REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.264 of 2019 [Arising out of SLP (CRL.) No.9199 of 2018]

THE STATE OF MAHARASHTRA ….Appellant

versus

SURENDRA PUNDLIK GADLING & ORS.        ….Respondents

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. Leave granted.

2. The  respondents/detenues  claimed  default  bail  in  view  of  the

failure  of  the appellant/State to file a charge-sheet  within ninety (90)

days, under the provisions of Section 43D of The Unlawful Activities

(Prevention) Act, 1967 (hereinafter referred to as the ‘said Act’) and also 1

for  seeking extension for  completion of investigation,  for  a period of

ninety  (90)  further  days,  in  a  manner  that  did  not  meet  with  the

requirements of the proviso to sub-section (2)(b) of Section 43D of the

said Act. The latter has become an issue of contention inasmuch as it has

been argued that the endeavour of the State Government cannot be said

to  indicate  the  submission  of  a  ‘report  of  the  Public  Prosecutor’,

specifying reasons for detention beyond the period of ninety (90) days.

3. An  F.I.R.  was  lodged  by  one  Tushar  Ramesh  Damgude  on

8.1.2018  at  Vishrambaug  Police  Station,  Pune  under  Sections  153-A,

505(1)(b), 117, & 34 of the Indian Penal Code, 1860, seeking to report an

incident that occurred at Shaniwarwada, Pune on 31.12.2017.  It has been

alleged  that  between  2:00  p.m.  and  10:00  p.m.,  on  31.12.2017,  at

Shaniwarwada,  Pune,  members of  the ‘Kabir  Kala Manch’,  under  the

head ‘Bhima Koregaon Shouryadin Prerna Abhiyan’, held a meeting of

the Elgar Parishad, where active members of CPI (Maoist) supposedly

raised inflammatory slogans and engaged in certain other allied activities,

with the intention to conspire, incite and abet the commission of terrorist

acts  and  other  unlawful  activities  by  using  violent  means,  thus,

promoting enmity between different groups, which ultimately culminated

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in the break-out of violent riots on 1.1.2018, at a place popularly known

as Bhima Koregaon, where a large population of people was said to have

gathered  to  celebrate  the  200th anniversary  of  the  battle  at  Bhima

Koregaon.  In the process of  investigation, the police alleged that  the

accused persons,  along with other  accused are active members of  the

banned organisation, CPI (Maoist), and that it was under the connivance,

guidance and directions of this banned organisation that the event of the

nature,  as  occurred  on  31.12.2017,  was  organised  through  a  frontal

organisation going by the name of ‘Kabir Kala Manch’.  In the search

and  seizure  operations  conducted,  respondents  were  found  to  be  in

possession  of  Naxalite  literature,  pamphlets,  letters,  correspondence,

audio-video electronic devices and other material, which were alleged to

be used for inciting people, to create violence and cause public disorder.

Some of the respondents were also stated to be financiers of the illegal

activity and it was also alleged that students from an eminent educational

institution were taken to the forest area, occupied by Maoist Guerrilla, to

meet underground Naxalites and indoctrinate and train them.  The entire

endeavour  was alleged to  be  an attempt  to  create  an atmosphere that

would motivate minority groups against the Union of India and the State

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of  Maharashtra  and  create  public  disorder,  aimed  at  vilifying  the

sovereignty, security and integrity of the nation and striking terror in the

heart of peaceful citizens.  It is in pursuance of such investigation and

material found that offences under Section 120B of the IPC along with

Sections 13, 16, 17, 18, 18B, 20, 38, 39 & 40 of the said Act came to be

added to the charges.

4. After the initial police custody, judicial custody of the respondents

was sought,  for  a  period of  90  days,  for  completion of  investigation,

which period came to an end on 3.9.2018.  The proviso to Section 43D(2)

(b) of the said Act was pressed into service for seeking an extension of

custody by another 90 days.  The relevant provision reads as under: “43D. Modified application of certain provisions of the Code.—

xxxx xxxx xxxx xxxx xxxx

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),—

xxxx xxxx xxxx xxxx xxxx

(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

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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:”

