SAYED MOHD. AHMED KAZMI Vs STATE, GNCTD .
Case number: Crl.A. No.-001695-001697 / 2012
Diary number: 28716 / 2012
Advocates: Vs
B. V. BALARAM DAS
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REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1695-1697 OF 2012 (@ S.L.P.(CRL) NOS.6965-6967 OF 2012)
SAYED MOHD. AHMED KAZMI … APPELLANT Vs.
STATE, GNCTD & ORS. … RESPONDENTS
O R D E R
ALTAMAS KABIR, CJI.
1. Leave granted.
2. These appeals arise out the judgment and orders
dated 2nd July, 2012, 6th July, 2012 and 6th August,
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2012, passed by the Delhi High Court in Crl. M.C.
No.2180 of 2012.
3. By virtue of the first order dated 2nd July,
2012, the High Court issued notice on the question
whether the Court of the Chief Metropolitan
Magistrate was competent to remand the accused
beyond 15 days for offences under the provisions of
the Unlawful Activities (Prevention) Act, 1967.
Notice was also issued to the learned Additional
Solicitor General since the case involved
interpretation of the provisions of the National
Investigation Agency Act, 2008, the Code of
Criminal Procedure, 1973 and the abovementioned
Unlawful Activities (Prevention) Act, 1967.
Proceedings pending before the learned Additional
Sessions Judge, Central-II, Delhi, in CR No.86 of
2012, were also stayed till the next date of
hearing and the matter was directed to be listed on
9th October, 2012. By a subsequent order dated 6th
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July, 2012, the High Court modified its earlier
order and directed the Chief Metropolitan
Magistrate to extend the remand of the accused and
to take cognizance of offences under the Unlawful
Activities (Prevention) Act, 1967. By yet another
order dated 6th August, 2012, the High Court
rejected the Appellant’s prayer for early hearing
of the matter indicating that in view of the heavy
board of the Court it was not possible to
accommodate the Appellant’s request for early
hearing.
4. Although, the Special Leave Petition was
directed against the said three orders, during the
hearing thereof, another question of substantial
importance surfaced when on behalf of the Appellant
an application, being Crl. M.A. No.19883-85 of 2012
for grant of statutory bail under Section 167(2)
Cr.P.C. was filed, and was taken up for hearing
along with the appeal.
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5. Appearing in support of the Appeals, Mr.
Mehmood Pracha, learned Advocate, urged that on 13th
February, 2012, the police registered FIR No.4 of
2012 in respect of offences alleged to have been
committed under Sections 307, 427 and 120-B of the
Indian Penal Code in connection with an explosion
involving an Israeli Embassy vehicle carrying the
wife of an Israeli Diplomat which had occurred at
about 3.15 p.m. at the Aurangzeb Road/Safdarjung
Road crossing. The alleged offences were later
amended to cover Sections 16 and 18 of the Unlawful
Activities (Prevention) Act, 1967.
6. On 6th March, 2012, the Appellant, Sayed Mohd.
Ahmed Kazmi, was apprehended by some unidentified
men in plain clothes from outside the Indian
Islamic Culture Centre at Lodhi Road at about 11.30
p.m. He was produced before the learned Chief
Metropolitan Magistrate on 7th March, 2012, who
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remanded him to 20 day police custody, subject to
certain conditions. On 25th March, 2012, the
Investigating Agency completed its investigation,
two days prior to the expiry of the 20 day remand
period, and the learned Magistrate was informed
that no further custodial interrogation of the
Appellant was required. Consequently, the Appellant
was sent to judicial custody for a further period
of 14 days.
7. On 28th March, 2012, a prayer for bail was made
on behalf of the Appellant under Section 437
Cr.P.C. The said application was heard, but the
Appellant’s prayer for bail was rejected on 3rd
April, 2012. In between various other proceedings
were taken with regard to the inspection of the
damaged car.
8. On 2nd June, 2012, the Appellant was produced
before the Chief Metropolitan Magistrate, since his
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90 days’ period of custody was to expire on 3rd
June, 2012, and further custody of 90 days’ was
sought for by the prosecution. The learned
Magistrate by his order dated 2nd June, 2012,
extended the period of investigation and the
custody of the Appellant by another 90 days. The
said order dated 2nd June, 2012, was challenged by
the Appellant by way of CR No.86 of 2012 which came
up for consideration before the learned Additional
Sessions Judge on 8th June, 2012. The learned
Additional Sessions Judge, inter alia, held that it
was only the Sessions Court and not the Chief
Metropolitan Magistrate which had the competence to
even extend the judicial custody of the accused and
to entertain cases of such nature.
