competent Court, in view of the exposition in

the case of  Sanjay Dutt  (supra), the concerned Court could

not have assumed jurisdiction to consider the prayer for grant

of statutory bail of the appellant.   The request made by the

Additional Public Prosecutor was formally disposed of as

infructuous on 8th March, 2017, after filing of the charge­sheet

against the appellant. That was not an order of rejection of the

request of the Additional Public Prosecutor as such. The High

Court has examined this aspect and, in our opinion, rightly

answered the issue against the appellant for the reasons

recorded in paragraphs 75 to 77 of the impugned judgment,

including by explicitly extending the time to file charge­sheet

till 8th March, 2017.We affirm the said view of the High Court.

Therefore, even this decision relied upon by the appellant will

be of no avail in the fact situation of the present case.  

38

28. Taking overall view of the matter, therefore, it is noticed

that the Additional Public Prosecutor had submitted his report

to the concerned Court  for extending time until  15th  March,

2017, to file the charge­sheet. That report was submitted on

28th  February, 2017, before expiry of the initial statutory

period of  90  days for filing  of the  charge­sheet  against the

appellant. That request was disposed of by the Special Court

on 8th  March, 2017 as infructuous, after the charge­sheet

against the appellant was submitted in Court. Until 8th March,

2017, the appellant was sent to judicial custody by the

competent Court pending consideration of request of the

Additional Public Prosecutor for extension of time to file the

charge­sheet. The Court, in law, could not have considered the

prayer for grant of statutory  bail of the  appellant  until  8th

March, 2017, on which date the charge­sheet was already filed

against the  appellant in the concerned  Court.  Further, the

High Court considered the circumstances in which the order

came to be passed by the Special Court on 8th March, 2017. In

39 our  opinion, it rightly  held  that the  said  request  could  not

have been closed as having become infructuous.   Rather,  it

was the duty of the Court to decide the request on its merits

and only upon its rejection, proceed to consider the prayer for

grant of statutory bail. The High Court, therefore, noticed that

it had two options: first, to remit the  matter back to the

Special Court for a proper decision on the said report of the

Additional Public Prosecutor dated 28th  February, 2017 or

second, to consider the same itself and pass appropriate

orders thereupon.  It chose to adopt the second option, which

was thought desirable and not objected to by the appellant as

can be discerned from the noting in paragraph 75 of the

impugned judgment.  The High Court, in paragraph 76 of the

impugned judgment, then proceeded to consider the prayer for

extension of time made in the report submitted by the

Additional Public Prosecutor on 28th February, 2017, and, for

tangible reasons, found the same to be genuine and

appropriate. Having thus held, it allowed the said request by

40 extending the time to file charge­sheet till 8th March, 2017.  We

find  no infirmity in the said approach of the  High  Court.

Having extended the time till 8th  March, 2017 and as the

charge­sheet was already filed on that date, the question of

considering the prayer for grant of statutory bail of the

appellant vide application dated 2nd  March, 2017, on the

ground of  default,  did not  survive  for further consideration.

Right to grant of statutory bail  would have enured to the

accused only after rejection of the request for extension of time

prayed by the Additional Public Prosecutor. As a result, the

High Court rightly rejected the prayer for grant of statutory

bail pursued by the appellant vide application dated 2nd

March, 2017.   We are in full agreement with the said

conclusion reached by the High Court.  

29. A priori, these appeals must fail.  Indeed, rejection of the

prayer for grant of statutory bail will not come in the way of

the appellant in pursuing his remedy for grant of regular bail

41 on merit.   The appellant is free to pursue that remedy which

may be considered on its own merits in accordance with law.  

30. Accordingly, these appeals are dismissed being devoid of

merits.  

.………………………….CJI.    (Dipak Misra)

…………………………..….J.                  (A.M. Khanwilkar)

  …………………………..….J.               (Dr. D.Y. Chandrachud)

New Delhi; January 31, 2018.