5. An  application  was  purportedly  preferred  by  the  Investigating

Officer (herein referred to as the ‘IO’), Dr. Shivaji Panditrao Pawar, on

30.8.2018,  which  was  submitted  through  the  District  Government

Pleader, Shivajinagar.  Reasons for extension of time were set out, i.e.,

non-receipt of some mirror images from the FSL in respect of electronic

devices, large-scale data collected requiring more time for analysis, bank

details of the accused and some other details not being received, further

inquiry  required  about  objectionable  contents  of  documents  and

correspondence  seized,  further  time  required  for  investigation  about

funds, further time also required to investigate whether there were some

other  accused,  etc.   It  appears  that  there  was  a  realisation  that  the

application may not meet the legal requirements for seeking an extension

of  time  for  investigation  and  thus,  on  the  same  day  itself,  another

application was submitted.  The title of the application suggests that it

was  submitted  by  the  State  of  Maharashtra  (through  the  Assistant

Commissioner of Police, Swargate Division, Pune City).  A perusal of the

document suggests that it is an application under Section 43D of the said

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Act, for an extension of a period of 90 days, for further investigation and

filing of charge-sheet in the said crime.  The grounds have been set out in

detail from sub-para (a) to (l).  At the end of the application, it has been

stated that it is filed by the applicant, and on the left side it is written

“Smt.  Ujwala  S.  Pawar,  District  Govt.  Pleader  &  Public  Prosecutor,

Pune”, who has appended her signature thereto.

6. An  order  regarding  this  application  was  passed  by  the  Special

Judge and the Additional Sessions Judge on 2.9.2018, acceding to the

request made in the application.  The order records that all the accused

persons and their counsel, the IO and the DGP were present in the Court

and that  arguments were submitted on behalf  of  the prosecution.  The

following  was  recorded  with  respect  to  the  accused,  “However,  the

accused persons and their counsels submitted that they are not willing to

submit anything.”  The case diary was perused and prima facie it is stated

to have revealed a collection of voluminous data in electronic form, some

of  which  showed  the  involvement  of  the  respondents  in  the  alleged

commission of the offence.  Such record, it was observed, had been sent

to the FSL and reports were awaited.  Some of the papers collected by the

IO also showed that students from Tata Institute of Social Science were

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taken by accused Mahesh Rao to a forest area of Maoist Guerilla, to meet

underground Naxalite and to train them.  Since the investigation was in

progress and at a crucial stage, and there had been certain progress in the

investigation, the period for investigation was extended beyond 90 days,

upto 180 days.

7. The aforesaid order was challenged in the writ petition, before the

Bombay High Court.  Vide impugned order dated 24.10.2018, the pleas

of  the respondents  found favour  with the learned single  Judge of  the

Bombay High Court inasmuch as on the basis of the records, a finding

was reached that the Public Prosecutor could not be said to have applied

his mind and, thus, the mandatory requirement of the proviso of clause

(b) of sub-section (2) of Section 43D of the said Act was not met.

8. Aggrieved by the said order,  the State of Maharashtra preferred

two SLPs before this Court, in which notice was issued and operation of

the order was stayed on 29.10.2018.

9. In the conspectus of the aforesaid facts, the sole question which

arises  for  consideration  is  whether  the  application  presented  on

30.8.2018,  under  the  proviso  to  Section  43D(2)(b)  of  the  said  Act,

conforms to the norms laid down by that provision, as enunciated in the

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judgments of this Court.

10. Mr. Mukul Rohatgi, learned Senior Counsel advanced submission

on behalf of the State Government/appellant while Dr. A.M. Singhvi, Ms.

Indira  Jaising  and Mr.  Anand Grover,  Senior  Advocates advanced the

case of the respondents.

11. We are setting forth the scope of the controversy under different

heads:

Respondents had never argued their case before the trial court:

12. Learned  senior  counsel  for  the  State  of  Maharashtra  sought  to

contend that the order sheet of the trial court itself shows that the counsel

for  the  respondents  and  the  respondents  present  refused  to  make

submissions  before  the  trial  court.   It  was  submitted  that  in  such  a

scenario, a writ petition filed by these respondents ought not to have been

entertained.

13. On  the  other  hand,  learned  senior  counsel  for  the  respondents

contended that the matter was not as simple as was sought to be made out

by learned senior counsel for the appellant.  In a nutshell, it was pleaded

that there was no sufficient opportunity given to present the case, as the

case of  the respondents was called for  on the very next day after the

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application was submitted before the Special Court, on 31.8.2018.  The

respondents were produced on 1.9.2018, when they were given copies of

the  application.   The  lawyers  were  stated  to  not  have  been  initially

available on 1.9.2018, since it was a Saturday.  A request was made for

adjournment  till  3.9.2018 (Monday),  which  undisputedly  was  the  last

day, but that request was declined and the matter was listed on 2.9.2018.