9. On 22nd June, 2012, the Appellant was produced
before the learned Chief Judicial Magistrate for
extension of his custody. However, on behalf of the
Appellant, an application had been made under
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Section 167(2) Cr.P.C. on 17th July, 2012, seeking
default bail as no charge-sheet had been filed
within the 90 day period of the Appellant’s
custody. The said application was dismissed by the
learned Magistrate despite the observations made by
the Additional Sessions Judge in his order of 8th
June, 2012.
10. The matter was, thereafter, referred by the
learned Chief Metropolitan Magistrate to the
District and Sessions Judge who directed that the
judicial custody of the Appellant be extended till
3rd July, 2012. On 30th June, 2012, without serving
any notice to the Appellant, the State filed Crl.
M.C. No.2180 of 2012 under Section 482 Cr.P.C.
before the High Court questioning the validity of
the order passed by the learned Additional Sessions
Judge on 8th June, 2012. By its order dated 2nd July,
2012, the High Court stayed the observations of the
Additional Sessions Judge, Central II, Delhi, in CR
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No.86 of 2012. The Appellant’s application for
grant of statutory bail could not, therefore, be
taken up by the Additional Sessions Judge till the
High Court on 13th July, 2012, vacated the stay in
respect of the proceedings in CR No.86 of 2012,
subject to an undertaking to be given that the
question of law involved would not be agitated and
the revision would be restricted only to the
factual aspects of the case. In that context, on
the same date, the counsel for the Appellant moved
another application before the learned Chief
Metropolitan Magistrate under Section 167(4)
Cr.P.C. and the same was listed for consideration
on 17th July, 2012. In the meantime, on 16th July,
2012, CR No.86 of 2012 which had been filed by the
Appellant came up for final arguments and on 17th
July, 2012, the Additional Sessions Judge allowed
the application and held that the custody of the
Appellant was illegal.
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11. In view of the order passed by the Additional
Sessions Judge declaring the Appellant’s custody to
be illegal, on the same day, counsel for the
Appellant appeared before the Chief Metropolitan
Magistrate and the application under Section 167(2)
Cr.P.C. was listed for hearing, but, instead of
hearing the application on the said date, the Chief
Metropolitan Magistrate renotified the hearing for
18th July, 2012.
12. On 18th July, 2012, the State filed a fresh
application before the Chief Metropolitan
Magistrate seeking further extension of the
Appellant’s custody and the investigation period.
On receiving the said application, the learned
Chief Metropolitan Magistrate directed a copy of
the said application to be served on the counsel
for the Appellant and renotified the matter for
hearing on 20th July, 2012.
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13. On 20th July, 2012, the Chief Metropolitan
Magistrate took up the application for extension of
custody filed on behalf of the prosecution instead
of considering the Appellant’s application under
Section 167(2) Cr.P.C. and by his order of even
date, the learned Chief Metropolitan Magistrate
extended the time of interrogation and custody of
the Appellant for 90 days with retrospective effect
from 2nd June, 2012.
14. The aforesaid order of the learned Chief
Metropolitan Magistrate was challenged by the
Appellant by way of CR No.86 of 2012 in the
Sessions Court. The Additional Sessions Judge in
his order of 30th July, 2012, observed that the said
revisional application involved mixed questions of
law and fact and adjourned the matter till 12th
October, 2012. In the meantime, on 31st July, 2012,
the prosecution filed charge-sheet. This was
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followed by the Appellant’s application before the
High Court in Crl. M.A. No.13484 of 2012 for early
hearing, on which the High Court made the
observation that on account of the heavy board of
the Court it was not possible to accommodate the
request for early hearing and the matter was
renotified to 9th October, 2012, which is the
impugned order in these appeals.
15. Appearing for the Appellant, Mr. Mehmood
Pracha, learned Advocate, contended that once the
period of 90 days, as stipulated under clause (a)
(i) of the proviso to Subsection (2) of Section 167
Cr.P.C., came to an end, the right of a person
arrested in connection with the commission of an
offence to be released on statutory bail commenced
and could not be extinguished by a subsequent
application for extension of the period of custody.
Mr. Pracha submitted that on 17th July, 2012, the
Appellant’s custody was held to be illegal by the
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Additional Sessions Judge in CR No.86 of 2012 and
on the same day, the Appellant’s application under
Section 167(2) Cr.P.C. was pending hearing before
the learned Chief Metropolitan Magistrate, who,
however, did not hear the application and
renotified the hearing for 18th July, 2012. The
fact that the application stood renotified for the
next day, did not take away the fact that the
application was pending on 17th July, 2012, when the
period of custody of the Appellant had not only
ended, but had been declared to be illegal. Mr.