Certain other allegations have also been made.

14. We are of the view that nothing much turns on the aforesaid plea

as the High Court, in its wisdom, decided to consider the merits of the

controversy.  The appellant/State having approached the Special Court at

the last minute did create a scenario before the Court where an endeavour

was made to complete the proceedings, in respect of the matter in issue,

within the next two days.  At this stage, the respondents cannot be denied

the benefit of advancing their case, the High Court having considered

their case on merits.

Whether the necessary ingredients of the proviso to Section 43D(2)(b) of the said Act were set out in the application submitted:

15. A perusal  of  the  proviso  to  Section  43D(2)(b)  of  the  said  Act

shows that there are certain requirements that need to be fulfilled, for its

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proper application.  These are as under: a. It has not been possible to complete the investigation within the

period of 90 days. b. A report to be submitted by the Public Prosecutor. c. Said  report  indicating  the  progress  of  investigation  and  the

specific reasons for detention of the accused beyond the period

of 90 days. d. Satisfaction of the Court in respect of the report of the Public

Prosecutor.

16. The  document  which  purports  to  be  the  report  of  the  Public

Prosecutor is, in the case before us, in the form of an application under

Section 43D of the said Act.  A perusal of the contents of the document

shows that the development and progress in the investigation have been

set out.  The developments leading to the incident have also been so set

forth.  A perusal of the grounds shows that the allegation is that all the

respondents  are  active  members  of  the  banned  organisation,  CPI

(Maoist).   In  the  course  of  investigation,  documents,  pen drives,  CD,

DVD,  etc.  were  seized  and  the  electronic  records  were  sent  to  FSL,

Mumbai, for its report, which was still awaited.  The data was stated to

be  voluminous  and  further  investigation  was  also  required  into  the

funding of the accused persons.  The criminal conspiracy was stated to be

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spread over a number of cities, which needed further investigation, and

financial details of the respondents were still being ascertained.  Further,

investigation into the telephonic interconnection between the respondents

and other ‘absconding and underground accused persons’ and also into

the  attempt  to  train  young students  were  also  set  out  as  grounds  for

seeking the extension.  It was also set out that, upon completion of the

investigation, permission under Section 45 of the said Act is sought for

sanction of prosecution for filing the charge-sheet.

17. We  are  unable  to  accept  the  plea  advanced  on  behalf  of  the

respondents that the material set out in the document does not meet with

the  requirements  of  the  proviso,  insofar  as  the  reasons  for  seeking

extension for the period of investigation are concerned.

18. The troublesome aspect, however, in the present case, to be dealt

with by us, is the issue whether the document submitted, itself, can be

said to be one which is really a report of the Public Prosecutor, meeting

the requirements of what the Public Prosecutor is required to do as per

the proviso to Section 43D(2)(b) of the said Act.

Analysis  of  the  document  purporting  to  be  the  report  of  the  Public Prosecutor:

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19. The facts in respect of the controversy are broadly not in dispute.

It has been mentioned earlier that initially, on 30.8.2018, an application

was submitted by the IO through the Public Prosecutor, setting out the

reasons  for  seeking  extension  of  ninety  (90)  days,  to  complete  the

investigation under the said Act.  The submission of Mr. Mukul Rohatgi,

learned Senior Counsel for the appellant is that on the issue being visited

in greater  depth on the same day,  by the Public  Prosecutor,  a  second

document was filed, which is, in fact, the report of the Public Prosecutor,

in terms of the provisions of Section 43D of the said Act.  A closer look

at  this  document  does  indicate  that  the  State  of  Maharashtra  is

represented  through  the  Assistant  Commissioner  of  Police,  Swargate

Division, Pune City, but according to the learned senior counsel it is only

a description of the representation.  The document also purports to be an

“application” under Section 43D of the said Act for extension of a period

of ninety (90) days for further investigation and the word “application” is

again  repeated  before the recital  of  facts.   The third factual  aspect  is

mentioned in para 10 of the application, which reads as under:

“10.  That  according to the provisions of  Section 43(D) (sic)  of UAPA Act, 1967, if the investigation pertaining to the said Act is not completed within the period of 90 days, then,  after filing the

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application/report by the investigation officer, the said period of 90  days  can  be  extended  up  to  the  period  of  180  days.   It  is submitted that the investigation of the said crime is in progress. That the investigation has not yet  completed and,  therefore,  the investigation  authority  approached  this  Hon’ble  Court  for extension of further period of 90 days on the following grounds:

GROUNDS

a. That  all  the  accused  are  the  active  members  of  banned organisation, i.e., C.P.I. (Maoist) and are having direct nexus of unlawful activities of the said organisation, viz., CPI (Maoist).

b. That, during the investigation, seized devised, document, pen drives,  CD,  DVD, hard  disk,  sim cards  and other  electronic records were sent to FSL Mumbai for its report and for mirror image of the data contained in the said electronic devices.  That the report from FSL is awaiting (sic).

c. That there is a voluminous data in the said electronic record which  requires  to  investigate  in  order  to  ascertain  the implementation of these unlawful activities not only in the State of Maharashtra, but in other States also and all over India.

d. That it is also necessary to investigate from where the funds are available to the accused persons which is utilised by the said accused  for  promoting the  unlawful  activities  of  the  banned organisation.

e. That  during  the  investigation,  it  is  also  revealed  that  the accused in pursuance of their criminal conspiracy engaged in the  unlawful  activities  of  banned  organisation  at  Delhi, Mumbai,  Nagpur,  Gadchiroli  and Chhattisgarh.   That  further investigation in this context has yet to complete.

f. That it is necessary to ascertain the details of Bank Account of all  the  accused persons  as  well  as  their  transactions  in  their respective accounts.

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g. That it is revealed during the investigation through seized CDR reports of mobile phones of the accused persons that they are in communication with each other as well as with the absconded and  underground  accused  persons.   That  investigate  (sic) pertaining to the said communication is yet to be completed.

h. That  during  the  investigation,  it  is  revealed  and  (sic.)  the students  from Tata Institute  of  Social  Science  Mumbai  were taken  by  accused  Mahesh  Rao  safely  and  secretly  to  forest areas  of  Maoist  Guerilla  to  meet  absconding  underground Naxalite and to train them.  The investigation in this respect is in progress.

i. That  the  accused  persons  are  having  their  own  Facebook accounts  and  e-mails.   That  investigation  regarding  the  said Facebook  account  as  well  as  e-mail  communications  are  in progress.

j. That  after  the  arrest  of  accused  P.  Vara  Vara  Rao,  Vernon Gonsalves & Arum Thomas Parera as well as Sudha Bhardwaj & Gautam Naulakha on 28.8.2018 the Naxalite material in the form of  electronic  record  seized from these  accused persons and  investigation  is  pertaining  to  the  said  seizure  of  the documents and electronic records is going on at FSL.

k. That  all  the accused persons  are  the masterminds  of  banned organisation  of  CPI  (Maoist)  and  were  found  involved  in commission  of  illegal  act  with  the  intention  to  commit  or advocate,  abate  (sic.)  and incite  people to  take  violence and create public disorder with intent to threaten the unity, integrity, security and sovereignty of India.  That investigation in respect of the same is yet to be completed.

l. After completion of the investigating (sic.) permission u/s 45 of Unlawful  Activities  (Prevention)  Act,  1967  sanction  for prosecution is required to be obtained for filing the charge sheet against all the accused persons.”

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(emphasis supplied by us)

20. The  averment  in  the  aforesaid  paragraph,  thus,  is  that  the

application/report was filed by the IO that the IO had approached the

Court for an extension of a period of further ninety (90) days to complete

the investigation.

21. Once again, in para 13 of the aforementioned document, a similar

averment is made about the IO approaching the Court.

22. Learned senior counsel for the appellant, however, contended that

this  was  more  a  question  of  format,  rather  than  of  substance.   His

contention  was  that  in  view  of  the  limited  period  of  time  left,  the

application  was  moved  on  an  urgent  basis  and  considering  the

seriousness of the matter, it should not be looked at technically but as a

matter  of  substance.   The  fact  that  the  Public  Prosecutor  had  duly

appended her signatures at the end of the application, and the very fact

that  there  were  changes  in  the  second  application,  from  the  earlier

application would show, as contended, that there has been application of

mind of  the Public  Prosecutor,  which is  the real  sine  qua non of  the

report to be made by the Public Prosecutor.