Pracha submitted that the application of 18th July,
2012, filed on behalf of the prosecution for
extension of the period of custody, which was
allowed by the learned Chief Metropolitan
Magistrate on 20th July, 2012, without considering
the Appellant’s application under Section 167(2)
Cr.P.C. and the subsequent extension of time of
investigation and custody of the Appellant with
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retrospective effect from 2nd June, 2012, did not
improve the matter to any extent, as far as the
prosecution is concerned, since on the expiry of
the first period of custody beyond 90 days, there
was no application pending for extension of the
period of custody, as contemplated under the
amended provisions of Section 167(2) Cr.P.C.
16. At this juncture, it may be useful to indicate
that the provisions of Section 167(2) of the Code
were modified by virtue of Section 43D of the
Unlawful Activities (Prevention) Act, 1967. The
modification of the provisions of Section 167(2)
Cr.P.C. by virtue of Section 43D of the aforesaid
Act is extracted hereinbelow :-
“43D. Modified application of certain provisions of the Code. - (1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code, and
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"cognizable case" as defined in that clause shall be construed accordingly.
(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) the references to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days" respectively; and
(b) after the proviso, the following provisos 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:
Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for
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doing so and shall also explain the delay, if any, for requesting such police custody.".
17. By virtue of the aforesaid modification to the
provisions of Section 167(2) Cr.P.C., the period of
90 days stipulated for completion of investigation
and filing of charge-sheet, was modified by virtue
of the amended proviso, which indicated that if the
investigation could not be completed within 90 days
and if the Court was satisfied with the report of
the Public Prosecutor indicating the progress of
the investigation and the specific reasons for
detention of the accused beyond the period of 90
days, extend the said period upto 180 days. In
other words, the custody of an accused could be
directed initially for a period of 90 days and,
thereafter, for a further period of 90 days, in all
a total of 180 days, for the purpose of filing
charge-sheet. In the event the charge-sheet was not
filed even within the extended period of 180 days,
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the conditions directing that the accused persons
shall be released on bail if he is prepared to do and does furnish bail, would become operative.
18. Mr. Pracha submitted that in the instant case
on 17th July, 2012, when the Appellant’s initial
custody was held to be illegal, the right of the
Appellant to grant of statutory bail under clause
(a)(ii) of Sub-section (2) of Section 167 became
operative and the Appellant became entitled to
grant of statutory bail and the mere fact that on a
subsequent application for extension of the period
of custody, such custody was extended, was
immaterial and was of no consequence, as had been
contended in the High Court on behalf of the
prosecution.
19. In support of his submissions, Mr. Pracha
referred to and relied upon a Three-Judge Bench
decision of this Court in Uday Mohanlal Acharya Vs.
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State of Maharashtra [(2001) 5 SCC 453], wherein
while referring to the earlier decision of this
Court in the case of Sanjay Dutt Vs. State through
CBI [(1994) 5 SCC 410], this Court interpreted the
expression “if not already availed of” to mean that
the Magistrate has to dispose of an application
under Section 167(2) forthwith and on being
satisfied that the accused had been in custody for
the specified period, that no charge-sheet had been
filed and that the accused was prepared to furnish
bail, the Magistrate is obliged to grant bail, even
if after the filing of the application by the
accused a charge-sheet had been filed. Mr. Pracha
submitted that so long as an application was
pending before a charge-sheet had been filed after
the expiry of the stipulated period for filing of
charge-sheet, the accused had an indefeasible right
to be released on statutory bail, as contemplated
under the proviso to Section 167(2) Cr.P.C. Mr.
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Pracha submitted that the aforesaid decision was ad
idem with the facts of the instant case, wherein
the Appellant’s application for grant of statutory
bail was pending on the day when the Appellant’s
custody was declared to be illegal by the
Additional Sessions Judge.
20. Mr. Pracha submitted that the order passed by
the learned Chief Metropolitan Magistrate as also
the High Court, were not sustainable, having been
made in contravention of the provisions of Section
167(2) Cr.P.C. and were, therefore, liable to be
set aside and the Appellant was entitled to be
released on statutory bail.
21. On the other hand, learned Additional Solicitor
General, Mr. Harin P. Raval, contended that there
had been no breach of the provisions of Section
167(2) Cr.P.C. as the right of the Appellant for
grant of statutory bail stood extinguished once the
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application for extension of the time for
completing investigation had been filed by the
prosecution on 18th July, 2012. Mr. Raval contended
that it was settled law that if an accused did not
avail of the remedy contemplated under Section
167(2) Cr.P.C. before the charge-sheet was filed,
such right was no longer indefeasible and was
rendered nugatory upon filing of the charge-sheet.