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23. It could not, however, be seriously disputed that the report of the

Public Prosecutor could have been worded better or that if the appellant

had approached the Court some time earlier, it would have been more

appropriate.  The alleged infirmities are, however, sought to be explained

away by learned senior counsel for the appellant by referring to certain

other facts, i.e., the mention of the progress of the investigation in the

report/application  and  the  fact  that  investigation  papers  were  indeed

submitted to the Public Prosecutor, the factum of filing of two separate

documents referred to aforesaid, indicating application of mind by the

Public Prosecutor, the mention of additional grounds in the subsequent

document submitted by the Public Prosecutor, etc.  It is the case of the

appellant that it was only after scrutinising the earlier application of the

even date that the Public Prosecutor filed the report, albeit in the form of

an application.

24. The crucial judgment relied upon, by both the sets of counsel for

the parties, is Hitendra Vishnu Thakur & Ors. v. State of Maharashtra

& Ors.1.  The accused  had  been  detained  under  the  Terrorist  and

Disruptive Activities (Prevention) Act,  1987 (hereinafter referred to as

the ‘TADA’).  The TADA was amended by the Amendment Act No.43 of

1 (1994) 4 SCC 602

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1993, which inter alia reduced the time for filing of a charge sheet from

one year to 180 days and also introduced a new clause (bb) in Section

20(4),  providing  for  grant  of  extension  of  time  for  completion  of

investigation and filing of challan on a report of the Public Prosecutor,

indicating the progress of the investigation and the specific reasons for

detention  by  the  designated  court,  subject,  however,  to  maximum

compulsory detention of one year.  Thus, the difference between this case

and the case before us is only in the periods insofar as in this case and the

said Act, the corresponding period for judicial custody for the purpose of

completion of investigation is 90 + 90 days.  In the case of  Hitendra

Vishnu  Thakur2, this  Court  had  faulted  the  report  submitted  by  the

Public Prosecutor,  to hold that  the parameters contemplated by clause

(bb) had not been met.

25. Mr. Mukul Rohatgi, learned senior counsel contended that the facts

relating to what was the report of the Public Prosecutor in that case and

the present case are different.  In this behalf, he invited our attention to

para 73 of  the judgment,  where the application had been reproduced.

The application was in the form of an affidavit of the IO.  At the bottom

of the application, it showed the same being signed by the IO, but with an

2 (supra)

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endorsement by the Public Prosecutor that it was identified before him.

It  was  found  that  the  designated  court  had  erred  in  treating  the

application  of  the  IO as  a  report  of  the  Public  Prosecutor,  where the

Public Prosecutor had merely identified the deponent of the affidavit (the

IO) and such identification, alone could not justify the application to be

treated as a report of the Public Prosecutor. It was sought to be contended

by Mr. Rohatgi that on the other hand, in the case before us, there had

been an actual application of mind of the Public Prosecutor, as witnessed

by the submission of two different applications before the Special Court,

and other reasons as aforementioned.  

26. On the other hand, Dr. A.M. Singhvi, sought to rely upon the same

facts as mentioned above, that the mere appending of the signatures by

the Public Prosecutor would not suffice and in fact the earlier document,

which was submitted by the IO was also signed by the Public Prosecutor.

The  submission,  thus,  was  that  the  Public  Prosecutor  was  merely

endorsing  what  the  IO  had  set  forth  in  the  application,  without  any

independent application of mind.  Not only that, learned senior counsel

drew our attention to the order passed by the trial court to contend that

the  designated  court  also  appears  to  have  treated  the  document  in

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question as an application for extension of period of investigation that

had been submitted by the IO.  Moreover, it was also argued that reasons

provided by the IO for an extension in the period of investigation did not

appears to be genuine.

27. Learned  senior  counsel  sought  to  emphasise  that  the  appellant

cannot get away from the requirements stipulated in the judgement of

Hitendra Vishnu Thakur,3 for a document to be treated as a report of the

Public  Prosecutor  and  the  mandatory  requirements  stipulated  in  this

context, in Section 20(4)(bb) of TADA.  In this behalf he referred to para

23 of the aforementioned judgement.

28. A perusal of the aforesaid paragraph shows that the emphasis laid

by this Court was on the legislature, in its wisdom, not leaving it to the

IO to make an application for  seeking an extension of  time from the

Court and, thus, requiring the investigating agency to submit itself to the

scrutiny of the Public Prosecutor, in the first instance, and satisfying him

about the progress of the investigation and furnishing reasons for seeking

further custody of an accused.  Otherwise, an accused could be kept in

continued detention, during unnecessarily prolonged investigation, at the

whims  of  the  police.   This  Court  also  emphasised  that  the  Public

3 (supra)

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Prosecutor is not a part of the investigating agency, but is an independent

statutory authority and, thus, is expected to independently apply his mind

to the request of the investigating agency, before submitting a report to

the Court for extension of time with a view to enable the investigating

agency to complete its  investigation.   Thus,  “He is not  merely a post

office or a forwarding agency.  A Public Prosecutor may or may not agree

with the reasons given by the investigating officer for seeking extension

of time and may find that  the investigation had not progressed in the

proper manner or that there has been unnecessary, deliberate or avoidable

delay in completing the investigation.  In that event, he may not submit

any report to the Court under clause (bb) to seek extension of time.”

29. The observations in para 23 also then go on to state that the Public

Prosecutor may attach the request of the IO along with his request or

application or report, but his report must disclose, on the face of it, that

he has applied his mind and has been satisfied with the progress of the

investigation  and  considered  a  grant  of  further  time,  to  complete  the

investigation, as necessary.  This report is not merely a formality, but is a

very vital report as it affects the liberty of an accused.  The request of an

IO for  extension of  time is  no substitute  for  the report  of  the Public

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Prosecutor.  We may notice that it has been very clearly set out that it is

not merely a question of the form in which the request for extension is to

be made, but one of substance, as it is to assist the designated court to

independently decide whether or not to grant such extension.  It cannot

be a mere presentation and forwarding of the request of the IO to the

Court.  The mere labelling of the document as a report or an application

was stated to be not of much consequence, but what was held to be of

consequence  was  that  there  could  not  be  a  mere  reproduction  of  the

application or request of the IO by the Public Prosecutor in his report,

without demonstration of the application of his mind and a recording of

his own satisfaction.

30. The  aforesaid  line  of  argument  was  supported  by  Mr.  Anand

Grover and Ms. Indira Jaising, learned senior counsels.  A reference was

also made to the judgment in Sanjay Kumar Kedia alias Sanjay Kedia v.

Intelligence Officer, Narcotics Control Bureau & Anr.4

31. Insofar as the facts are concerned, the accused was arrested under

the Narcotic Drugs and Psychotropic Substances Act, 1985 and was kept

in detention for the initial period of 180 days.  The complaint was filed

4 (2009) 17 SCC 631

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just before the expiry of the statutorily stipulated one year period.  The

endeavour of the accused to seek bail post filing of the complaint did not

succeed and it  is  thereafter  that  an endeavour was made to assail  the

initial extension of detention on the ground that the report of the Public

Prosecutor did not meet the relevant test.  At that stage also, ultimately

the  Supreme Court  held  in  favour  of  the  accused by opining that  he

would be entitled to “default bail” relying on the judgment in Hitendra

Vishnu Thakur5.

32. A further plea sought to be advanced, on reliance upon the Sanjay

Kedia6 judgment,  was  that  “compelling  reasons”  are  required  to  be

disclosed  for  extension  of  time  beyond  180  days  and  that  no  such

compelling reasons have been disclosed in the present case.

33. In order to complete the recital of facts, we may note at this stage

that the charge sheet in the present case was filed on 15.11.2018, within

the extended period of 90 days and, thus, it is open to the respondents to

seek bail from the competent court; but then the contention of the counsel

for the respondents was based on the facts that if  the respondents are

entitled to default bail, they should not be compelled to go through the

5 (supra) 6 (supra)

22

rigours of applying for a regular bail, post filing of the charge sheet.

34. We have given our deep thought to the controversy in question.

35. There  is  no  doubt  that  the  report/application  of  the  public

prosecutor, setting out the reasons for extension of ninety (90) days of

custody to complete investigation leaves something to be desired.  The

first  document  placed  before  the  trial  court  was  an  application/report

filed by the IO, though that is also stated to contain the signature of the

public prosecutor.  The second document, which purports to be the report

of the public prosecutor, has also been filed in the form of an application.