22. In support of his submissions, the learned
Additional Solicitor General referred to the
Constitution Bench decision of this Court in the
case of Sanjay Dutt (supra), wherein the aforesaid
proposition of law was considered. The learned
Additional Solicitor General submitted that it had
been held by the Constitution Bench that in matters
relating to the Terrorist and Disruptive Activities
(Prevention) Act, 1987, default in completion of
investigation within 180 days gave the accused an
indefeasible right to bail, but the time of default
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continues till the filing of the challan, but does
not survive thereafter. It was held that after
filing of the challan, grant of bail would have to
be decided on merit. Reference was also made to
the decision of this Court in Dr. Bipin Shantilal
Panchal v. State of Gujarat [(1996)1 SCC 718], in
which the same legal position was reiterated.
23. The learned Additional Solicitor General
submitted that once the period for completing
investigation was extended on 18.7.2012 and the
Appellant’s application, if any, for statutory bail
remained undecided, by virtue of the ratio of the
decisions in the case of Sanjay Dutt (supra) and
the subsequent case of Dr. Bipin Shantilal Panchal
(supra), the right, if any, of the Appellant for
grant of statutory bail was rendered null and void.
The learned Additional Solicitor General,
therefore, submitted that no interference was
called for in the order passed by the learned
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Additional Sessions Judge and also of the High
Court and the appeal was liable to be dismissed.
24. Having carefully considered the submissions
made on behalf of the respective parties, the
relevant provisions of law and the decision cited,
we are unable to accept the submissions advanced on
behalf of the State by the learned Additional
Solicitor General, Mr. Raval. There is no denying
the fact that on 17th July, 2012, when CR No.86 of
2012 was allowed by the Additional Sessions Judge
and the custody of the Appellant was held to be
illegal and an application under Section 167 (2)
Cr.P.C. was made on behalf of the Appellant for
grant of statutory bail which was listed for
hearing. Instead of hearing the application, the
Chief Metropolitan Magistrate adjourned the same
till the next day when the Public Prosecutor filed
an application for extension of the period of
custody and investigation and on 20th July, 2012
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extended the time of investigation and the custody
of the Appellant for a further period of 90 days
with retrospective effect from 2nd June, 2012. Not
only is the retrospectivity of the order of the
Chief Metropolitan Magistrate untenable, it could
not also defeat the statutory right which had
accrued to the Appellant on the expiry of 90 days
from the date when the Appellant was taken into
custody. Such right, as has been commented upon by
this Court in the case of Sanjay Dutt (supra) and
the other cases cited by the learned Additional
Solicitor General, could only be distinguished
once the charge-sheet had been filed in the case
and no application has been made prior thereto for
grant of statutory bail. It is well-established
that if an accused does not exercise his right to
grant of statutory bail before charge-sheet is
filed, he loses his right to such benefit once such
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charge-sheet is filed and can, thereafter, only
apply for regular bail.
25. The circumstances, in this case, however, are
different in that the Appellant had exercised his
right to statutory bail on the very same day on
which his custody was held to be illegal and such
an application was left undecided by the Chief
Metropolitan Magistrate till after the application
filed by the prosecution for extension of time to
complete investigation was taken up and orders were
passed thereupon.
26. We are unable to appreciate the procedure
adopted by the Chief Metropolitan Magistrate, which
has been endorsed by the High Court and we are of
the view that the Appellant acquired the right for
grant of statutory bail on 17th July, 2012, when his
custody was held to be illegal by the Additional
Sessions Judge since his application for statutory
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bail was pending at the time when the application
for extension of time for continuing the
investigation was filed by the prosecution. In our
view, the right of the Appellant to grant of
statutory bail remained unaffected by the
subsequent application and both the Chief
Metropolitan Magistrate and the High Court erred in
holding otherwise.
27. We therefore, allow the appeal, set aside the
order dated 20th July, 2012, passed by the Chief
Metropolitan Magistrate extending the time of
investigation and custody of the accused for 90
days, with retrospective effect from 2nd June, 2012,
and the orders of the High Court dated 2nd July,
2012, 6th July, 2012 and 6th August, 2012, impugned
in the appeal and direct that the Appellant be
released on bail to the satisfaction of the Chief
Metropolitan Magistrate, upon such conditions as
may be deemed fit and proper, including surrender
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of passport, reporting to the local police station,
and not leaving the city limits where the Appellant
would be residing without the leave of the Court,
so as to ensure the presence of the accused-
Appellant at the time of the trial.
…………………………………………………CJI. (ALTAMAS KABIR)
…………………………………………………………J. (SURINDER SINGH NIJJAR)
…………………………………………………………J. (J.CHELAMESWAR)
New Delhi, Dated: 19.10.2012.
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