There is repetition of  averments that  the IO is  approaching the court.

Para 10 of the second document again mentions that the investigating

authority had approached the court for an extension of a further period of

ninety (90) days on the grounds set out therein and the trial court also

appears to have treated the document in question as an application filed

by the IO.  A clarity in the form of a proper endorsement by the public

prosecutor  that  he  had  perused  the  grounds  in  the  earlier  document

submitted by the IO and, thus, was satisfied that a case had been made

out  for  extension  of  time  to  complete  the  investigation  would  have

obviated such a controversy.  But that is not to be.

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36. We may, however, notice that insofar as the existence of reasons

for such extension,  we have found that the same exist  in the detailed

grounds extracted aforesaid.  The first  document, purporting to be the

application of the IO, contains the reasons for such extended period of

investigation but the second document details out the grounds in extenso

and cannot be said to be only a mere reproduction of what is stated in the

first  document.   It  cannot,  thus,  be said that  there has been complete

absence of application of mind by the public prosecutor.

37. There is merit in the contention of the learned senior counsel for

the appellant/State that the question is more of substance than form, an

aspect  even emphasised in  Hitendra Vishnu Thakur7 case,  which has

been relied upon by learned counsel for both the parties.  The second

document in the form of an application has been filed on the same day.  It

is  not as if  the first  document,  which is an application of the IO was

withdrawn to file the second document, which purports to be the report

of the public prosecutor.  It is on the analysis of the first document that

the  second  document  has  been  filed,  albeit  both  containing  the

endorsement of the public prosecutor.  There are averments in the second

7 (supra)

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application referring to the progress of the investigation and the rejoinder

before  us  elucidates  that  the  public  prosecutor  had  the  benefit  of

scrutinising these papers.  There are additional and expanded grounds set

out in the second document.

38. Mr.  Mukul  Rohatgi,  learned  senior  counsel  appearing  for  the

appellant/State has rightly contended that there is a material difference in

the facts of the present case and those of Hitendra Vishnu Thakur8 case,

inasmuch as the application in that case was in the form of an affidavit of

the IO, whose signatures were identified by an endorsement of the public

prosecutor.   It  is  in  those  circumstances  it  was  held  that  mere

identification by the public prosecutor, of the deponent of the affidavit

could not justify the application to be treated as a report of the public

prosecutor.  In the present case, the second document contains a clear

endorsement of the public prosecutor in support of the averments made

therein.

39. No doubt, in para 23 of Hitendra Vishnu Thakur9 case, this Court

laid emphasis on the importance of the scrutiny by a public prosecutor so

as to not leave the detenu in the hands of the IO alone, being the police

8 (supra) 9 (supra)

25

authority.  The public prosecutor, thus, has the option to agree or disagree

with the reasons given by the IO for seeking extension of time but in the

facts  of  the  present  case,  the  second  document  in  the  form  of  an

application shows scrutiny of the first  document and thereafter details

grounds and expanded reasons  for  the  requirement  of  further  time to

complete the investigation.

40. Undoubtedly the request of an IO for extension of time is not a

substitute for the report of the public prosecutor but since we find that

there  has  been,  as  per  the  comparison  of  the  two  documents,  an

application of mind by the public prosecutor as well as an endorsement

by him, the infirmities in the form should not entitle the respondents to

the  benefit  of  a  default  bail  when  in  substance  there  has  been  an

application  of  mind.   The  detailed  grounds  certainly  fall  within  the

category of “compelling reasons” as enunciated in Sanjay Kedia10 case.

41. We are,  thus,  not  able  to  persuade  ourselves  to  agree  with  the

conclusions of the learned single Judge of the Bombay High Court in the

impugned order and hold that the respondents would not be entitled to

the benefit  of default  bail  and consequently the impugned order is set

aside.

10 (supra)

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42. We may,  however,  clarify  that  since  the  charge-sheet  has  been

filed, any observations made by us herein, would not,  in any manner,

affect the right of the respondents to seek regular bail from the trial court,

if  so advised,  which would be decided on its  own merits by the trial

court.

43. The appeal is allowed leaving the parties to bear their own costs.

..….….…………………….CJI. [Ranjan Gogoi]

...……………………………J. [L. Nageswara Rao]

...……………………………J. [Sanjay Kishan Kaul]

New Delhi. February 13, 2019.

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